TANG HO YUEN v. SO HING KWONG AND ANOTHER

HCPI 318/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 318 OF 2010

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BETWEEN

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REASONS FOR DECISION

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I.  BACKGROUND

1.  Tang Yuk Fun Nancy (“Deceased”) was 24 years old when she suffered an accident on 21 June 2008 (“Accident”).  She passed away 2 days later.

2.  On 23 June 2010, the Plaintiff (ie the Deceased’s father who was also the administrator of her estate, “Father”) commenced the present proceedings against the 1^st and 2^nd Defendants to claim damages in respect of the Deceased’s fatal accident.

3.  The Father claims inter alia that:

(a)   at the time of the Accident, the Deceased worked as a leasing officer earning a monthly income of HK$17,000.00, but in June 2008 she accepted an offer of a civil service job as Management Services Officer II to commence in July 2008 with a monthly income of HK$20,780.00;

(b)   prior to the Deceased’s death, the monthly family expenses were HK$18,532.00 (of which HK$7,088.00 comprised mortgage payments), and she contributed HK$7,000.00 whilst the Father (who was employed as a technician at the time of the Accident) and her younger brother Tang Chi Biu Gary (“Brother”) respectively contributed HK$8,532.00 and HK$3,000.00;

(c)   each month the Deceased also paid HK$1,600.00 as tuition fee for reading the external LLB programme, HK$1,500.00 as insurance payments, and HK$2,000.00 as pocket money for her mother Wong Wai Yin (who was then a 52-year old housewife, “Mother”).

4.  In the Statement of Damages (“SOD”) filed on 23 June 2010, the Father claims that at the time of the Accident the Deceased lived with him and the Mother (“Parents”) in Kennedy Town (“KT Flat”) and the share of each household member in respect of the monthly family expenses was HK$6,177.33 (ie HK$18,532.00 ÷ 3 persons), so the monthly family expenses for the Father were HK$6,177.33 and for the Mother were HK$8,177.33 (HK$6,177.33 + HK$2,000.00). The calculation of the share of the monthly family expenses for each household member in the SOD premised on there being 3 persons in the household (ie the Deceased and the Parents) suggests that the Brother was not living in such household at the time of the Accident.

5.  In the SOD, the Father further claims that the Parents were the dependants of the Deceased, and by adopting the “Harris method” and by assuming the notional trial date to be 23 December 2011 the pre-trial and post-trial total loss of dependency under the Fatal Accident Ordinance Cap.22 based on a multiplier of 18 should be HK$467,550.00 (ie HK$20,780.00 x 75% x 30 months) and HK$2,898,810.00 (ie HK$20,780.00 x 75% x (18 x 12 – 30) months) respectively.

6.  But it is pleaded in the Revised Statement of Damages (“RSOD”) filed on 14 February 2011 that at the time of the Accident the Deceased, the Parents as well as the Brother lived at the KT Flat, so (a) the Deceased’s share of the monthly family expenses was HK$4,633.00 (ie HK$18,532.00 ÷ 4 persons), (b) her net monthly contribution to the family expenses was HK$2,367.00 (ie HK$7,000.00 – HK$4,633.00), and (c) her monthly contribution to the Mother was HK$2,000.00.

7.  It is further averred in the RSOD that the Father’s monthly contribution of HK$8,532.00 was more than his share of the family expenses, so the Deceased’s dependants were only the Mother and the Brother whose monthly dependency was respectively HK$1,750.00 (ie HK$2,367.00 x HK$4,633.00 ÷ (HK$2,367.00 + (HK$8,532.00 – HK$4,633.00)) and HK$617.00 (ie HK$2,367.00 x (HK$4,633.00 – HK$3,000.00) ÷ HK$6,266.00) or, to put it in another way, 73.9% and 26.1% of the Deceased’s monthly contribution.  But the Brother would have ceased to be dependent on the Deceased after he got married and moved out of the KT Flat on 11 October 2010.

8.  The RSOD further avers that had it not been for the Accident, the Deceased as a civil servant would have received yearly increment in addition to annual salary adjustment, so her pre-trial median income would have been HK$23,120.00, and her post-trial median income would have been HK$31,202.50 for the first 8 years and HK$36,945.00 for the subsequent 8 years. So assuming the notional trial date to be 23 December 2011, the pre-trial and post-trial total loss of dependency in the total sum of HK$1,952,496.00 is calculated as follows:

(a)   HK$187,781.00 being (HK$1,750.00 + HK$2,000.00) x 29 months + (HK$2,367.00 + HK$2,000.00) x 14 months for the Mother and HK$617.00 x 29 months for the Brother; and

(b)   HK$1,764,715.00 being HK$808,005.00 (ie HK$31,202.50 x 25.69% x 1.05 being inflation rate x (8 x 12 months)) and HK$956,710.00 (ie HK$36,945.00 x 25.69% x 1.05 being inflation rate x (8 x 12) months) both for the Mother.

9.  In both the SOD and the RSOD, there are claims for loss of accumulation of wealth, bereavement, funeral expenses and the Mother’s medical expenses. Additionally, the RSOD claims a sum of HK$100,000.00 for damages for pain, suffering and loss of amenities.

II.  DISCOVERY

10.  On 4 November 2010, the Plaintiff filed his List of Documents (“1^st List”) making discovery and disclosing inter alia the following:

(a)   Standard Chartered Bank (Hong Kong) Limited (“SCB”) bank passbook of the Parents for the period from 31 January 2007 to 19 July 2008;

(b)   Hang Seng Bank Limited (“HSB”) bank passbook of the Parents for the period from 30 August 2007 to 24 July 2008;

(c)   The Hongkong and Shanghai Banking Corporation Limited (“HSBC”) bank passbook of the Mother for the period from 19 June 2008 to 24 July 2008;

(d)   employer’s return in respect of the Father for 2008/2009;

(e)   tax return in respect of the Brother for 2008/2009;

(f)   mortgage loan repayment schedule dated 24 March 2008 in respect of the KT Flat issued by SCB showing the repayment records for the period from 26 March 2008 to 16 July 2009.

11.  Since 18 February 2011, the solicitors for the 1^st and 2^nd Defendants (“Ds’ Solicitors”) by correspondence to the solicitors for the Plaintiff (“P’s Solicitors”) requested specific discovery of various classes of documents.

12.  By letter dated 24 March 2011 from P’s Solicitors to Ds’ Solicitors, the Plaintiff disclosed the following documents:

(a)   the mortgage loan repayment schedule dated 24 March 2008 in respect of the KT Flat issued by SCB;

(b)   the mortgage loan statement dated 16 July 2009 in respect of the KT Flat issued by SCB showing the repayment records from 27 April to 16 July 2009;

(c)   employer’s returns in respect of the Father for 2006/2007, 2007/2008, 2008/2009 and 2009/2010;

(d)   employer’s returns in respect of the Brother for 2007/2008, 2008/2009 and 2009/2010,

and further confirmed that the Mother did not work during the 2 years prior to the Accident.

13.  In their letter to P’s Solicitors dated 28 March 2011, Ds’ Solicitors reiterated their request and/or they requested for the following documents and/or information:

(a)   the mortgage repayment records of the KT Flat with cross-reference to the bank account(s) from which such repayments were debited for a period of 2 years prior to the Accident to the present (“Period”);

(b)   the mortgage repayment schedule in respect of a property in Tseung Kwan O (“TKO Flat”) from the 1^st repayment to the present (since the Father’s witness statement revealed that the KT Flat was sold with last mortgage repayment made on 16 July 2009 and that a new property in Tseung Kwan O was acquired);

(c)   whether the Mother worked after the Accident and if she did her earnings records and tax information from the date of her starting to work up to the present;

(d)   all bank passbooks/statements of the Father, the Mother and the Brother that had not been disclosed for the Period.

14.  By letter from P’s Solicitors dated 6 April 2011 to Ds’ Solicitors, the Plaintiff disclosed the following documents:

(a)   the history report of the Deceased’s savings account with HSBC for the period from 1 September 2006 to 30 August 2009;

(b)   the history report of the Parents’ savings account with HSB for the period from 21 June 2006 to 2 March 2011;

(c)   the history report of the Mother’s HSBC savings account for the period from 1 June 2006 to 28 February 2011.

III.  SUMMONS

15.  On 8 April 2011, the 1^st and 2^nd Defendants applied by summons (“Summons”) for specific discovery of the following documents (“Documents”):

(a)   all bank passbooks/statements of the Father, the Mother and the Brother for the Period (“Father’s, Mother’s and Brother’s Bank Documents”);

(b)   mortgage payment records for the Period with cross-reference to the bank account(s) from which the mortgage repayments were debited (“Mortgage Documents”)

that have not been disclosed to the 1^st and 2^nd Defendants.

16.  In the Summons, the 1^st and 2^nd Defendants ask for each of the Father, the Mother and the Brother to file and serve an affirmation stating whether they have in their respective possession, custody or power or have at any time had in their respective possession, custody or power the Documents, and if the Documents have been and are not now in their respective possession, custody or power to state when they parted with them and what has become of them.

17.  At the substantive hearing of the Summons on 14 June 2011 before me (“Hearing”), Ms Chu, solicitor for the 1^st and 2^nd Defendants, confirmed that the 1^st and 2^nd Defendants would not insist that each of the Father, the Mother and the Brother file and serve an affirmation, and that they would be content with an affirmation to be filed by or on behalf of the Plaintiff pursuant to any order for specific discovery that may be granted in respect of the Summons.

18.  The Summons also asks for production of the Documents for inspection and also for the supply of copies of the Documents upon payment of proper and reasonable copying charges.  In her written submissions, Ms Yue, counsel for the Plaintiff, submits that the Summons was made under Order 24 rule 7 of the Rules of the High Court (“RHC”), which rule only requires the making of an affidavit but not production of documents for inspection and/or provision of copies of documents.

19.  At the Hearing, Ms Yue accepted that the court had jurisdiction and power under Order 24 of the RHC to order a party to permit the other party to inspect documents and/or to supply to the other party copies of documents disclosed by affidavit and/or upon discovery, and she also confirmed that the Plaintiff would not take any technical objection to the effect that the relevant rules under Order 24 of the RHC had not been specified in the margin note of the Summons.

20.  At the same time, Ms Chu informed me that the 1^st and 2^nd Defendants would be satisfied with receiving copies of any of the Documents that the Plaintiff may be ordered by the court to discover and disclose, and they would not require formal inspection of such documents. So for the purpose of the Summons, the Hearing proceeded on basis that if I were to order specific discovery of any of the Documents, the Plaintiff would provide copies of such documents to the 1^st and 2^nd Defendants on payment of reasonable copying charges.

IV.  AFFIDAVIT EVIDENCE

21.  The Summons is supported by Ms Chu’s affirmations dated 8 April, 6 May and 16 May 2011 respectively.  The Father filed his affirmation in opposition on 19 May 2011 (“Opposition Affirmation”).

22.  Ms Chu in her 1^st affirmation refers to the witness statements of the Mother dated 5 June 2010 (which alleged that the Deceased made monthly contribution of HK$7,000.00 to the family expenses) and of the Father dated 5 June 2010 (which alleged that he earned HK$14,200.00 per month as assistant supervisor and that the Brother earned HK$9,500.00 per month as senior technician).  Ms Chu believed that (a) the Documents have been or are in existence, (b) the Father’s, Mother’s and Brother’s Bank Documents are relevant to the issue of pre-accident earnings of the Deceased’s family members and to their alleged dependency both before or after the Accident, (c) the Mortgage Documents are relevant to their alleged dependency, and (d) the discovery of the Documents are necessary for disposing fairly of the cause or matter and/or for saving costs.

23.  After hearing argument at the Hearing, I granted the following orders:

(a)   The Plaintiff do within 14 days from the date thereof, ie on or before 12 July 2011, file and serve an affirmation stating whether they have in their possession, custody or power or have at any time had in their possession, custody or power the following documents (“Ordered Documents”), and if the Ordered Documents have been but are not now in their possession, custody or power stating when they parted with them and what has become of them:

(i)   all bank passbooks/statements of the Brother for a period of 2 years prior to the date of the alleged Accident up to 11 October 2010 that have not yet been disclosed to the 1^st and 2^nd Defendants;

(ii)   the statements of account of the Father’s account no. 234-X-XXXXXX with HSB which according to the letter by Ds’ Solicitors to P’s Solicitors dated 12 April 2011 (“12/4/11 Letter”) are said to be obtained from HSB in due course and to be included in the Plaintiff’s 3^rd List of Documents;

(b)   within 7 days thereafter, ie on or before 19 July 2011, the Plaintiff do provide to the 1^st and 2^nd Defendants copies of the Ordered Documents (if any) on payment of reasonable copying charges;

(c)   the Plaintiff do pay to the 1^st and 2^nd Defendants half of the costs of and occasioned by the preparation, lodging and service of the 1^st and 2^nd Defendants’ hearing bundle (“Ds’ Bundle”);

(d)   the Plaintiff do pay ⅔ of the costs of the application including all costs reserved (if any) summarily assessed at HK$22,000.00;

(e)   leave to the 1^st and 2^nd Defendants (if so advised) to file and serve Revised Answer on or before 31 July 2011, and such Revised Answer (if any) shall be accompanied by its statement of truth;

(f)   within 15 days of the Revised Answer or within 15 days of the expiry of the time prescribed for filing and serving the Revised Answer, whichever is appropriate, ie on or before 15 August 2011, the parties shall agree the revisions to the contents of the index of the trial bundle, and the copy revised index or indices of the trial bundle (i) shall be initialled by the solicitors for the parties, (ii) shall include as items therein the parties’ respective certificate of time estimates for trial, and (iii) shall be submitted to the PI Master for record purpose on or before 22 August 2011;

(g)   the parties do on or before 21 June 2011 jointly report to the PI Master the results of mediation held on 29 April 2011 by completing and returning the Report on Mediation;

(h)   the parties do on or before 5 September 2011 jointly write to the PI Master on the following matters:

(i)   state the estimated length of trial;

(ii)   state whether the trial should be set down in the fixture or running list;

(iii)   state the proposed deadline as to when this action should be set down for trial and, where appropriate, when this action should be warned for trial;

(iv)   confirm that all directions have been complied with;

(v)   propose directions for setting this action down for trial;

(vi)   propose all other necessary and proper case management directions;

(i)   Checklist Review hearing scheduled on 14 July 2011 at 3:00pm shall be vacated;

(j)   PI Master shall be notified at once and in any event within 3 days if any of the above dates or directions are not met with detailed reasons;

(k)   time shall run during court vacation;

(l)   liberty to apply;

(m)   order to be drawn up by Ds’ Solicitors with draft order submitted for approval within 5 days thereof.

24.  I have reserved my reasons for decision in respect of the Summons, which I now hand down.  At the Hearing, I have given oral reasons for decision in respect of the summary assessment of costs as well as for the above case management directions and timetable, so I will not be dealing with those matters in these Reasons for Decision.

V.  LEGAL PRINCIPLES

25.  There is no disagreement between Ms Chu and Ms Yue over the applicable legal principles for specific discovery of documents.  I have discussed these principles in some detail in Wong Hoi Wai v Secretary for Justice HCPI 664/2009 (unreported, 24 February 2011) at paragraphs 23-43, and such discussion shall be treated as being incorporated in these Reasons for Decision.  In Wong Hoi Wai (see para.36), I have assumed without deciding that the burden of satisfying the court that the specific discovery sought is not necessary either for disposing fairly of the cause or matter or for saving costs under Order 24 rule 8 of the RHC should fall on the party objecting to the order for discovery.  At the Hearing, Ms Yue also conceded such burden should fall on the Plaintiff, and I have therefore proceeded with the Hearing on such premise.

VI.  FATHER’S AND MOTHER’S BANK DOCUMENTS

26.  The Summons was issued on 8 April 2011.  A few days later on 11 April 2011, the Plaintiff disclosed the statements of account of the Parents issued by SCB (ie the mortgage repayment records with cross-reference to the bank account(s) in which the repayments were debited) for the period from 21 June 2006 to 4 December 2009.

27.  In the Plaintiff’s 2^nd List of Documents filed on 11 April 2011(“2^nd List”), the above documents as well as the bank statements of the Mother with DBS Bank for the period from 6 July 2006 to 4 July 2008 were discovered and disclosed.

28.  By the 12/4/11 Letter to Ds’ Solicitors, P’s Solicitors advised that (a) they would file and serve the Plaintiff’s 3^rd List of Documents to disclose the statements of account of the Parents issued by the SCB for the period from 21 June 2006 to 4 December 2009, (b) they would obtain the statement of account of the Father’s HSB account in due course, and (c) by this the Father would have provided all the documents requested in respect of the Parents and the Brother.

29.  By their letter dated 13 April 2011 to P’s Solicitors, Ds’ Solicitors claimed inter alia that:

(a)   despite repeated requests, some of the Documents were only provided after the issuance of the Summons, eg the Father’s HSB account were only made known after the Summons;

(b)   at that time some of the Documents, including some remaining bank passbooks/statements of the Father and the Mother, were still outstanding;

(c)   there was no confirmation as yet as to whether the Mother had worked after the Accident, but if she did her earnings record and tax information from the date she commenced work up to the present should be disclosed.

30.  In her 2^nd affirmation dated 6 May 2011, Ms Chu claimed that the 1^st and 2^nd Defendants had not received the bank passbooks/statements of the Father’s HSB account, and it had not been made clear whether all of the Mother’s Bank Documents had been disclosed.  But Ms Chu stated that if all of the Mother’s Bank Documents had been disclosed, the 1^st and 2^nd Defendants would not pursue the request for specific discovery of such documents any further.

31.  On 9 May 2011, the Plaintiff filed his 3^rd List of Documents (“3^rd List”) making discovery and disclosing inter alia the following documents:

(a)   copy statement of account issued by SCB for the period from 21 July 2006 to 4 December 2009;

(b)   copy bundle of credit card statements issued by SCB for the period from 5 May 2007 to 7 April 2008;

(c)   copy letter prepared by HSBC dated 5 January 2011;

(d)   copy bundle of bank statements issued by HSBC for the period from 8 June 2006 to 22 August 2007;

(e)   bundle of statements of integrated account issued by HSB for the period from 30 December 2006 to 30 June 2008;

(f)   copy bundle of statements of Mpower Mastercard issued by HSB for the period from 18 June 2007 to 26 May 2008.

32.  The Opposition Affirmation stated inter alia that:

(a)   P’s Solicitors by the 12/4/11 Letter confirmed that all of the Mother’s Bank Documents had been disclosed except for those in respect of the HSB account, and time was required to obtain such documents from the bank, but such documents had since been discovered and disclosed in the 3^rd List.  Anyway, since the 1^st and 2^nd Defendants no longer pursued the request for specific discovery of the Mother’s Bank Documents, Ms Chu should not have dwelled on this aspect in her 2^nd affirmation.

(b)   Since the Father did not claim for loss of dependency in both the SOD and the RSOD, it was not necessary to disclose his financial records, but nevertheless the 1^st and 2^nd Lists had disclosed the bank books and history reports of the bank accounts of the Parents issued by SCB and HSB as well as the employer’s returns in respect of the Father.

(c)   On 12 April 2011, the Father filed an affirmation in response to the 1^st and 2^nd Defendants’ request for interrogatories without order (“Father’s Affirmation”), which affirmation confirmed that (i) on average the Deceased transferred HK$8,715.00 per month to the Mother’s bank account as contribution for family expenses and as pocket money for the Mother (with disclosure of the Deceased’s and the Mother’s HSBC bank account records for cross-reference), and (ii) the Deceased would buy the Parents tea or would shop for groceries, so her monthly contribution to the family expenses was HK$9,000.00.

The Father took the view that the request by the 1^st and 2^nd Defendants for irrelevant financial records for the Period was unnecessary, groundless and unreasonable, and he asked for the Summons to be dismissed with costs.

33.  There is no doubt that the requests for specific discovery of the Father’s and the Mother’s Bank Documents were made in March 2011.  P’s Solicitors disclosed the HSB, HSBC and SCB bank passbooks/statements (since 2006) of the Parents on 6 April 2011 (ie before issuance of the Summons) and 11 April 2011 (ie after the issuance of the Summons) respectively.  There is no evidence before me that prior to such disclosure the Plaintiff indicated to the 1^st and 2^nd Defendants that he would be obtaining such documents or that he would require time for such purpose.

34.  Indeed, the above documents as well as the bank statements of the Mother’s account with DBS Bank were disclosed in the 2^nd and 3^rd Lists which were filed after the issuance of the Summons.  It was as a result of such disclosures made after the issuance of the Summons that the 1^st and 2^nd Defendants decided not to further pursue the application for specific discovery of the Father’s and the Mother’s Bank Documents save and except of the limited sub-class of documents discussed below.

35.  In light of the alleged dependency of the Mother, there is no suggestion that the Mother’s Bank Documents (which, in my view, are clearly within the possession, custody and power of the Plaintiff) are irrelevant.  I am of the view that these documents are plainly relevant in the Peruvian Guano sense of (a) directly or indirectly enabling the 1^st and 2^nd Defendants either to advance their own case or to damage the case of the Plaintiff and/or (b) fairly leading the 1^st and 2^nd Defendants to a train of enquiry which may have either of these two consequences.  I particularly bear in mind the fact that the 1^st and 2^nd Defendants have no knowledge of the Mother’s financial assets, her alleged share of the family expenses and her alleged dependency, which matters are within her own and her family’s knowledge.  Specific discovery of the Mother’s Bank Documents are clearly necessary for assessing the Plaintiff’s pleas on these matters (ie for fairly disposing of the cause or matter).  In the circumstances, I find that the 1^st and 2^nd Defendants are fully justified in issuing the Summons to ask for specific discovery of the Mother’s Bank Documents, and hence they should be entitled to costs in respect of such application.

36.  Ms Chu points out that although the Father has disclosed the bank passbooks/statements of the Parents’ savings account with HSB on 6 April 2011, the 12/4/11 Letter from P’s Solicitors to Ds’ Solicitors stated that the Father would file and serve the 3^rd List to disclose his HSB account records “to be obtained from the bank in due course”.  There is no direct confirmation by P’s Solicitors or by the Father as to whether they have obtained the Father’s HSB account records after 12 April 2011.  But the Opposition Affirmation claimed that the Father’s HSB account records had been disclosed in the 3^rd List filed on 9 May 2011.  However, a review of the 3^rd List only showed that it disclosed the statements of the Deceased’s (and not the Father’s) integrated account with HSB.

37.  The above confusion led Ms Chu (by way of her 3^rd affirmation) to urge the Plaintiff to clarify whether the HSB bank documents of the Parents disclosed on 6 April 2011 were complete.  Ms Chu made clear that if such confirmation were forthcoming, the 1^st and 2^nd Defendants would not pursue the request for specific discovery of the Father’s Bank Documents.

38.  Neither the Father nor P’s Solicitors gave such confirmation.  Instead, Ms Yue in her written submissions criticises the 1^st and 2^nd Defendants for putting forward substantive arguments for specific discovery of inter alia the Father’s Bank Documents when they have already indicated in Ms Chu’s 2^nd and 3^rd affirmations that they would not proceed with such application.  In my view, such submissions reflect a misunderstanding of the stance adopted by the 1^st and 2^nd Defendants.  It is clear that the 1^st and 2^nd Defendants are not making any unconditional abandonment of the application for specific discovery of the Father’s Bank Documents. Rather, they are only prepared to do so if the clarification specified in paragraph 37 above is forthcoming.

39.  Ms Yue next complains that the Summons is not an appropriate platform for the 1^st and 2^nd Defendants “to seek clarification [specified in the paragraph 37 above] when the documents requested have already been discovered to the Defendants before the Summons”.  In my view, this is again a misunderstanding of the stance adopted by the 1^st and 2^nd Defendants.  In asking for the aforesaid clarification, the 1^st and 2^nd Defendants are adopting a pragmatic approach to clear up the confusion caused by the Plaintiff as described in paragraph 36 above so as to obviate any continued need for specific discovery of the Father’s Bank Documents.  But failing such clarification, the confusion remains, ie the Father through P’s Solicitors has indicated that further bank statements in respect of his account with HSB would be obtained after 12 April 2011 (which prima facie shows that such documents are in the possession, custody or power of the Plaintiff) but, contrary to the assertion in the Opposition Affirmation, such further bank statements from HSB have not been disclosed in the 3^rd List.

40.  The remaining question is whether the further bank statements in respect of the Father’s account with HSB (which are to be obtained from the bank as claimed in the 12/4/11 Letter) are relevant and necessary for fairly disposing of the cause or matter or for saving costs.  The Father’s primary stance is that it is not necessary for him to disclose his financial records since he does not have any claim for loss of dependency in both the SOD and the RSOD, and his fall-back stance is that the employer’s returns and bank records he had voluntarily disclosed are more than adequate.

41.  I have no hesitation in concluding that the documents sought are relevant and necessary for fairly disposing of the cause or matter or for saving costs.  First, paragraph 2(a) of the SOD averred that the Father was a dependant of the Deceased at the time of her death, but such averment disappeared in the RSOD.  Secondly, there is no clear documentary support for the allegation that the Father contributed HK$8,532.00 per month to the family expenses, and the 1^st and 2^nd Defendants are plainly entitled to consider his bank records to assess the viability of such allegation, which in turn affects the calculation of the amount of the alleged dependants’ respective share of the monthly family expenses and their respective alleged dependency on the Deceased.  In such circumstances, I am not persuaded that disclosure of documentary records of the Father’s earnings (eg his employer’s returns) is sufficient.  Further, I also find that it is appropriate for the Father’s Bank Documents covering the Period be disclosed as they will be able to illustrate the pattern of his earnings, savings and expenditure over a reasonable period.

42.  I therefore granted the order specified in paragraphs 23(a)(ii) and (b) above. On the basis that costs follow event and given the fact that some of the Father’s Bank Documents were disclosed after the issuance of the Summons, the 1^st and 2^nd Defendants should be entitled to costs of the application for specific discovery of the Father’s Bank Documents.

VII.  KT FLAT MORTGAGE DOCUMENTS

43.  For the KT Flat Mortgage Documents, Ms Chu is correct in pointing out that the 1^st List only disclosed the mortgage repayment records dated 24 March 2011 covering the period from 26 March 2008 to 16 July 2009, and it was only after the Summons was issued that the Father by way of the 2^nd List provided the statements of account of the Parents issued by SCB showing the mortgage repayments for the period from 21 June 2006 to 4 December 2009 with the cross-reference to the bank account(s) from which moneys for such repayments were debited.  Ms Chu claims (and the Father acknowledges in the Opposition Affirmation) that it is for such reason that the 1^st and 2^nd Defendants no longer pursued the request for specific discovery of the KT Flat Mortgage Documents at the Hearing.  As a matter of interest and as noted by Ms Chu, the account from which the mortgage repayments for the KT Flat were debited was the Parents’ account with SCB and not (as the Father asserted in the Opposition Affirmation) their account with HSB.

44.  Since the relevant statements of account issued by SCB were disclosed after the Summons was issued, I see no reason why the 1^st and 2^nd Defendants should not be entitled to costs of the application for specific discovery of the KT Flat Mortgage Documents.  After all, these documents are necessarily relevant to the issue of quantum for the monthly mortgage repayments in respect of the KT Flat constituted a large portion of the family expenses, and the 1^st and 2^nd Defendants are entitled to ascertain the source of funds for such repayments in order to assess the viability of the dependency and share of dependency of the respective alleged dependants.

VIII.  TKO FLAT MORTGAGE DOCUMENTS

45.  In their letter dated 13 April 2011 to P’s Solicitors, Ds’ Solicitors complained that the mortgage repayment records of the TKO Flat with cross-reference to the bank account(s) in which the repayments were debited as from 17 July 2009 (because the KT Flat was sold with last mortgage payment made on 16 July 2009) to the present (“TKO Flat Mortgage Documents”) had not been disclosed.

46.  In her 2^nd affirmation, Ms Chu exhibited records of the land search of the TKO Flat done on 6 May 2011 which show that the Parents’ purchase of such property on 20 July 2009 for HK$2,490,000.00 was mortgage-free.  As a result, the 1^st and 2^nd Defendants decided not to proceed with the request for specific discovery of the TKO Flat Mortgage Documents, but they complained that P’s Solicitors did not attempt to minimise the dispute by confirming to Ds’ Solicitors that there was no mortgage.

47.  In the Opposition Affirmation, the Father stated that the TKO Flat had nothing to do with the present claim as the Deceased never lived there, so he simply ignored the request for specific discovery of such documents.

48.  In my view, the burden is on the 1^st and 2^nd Defendants to establish a prima facie case that the TKO Flat Mortgage Documents are in the possession, custody and power of the Plaintiff.  Since information of the existence or otherwise of any mortgage in respect of the TKO Flat is in the public domain and can be ascertained via land search, I am of the view that the 1^st and 2^nd Defendants are not justified in making the application for specific discovery of the TKO Flat Mortgage Documents without first conducting a land search to ascertain whether there is any mortgage or not. Such failure cannot be salvaged by criticising P’s Solicitors for being unhelpful.  Quite correctly, Ms Chu did not pursue such application any further at the Hearing, but I am afraid the 1^st and 2^nd Defendants should bear the costs for such application.

IX.  BROTHER’S BANK DOCUMENTS

49.  In the 2^nd List, the Plaintiff has made discovery and disclosed the employer’s returns in respect of the Brother for 2007/2008, 2008/2009 and 2009/2010. In their letter to P’s Solicitors dated 13 April 2011, Ds’ Solicitors complained that even though the RSOD alleged that the Brother was a dependant of the Deceased, the Plaintiff failed to make discovery and disclose the Brother’s Bank Documents.  Ms Chu in her 2^nd affirmation reiterated that as at 6 May 2011 the 1^st and 2^nd Defendants still had not received the Brother’s Bank Documents.

50.  But at the Hearing, Ms Chu conceded that the application for specific discovery of the Brother’s Bank Documents for the Period is too wide, and the request for such documents should be limited to a period for 2 years prior to the Accident up to 11 October 2010, ie the date when the Brother got married and moved out of the Father’s household and, according to the Plaintiff, would have ceased to be dependent on the Deceased.

51.  Notwithstanding such concession, the Plaintiff still resisted the request for specific discovery of the Brother’s Bank Documents up to 11 October 2010.  In the Opposition Affirmation, it was said that given (a) the information in the Father’s Affirmation and (b) the disclosure of the tax return in respect of the Brother for 2008/2009 in the 1^st List, the 1^st and 2^nd Defendants’ request for irrelevant financial records of the Brother for 2 years prior to the Accident was unnecessary, groundless and unreasonable.

52.  Ms Yue argues that the employer’s returns in respect of the Brother for 2007/2008, 2008/2009 and 2009/2010 show that the Brother started to work in September 2007, and his annual monthly income for 2007/2008, 2008/2009 and 2009/2010 were respectively HK$64,486.00, HK$144,967.00 and HK$159,238.00.  Ms Yue submits that the employers’ returns, which constitute sufficient evidence and proof of the Brother’s income and financial status, show that his income trend was stable and consistent. She further complains that the 1^st and 2^nd Defendants have never indicated how the Brother’s Bank Documents over such a long period of time from 2 years prior to the Accident up to 11 October 2010 can assist in proving the Brother’s income (which is already shown in the employer’s returns).

53.  Pausing here, I note that the employer’s returns in respect of the Brother were submitted by the relevant employer who employed him for the relevant period, ie Hong Kong Broadband Network Ltd, to the Inland Revenue Department. Other employer(s) of the Brother, if any, would have lodged their own employer’s return(s).  In the circumstances, the disclosed employer’s returns do not of themselves prove that the Brother did not work prior to 3 September 2007.  In the absence of any employer’s return or any other documentary evidence of the Brother’s earnings (if any) covering the period prior to 3 September 2007, it is plainly appropriate for the 1^st and 2^nd Defendants to ask for the Brother’s Bank Documents for a period from 2 years prior to the Accident in order to assess (a) the viability of the assertion that the Brother started to work only in September 2007 and (b) his financial status prior to the Accident.

54.  Ms Yue further complains that the 1^st and 2^nd Defendants have never indicated how the Brother’s Bank Documents over such a long period of time from 2 years prior to the Accident up to 11 October 2010 can assist in proving his contribution to the family expenses (which dependency issue, she claims, has been explained in the Father’s Affirmation).  Thus, it is said that the 1^st and 2^nd Defendants’ reasons for requesting disclosure of the Brother’s Bank Documents are totally irrelevant, and that the Summons should not become a mini-trial of the Brother’s claim for dependency.  Ms Yue argues that the Plaintiff has produced all relevant documents in relation to the issue of the Brother’s claim for dependency, and the request for specific discovery of the Brother’s Bank Documents is frivolous, unnecessary and cost-wasting.

55.  In relation to the alleged dependency of the Brother, the employer’s returns in respect of the Brother only show his income and not his monthly contribution to the family prior to 11 October 2010.  In short, the allegation that the Brother contributed HK$3,000.00 per month to the family expenses is not supported by documents, yet the reliability of such allegation is crucial to the issue of whether the Brother was a dependant of the Deceased at the time of her death.  After all, the Brother’s share of the family expenses at the time of the Accident as alleged in the RSOD was HK$4,633.00, which is slightly over his monthly contribution of HK$3,000.00 as alleged in both the SOD and the RSOD.

56.  Bearing in mind that at that time of the death of the Deceased the Brother was single, lived at the Father’s household, was in full-time employment, and had monthly earnings of about HK$9,200.00, it is unsurprising that the 1^st and 2^nd Defendants would apply for specific discovery of documents that would have bearing on his alleged monthly contribution of only HK$3,000.00 to the family expenses.  There is no need for me to conclude, as Ms Chu suggests, that the Brother’s claim for dependency is dubious.  But I accept that it is necessary for the 1^st and 2^nd Defendants to investigate the viability of such claim. In this respect, the Brother’s financial position (eg how much he earned and/or saved) must be relevant to assessing the correctness of the alleged monthly contribution of HK$3,000.00.  The Brother’s Bank Documents up to 11 October 2010 will show deposits and withdrawals and may to some extent reflect his income and expenditure pattern, which in turn must be relevant for proving and/or disproving the allegations in respect of the Brother’s alleged monthly contribution to the family expenses and hence his alleged dependency on the Deceased.

57.  This is particularly important since documents and information relating to the Brother’s contribution to the family expenses are entirely within the possession, custody, power and/or knowledge of the Plaintiff and not the 1^st and 2^nd Defendants at all.  This is compounded by the fact that curiously the SOD as verified by its statement of truth does not plead that the Brother was a dependant of the Deceased, yet arguably at the material time the Father should have known of the Brother’s alleged dependency as averred in the RSOD.

58.  I am not persuaded that the employer’s returns which merely go to the Brother’s income and the Father’s Affirmation which merely goes to the Deceased’s monthly contribution (with breakdown) detract from the relevancy and necessity of the Brother’s Bank Documents in relation to the issue of the Brother’s monthly contribution to the family expenses, his own personal expenses/savings, and his alleged dependency on the Deceased.

59.  In any event, given that it is alleged in the RSOD that the Mother and the Brother were both dependants of the Deceased, no satisfactory explanation is forthcoming as to why the Plaintiff would voluntarily disclose the Mother’s Bank Documents but resist disclosure of the Brother’s Bank Documents.

60.  For all of the above reasons, I granted the order specified in paragraphs 23(a)(i) and (b) above at the Hearing, and there is no reason why costs should not follow event in respect of the application for specific discovery of the Brother’s Bank Documents for the period of 2 years prior to the date of the Accident up to 11 October 2010. But in fairness the Plaintiff should be entitled to costs for resisting discovery of such documents for the period after 11 October 2010 up to the present.

X.  COSTS

61.  Taking into account the parties’ various entitlements to costs  discussed above and upon set-off, I consider that a fair order as to costs is for the Plaintiff to pay ⅔ of the costs of the Summons including all costs reserved (if any), but this is subject to the provision for costs in respect of Ds’ Bundle discussed below.

62.  Both parties have prepared separate hearing bundles for the Hearing.  Plainly there is a lack of effective communication and procedural cooperation between the parties that regrettably has led to escalation in costs.  Such approach plainly affronts the underlying objective of procedural economy and reasonable proportionality, and reflects a failure to assist the court in furthering such underlying objective.  Ds’ Solicitors having carriage of the Summons should have taken the initiative in liaising with P’s Solicitors in the preparation of the hearing bundle, but they failed to do so.  To reflect the court’s disapproval of such approach, at the Hearing I ordered the Plaintiff to pay only half of the costs of and occasioned by the preparation, lodging and service of Ds’ Bundle.