KOAY AI SEE v. DR. CHAN KUNG NGAI AND ANOTHER

HCPI 727/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 727 OF 2011

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DECISION

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1. The plaintiff has brought this action against the 2^nd defendant, a general practitioner, and the 3^rd defendant, an ENT specialist, alleging that they were negligent in failing to diagnose her as suffering from Meniere’s Disease (“MD”) of the left ear by 26 February 2008 at the latest. The matter that is before me is the plaintiff’s application by notice of motion dated 28 January 2015 for an order for an injunction restraining the 2^nd and 3^rd defendants from relying on 3 privileged expert reports of Dr John K.S. Woo (“Dr Woo’s reports”) that had been obtained by the plaintiff. Copies of Dr Woo’s reports had been provided inadvertently by the plaintiff to the 2^nd and 3^rd defendants in the course of discovery. The plaintiff also required the 2^nd and 3^rd defendants to deliver up and return to the plaintiff’s solicitors all copies in their possession.

2. The 2^nd and 3^rd defendants accepted that Dr. Woo’s reports were documents in respect of which the plaintiff could have claimed legal professional privilege (“LPP”), but they opposed the plaintiff’s application on the ground that the privilege had been waived.

The issues raised on the pleadings

3. The plaintiff’s liability expert, Dr David East, in his report dated 4 December 2013, quoted from the Textbook of Audiological Medical (2003 edition), and explained[1] that MD probably occurs from:

“ … a combination of endocrine disorders, imbalance of autonomic nervous system, allergy, infections, vascular disorders, autoimmune disorders …, resulting in a rise of pressure within the inner ear, leading to sensorineural deafness and vertigo.”

The progression of MD is naturally unpredictable, with fluctuation in symptoms, eventually alleviating itself spontaneously with hearing stabilized at an impaired level[2].  

4. It is the plaintiff’s case that the alleged delay, from 20 February 2008 to 5 October 2009, until her diagnosis and treatment for this condition:

(1) caused her great pain, suffering and distress she would not otherwise have suffered; and

(2) aggravated and prolonged her injuries and condition,

in respect of which she claims damages[3].

5. In their defence, the 2^nd and 3^rd defendants deny that they were negligent as to diagnosis or treatment and they also deny that the plaintiff suffered great pain, suffering and distress she would not otherwise have had her condition been diagnosed in the period from 20 February 2008 to 5 October 2009 or that her injuries or condition were aggravated or prolonged by any failure to diagnose MD earlier[4].  There is also an express denial of causation, including an averment that an earlier diagnosis of MD would not have made any difference to the treatment or outcome[5].   

The Legal Principles

6. There is no dispute between the parties on the relevant legal principles.  In Guinness Peat Ltd v Fitzroy Robinson (CA) [1987] 1 WLR 1027, the plaintiff’s solicitors came into possession of a copy of a privileged document during inspection.  Slade LJ, with whom the other two judges agreed, stated[6] that:

“Ordinarily, in my judgment, a party to litigation who sees a particular document referred to in the other side’s list, without privilege being claimed, and is subsequently permitted inspection of the document, is fully entitled to assume that any privilege which might otherwise have been claimed for it has been waived. Let there be no doubt about that.”

Slade LJ, however, qualified this general principle, saying[7] that:

“If … the other party or his solicitor either (a) has procured inspection of the relevant document by fraud, or (b) on inspection, realises that he has been permitted to see the document only by reason of an obvious mistake, the court has the power to intervene for the protection of the mistaken party by the grant of an injunction in exercise of [its] equitable jurisdiction…” [My emphasis]

7. The guidance provided in the Guinness Peat case was elaborated upon and applied by the English Court of Appeal in Pizzey v Ford Motor Company Ltd [1994] PIQR P15 (CA) where the plaintiff’s solicitors, in the course of giving specific discovery, inadvertently provided the defendant’s solicitors with a copy of a medical report and letter from an expert, subject to LPP, in which the expert expressed the opinion, that was wholly adverse to the plaintiff’s case, that there was no causal connection between the accident in that case and subsequent development of a tumour in respect of which the plaintiff wished to claim damages[8].  Mann LJ, with whom the other two judges agreed, discussed[9] the “obvious mistake” exception to the general principle that privilege would be wholly lost by permitting the other party to see a document subject to LPP, and concluded as follows:

“If the mistake was evident to that person then the exception applies, but what of the case where it was not evident but would have been evident to a reasonable person with the qualities of the recipient? In this context the law ought not to give an advantage to obtusity, and if the recipient ought to have realised that a mistake was evident then the exception applies.” [my emphasis].

Mann LJ made it clear that the burden lies on the party seeking to restrain use to show that this test is met[10].  In applying the test in the case itself, Mann LJ took account of the fact that the recipient was a solicitor and the person dealing with the documents on the other side was known by her to be a solicitor[11] and concluded[12]:

“The hypothetical solicitor might have been surprised to receive the documents, but I am not persuaded on probabilities that she would have thought other than that her fellow professional had waived the privilege in the simple discovery that was being made …”

8. The relevant principles were helpfully summarised by Clarke LJ, as he then was, in Al Fayed v Commissioner of Metropolitan Police  [2002] EWCA Civ 780 as follows:    

“16. In our judgment the following principles can be derived from those cases:

i) A party giving inspection of documents must decide before doing so what privileged documents he wishes to allow the other party to see and what he does not.

ii) Although the privilege is that of the client and not the solicitor, a party clothes his solicitor with ostensible authority (if not implied or express authority) to waive privilege in respect of relevant documents.

iii) A solicitor considering documents made available by the other party to litigation owes no duty of care to that party and is in general entitled to assume that any privilege which might otherwise have been claimed for such documents has been waived.

iv) In these circumstances, where a party has given inspection of documents, including privileged documents which he has allowed the other party to inspect by mistake, it will in general be too late for him to claim privilege in order to attempt to correct the mistake by obtaining injunctive relief.

v) However, the court has jurisdiction to intervene to prevent the use of documents made available for inspection by mistake where justice requires, as for example in the case of inspection procured by fraud.

vi) In the absence of fraud, all will depend upon the circumstances, but the court may grant an injunction if the documents have been made available for inspection as a result of an obvious mistake.

vii) A mistake is likely to be held to be obvious and an injunction granted where the documents are received by a solicitor and:

a) the solicitor appreciates that a mistake has been made before making some use of the documents; or

b) it would be obvious to a reasonable solicitor in his position that a mistake has been made;

and, in either case, there are no other circumstances which would make it unjust or inequitable to grant relief.

viii) Where a solicitor gives detailed consideration to the question whether the documents have been made available for inspection by mistake and honestly concludes that they have not, that fact will be a relevant (and in many cases an important) pointer to the conclusion that it would not be obvious to the reasonable solicitor that a mistake had been made, but is not conclusive; the decision remains a matter for the court.

ix) In both the cases identified in (vii) a) and b) above there are many circumstances in which it may nevertheless be held to be inequitable or unjust to grant relief, but all will depend upon the particular circumstances.

(x) Since the court is exercising an equitable jurisdiction, there are no rigid rules.”

9. The same principles continue to apply here, post-CJR, as they continue to apply in England, post-CPR, albeit with the difference that, in England, the permission of the court is required to make use of the contents of a privilege document that has been inadvertently disclosed[13].  In Hong Kong the former practice prevails, namely, that the recipient may make use of such documents unless restrained by court from doing so.

The proceedings

10. Legal Aid was granted to the plaintiff on 19 September 2011 and Messrs Cheng Yeung & Co were assigned to act as her solicitors. A protective writ was issued on 11 October 2011 and the writ was served on 10 October 2012, a day before it expired.  On 26 October 2012, Messrs Cheng Yeung & Co wrote to Messrs Howse Williams Bowers (“Messrs HWB”), solicitors for the 2^nd and 3^rd defendants, informing them that the claim was still being investigated; and they sought the defendants’ solicitors’ agreement to stay the proceedings for 3 months.  The latter responded by letter dated 5 November 2012, agreeing to the stay and noting that the plaintiff had already obtained expert evidence. A joint letter was sent to the PI Master on 9 November 2012, informing the court, inter alia, that the plaintiff had obtained an expert medical report on liability and causation, but had received advice from counsel that further clarification was needed from the expert.

11. By letter dated 3 December 2012, Messrs Burke & Co wrote to Messrs HWB that they had been assigned to act for the plaintiff in lieu of Messrs Cheng Yeung & Co.  A few months later, on 25 April 2013, Messrs Burke & Co wrote to Messrs HWB that, as liability had not been admitted, they had instructions to obtain an advice from an expert. By letter dated 13 August 2013, they confirmed that they had approval from the Legal Aid Department to instruct a liability expert and had sent instructions to the expert.  In the plaintiff’s CLR questionnaire dated 6 November 2013, the expert on liability was identified as Dr David East and his report dated 4 December 2013 was served on 9 December 2013, and identified as item 10 on the schedule of medical and expert reports accompanying the statement of claim and statement of damages. On 14 August 2014, an order was made at the Check List Review in which the ENT experts were identified as Dr David East for the plaintiff and Dr Chow Shun Kit for the 2^nd and 3^rd defendants.   

12. When the plaintiff filed a list of documents on 21 October 2014, under “Section F: Expert Reports” was listed Dr Woo’s reports.  The report of Dr David East was not listed.  On the same day, a Hearsay Notice was served in respect of the listed documents, including Dr Woo’s reports.

The Mistakes of Mr Patrick Burke

13. I accept the evidence of Mr Burke, contained in his affidavit sworn on 23 January 2015, that his clerk had mistakenly listed Dr Woo’s reports in the list of documents, instead of the report of Dr David East, and that he had failed to notice the error when he approved and signed the list.  I also accept the evidence contained in the same affidavit that he had approved and signed the letter from his firm dated 30 October 2014 to Messrs HWB, enclosing copies of the listed documents, including Dr Woo’s reports, without noticing the error.

14. A week before that on 23 October 2014, in the same letter, in which Messrs HWB had requested copies of the listed documents they had stated that they were drafting a joint letter of instructions to the ENT experts, and that they would forward their draft shortly.  This was a reference to the joint examination to be conducted by the ENT quantum experts on 14 November 2014.  By a letter of the same date, Messrs Burke & Co wrote to Messrs HWB enclosing their draft joint letter of instructions to the ENT quantum experts, and a draft list of documents to be sent to them which included the expert report of Dr David East dated 4 December 2013. 

15. In the letter dated 4 November 2014 from Messrs HWB to Messrs Burke & Co, Messrs HWB referred to Dr Woo’s reportsand asserted that those reports should be included in the bundle of documents to be sent to the ENT quantum experts and they repeated their request for copies of the documents listed in the plaintiff’s list of authorities, including Dr Woo’s reports.  Apparently, they had not realised by that day that Messrs Burke & Co had already sent them the listed documents under cover of the letter dated 30 October 2014.  When Mr Burke replied to this letter on 5 November 2014, he had still not realised that he had mistakenly listed and discovered Dr Woo’s reports.  In that letter, he stated that his client’s previous solicitor had instructed Dr Woo to prepare an expert liability report but that Dr Woo was not being used by his client as an expert; and he concluded with the statement “we have deleted it”, meaning that he had deleted Dr Woo’s reports, that had been inserted by Messrs HWB, from the list of documents to be submitted to the ENT quantum experts.  

16. In response, by letter dated 6 November 2014, Messrs HWB asserted that Dr Woo’s reports were disclosed in the plaintiff’s list of documents as documents relevant to her claim and that they should be provided to the ENT experts.  They stated that they first became aware of the of Dr Woo’s reports when they were served with the plaintiff’s list of documents on 21 October 2014 and they requested Messrs Burke & Co to explain the reason for replacing Dr Woo as the plaintiff’s ENT liability expert despite having already obtained 3 reports from him. 

17. When he responded to this letter, by letter dated 7 November 2014, Mr Burke had still not realised that Dr Woo’s reports had been disclosed under Part I of Schedule I of the list and that the copies had already been provided to Messrs HWB, and he asserted in that letter that Dr Woo’s reports were privileged and covered under the general wording under Part II of Schedule I.  It was only after receipt of the letter from Messrs HWB dated 10 November 2014 that he realised that Dr Woo’s reports had been listed under Part I of Schedule I and that copies of the same had been provided already to Messrs HWB. In his letter dated 11 November 2014, Mr Burke maintained that Dr Woo’s reports were privileged and had been produced by mistake; and he sought the return of all copies of those reports.  

18. I accept the evidence of Mr Burke that the disclosure of Dr Woo’s reports was inadvertent and that he had not intended to waive the privilege attaching to Dr Woo’s reports. 

The dispute 

19. For the reasons expressed in their letter of 11 November 2014, Messrs HWB stated that Dr Woo’s reports were not privileged; alternatively, that any privilege in them had been waived; and that they had no reason to believe that they had been disclosed by mistake.  Further correspondence was exchanged in which neither firm would yield.  Hence the application before me.

Did Messrs HWB realise that a mistake had been made? 

20. A partner of Messrs HWB with conduct of the action jointly with another has deposed on affidavit that that they did not realise that Dr Woo’s reports had been provided by mistake.  I will accept that assertion at face value.  It is clear from their letter dated 4 November 2014 that they had not realised, by that day, that Messrs Burke & Co had already sent them Dr Woo’s reports under cover of the letter dated 30 October 2014.  I would go further and infer that they had not read Dr Woo’s reports on or before 4 November 2014 and, more importantly, that they had forgotten that the plaintiff’s nominated liability expert, as recorded on the CLR order of 14 August 2014, was Dr East and not Dr Woo.  Clearly, Mr Burke was not the only one making mistakes. 

Should Messrs HWB have realised that a mistake had been made? 

21. The short answer is a resounding “yes”.  A hypothetical reasonable solicitor standing in the shoes of the solicitor of Messrs HWB having the conduct of the litigation would have queried why Dr Woo’s reports were being relied upon when the plaintiff’s nominated expert was Dr East.  Under the current case management regime, expert evidence can only be adduced with leave of court and any leave granted would not be in general terms but in respect of identified experts.  Usually leave would only be granted in respect of one expert from a particular speciality, and even the scope of his or her evidence may be limited.  Once this query was raised, the mistake would soon have been discovered, and made obvious, with the result that the hypothetical reasonable solicitor would realise that he had been permitted to see Dr Woo’s reports by reason of an obvious mistake on the part of the plaintiff’s solicitors.

22. Mr McLeish, who appeared for the 2^nd and 3^rd defendants,  made the point that a hypothetical reasonable solicitor reading Dr Woo’s reports would not form the opinion that the reports had been disclosed by mistake because they were supportive of the plaintiff’s case; and particularly when the plaintiff’s chronology of February 2014 referred to and relied on Dr’s Woo’s opinions.  That might have been a valid point in the context of pre-CJR practice, but is no longer valid as, in my judgment, assuming that the hypothetical reasonable solicitor had read Dr Woo’s reports, as he ought to have when provided with copies of them, he would have queried why Dr Woo’s reports were being relied upon when the plaintiff’s nominated expert, as from August 2014, was Dr East.  And once this query was raised, the mistake would have been discovered and made obvious.  In practice, the inadvertent listing of privileged documents ought rarely to create any problems.  In the current regime of co-operative communication, a solicitor, who is unsure whether privilege has been deliberately waived by the disclosure of a privileged document, should confirm the position with the disclosing solicitor.

My Order

23. For these reasons, I allow the application and make orders for the injunctions sought in §1 and 3, and for delivery up sought in §2 of the plaintiff’s notice of motion.  I also grant leave to amend the list of documents in the terms as sought in §4 of the plaintiff’s notice of motion.  

Costs

24. Having reread Dr. Woo’s reports and the report of Dr David East, I have come to the view that I must depart from making the usual order that costs follow the event.

25. Dr Woo’s reports not only contain opinions that are consistent with those expressed by Dr East, they also contain opinions supportive of the plaintiff’s case. Indeed, on a closer reading of the reports, one might even come to the view that Dr Woo is more supportive of the plaintiff’s case than Dr East. 

26. In §6.20 of his report, Dr East states:

“I am having difficulties in coming to terms with the plaintiff’s assertion there was a golden period for treating MD. In my experience, the course of the disease is not influenced by any form of initial treatment. That is borne out by standard textbooks on the subject. …”

And Dr Woo says something similar on p.5 of his 1^st report where he states:

“The natural course of MD is quite unpredictable in the short and medium term…. Unfortunately there is no treatment proven to alter the natural course of the disease.”

27. In the context of the claim that there was a delay in diagnosis and treatment, Dr Woo has expressed opinions which are supportive of the plaintiff’s case, and consistent with Dr East’s opinion.  The plaintiff’s pleaded case is that the diagnosis of MD should have been made by 26 February 2008.  In terms of when the diagnosis should have been made, Dr Woo does say, at p.15 of his 1^st report, that, based on the information available to him, it was reasonable that a diagnosis of MD was not made up to February 2008. And, indeed, that is also what Dr East says at §6.18.  

28. On the question whether the plaintiff’s symptoms would have been better controlled had she received more aggressive treatment earlier, Dr Woo states on p.15 of his 1^st report:

“I believe if [the plaintiff] had been treated more aggressively earlier on, her vestibular symptoms may be better controlled. But the final course may not have been any different.”

A similar and more favourable opinion is expressed by Dr Woo at p.5 of his 3^rd report where he states:

“If the plaintiff did receive the same treatment as rendered by Professor Tong[14] as early as April 2008, it is likely she might have fewer and less severe vertigo attacks, the hearing loss may remain more reversible for a longer duration. But the final end points are unpredictable.”

29. The statement that the final end points are unpredictable is perhaps more favourable than Dr East’s views at §6.12 that:

“… there is no evidence of any form of treatment that would either stop the disease in its tracks or at best modify its progress. What reliable treatment there is consists of destructive surgery which may at the very least compromise the hearing.”

and his views at §6.23 where he says:

“I do not believe that early intervention would have either stopped her illness in its tracks or prevented it from progressing.”

30. Although Mr Burke expressed the opinion in §54 of his 1^st affidavit that Dr Woo’s reports were “not overtly favourable” to the plaintiff, my reading of his reports suggests otherwise.  

31. This is the sort of satellite litigation that the courts frown upon.  It is contrary to the objectives and spirit of the CJR.  Both parties have stubbornly dug in their heels on an issue that is irrelevant to the final outcome of the proceedings.  I make a costs order nisi that the plaintiff pays the costs of the application to the 2^nd and 3^rd defendants and also their costs of perusing the 1st affidavit of Mr Burke to be taxed, if not agreed; and that the 2^nd and 3^rd defendants pay half the costs of the plaintiff thereafter, including half of the costs of the hearing on 10 March 2015, to be taxed, if not agreed.  I had initially thought of making no order as to costs but that would have been too lenient on the 2^nd and 3^rd defendants who lost this application and whose solicitors were equally recalcitrant in their refusal to give up Dr Woo’s reports.

32. I also make an order nisi that the costs of the application and of the 1^st affidavit of Mr Burke, and half of the costs incurred after the service of the first affidavit, including half of the costs of the hearing on 10 March 2015, be taxed pursuant to the Legal Aid Regulations.  I direct Messrs Burke & Co to show cause within 14  days, if they wish to do so, why I should not make a wasted costs by refusing to direct that the balance 50% of the costs incurred after the service of the 1st affidavit, including the balance 50% of the costs of the hearing on 10 March 2015, be taxed pursuant to the Legal Aid Regulations.