DAH SING BANK LTD v. SING FAI HANDBAGS MANUFACTORY LTD AND OTHERS

HCMP1250/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1250 OF 2003

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R U L I N G

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1.  I will make an order in terms.  This in effect is by consent.  The plaintiff says that, as is usual in my experience, they only keep documents for seven years and so discovery will go back for the whole of that period.  It cannot comply all the way back for the 10 years that is asked for.  So that is the order that I am going to make.

2.  The more difficult issue is the question of costs.  The plaintiff says, “Well, we should have our costs of and occasioned by the application, which is a very late one.”  The trial is due to start very shortly and some weeks ago, at the hearing of the pre-trial review, I was assured by Mr Li, who is the solicitor for the relevant defendants, that there were no further questions on discovery.  It was just a matter of translation of some documents from Chinese into English, and that is how the matter lay until very recently, at the beginning of last month when all of these documents were asked for, which must have come as something of a surprise for the plaintiff. 

3.  The reason for that is that the Legal Aid Department only recently extended the certificate to nominate counsel and he, having looked at the papers, decided that all of this material was relevant.  I am sure he was right in the advice that he gave, but the plaintiff says, “Well, this being so late, we have been put to considerable trouble and we should have our costs.”  Mr Li’s response to this is that if these documents are relevant, the law is very clear on this, it is the duty of the parties to make proper discovery and these documents should have been discovered voluntarily as long ago as when the plaintiff produced its list of documents.

4.  I think that is probably a little unfair on this occasion because this is not, in my view, obvious discovery as against these three defendants who are not clients of the bank.  When one looks at what has been asked for, this is basically bank statements and other correspondence and paperwork which has gone to and fro between the bank and its customers, the 1st and 2nd defendants and this would also have been available to the 3rd defendant who is the main party, the named director and shareholder of the 1^st defendant. The first three defendants have either disappeared or taken no part in the proceedings with the result that the plaintiff has obtained judgment in default of appearance.  Had they taken part and served a defence and so forth, I have no doubt that all of these documents would have emerged in the list certainly as discovery against the first three defendants.  So this application would not have been a necessary one.

5.  As I say, it is not obvious discovery against the 4th, 5th and 6th defendants.  So I think Mr Li’s criticism is a little harsh.  What I am going to do, I do not think it is right to make an order for costs between the parties today but I do think that the plaintiff ought to be protected from ever having to pay these defendants costs even if it were to lose the action.  So I am going to say that the costs of and occasioned by this application are to be the plaintiff’s costs in the cause.  So if they win the action, then they will no doubt get the costs of the action which will include these costs.  If the defendants succeed in the action, the defendants will have their costs of the action but they are going to have to bear their own costs of this application.  So I have protected the plaintiff to that extent.

6.  There is a subsidiary question as to what are said to be exorbitant photocopying charges: $50 a page in respect of these documents.  I am going to leave that for taxation and the taxing master. If and when he has got to decide this, he can listen to the submissions that I have listened to firstly from Miss Cheng in seeking to justify this charge and Mr Li in opposition.  So I am not going to say anything further about that simply because I do not need to.  So that is the order in terms of the application going back seven years.