XCHRX CHINA NATIONAL ARTS AND CRAFTS IMPORT & EXPORT CORPORATION ZHEJIANG BRANCH AND ANOTHER v. SEALAND SERVICE INC. AND OTHERS

1990, No. CL90

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. On 14 March 1995, the second defendant administered interrogatories to the plaintiffs. On 16 March 1995, the plaintiffs issued a summons seeking an order that the interrogatories be withdrawn or varied. This summons is now before me.

2. The allegations in the amended points of claim that are relevant to the interrogatories are -

"The first and second plaintiffs were all material times owners of the goods and/or holders of the Bill of Lading. Further, on endorsement of the Bill of Lading the second plaintiff became entitled to the rights of the first plaintiff under the contract of carriage.

In breach of their duties as bailees of the goods during transhipment at Hong Kong between 16 and 22 July 1989, the second defendant failed properly safely and carefully to handle the said goods."

3. As to the allegation that the plaintiffs were the owners of the goods, the first defendant asked for further and better particulars. The plaintiffs replied that -

"The first plaintiff had title in the goods prior to the transfer of the Bill of Lading to which the goods were subject, as shipper of the goods and holder of the Bill of Lading.

The second plaintiff acquired title in the goods after it obtained the relevant Bill of Lading which was acquired on or before 29 August 1989 on a date the plaintiffs cannot better particularise."

4. In its amended points of defence, the second defendant says that the first plaintiff "is put to strict proof as to when and how it acquired ownership of the goods, if at all and how ownership of the goods passed to the second plaintiff from the first plaintiff if at all.". The second defendant also pleads that the first plaintiff is "familiar with the custom and practice of the port of Hong Kong and terms and conditions upon which transhipment is undertaken in Hong Kong.".

5. The interrogatories administered to the first plaintiffs may be distilled into the following broad categories -

1. asking the first plaintiff if it acted as agent of the manufacturer or owner of the goods in processing the sale to the second plaintiff, and, if so, the first plaintiff's remuneration and the identity of the manufacturer;

2. asking the first plaintiff whether it manufactured the good, and, if so, details of when, where and whether the first plaintiff retained title until sold to the second plaintiff, or, if not, details of the contract under which the first plaintiff bought the goods;

3. if it is the first plaintiff's case that title to the goods passed to the second plaintiff, asking the first plaintiff when this happened, the consideration and any compensation paid by the first plaintiff to the second plaintiff in respect of the damage; and

4. asking the first plaintiff about its means of knowledge of the customs of the port of Hong Kong.

6. The interrogatories administered to the second plaintiff follow these lines -

1. asking the second plaintiff if it aware of the identity of the manufacturer of the goods, and, if so, the identity of the manufacturer and if the first plaintiff acted as agent of that manufacturer, and whether the second plaintiff was provided with documents showing the manufacturer;

2. if it is the second plaintiff's case that title to the goods passed to the second plaintiff, asking the second plaintiff when this happened, the consideration and any compensation paid by the first plaintiff to the second plaintiff in respect of the damage; and

3. if it is the second plaintiff's case that title passed to it prior to the departure of the goods from Hong Kong, asking the second plaintiff about it means of knowledge of the customs of the port of Hong Kong.

7. Mr Kerr withdrew the last interrogatory as far as it concerns the second plaintiff.

8. I will deal with the interrogatory concerning the customs of the port of Hong Kong separately. Mr Kerr submitted that the other interrogatories are legitimate to enable the second defendant to know the plaintiffs' case regarding the ownership of the goods. The pleadings, Mr Kerr says, show that it is the plaintiffs' case that the ownership passed from the first plaintiff to the second plaintiff. There is no suggestion that they were both owners at any given time. Accordingly, Mr Kerr argues, only one of the plaintiffs can have a good cause of action against the second defendant, and the second defendant is trying to find out which one that is. If this is so, the matter in issue is when ownership passed, and the only relevant interrogatory is that asking when title passed from the first plaintiff to the second plaintiff. All the other interrogatories in this area are aimed at trying to find out what proof the plaintiffs will offer to prove their case, or are irrelevant to any issue. The only relevant interrogatory is not necessary because the plaintiffs have already stated their case, as far as they are able to, on this point in their further and better particulars. Answering this interrogatory will add nothing to this. The plaintiffs' case is that the title passed on or before 29 August 1989, but they cannot say when exactly. If this is a bad case, the second defendant has its remedy, but that is not by interrogating further on this point.

9. The remaining interrogatory directed to the first plaintiff is blatantly aimed at finding out what evidence will emerge from the first plaintiff in relation to whether or not it has knowledge of the customs of the port of Hong Kong. Even if this interrogatory were otherwise legitimate, I do not see how answering it would help to dispose of the matter fairly or save costs.

10. Accordingly, in my judgment, none of the interrogatories need to be answered by the plaintiffs.

11. The question of costs has not been argued but there seems no obvious reason why costs should not follow the event. I make an order nisi that the second defendant pay the plaintiffs' costs of this application.

12. There is another summons before me asking that I give fresh directions to advance the trial of this matter. It seems to me that the only directions necessary are -

13. That statements of witnesses of fact be exchanged within 60 days, and they stand, subject to any contrary direction by the trial judge, as evidence in chief.

14. That each party may call one expert, and their reports be exchanged within 28 days of the exchange of the statements of witnesses of fact.

15. That the matter be set down, in consultation with counsel's diaries, for a trial of 5 days not earlier than May 1999.

16. The costs of application will be in the cause.