CHOI HEI MAN KAMMIE v. METRO CITY MANAGEMENT LTD

DCMP 4250/2022

[2023] HKDC 298

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 4250 OF 2022

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DECISION

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I.  Introduction

1.  By an originating summons issued on 9 November 2022 (the “OS”), the Plaintiff applies for pre-action discovery against the Defendant under section 47A of the District Court Ordinance, Cap 336 (“DCO”) and Order 24, rules 7A and 8 of the Rules of the District Court, Cap 336H (“RDC”).

2.  Mr Leung of Counsel appeared for the Plaintiff and Ms Fan appeared for the Defendant before me at the hearing on 27 January 2023. At the conclusion of the hearing, I reserved decision to be handed down. This is my Decision.

II.  The Application

3.  The present application relates to a potential personal injuries action arising from a trip and fall accident (the “Accident”) which occurred at Metro City Phase 2 Parking Lot on B1 Level, 8 Yan King Road, Tseung Kwan O, New Territories, Hong Kong near the main lobby lifts (the “Premises”) on 19 May 2022 at approximately 1:40pm. The Defendant was at the material time the manager of the Premises.

4.  In the OS, the Plaintiff asked for the production of all CCTV footage capturing the Accident (the “Footage”). An Affirmation of the Plaintiff (“P’s Aff”) was filed in support of the application. An Affirmation of Kwan Kit Ying, the Defendant’s solicitor, (“D’s Aff”) was filed in opposition to the application. I am also assisted by the parties’ respective submissions.

III.  Legal Principles

5.  The following provisions in the RDC are relevant:-

O 24, r 7A of RDC:-

(3)  A summons under paragraph (1) or (2) shall be supported by an affidavit which must—

(a)  in the case of a summons under paragraph (1), state the grounds on which it is alleged that the applicant and the person against whom the order is sought are likely to be parties to subsequent proceedings in the Court;

(b)  in any case, specify or describe the documents in respect of which the order is sought and show, if practicable by reference to any pleading served or intended to be served in the proceedings, that the documents are relevant to an issue arising or likely to arise in the proceedings and that the person against whom the order is sought is likely to have or have had them in his possession, custody or power.

(3A)  In the case of a summons under paragraph (1), paragraph (3)(b) shall be construed as if for the word “relevant”, there were substituted the words “directly relevant (within the meaning of section 47A of the Ordinance)”.

O 24, r 8 of RDC:-

(2)  No order for the disclosure of documents shall be made under section 47A or 47B of the Ordinance, unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.

6.  The relevant requirements for pre-action discovery are well established, as set out in VTB Debt Centre LLC v Top Fuel Corporation Ltd (HCMP 1543/2013, 16 April 2014) and refined in Zhang Shouen v Standard Chartered Bank (Hong Kong) Ltd (HCMP 682/2015, 15 October 2015). The 5 requirements were recently summarised by DHCJ Winnie Tsui in Lu Cheng Te Raymond v Yeh Shing Hang Kevin Arthur (HCMP 2109/2021, 11 February 2022 [2022] HKCFI 503), at §28:-

(1)  The applicant appears to be likely to be a party to subsequent proceedings in the court in which a claim is likely to be made. In order to satisfy the requirement that a claim is likely to be made, the applicant must show that a claim “may” or “may well” be made if discovery is granted.

(2)  The respondent appears likely to be a party to such proceedings.

(3)  The respondent appears likely to have or to have had in his possession, custody or power the document requested.

(4)  The requested document is “directly relevant” to an issue arising or likely to arise out of that claim. “Direct relevance” is shown only if:

a.  the document would be likely to be relied on in evidence by any party in the proceedings; or

b.  the document supports or adversely affects any party’s case.

(5)  The applicant must satisfy the court that the order for pre-action discovery is necessary either for disposing fairly of the cause or matter or for saving costs.

7.  The first four requirements are jurisdictional conditions which must be satisfied before the Court could exercise its discretion to order discovery. The fifth requirement requires the Court to be satisfied that the discovery sought is necessary either for disposing fairly of the cause or matter or for saving costs.

8.  The principles governing the application are largely undisputed. As will be discussed below, the main dispute between the parties is in relation to the fifth requirement.

IV.  Parties to Subsequent Proceedings

9.  The Plaintiff was injured at the Premises to which the Defendant was the manager. It cannot be seriously disputed that the parties in the present application are likely parties to subsequent proceedings regarding the Accident. The first and the second requirements are clearly satisfied.

V.  Possession, Custody and Power

10.  For the third requirement, I note that in answer to the Court’s enquiry, Ms Fan for the Defendant was unable to confirm the existence or otherwise of the Footage capturing the Accident. I raised this question as the existence of such footage(s) was not denied in D’s Aff.

11.  On the other hand, in P’s Aff, the Plaintiff was adamant that she noticed a camera at the vicinity of the Accident which could capture the Accident. She further said that she was reassured by several employees of the Defendant that such footage(s) existed. This has not been challenged in D’s Aff.

12.  At the hearing, Ms Fan clarified that the Defendant does not deny, but could not confirm either, the existence or otherwise of the Footage. She explained that the Defendant accepts that there were CCTV cameras installed in the shopping mall, but these cameras might not necessarily have captured the Accident.

13.  I have also considered the letter dated 8 July 2022 sent by Toplis, the loss adjusters appointed by the insurers of the Defendant, to the Plaintiff’s solicitors. It was said in the letter that the Defendant was “Our Principal’s Insured” while 19 May 2022 was the “Date of Loss” for the “Bodily injury of [the Plaintiff]”.

14.  At paragraph 3 of the said letter, it was stated that:-

“we regret to inform you that we are unable to release the other information/ documents, i.e. CCTV footage that you have requested regarding the captioned incident. Therefore, all the investigation records and documents are subject to the rule of confidentiality that we are legally bound to oblige.” (Emphasis added)

15.  The reason put forward by Toplis as to why the Footage could not be released was one of confidentiality. While it is not necessary for me to express a view on the alleged reliance on the “rule of confidentiality”, the important point to note is that Toplis did not say that the Footage did not exist, which was what one would have expected Toplis to say had that been the case.

16.  In the circumstances, I find that the Defendant is likely to have the Footage in its possession, custody or power. The third requirement is therefore satisfied.

VI.  Direct Relevance of the Footage

17.  At the hearing, Ms Fan stated that the Defendant would not seriously dispute that the fourth requirement was satisfied. Despite the lack of any draft pleadings, the issues likely to arise in the action are straight forward, given that this is a trip and fall case. They include (i) how did the Accident happen; (ii) whether the Accident was caused by any fault on the part of the Defendant; and (iii) if the Accident was caused by the fault of the Defendant, whether the Plaintiff was contributorily negligent.

18.  The Plaintiff asserts that she tripped and fell as a result of the uneven surface and/or the potholes on the ground. As the Footage captures the Accident (and the surroundings), it is likely to be relied upon by either party in the potential personal injury claim as evidence to assist the Court in understanding how the Accident occurred and the cause(s) of the injuries.

19.  I find the Footage to be directly relevant to issues likely to arise out of the potential personal injury action, and that the fourth requirement is satisfied.

VII.  Necessary for Saving Costs

20.  Having satisfied the above conditions, this Court has jurisdiction to grant an order of pre-action discovery. In exercising my discretion, I shall consider whether the discovery sought is necessary under the fifth requirement.

21.  At the hearing, I invited the parties to address the Court on, inter alia:-

a.  why was there no explanation in P’s Aff as to why the present pre-action discovery was necessary either for disposing fairly of the cause or matter or for saving costs; and

b.  when the Footage would be subject to the Defendant’s normal discovery obligations once the action proper is commenced anyway, why should the present application not be granted in view of the underlying objectives of the Civil Justice Reform enshrined in O.1A, r.1 of RDC.

A.  Plaintiff’s Submissions

22.  In P’s Aff, the Plaintiff did not explain whether the present application was necessary either for disposing fairly of the cause or matter or for saving costs. She stated, at §23, that “everyone has a duty to save the Court’s costs and time. I wish to have access to [the Footage] before I decide whether to pursue my claims. Obviously, [the Footage] can provide relevant information such as… whether I had contributed to my own accident in some way.”

23.  This was supplemented by Mr Leung’s submissions that the present application is necessary for saving costs. He argued that the Footage being produced at this early stage would allow the Plaintiff to assess whether it is economical and advisable to commence the personal injuries action at all.

24.  Mr. Leung submits that if, after reviewing the Footage, the Plaintiff concludes that her potential claim would be offset by her own contributory negligence, she may not commence the claim. He further made the point that as the present application is narrowly confined only to the Footage capturing the Accident, it is not a fishing exercise but serves to save potential costs from going through the pleadings stage up to discovery.

25.  Further, it is submitted that while the Footage would be subject to normal discovery as the action proper commences, pre-action discovery would promote early settlement and save costs. The Footage provides objective evidence for the parties to realistically assess their positions, which would promote procedural efficiency.

B.  Defendant’s Submissions

26.  In D’s Aff, as repeated in its skeleton submissions and at the hearing, the Defendant stated (at §7) that the instant pre-action discovery sought is not necessary as the Plaintiff could plead all the particulars required to commence the personal injuries action without considering the contents of the Footage.

27.  The Defendant argues, at §7 of D’s Aff, the fact that the Footage might eventually be disclosed by way of automatic or specific discovery shall not be the guiding criteria considered by the Court. Ms Fan also submitted that early settlement shall not be a factor being considered in the pre-action discovery regime. She referred to §488 of the Final Report on Civil Justice Reform, as cited in Zhang Shouen (supra), at §34:-

“Since pre-action protocols have not been recommended for general adoption in Hong Kong, it is not proposed to specify as a discretionary factor, the desirability of pre-action disclosure in aid of early settlement.”

28.  Further, Ms Fan submitted that the Plaintiff was under a specific obligation under O 24, r 7A to explain in her supporting affidavit why the Footage is necessary in the pre-action discovery stage. Since P’s Aff did not touch on that, this could be fatal to the application. However, Ms Fan did not point to the specific sub-rule or substantiate with any authorities in this regard.

29.  Towards the end of her submission, Ms Fan referred to Zhang Shouen again and argued that there would be a risk of opening the floodgate for pre-action discovery in personal injuries action if the order sought is granted.

C.  Analysis on the Fifth Requirement

30.  I find that the Plaintiff has demonstrated that the pre-action discovery as sough under the OS is necessary for saving costs. My reasons are set out below.

(1)  Whether the application is necessary for saving costs

31.  As stated above, I found that the Footage to be directly relevant to an issue likely to arise out of the subsequent proceedings between the Plaintiff and the Defendant regarding the Accident. The Footage is obviously an important piece of evidence in assisting the Court to understand how the Accident occurred and the cause(s) of the injuries suffered by the Plaintiff.

32.  While it appears that the Plaintiff could plead her case even without the Footage, I accept that it is necessary for saving costs for the pre-action discovery of the Footage to be made, in view of the Plaintiff’s position that she needed the same to assess the issue of contributory negligence, upon which she might see fit not to commence any personal injury action at all.

33.  Certainly, where the plaintiff could plead all the particulars without the production of the document sought for, the scope for costs saving would naturally be limited. An applicant in such a case would find it more difficult to satisfy the Court that the production at a pre-action stage would be necessary for saving costs. As noted by Godfrey Lam J (as he then was) in Zhang Shouen, “If it is said that pre-action discovery should be ordered simply because it would save costs by avoiding the need for amendment (however minor) of pleadings after discovery in the ordinary way, this might mean an order for pre-action discovery should be made in a great many cases, perhaps even almost as a matter of course.” (§46)

34.  However, Zhang Shouen was a case concerning discovery of documents against a bank in relation to the bank’s alleged breach of duties, and His Lordship’s observation was made in relation to the plaintiff’s submission that “the telephone recordings were sought for ‘refinement’ of the pleading, to ‘dot the i’s and cross the t’s” (§46). This is to be contrasted with the present case in which the Plaintiff’s position is that the potential personal injury claim could well be avoided altogether if pre-action discovery is made of the Footage.

35.  I find the observation of DHCJ Winnie Tsui in Lu Cheng Te Raymond to be more apposite in the present case, and I quote:-

“It should be appreciated that one of the objects of the pre-action discovery regime under section 41 [of the High Court Ordinance] is to enable a plaintiff to find out before he starts proceedings whether he has a good cause of action or not.” (§30, emphasis added)

36.  While the Footage would be subject to automatic (or specific) discovery as the action proper commences, I do not find it oppressive or prejudicial for the Defendant to produce the Footage at this stage. Indeed, it is necessary for the Plaintiff to have a sight of the Footage so as to assess the strength of his claim.

37.  In relation to the Defendant’s submission that promoting early settlement is not a relevant consideration in exercising the Court’s discretion to make pre-action discovery, my view is that while early settlement might not have been included expressly as one of the requirements for pre-action discovery, there is nothing to stop the Court from ordering pre-action discovery if that is necessary for saving costs resulting from the early settlement of a dispute.

38.  This is consistent with the Court’s general duty under O 1A, r 4 of RDC to manage cases in furthering the underlying objectives of the Civil Justice Reform and to promote settlement, cost-effectiveness and procedural economy. This is also consistent with the parties’ (and their legal representatives’) positive duty under O 1A, r 3 to assist the Court in achieving the same.

39.  My view is further supported by the commentary notes in Hong Kong Civil Procedure 2023 at P4/47A/1:-

“Pre- commencement disclosure — This section relates to discovery before the commencement of proceedings. Previously, the Court’s jurisdiction was limited to ordering potential parties to make pre- action disclosure in personal injury and fatal accident claims. In order to promote greater transparency between the parties at an earlier stage with a view to facilitating settlement, this section has been amended under the Civil Justice Reform to widen the jurisdiction of the District Court to order disclosure before commencement of proceedings to cover cases other than those relating to personal injury and fatal accident claims. As a general rule, an order granted under the amended s.47A will relate to disclosure and inspection of documents that are directly relevant to an issue in the anticipated proceedings, i.e. documents that would likely be relied on in evidence by the parties themselves or documents that support or adversely affect any party’s case in the anticipated proceedings.” (Emphasis added)

(2)  Whether granting the present application would open a floodgate

40.  I shall now deal with the Defendant’s submission that the Court would open a floodgate if the present application is granted. The argument is essentially that, by reference to §46 of Zhang Shouen as cited above, if the Plaintiff succeeds, this case would create a precedent where all personal injury cases would then be subject to pre-action discovery as a matter of course.

41.  I do not believe there to be any merits to this argument. As Mr Leung submitted, every case turns on its own facts and the pre-action discovery regime is very fact sensitive.

42.  My decision herein is based on the particular factual scenario and submission made before me, all of which I have taken into account. These include the fact that the Footage by definition captures the Accident (and identifies the Plaintiff), which obviously would be one of the crucial pieces of objective evidence in the potential personal injury claim, the existence of which was not denied in D’s Aff.

43.  At the risk of stating the obvious, pre-action discovery applications in other cases (personal injuries or otherwise) will have to satisfy inter alia, the requirement that pre-action discovery is necessary either for disposing fairly of the cause or matter or for saving costs in view of the particular circumstances of the case before the Court.

VIII.  Costs

44.  At the hearing, Mr Leung submitted that the Plaintiff should be awarded her costs of these proceedings as the Defendant has led the Plaintiff into the belief that the Defendant has in its possession of the Footage but was unwilling to release it. It was argued that the present OS would not have been necessary if the Defendant had cooperated with the Plaintiff.

45.  Under O 62, r 3(12) of RDC:-

“Where an application is made in accordance with Order 24, rule 7A or Order 29, rule 7A, for an order under section 47A, 47B or 47D of the Ordinance, the person against whom the order is sought shall be entitled, unless the Court otherwise directs, to his costs of and incidental to the application and of complying with any order made thereon and he may, after giving the applicant 7 days’ notice of his intention to do so, tax such costs and, if they are not paid within 4 days after taxation, sign judgment for them.” (Emphasis added)

46.  Therefore, an applicant for pre-action discovery would, in the absence of special circumstances, bear the respondent’s costs of and incidental to the application and of complying with any order made thereon (see Lehner Ewald Stephan v Pui Tsan Po (DCMP 1310/2016, 28 December 2016), §§9 and 11).

47.  As summarised in Hong Kong Civil Procedure 2023 at note 24/7A/10:-

“Costs of application under this rule — The person against whom an order is sought under this rule is entitled to his costs of the application and of complying with any order made thereon, unless the court orders otherwise (see s.43(2) of the High Court Ordinance (Cap.4)).

…

Where the person against whom an order is sought is at fault, eg where he has been dilatory in replying to a proper request to disclose documents, the court may deny him his costs, or, in exceptional cases, order him to pay the applicant’s costs of the application (Hall v Wandsworth Health Authority (1985) 129 SJ 188). “Costs in the cause” is an inappropriate order on an application under this rule, because there is no certainty that the order for disclosure will lead to a claim or cause against the respondent (Hall v Wandsworth Health Authority). The court will not go so far as to order the defendant to pay costs of the application to the plaintiff, unless it is clearly unreasonable for the defendant to oppose the application or the manner of opposition was so unreasonable or there is misconduct on the part of the defendant (Lau Tsz Hung Ringo v First Refrigeration Engineering Ltd (HCMP 1166/ 2013, [2013] HKEC 1033)). (Emphasis added)

48.  As held in Lau Tsz Hung Ringo v First Refrigeration Engineering Limited (HCMP 1166/2013, 4 July 2013), at §41, “It is only when it is clearly unreasonable to oppose the application or the manner of the opposition was so unreasonable or there is misconduct on the part of the defendant that it will make him bear costs of both parties.” and at §42 that “Here, the defendant was merely dilatory in their response. But once they were served with the Originating Summons herein together with the Affirmation, they promptly filed acknowledgment of service and on the same day disclosed the relevant documents sought by the plaintiff.”

49.  In the present case, the Defendant was at least dilatory, if not evasive, in confirming the existence or otherwise of the Footage, and had unnecessarily caused costs to be incurred by failing to accede to the Plaintiff’s request.

50.  On the other hand, as noted above, it was not expressly explained in P’s Aff as to why the pre-action discovery was considered necessary either for disposing fairly of the cause or matter or for saving costs, although the explanation was given in Mr. Leung’s submissions.

51.  Taking all the circumstances into account, I shall make no order as to costs in relation to the OS.

IX.  Conclusion

52.  For the reasons above, I shall make the following orders:-

a.  Within 7 days of the handing down of this Decision, the Defendant shall produce all CCTV footage capturing the trip and fall accident of the Plaintiff which occurred at Metro City Phase 2 Parking Lot on B1 Level, 8 Yan King Road, Tseung Kwan O, New Territories, Hong Kong near the main lobby lifts on 19^th May 2022 and approximately 1:40pm.

b.  No order as to costs.