ANTHONY JAMES HATTON v. DOROTHY JANE FURNESS AND OTHERS

----------------------

HCMP 847/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 847 OF 2007

----------------------

----------------------

----------------------

HCMP 850/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 850 OF 2007

----------------------

----------------------

(Consolidated by the Orders of The Honourable Madam Justice Kwan
dated 31 May 2007 and 26 October 2007 respectively)

----------------------

D E C I S I O N

----------------------

1.  I have before me a summons issued on short notice by the defendants in High Court Action No. 2712 of 2006 on 11 September 2008 to discharge an Anton Piller Order granted by Lam J on 5 December 2006.

2.  It is not necessary for me to go into the history of this matter.  Suffice it to say that on 6 December 2006, the plaintiffs took out an inter partes summons for the continuation of the Anton Piller Order and on 13 December 2006, the defendants took out a summons to vary that Order.

3.  By consent on 13 December 2006, Yam J adjourned the defendants’ summons to vary the Anton Piller Order until the disposal of the plaintiffs’ summons for continuation.  The summons for continuation was heard by Lam J on 15 December 2006.  Again, by an order made by consent, the defendants were directed to file evidence in opposition by 5 January 2007, and that the Anton Piller Order is to be continued until after the determination of the continuation summons or further order of the court.  The defendants have not filed any evidence in opposition to the continuation summons.  I am told by Miss Boreham for the defendants that this was because the defendants did not have sufficient funds at that time for any further steps to be taken to vary the Anton Piller Order or to oppose the continuation summons.

4.  The Anton Piller Order did not make provision on the procedures for the inspection of the electronic records obtained.  In June 2008, the plaintiffs’ solicitors requested inspection of the electronic records, and between June to August 2008 correspondence was exchanged between the plaintiffs’ solicitors, the defendants’ solicitors and the supervising solicitor of the Anton Piller Order on an appropriate form of procedure for inspection of the electronic records to be carried out.  As no agreement has been reached, the plaintiffs have taken out a summons seeking directions from this court, and that is a separate matter to be determined on another occasion.

5.  In the meantime, the defendants have taken out the present summons seeking to discharge entirely the Anton Piller Order.  If the application is acceded to, there would no need to deal with the plaintiffs’ summons for directions on the procedure to be adopted for inspection of the electronic records.

6.  I gather from Miss Boreham that the reason for the application for discharge is that there is a change of circumstances.  I was given to understand that discovery of documents has taken place in the High Court Action, and the defendants have disclosed hard copies of the documents relevant to the issues in the High Court Action.  Hence, she submitted that any discovery or inspection of the electronic records obtained in the Anton Piller Order would be subsumed by the discovery that has taken place in the High Court Action.

7.  In the correspondence exchanged between the parties in June to August this year on the inspection of the electronic records, I note it was not mentioned by the defendants’ solicitors that inspection of the electronic records has been subsumed in the discovery given in the High Court Action.

8.  In any event, I cannot be sure that that must be the case.  Under the Anton Piller Order, the plaintiffs are entitled to inspection of the electronic records.  It does not seem to me that anything has taken place to take away that entitlement. 

9.  The application to discharge the Anton Piller Order is without merits.  I dismiss this application.  I order the defendants to pay the plaintiffs’ costs of this application forthwith.