YU CHEONG SU v. CHUEN KEE CONSTRUCTION CO LTD AND ANOTHER

HCPI 990/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. HCPI 990 of 2005

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R U L I N G

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1. There is no dispute about the following matters:

a)       The plaintiff took out a Summons pursuant to Order 24 r7 for discovery against the defendant for production of the medical report by Dr David Cheng arising from Dr Cheng’s examination of the plaintiff on or about 13 February 2004.

b)       The plaintiff’s former solicitors Messrs Hastings & Co (a) knew of the existence of this orthopaedic report compiled by Dr David Cheng and (b) did not demand disclosure of the same before agreeing to the joint instruction of a single joint orthopaedic expert with Munros, the defendant’s solicitors.

c)       Thereafter Messrs Hastings & Co and Messrs Munros jointly instructed Dr Lau Hoi Kuen as the single joint expert in this action on or about 2 March 2006.

d)       Dr Lau Hoi Kuen examined the plaintiff and produced his report dated 27 May 2006.

e)       The solicitors for the defendant Messrs Munros have stated and declared to this Court that the defendant will not rely on the report compiled by Dr David Cheng.

f)        Messrs Munros have stated and declared to this Court that the defendant will rely solely on the report of Dr Lau Hoi Kuen dated 27 May 2006 by way of expert medical evidence.

g)       A Notice of Change of Solicitors for the plaintiff was filed on 7 September 2006.  As a result Messrs WK To & Co replaced Messrs Hastings as solicitors for the plaintiff.

h)       In a letter dated 20 September 2006 Messrs WK To & Co sought disclosure of the report of Dr David Cheng.

i)        In a letter dated 25 September 2006 Messrs Munros the defendant claimed privilege with respect to Dr David Cheng’s report, and that as his report was not discoverable by reason of privilege, it would not be produced.

j)       On 29 September 2006 Messrs WK To & Co took out the present Summons for discovery of the report by Dr David Cheng, pursuant to section 42 of the High Court Ordinance and Order 24 r7.

k)      At the start of the hearing before me on 8 January 2007 Mr Ng the solicitor for the plaintiff conceded and admitted that privilege attached to the report of Dr David Cheng, and that privilege had not been waived.

2. As stated above, the plaintiff took out this Summons pursuant to s42 of the High Court Ordinance and O24 r7 of the Rules of the High Court.  It is difficult to understand why s42 is cited, as that section extends the power of the High Court to order a person who is not a party to the proceedings to make discovery.

3. It is also difficult to understand why O24r7 is cited.  That rule would only apply to documents that are subject to orders for production and inspection.  Here, it is common ground that the report of Dr David Cheng isprivileged, and that the privilege has not been waived by the defendant.

4. The plaintiff has cited the English authority of Gary Beck v The Ministry of Defence [2003] CP Rep 62; 2003 WL 21492042 (CA (Civ Div)); [2004] PIQR 1 (“Beck”) in support of his proposition that “fairness dictates that the David Cheng report be disclosed, since there has been a change of medical expert on the part of the defendant”.

5. Beck cannot be the authority for the general proposition for disclosure as submitted by the plaintiff for the following reasons.

(a)       The case of Beck was not concerned with the issue of privilege. Privilege was not argued in the Court and was not mentioned in the judgment.  Therefore Beck cannot be cited as a general proposition that the court can deprive a party of a claim of privilege in its quest for achieving “fairness” between the parties.

(b)       The decision of the Court of Appeal in Beck was based on a very different matrix of facts.  Beck was an officer in the Air Force.  So, he was an employee of the Ministry of Defence (MOD), the defendant.  He was treated in a Royal Air Force (RAF) hospital for psychiatric illness.  He claimed damages for alleged clinical negligent treatment by a doctor in the RAF hospital.  The District Court gave directions for the future conduct of his claim at a hearing on 28 June 2002.  A split trial was ordered.  The judge limited the expert medical evidence to one psychiatrist per party, and that the expert reports be simultaneously exchanged by 11 October 2002.  Finding dissatisfaction with their expert, the MOD asked the plaintiff to agree to their changing to another expert.  The plaintiff refused. The MOD applied to the Court for leave to replace their nominated expert.  The case of Beck was decided under these circumstances.

(c)       In Beck the courts were concerned with the sole issue whether, and if so on what terms the defendant the defendant should be allowed to instruct a new expert, see paragraph 14 of the judgment.  In other words, the court was considering whether it should impose any condition on the defendant before the defendant could be allowed to instruct a new expert.  Finally, the Court decided that in order to prevent expert shopping and allow justice to be seen to be done, disclosure of the defendant’s psychiatric report should be imposed as a condition for giving leave to the defendant to substitute experts.

6. Here, the factual situation is entirely different. There was no previous direction by the Court limiting each party to one orthopaedic expert each, and the Court has never considered the possibility of imposing a condition on the party applying for another expert’s report.  All the arrangements as to the orthopaedic reports were by agreement by the solicitors for the parties prior to the initial hearing of the Check List Review.  The correspondence showed that the plaintiff’s former solicitors Messrs Hastings knew of the existence of David Cheng’s report when arrangements were made to instruct Dr Lau Hoi Kuen as the single joint expert, and yet Messrs Hastings did not seek disclosure of the David Cheng report as a pre-condition to the arrangement where Dr Lau was appointed as joint expert of the parties.  In the circumstances and in my view, Beck can be easily distinguished.

Conclusion

7. The plaintiff has failed to show any legal basis for this application.  The plaintiff has failed to show that the report of Dr David Cheng, being a document protected by privilege, can be the subject of a production and/or inspection order.  Section 42 of the High Court Ordinance cannot assist the plaintiff. Order 24 r7 cannot assist the plaintiff.  The English authority of  Gary Beck v The Ministry of Defence cannot assist the plaintiff either. The application is dismissed for the reasons given herein.

8. Costs of the application shall be to the defendant nisi for 14 days from the date of the handing down of this Ruling, to be taxed on if not agreed.  As to the taxation of the costs of this application, there shall be liberty to apply should either party wish to have the costs assessed on a gross sum basis before me pursuant to O62 r9(4)(b).