NG CHIU CONSTRUCTION CO. AND ANOTHER v. HUI SUI HOP

IN THE COURT OF APPEAL

1994, No. 108
(Civil)

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J U D G M E N T

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Mortimer, J.A.:

1. This is an appeal by employers against an order of 25th May by His Honour Judge Wesley Wong dismissing their summons for an order that the employee respondent who claims employees compensation should answer interrogatories about a previous accident when in the service of a former employer.

2. The facts can be stated briefly. The employee alleged that he had two accidents in which he sustained back injuries. The first was on 22nd February 1990. On 9th July 1993 he began proceedings for compensation. The second was on 15th January 1992 and is the subject of these proceedings.

3. On 8th February 1994 the appellants served interrogatories on the employee, asking for information about his previous accident. The questions asked concerned whether the applicant had sustained an injury to his back when working with other employers; asked for details of any former accident together with the names and addresses of the employers at the material time and the circumstances of the accident; a third question asked in which hospital, clinic or physiotherapy centre did he receive treatment; and, finally, a fourth question asked whether he had been medically assessed or paid compensation with the details.

4. Those interrogatories were required to be answered within 28 days, or if objected to, then an application under O.26. r.3 ought to have been made to set them aside within 14 days. The employee did neither - presumably on advice.

5. The original interrogatories had an error in the text. The word "defendant" appeared where the word "applicant" ought to have appeared, but it should be said that no one reading the interrogatories could possibly have been confused or misled by that slip. However, on 8th April, after application, an order of the court allowed an amendment without reservice. Still there was no answer and no application to set side.

6. On 10th May, the appellant employers took out a summons asking for an order that the interrogatories be answered. That was refused by the judge on 25th May. It is against that order that this appeal is brought.

7. The grounds relied upon by the judge for dismissing the application were - in a nutshell - that by letters, the supply of documents, and by future discovery all the information sought by interrogation either had been or would be provided. Therefore he said:

"In the premises the Respondents had by the admissions and the application no.359 of 1993 supplied all information's the Respondents required by the questions in the interrogatories and the interrogations are therefore unnecessary."

8. The judge was referring to documents which had been supplied by the employee through his solicitor. First, a letter of 21st March in which the solicitors set out that they had received instructions to proceed in relation to the accident of 20th February 1990 and continued:

"It is our client's intention that the present case and the other compensation case shall be tried together so that the court can determine to what extent each of the accident was responsible for the present injuries of client."

It goes on later:

"However, in view of the fact that your client is obviously anxious to consider its (position) in the light of the other claim, we will in due course serve upon you a copy of the Application and the related papers in the other case."

Consequently on 12th May 1994 a copy of the application for compensation in the earlier case was supplied to the present employers. The accompanying letter added:

"At the moment, our client is proceeding with discovery action against the Hospital Authority for medical papers."

9. A further letter of 2nd August 1994, which completes the picture, was accompanied by medical papers and copies of the certificates of compensation assessments of 24th May 1991 and 16th April 1991.

10. The employee, by counsel, submits that the judge exercised his discretion correctly and, therefore, even if this Court were to think that it would exercise its discretion in a different way, the judge's discretion should not be interfered with. I turn to that point.

11. The discretion of the judge was exercised against this background. The interrogatories were served without leave. They may be supplied under 0.26 r.1, provided that they are necessary for disposing fairly of the cause or matter, or for saving costs. There has been no suggestion in this case that those interrogatories are not proper for those purposes.

12. This is part of the developing procedure of the civil court where the parties are increasingly expected to conduct their litigation "cards on the table". It is therefore of some importance that when proper interrogatories are served without leave, a party receiving them should answer those interrogatories or apply to set them aside. If a party fails to apply to set them aside, then, they ought to be answered. There are draconian orders which the court can make if interrogatories are not answered and there is application to the court, then as in this case, O.26 r.6(1) becomes relevant. It reads:

"If a party fails to answer interrogatories or to comply with an order made under rule 5(2) or a request made under rule 5(3), the Court may make such order as it thinks just including, in particular, an order that the action be dismissed, or as the case may be, an order that the defence be struck out and judgment be entered accordingly."

13. The judge, in considering this matter, relied upon O.26 r.4(2) for the exercise of his discretion as to what order he ought to make. Order 26 r.4(2) applies to giving leave to serve interrogatories. It reads:

"In deciding whether to give leave to serve interrogatories, the Court shall take into account any offer made by the party to be interrogated to give particulars, make admissions or produce documents relating to any matter in question and whether or not interrogatories without order have been administered.

If the judge was exercising his discretion under O.26 r.6(1) solely based upon matters in sub-rule 4(2) he was wrong to do so. He was not wrong, of course, to take into account those matters provided that he took into account all the other circumstances in determining what order he thought "just". In this case, the application was simply that the interrogatories should be answered. We can assume that the judge was aware that he was exercising his discretion under sub-rule 6(1). In doing so, he could take into account (inter alia) the matters set out in sub-rule 4(2).

14. However, his decision was founded on his view that all the matters asked for in the interrogatories had been answered by other means. That is not a view that l can take of the matter. An examination of the interrogatories themselves shows that at the very least, the names and addresses of the employers at the material time were not disclosed. Secondly, the name of the hospital, clinic or physiotherapy centre at which the applicant received treatment was not disclosed in that the applicant had not gone on oath to say that the medical records which had been finally produced disclosed the only places where he had treatment. So the judge was wrong in his view that all those matters had been answered by other means.

15. But even leaving that aside, the exercise of his discretion was still plainly wrong. He failed to take into account the fact that these interrogatories were proper interrogatories necessary for fairly disposing of this cause or matter, and for saving costs. He did not take in to account the applicant's failure to answer the interrogatories in February 1994 and failure to answer on oath so that the employers could pursue their inquiries to further the case. Those are circumstances which he ought also to have taken into account in exercising his discretion.

16. Further, in the preparation of the case, there is considerable advantage in having all these matters in one convenient document whereas even if all the information is eventually supplied - or has by now been supplied - it is in a number of different places. One of the purposes of serving interrogatories without leave is to speed the litigation.

17. It is astonishing in this case to find that an applicant whose interest is to obtain compensation and not to be kept out of his money should have failed to answer proper and simple interrogatories to assist the case forward. For my part, I cannot understand why this was not done. I would allow the appeal.

Power, V.-P.:

18. I concur in all that has fallen from my Lord.

Bokhary, J.A.:

19. In refusing to order the interrogatories, the judge took the view that all the information sought had already been supplied. Even if that view were correct, the refusal would still involve the appellant companies trawling through a welter of material, not on oath or affirmation, to gather such information as they can. That is an implication of the refusal which the judge failed to take into account. So the matter is at large. It has to be looked at afresh.

20. Looking at it afresh, I have no doubt that the only proper course is to order the interrogatories. First, it is of substantial advantage to the proper trial of this matter to have all the answers in a single document. Secondly, it is of such advantage to have them on oath or affirmation. Finally, the way the argument

proceeded before us and the difficulties which emerged in the course of that argument, convinces me that there is at least considerable doubt as to the full import of the information which it is suggested on behalf of the employee can be found if only one makes the effort to search it out. The refusal runs counter to the modern trend, i.e. to have litigation conducted more expeditiously and at less expense than in the past.

21. It must be remembered that interrogatories can limit issues and therefore limit discovery. Discovery has of course an important role to play in the quest for justice. But it can be complicated; and it can be costly. If it can be limited, that is a very good thing all round. I have no doubt that this appeal must be allowed. I agree with the judgment which has been delivered.

22. Order: Appeal allowed with costs. Each party to bear their own costs below.