XCHRX PT BANK PEMBANGUNAN INDONESIA (PERSERO) v. TAN EDDY TANSIL and Others

1994, No. A6260

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. On 5 May 1995, I handed down a judgment in which I refused applications by the defendants, variously, to set aside or stay process and proceedings on the grounds of non-jurisdiction, forum non-conveniens and material nondisclosure. The defendants are appealing against that decision.

2. Consequent upon that judgment, I now have an application by the plaintiff before me that the order dated 28 June 1994 be restored, that stays in relation to the order be lifted as against the first to the fifth defendants and for an order in terms similar to that of 28 June 1994 as against the sixth and seventh defendants.

3. I also have before me summonses issued by the defendants in which they ask that my order of 1 May 1995 be stayed pending the appeal, and, in effect, that I do not make the order mentioned in the last paragraph. If I do not make the order requested by the plaintiff, that will have the effect of further staying the force of the order of 28 June 1994 pending the appeal. In the normal course, the stay of the order of 28 June 1994 being imposed pending my decision of 1 May 1995, it would be a natural consequence of my decision that the order of 28 June 1994 should now be implemented and that there should be an order in similar terms against the sixth and seventh defendants. The defendants are, therefore, asking that the effect of my order be stayed pending the appeal.

4. One of the consequences of my order of 1 May 1995 that concerns the defendants is that the proceedings are once more on foot, and their obligations as to pleadings under the rules are in effect. Mr Warren Chan, in particular, is concerned that the filing of a defence by his client may be taken to be a submission to jurisdiction. To solve this problem, Ms Eu gave an undertaking that the plaintiff would not seek default judgment for this reason pending the appeal, and this was accepted. Accordingly, I need not concern myself with this aspect any further.

5. I am left, therefore, with what is essentially an application for a stay of execution pending appeal. The "execution" would involve the disclosure by the defendants of personal and financial information that they would otherwise be entitled to keep to themselves.

6. A stay of execution is not, of course, by any means automatic. On the contrary, the law regards the plaintiff as entitled to the fruits of his judgment immediately, unless there is some good reason why he should be deprived of them. One of the reasons the courts have found good is that, if a stay is not ordered, the appeal may be rendered nugatory. It is said that this is the case here. It is not strictly the case here, of course; there is much more at stake in the appeal than this aspect of the matter, but I suppose it can be said that the information once disclosed cannot be "undisclosed". On the other hand, the information is protected. Quite apart from the general law, the order of 28 June 1994 requires in express terms that the information be used only for the purpose for which it is disclosed. And there is no suggestion that the defendants will suffer irreparable harm by the disclosure of the information. They are not, for example, in trade competition with the plaintiff, nor is it suggested that the information would reveal anything in the nature of a commercial secret. The most that has been said before me is that, if the appeal succeeds, the disclosure of the information will infringe the defendants' general right of privacy. In Coleman & Co v Smith & Co Ltd [1911] 2 Ch 572, the plaintiff succeeded in obtaining an order for an account of profits in a passing-off action. At 580, Swinfen Eady J said - "It is not the practice of the Court to stay such an account, unless irreparable injury would otherwise be caused." In that case, the parties were involved in the same trade.

7. It is, of course, in the general interests of justice that litigation should proceed with due haste. This was one of the reasons for refusing a stay in the Coleman case - "It would unduly protract litigation if an account could not be proceeded with until after the decision of the ultimate appeal in the case." There has already been a great deal of delay in this case.

8. Sir John Swaine has drawn my attention to a passage from my judgment of 1 May 1995, in which I said - "It is true that there appears to be some confusion in the plaintiff's statement of claim. From reading this, it might appear that the plaintiff is seeking to trace and recover as its own money the amount of the face value of the discounted bills. If this is so, the amount claimed is misconceived. It is, however, only the amount that is in doubt. The plaintiff's statement of claim makes it clear that what it is pursuing, if only in the alternative, as its own money are the proceeds of the discounted bills, not what the Hong Kong banks received from the plaintiff." Sir John says that that the Mareva and disclosure orders are predicated on a claim for the face value of the bills. He argues that these orders should not proceed until the plaintiff has put its pleadings in order and obtained an appropriate amendment to the orders. I do not accept this. The amount sought by the plaintiff, on any version, is a great deal of money; at least US$270 million. If it should come about that the defendants are able to say that the plaintiff is well secured as to a particular sum, which they say, on the plaintiff's claim, is what is sought, the defendants would be a liberty to apply to vary the orders as to any excess.

9. Mr Chan, appearing for the seventh defendant, argues that his client has made such disclosure as might reasonably be expected of it at this stage, and has undertaken to verify what it says when it is able to do so. He says that the plaintiff's claim against the seventh defendant has not been properly formulated yet, and the order sought against his client should be adjourned until after the appeal when it should be fully argued. I am not convinced that the seventh defendant is as ill-equipped to give full disclosure as is suggested. I am also not impressed with the argument that the seventh defendant does not know the full case against it. If the seventh defendant's advisers have read the papers I have read, and heard the arguments I have heard, it can have little doubt as to the case against it; certainly sufficient to argue that there is no case there, if that is what it wishes to say.

10. Ms Eu handed up to me a fifth affidavit by Sharon Tregaskis, filed this morning. The defendants have not had the opportunity to deal with this, and to respond to it. I have not taken its contents into account in making my decision.

11. In the end, a decision as to a stay is, like most exercises of the court's discretion, a balancing exercise. If there is no stay, and the appeal succeeds, the defendants will disclosed information unnecessarily. If I order a stay, the proceedings will be further delayed. I am not satisfied that the defendants will suffer any harm, let alone irreparable harm, by the unnecessary disclosure of the information, and, therefore, have not satisfied me that there is a good reason why the plaintiff should not be entitled to proceed to reap the fruits of the orders it has obtained. Accordingly, I dismiss the defendant's summonses.

12. It follows, in my view, that the plaintiff is entitled to an order in much the form as the draft submitted to me. Apart from the point made by Mr Chan, for the seventh defendant, that I have dealt with earlier, the defendants do not, in the event that I refuse a further stay, seriously contest this. Counsel for the defendants do ask for further time to comply, and say that the order for costs should be in any event. Mr Warren Chan says that he does not yet know about his client's ability to meet the deadline, and asks for liberty to apply. There is no need to grant this expressly; it is implied. Sir John Swaine, for the second to sixth defendants, asks for 28 days to respond. Mr Chan, for the seventh defendant, asks for the same. It is difficult for me to know from where I sit what is reasonable. I think 21 days, for no better reason than that this is somewhere between the extremes contended for by the parties.

13. Accordingly, there will be an order in terms of the plaintiff's draft, save that the time limits for compliance by the second to seventh defendants will be 21 days and that the costs to the plaintiff mentioned in paragraphs 5 and 6 be in any event.