XCHRX ORIENTAL PRESS GROUP LTD. and Others v. NEXT MAGAZINE PUBLISHING LTD. and Others

1994, No. A12525

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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JUDGMENT

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1. I have before me a summons issued by the defendants by which they seek an order against the plaintiffs for specific discovery of documents under Order 24, rule 7. The documents are described in a schedule. The schedule reads -

"The documents above referred to are the following, that is:

1. All the pleadings, all the affidavits/affirmations (if any) and all the statements of witnesses filed by the parties with the Court in High Court Action No.A2091 of 1995 (Oriental Press Group Limited v. Stephen Vines) including, but not limited to, the witnesses statements of Stephen Vines, Jonathan Marsh, Tan Thean Peng, Caron Fan, Karl Wilson, Stephen Porctor and Jonathan Mirsky;

2. All the pleadings, all the affidavits/affirmations (if any) and all the statements of witnesses filed by the parties with the Court in High Court Action No.A9415 of 1994 (Pan Britain Limited v. OPG Human Resources Limited)."

2. This action against the defendants is based on an alleged libel contained in Next Magazine published on 16 September 1994. The defence admits the publication, but pleads meanings that are true, and fair comment.

3. In an affidavit in support of the summons, it is said that action A2091 is an action by the first plaintiff in this action against Mr Vines in which it is alleged that Mr Vines "made defamatory remarks against Oriental Press Group on matters same, or substantially the same, as the issues in the present Action". Action A9415 is an action by a company wholly owned by Mr Vines claiming damages for wrongful termination of a contract "which again is an issue leading to the complaints of the Plaintiffs in the present Action". The only evidence of the relevance of these documents is the statement that "the said documents are directly relevant to the issues in the present action." The rule requires that that a supporting affidavit states that a document, or class of document, "relates to one or more of the matters in question in the cause or matter." It is not possible to ascertain from the affidavit which document, or class of document, relates to which matter in question.

4. Because the evidence before me did not explain this, or why these documents were relevant to the action in any general sense at all, I sought this information from Mr Wong. He said the issues to which the documents were relevant in this action were justification and fair comment. These are not, of course, issues. They are defences pleaded by the defendants. It is difficult to see what facts pleaded to support these defences will be, at trial, seriously in issue; very few, I suspect. Certainly, I have not been told which facts are in issue. It looks to me as if most of the trial will be about inferences to be drawn from the undoubted facts, and arguments of law. After some badgering by me, Mr Wong said that the relevance of the documents was to enable the defendants to see if there was something said in them that was inconsistent with what was said in this action, or something said in them that the defendants did not know about. This is what Mr Wong said before Mr Whitehead addressed the court. In his reply, however, Mr Wong conceded that, if the relevance of the documents went only to a question of credibility, discovery should not be ordered. Apart from the question of credibility, Mr Wong did not, as I understood him, clearly identify any other "matter in question" to which any document, or class of documents, related.

5. In this application, the defendants seek discovery of some specific documents - the statements of the persons named - but generally seeks discovery of classes of documents. Where discovery is sought of a class of documents, the class, as defined, must not include documents that are not relevant; all the documents must relate to a matter in question, not just some of them.

6. The case of Dolling-Baker v. Merrett 1990 1 WLR 1205 is similar to the case before me. In Dolling-Baker, the plaintiff was claiming under a policy of re-insurance against the insurer and the placing broker. The plaintiff sought discovery of documents in an arbitration in which a similar policy featured and for which the defendants were also insurer and placing broker.

7. In that case, the documents sought were described in terms remarkably similar to the description in the case before me -

"All pleadings, documents, witness statements, experts reports and any other relevant documents produced and/or disclosed in the arbitrations . . ."

8. Parker, LJ, with whose judgment Ralph Gibson, LJ and Fox, LJ agreed, described the application as "of a somewhat unusual width, to say the least".

9. At the stage of discovery, it is for the applicants to satisfy me on the matter of relevance. If they do that, it is for the plaintiffs to show that discovery is unnecessary.

10. Starting at the beginning of the documents sought, is there any reason to suppose that the pleadings filed in action A2091 contain information which might enable the defendants to advance their own case, damage that of the plaintiffs, or lead to a train of inquiry that would? Certainly, the defendants have given me no reason to think so. The most that Mr Wong is able to say is that they might be inconsistent with the plaintiffs' allegations in this matter, and thus provide ammunition to fire at the plaintiffs at the trial. Well, I suppose they might, but I have been given no basis to think that it would be reasonable to suppose so. In any event, the "pleadings" cover those of Mr Vines as well. On what basis can it be said that it would be reasonable to suppose that the pleadings by Mr Vines would help the defendants in defending the suit by the plaintiffs; that they are, in any way, relevant? I can ascertain none. And this applies also to the other documents, or classes of documents, about which discovery is sought.

11. In Dolling-Baker, Parker, LJ said this -

"I accept that there is good reason to suppose that some parts of the above are, or might be, relevant within the meaning of the Peruvian Guano case, 11 QBD 55 and that, other considerations apart, some form of limited order for discovery might be made. But the plaintiff has not in my view made out a case sufficient to enable me to frame any acceptable order. I would therefore allow the appeal on that ground."

12. I find myself in a similar position, except that I see the defendants' case before me as weaker. The position in this case is that there might possibly be some reason to suppose that some document sought might be relevant in the sense that the document might be used as a weapon in attacking the credibility of witnesses, but the defendants have not made out a case beyond that, and the defendants have given me no basis on which I could identify such a document. That, in my view, is not sufficient.

13. In any event, it seems to me that the use of this Order should not be encouraged where the sole purpose of the exercise is to undertake a fishing expedition in the hope that something may surface to provide the applicant with some arrows to fire at the other side at the trial. So, on this ground, I would decline to exercise my discretion in favour of the defendants.

14. Accordingly, I dismiss the application with costs to the plaintiffs.