CHINA MEDICAL TECHNOLOGIES, INC (IN LIQUIDATION) AND OTHERS v. BANK OF CHINA (HONG KONG) LTD

HCA 1742/2018

[2025] HKCFI 6373

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1742 OF 2018

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D E C I S I O N

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1.  There were two summonses before the court. The first was the Plaintiffs’ application for an order to compel the Defendant to provide an affidavit to explain how certain documents in its possession have become destroyed (“the Affidavit Application”). The second was the Defendant’s application to order the withdrawal the interrogatories (“the Interrogatories”)  administered by the Plaintiffs on 24 October 2025 (“the Withdrawal Application”).

2.  The relevant background facts and the procedural history are well known to the parties, and will not be repeated in this Decision.  They can also be found in Ng J’s Decision dated 15 October 2021: [2021] HKCFI 3042.

A.  AFFIDAVIT APPLICATION

3.  By their summons dated 29 May 2025, the Plaintiffs applied for the following order against the Defendant:

“In respect of any documents which are identified or described in Annexure A hereto (“Requested Documents”) which have at any time been in the possession, custody or power of the Defendant, but are no longer in the possession, custody or power of the Defendant, the Defendant do, within 14 days from the date of an order to be made hereon, make and serve on the Plaintiffs an Affidavit or Affirmation (made by a deponent with direct and first-hand knowledge)  providing, on a category by category basis (by reference to the categories set out in Annexure A hereto), an explanation as to when the Defendant parted with them and what has become of them, including by reference to the following matters:

1.1  which documents within the scope of the Requested Documents actually existed;

1.2  which documents were destroyed, the exact dates of their destruction, and the identity of the individuals responsible for authorising, permitting and executing such actions;

1.3  whether any internal document preservation notices were issued upon receipt of the requests for preservation by the Liquidators, and whether any tangible steps were taken to prevent the destruction of potentially relevant documents in accordance with the Defendant’s standard document retention policies (and if not, why not);

1.4  any contemporaneous internal communications by staff of the Defendant relating to the Liquidators’ document preservation requests;

1.5  any relevant internal policies, or regulatory requirements that the Defendant considered it was subject to at the relevant time (from 2013), which prescribed any action to be taken if:

(a)  a request for document preservation was received;

(b)  legal proceedings were contemplated or commenced; or

(c)  the Defendant became aware of, or suspected, the existence of suspicious transactions.”

4.  As stated in the affirmations filed on its behalf, the Defendant’s position is that certain relevant documents have been destroyed in the ordinary course of its business and in line with its retention policy and practice.  In their Supplemental List of Documents filed dated 25 July 2025 (filed after the Affidavit Application was taken out), the Defendant expressly identified 16 categories of documents in Schedule 2 as “documents which have been deleted from the Defendant’s systems in accordance with the Defendant’s retention policies and/or practice”.

5.  However, the Plaintiffs submitted that given the Liquidators’ previous requests for document preservation, there has been no explanation from the Defendant as to how the destruction could have been permitted to take place.  And it is that explanation which the Plaintiffs were seeking from the Defendant in the Affidavit Application.

6.  Having considered the parties’ submissions, and the particular circumstances in this case, I have come to the view that it is not appropriate to compel the Defendant to make an affidavit to provide the requested explanation.  I decline the application for two main reasons.

7.  First, I am not satisfied that the Plaintiffs have used the correct procedure to ask the Defendant to provide explanation or give further particulars as to why it has destroyed documents in its possession. 

(1)  In their Summons dated 29 May 2025, the Plaintiffs referred to RHC O.24 rr. 3 and 7, and the court’s inherent jurisdiction, to support the Affidavit Application.

(2)  Under O.24 r.5(3), an affidavit given under O.24 r.3 is to be in the prescribed form (Form 27)  to verify a list of documents.  This is clearly not what the Plaintiffs were seeking in this application.

(3)  An affidavit envisaged under O.24 r.7 should state whether the relevant document “is, or has at any time been, in [a party’s] possession, custody or power, and if not then in his possession, custody or power when he parted with it and what has become of it”.  Again, the Plaintiffs were not seeking this sort of affidavit.  The Plaintiffs were looking for particulars of the contents of a discovery affidavit as to how documents have been destroyed.  I do not believe what Chu VP said in Liu Hua v Lau Chu Pak [2023] 5 HKLRD 425 at [24] about dealing flexibly with the conclusiveness of discovery affidavit would assist the Plaintiffs.  If an O.24 r.7 affidavit does not require a party to state other particulars concerning “when he parted with [the document] and what has become of it”, I do not believe the court can further compel the party to provide additional particulars under O.24 r.7. 

(4)  The Plaintiffs referred to P Matthew & H Malek Disclosure (6^th ed, 2024)  at §6-44 where the learned authors made the observation, in the context of paragraph 12.3 of the UK Practice Direction 57AD, that if there is an important document or the circumstances in which the document is no longer in a party’s control is significant, a party can be required to give particulars.  The Plaintiffs did not explain or produce any authority to show how this UK practice may be applied in the context of RHC in Hong Kong.

(5)  The Plaintiffs further referred to Glaxo Wellcome UK Ltd v Sandoz Ltd [2018] EWHC 1626 (Ch)  and Tai Wai Cheong v Credit Industriel et Commercial [2013] SGCA 33 for the general proposition that the court has the power to order a further affidavit to explain the circumstances surrounding a party’s discovery.  The decision in Glaxo did not identify the basis of the application or the order made by the court.  Further, the context in which the Singaporean Court of Appeal made the order in Tai Wai Cheong is far removed from the present case.  Accordingly, I do not think the two authorities support the Plaintiffs’ contention that the court can make the order in this application pursuant to O.24 r.7. 

(6)  Importantly, in Liu Hua (above), Chu VP at [27] said that “while the discovery affirmation of a party is conclusive at the interlocutory stage, the other party who is not satisfied with the affirmation can still, pursuant to O.26 of the Rules of the High Court, serve on the other party interrogatories requesting the other party to give more particulars”.  Therefore, insofar as a party wishes to obtain particulars from another party in relation to matters stated in the other party’s discovery affidavit, the proper way to proceed is to administer interrogatories under O.26. 

(7)  The Plaintiffs also relied on the court’s inherent jurisdiction as a basis to make an order to compel the Defendant to explain and provide particulars about its destruction of documents.  However, all of the authorities cited by the Plaintiffs were not concerned with discovery of documents. 

(8)  Where a party wishes to obtain further particulars on a discovery affidavit filed by another party, I am not persuaded that it is correct for the former to invoke the inherent jurisdiction of the court to compel the latter to provide such particulars by way of affidavit.  If the proper approach is to administer interrogatories to obtain such particulars (per Chu VP at [27] of Liu Hua (above)), it appears unnecessary to rely on the court’s inherent jurisdiction to do so.

8.  Further and in any event, even if the Plaintiffs have used the correct procedure to seek an order for the Defendant to provide explanation on the destruction of documents by way of affidavit, I would have exercised my discretion against granting the order sought.  On the particular circumstances of this case, I am not satisfied that the Plaintiffs are entitled to seek further explanation or particulars from the Defendant in relation to the destruction of documents in an unfocused manner as demonstrated by the width of the orders sought in their Summons. 

9.  The gravamen of the Plaintiffs’ case is that in the light of the history of this matter, the Defendant has simply failed to explain why no document preservation steps were taken and why documents were destroyed notwithstanding the Liquidators’ previous requests for document preservation.  The Plaintiffs have relied on a number of matters to support their application.  For the reasons given below, it is my view that such matters do not justify an unfocused approach adopted by the Plaintiffs.

10.  In this matter, the Liquidators first requested the Defendant to preserve documents relevant to the CMED Group in March 2013.  This was repeated in July 2013 and October 2014.  I note that those requests were made in the context of the Liquidators’ requests of assistance from the Defendant, and long before the commencement of these proceedings. 

11.  The Plaintiffs relied on paragraph 30 of the 3^rd Affirmation of Li Lok Man Daisy (“Li 3”)  to contend that the Defendant had allowed the destruction of the backups of Mr Loman Lo’s emails between 2004 and 2008 in December 2014.  At that time in December 2014, the Plaintiffs had not yet commenced proceedings in this action.  There is also no suggestion that the Defendant knew that the Plaintiffs were contemplating litigation against it. In these circumstances, I do not believe the Defendant is obliged at the present interlocutory stage to provide any further explanation regarding the destruction of documents insofar as it happened in or before December 2014.

12.  The Plaintiff also relied on a production order made by Harris J on 10 April 2014 in HCMP 902/2014 to require the Defendant to, amongst other things, keep certain specified documents in safe custody until their copies have been produced to the Liquidators. It is not the Plaintiffs’ case that the Defendant had failed to produce the specified documents pursuant to that order.  Indeed, the production order was complied with by the Defendant from April to July 2014.  Further, the production order was also not an order for the preservation of documents.  Accordingly, I fail to see how this production order can provide a basis for the Plaintiffs to seek an explanation from the Defendant at this stage regarding the latter’s destruction of documents.

13.  The Plaintiffs mentioned that although the writ in the original action against the Defendant in HCA 2448/2014 (“the 2014 Action”)  was not served until November 2016, the Defendant did have notice of it in March 2015 when it was exhibited in the Liquidators’ evidence in an application under s.221 of Cap.32 in separate proceedings in HCCW 435/2012. The context in which the Defendant had notice of the writ is important.  There was no evidence before the court as to why the Plaintiffs did not serve the writ in the 2014 Action until November 2016.  The Defendant only received the writ as part of the evidence to support the Liquidators’ application for production of documents in a separate set of proceedings, which application was dismissed in December 2015.  In these circumstances, the Defendant can at most be said to have notice of the Plaintiffs’ contemplation of legal proceedings against it in 2015.  As mentioned in C Hollander KC Documentary Evidence in Hong Kong (2^nd ed, 2020)  at §11-011, there is no express rule which prevents document destruction even when litigation is in reasonable contemplation. 

14.  The Plaintiffs further pointed to the JRS report in relation to East Hope made in March 2009 and the Defendant’s decision not to report the matter to the Joint Financial Intelligence Unit made in April 2009.  According to paragraph 40(c)  of Li 3, the underlying records of that particular JRS report would have been destroyed by the Defendant in April 2016 because of the 7-year retention policy.  However, the Plaintiffs had not yet commenced proceedings in this action in April 2016.  The writ in the 2014 Action was also not served on the Defendant until November 2016.  I do not think it is necessary for the Defendant to explain at this stage why it permitted the destruction of JRS reports in April 2016.

15.  The Plaintiffs also relied on the Defendant’s evidence (paragraph 31 of Li 3)  that any yearly backup files of Jackie Chiu’s emails between 2006 and 2010 would have been deleted from the Defendant’s backup system between December 2013 and December 2016.  They argued that the Defendant should not have been allowed such emails to be deleted.  However, the Plaintiffs have only demonstrated the emails involving Jackie Chiu in 2008 and 2009 were in existence.  They have not shown the existence of any emails involving Jackie Chiu in 2010.  Accordingly, I am not satisfied that it is necessary for the Defendant to provide any explanation at this stage about the preservation of such emails in 2016.

16.  The writ in the present proceedings was served in August 2018.  The Plaintiffs relied on certain statements made in the affidavit evidence made on behalf of the Defendant in the 2014 Action and a Bankers Book application to suggest that the Defendant took no positive action to preserve relevant documents, and was continuing to allow relevant documents to be destroyed in disregard of its disclosure obligations.  I have read those statements in the relevant affirmation and do not believe the Plaintiffs’ suggestion reflects a fair reading of what the various deponents were saying at the time.

17.  The Plaintiffs submitted that the Defendant and its former solicitors took no positive action to preserve documents at the time when its difficulties were first identified, but sought to rely on the difficulties years later as a basis for non-compliance with a court order.  They relied on a letter dated 28 April 2022 from the Defendant’s former solicitors to support their submissions.  Having read the letter, I am unable to agree with the Plaintiffs’ submissions.  The letter was written in response to the Plaintiffs’ solicitors’ letter dated 1 April 2022 and the Court of Appeal’s order dated 10 March 2022 in CACV 46/2016, and should be understood in that context.  In my view, the letter does not provide a reasonable basis for the Plaintiffs to suggest that the Defendant only started to collate the documents upon the receipt of the Court of Appeal’s order in March 2022.

18.  Finally, the Plaintiffs pointed to various parts in the Defendant’s evidence in Li 3 where Ms Li sets out different latest points in time between 2018 and 2024 by which certain class of documents would have been deleted according to the Defendant’s retention policy.  I do not think such specific instances would entitle the Plaintiffs to obtain a further affidavit from the Defendant to cover the wide-ranging matters mentioned in the Plaintiffs’ summons.  It would be disproportionate and unnecessary to order the Defendant to do so.

19.  For all of these reasons, even assuming the court has the power under O.24 r.7 to order the Defendant to file an affidavit to provide particulars and explanation of the contents of the filed discovery affidavits as to how documents have been destroyed, I would not have exercised my discretion to make such an order on the basis of the materials identified by the Plaintiffs. 

20.  I dismiss the Plaintiffs’ summons dated 29 May 2025.

B.  THE WITHDRAWAL APPLICATION

21.  In the Withdrawal Application, the Defendants sought to withdraw the Interrogatories administered by the Plaintiffs.  The Interrogatories are closely related to the Affidavit Application.  As the Plaintiffs acknowledged in their skeleton, the Interrogatories were one procedural route by which they sought to obtain explanation as to how the Defendant’s destruction of relevant documents could have been permitted.  The Defendant also regarded the Affidavit Application and the Withdrawal Application as intertwined: the numerous affirmations filed by the Defendant were used both to resist the Affidavit Application and to support the Withdrawal Application. 

22.  In exercising my discretion in this application, I have borne in mind the relevant principles on interrogatories, which are not in dispute.  In particular, I bear in mind what Ma J said at [7(3)] and [7(6)] in Kao Lee & Yip v Donald Koo Hoi-Yan (unreported, HCA 8847/1993, 23 April 2002)  that the key consideration going to the exercise of discretion is whether the interrogatories are necessary either for disposing fairly of the cause or matter, or for saving costs.

B1.  Interrogatories 1 to 4 – Document Preservation Requests

23.  Interrogatories 1 to 4 related to 11 letters written by the Plaintiffs’ solicitors to the Defendant or the Defendant’s former solicitors from 2013 to 2024 requesting, amongst other things, for document preservation. 

24.  As mentioned in Section A above, the requests made in the letters dated 20 March 2013, 5 July 2013 and 9 October 2014 were made before the Defendant knew that the Plaintiffs were contemplating litigation against it.  As far as the requests made in the remaining letters, the majority of them were made in the context of other proceedings.

25.  As far as interrogatories 3 and 4 are concerned, I repeat what I said in Section A above that 10 March 2015 is not an appropriate date to ascertain when the Defendant should have commenced its document preservation for the purpose of litigation in these proceedings.

26.  In any event, it does not seem necessary to me for the Defendant to produce details as to how the Liquidators’ requests made before the commencement of these proceedings and in the context of other proceedings were dealt with.  I am unable to agree with the Plaintiffs that the requested information is essential for the preparation of their case for trial.  Making the Defendant to answer the interrogatories will increase costs, and will not save them. 

27.  I also consider that the interrogatories are oppressive in terms of the extent of details the Plaintiffs sought to obtain from the Defendant.

28.  I think interrogatories 1 to 4 should be withdrawn.

B2.  Interrogatories 5 to 6 – Document Preservation Ordered by the Court

29.  Interrogatories 5 to 6 arose out of the production order made by Harris J on 10 April 2014 in HCMP 902/2014.  I repeat what I said in Section A above that this order cannot provide a basis to seek further information regarding the Defendant’s destruction of documents.  It follows that the interrogatories are not necessary.

30.  In any event, I also consider them to be oppressive in terms of the extent of details the Plaintiffs are seeking to obtain from the Defendant.

31.  In my view, interrogatories 5 and 6 should be withdrawn.

B3.  Interrogatory 7 – Affirmation of Cheung Hon Kei

32.  Interrogatory 7 related to what Mr Cheung said in his affirmation filed on 13 August 2025 regarding his general responsibility as an officer of the Defendant.  He said nothing in the relevant part of his affirmation about the relevant documents in this action.  The information sought is clearly not essential for the proper preparation of the Plaintiffs’ case at the trial.  In any event, the Defendant has confirmed that Mr Cheung will be testifying a witness at the trial for the Defendant.  The Plaintiffs may obtain the requested information during cross-examination.

33.  This interrogatory is unnecessary and should be withdrawn.

B4.  Interrogatories 8 to 12 – Affirmation of Yim Chi Keung

34.  Interrogatories 8 to 12 related to certain parts of Mr Yim’s affirmation filed on 13 August 2025 (“Yim 1”)  which concern with the Defendant’s records.  The Plaintiffs wished to obtain further particulars on what Mr Yim had said in relation to what he and his colleagues did in around April 2015 to search the Defendant’s SAS and JRS systems for the relevant records.  According to Mr Yim, he and his colleagues had identified the relevant records in the Defendant’s systems, and copied and pasted the contents of the records into a table (“the Table”).

35.  In my view, interrogatories 9 and 10 are relevant requests concerning what Mr Yim had said in paragraphs 25 of Yim 1.  In particular, I think interrogatory 10.6 is pertinent in asking whether any internal document preservation notice had been issued in relation to the accounts set out in the Table, and if so, the details associated with such notice(s).  This seems to me to be one of the principal objectives of what the Plaintiffs were trying to find out from the Defendant in both the Affidavit Application and their Interrogatories.  The answers to the other interrogatories in Interrogatory 10 would provide the relevant context and background to the existence or otherwise of the internal document preservation notice.  I note that the Defendant has confirmed that Mr Yim will be testifying as a witness at the trial for the Defendant.  However, if these matters are left until cross-examination of Mr Yim at the trial, it is my view that the Plaintiffs are likely to be prejudiced in their conduct of the trial, or otherwise disorganised by the late emergence of the information (Kao Lee & Yip (above)  at [7(5)]).  I think these interrogatories are therefore necessary.

36.  Interrogatory 11 referred to what Mr Yim said in paragraph 35 of Yim 1 and asked whether instructions were issued regarding the deletion of the relevant JRS records in 2024.  Contrary to the Defendant’s oral submission, there was no need for the Plaintiffs to establish any “nefarious destruction” on the part of the Defendant.  On Mr Yim’s own evidence, it appears that some JRS records created in 2009 (such as those concerning the account of East Hope and Innovative as seen from the Table)  would have been deleted in 2024, being 15 years from the date of the JRS report.  This took place some 8 years after the commencement of these proceedings.  In my view, I think the Plaintiffs are entitled to find out the requested information now so that they can deploy the information to prepare for the trial. 

37.  As far as interrogatories 8 and 12 are concerned, I do not consider the requested information to be essential for the proper preparation of the Plaintiffs’ case at the trial.  In any event, the Defendant has confirmed that Mr Yim will be testifying as a witness at the trial for the Defendant.  The Plaintiffs may obtain the requested information during cross-examination.

38.  I decline to order the withdrawal of interrogatories 9, 10 and 11.  However, interrogatories 8 and 12 should be withdrawn.

B5.  Interrogatory 13 – Third Affirmation of Li Lok Man Daisy

39.  Interrogatory 13 related to what Ms Li said about other people handling this action for the Defendant.  It asked the Defendant to identify the other people and provide confirmation of what those other individuals did at the time and whether they have been asked to provide a witness statement. 

40.  This is in my view an improper interrogatory.  The interrogatory was made in order for the Plaintiffs to find out the identity of the others and whether requests were made of them.  In my view, this is fishing for information.

41.  Moreover, I do not think that the requested information is essential for the proper preparation of the Plaintiffs’ case at the trial. 

42.  Interrogatory 13 should therefore in my view be withdrawn.

B6.  Interrogatories 14 and 15 – O.24 r.10 Request

43.  Interrogatories 14 and 15 related to the Plaintiffs’ O.24 r.10 request made on 22 March 2022 for various documents referred to in the Defendant’s pleading, including various SAS alerts, JRS reports, FCC reviews, STR reports etc (and repeated on 2 May 2023 and 13 November 2023).  On 16 November 2023, documents were disclosed by the Defendant pursuant to an O.24 r.10 request.  The interrogatories asked the Defendant to identify the individuals at the Defendant who handled the discovery request and details of the steps that were carried out by them.  The Plaintiffs submitted that relevant documents continued to be destroyed after the Defendant’s provision of documents in November 2023.  This appears to be the case from what Mr Yim said in Yim 1 (see Section B4 above). 

44.  In my view, the requests in these interrogatories are relevant and necessary.  Given that the requested documents (such as Innovative and East Hope JRS reports)  continued to be destroyed after the Defendant’s response to the O.24 r.10 request in November 2023, I believe the Plaintiffs are entitled to know the Defendant’s answers to the interrogatories now so that (1)  they are in a position to know who within the Defendant was responsible for the non-retention of the relevant documents after November 2023, and (2)  they can adequately prepare for the trial on the basis of the information to be provided by the Defendant.

45.  On the other hand, the request in interrogatory 15.5 is objectionable as it seeks discovery of documents.

46.  I decline to order the withdrawal of interrogatories 14, 15.1 to 15.4.  However, interrogatory 15.5 should be withdrawn.

B7.  Interrogatories 16 to 20 – Correspondence with the JFIU

47.  Interrogatories 16 to 20 related to information regarding the Joint Financial Intelligence Unit (“JFIU”).  The JFIU is jointly run by the Hong Kong Police Force and the Hong Kong Customs & Excise Department, and is not part of the Defendant. 

48.  In Yim 1, Mr Yim referred to his colleagues not knowing about the retention period of records on the JFIU online reporting platform.  The Plaintiffs sought to ascertain the steps the Defendant has taken to confirm various information about the JFIU.

49.  I do not see how the requested answers can be said to be essential information without which the Plaintiffs cannot adequately prepare their case for the trial.  Nor can it be said that they would save costs.  I am not satisfied that these interrogatories are necessary for the fair disposal of the matter, or for saving costs. 

50.  In any event, the request in interrogatory 20 is objectionable as it seeks discovery of documents.

51.  Interrogatories 16 to 20 should therefore in my view be withdrawn.

B8.  Interrogatory 21 – Other Questions

52.  In their oral reply submission, the Plaintiffs accepted that they should not pursue this interrogatory.  Interrogatory 21 should also be withdrawn.

B9.  Additional Interrogatories – OCRM System Records and Emails

53.  According to the Defendant, its Customer Relationship Management System (“OCRM”)  records are for relationship managers or relevant employees to record matters about the Defendant’s clients, including meetings and visits with the Defendant’s clients.  At the hearing, the Plaintiffs referred to the OCRM records which, according to the Defendant’s evidence, were automatically deleted 7 years after the closure of a bank account.  The Plaintiffs further referred to Li 3 where Ms Li said that “records relating to China Medical in the OCRM System would have been deleted in or around November 2019” and “records relating to Supreme Well in the OCRM System would have been deleted in or around December 2018”.  The Plaintiffs also showed that given that Worldpro’s bank account was closed in June 2014, the relevant OCRM records of Worldpro would have been deleted in June 2011.

54.  The Plaintiffs submitted that such OCRM records were deleted after the commencement of these proceedings and that the Defendant has never proffered any explanation for the lack of discovery in relation to the relevant OCRM records.  At the hearing, the Plaintiffs amended their Interrogatories to include two additional interrogatories on document preservation notice(s)  relating to the OCRM records. 

55.  Two additional interrogatories were also added to the Interrogatories regarding document preservation notice(s)  relating to the yearly backup files of emails of Loman Lo and Jackie Chiu.

56.  Given that the additional interrogatories were added by the Plaintiffs during the hearing, and that the Defendant has not had the chance to fully consider them, it is inappropriate for the court to express any view on them.  They are in any event not the subject of the Defendant’s Withdrawal Application.  However, I note the position indicated by the Defendant through its Leading Counsel at the hearing that the additional interrogatories are much more limited in scope and are derived from something that are missing in discovery, and that they should be easier to handle.

B10.  Conclusion

57.  For all the above reasons, (1)  I decline to order the withdrawal of interrogatories 9, 10, 11, 14, 15.1 to 15.4, (2)  I order the withdrawal of interrogatories 1 to 8, 12, 13, 15.5, and 16 to 21, and (3)  I make no order in relation to the newly added interrogatories in relation to the OCRM system records and emails dated 3 December 2025. 

C.  DISPOSITION

58.  I dismiss the Plaintiffs’ summons dated 29 May 2025.  As to the Defendant’s summons dated 7 November 2025, I order that interrogatories 1 to 8, 12, 13, 15.5, and 16 to 21 are to be withdrawn.  I further order that the time within which interrogatories 9, 10, 11, 14, 15.1 to 15.4 are to be answered be extended to 28 days from the date of this decision.

59.  As mentioned earlier, both parties have treated the Affidavit Application and the Withdrawal Application as closely related to each other, and in my view correctly so.  In these circumstances, I believe it is right to globally consider the costs of and occasioned by both applications together.  In my view, the Plaintiffs have raised some legitimate grounds for contending that the Defendant has not adequately explained why some of the relevant documents have been destroyed after the commencement of these proceedings.  They needed to come to court to obtain the explanations which I have now ordered the Defendant to provide.  To that extent, I think the Plaintiffs should be regarded as the receiving party on costs in both of the applications, even though they have not succeeded in the Affidavit Application.  It seems to me just and appropriate to attribute 15% to reflect the Plaintiffs’ limited success in the two applications globally.  I believe it is fair to give to the Plaintiffs 15% of all their costs of and occasioned in both applications.

60.  Nonetheless, it seems to me that the Plaintiffs should only get their 15% of costs if they succeed at the trial.  The Plaintiffs’ reasons for requiring the explanations from the Defendant now are to ascertain “what further steps may be needed to address [the Defendant’s conduct] – ranging from the drawing of adverse inferences to the striking out of its Defence”.  Such potential further steps would have been unnecessary if the Plaintiffs cannot ultimately succeed at the trial. 

61.  For these reasons, I make an order nisi that the 15% of the costs of and occasioned in the Affidavit and Withdrawal Applications be in the Plaintiffs’ costs in the cause.  For the avoidance of doubt, this order means that the Plaintiffs will only get their entitlement to 15% of costs which have been occasioned by the two applications if they succeed in the action, but that they will not be liable to pay the costs of the Defendant in respect of the two applications if judgment is given in favour of the Defendant at the trial.