DEACONS v. KEVIN RICHARD BOWERS

DCCJ 3046 / 2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3046 OF 2007

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Reasons for Decision

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Introduction

1.  This decision is to be read together with the written decision I handed down on 16 April 2008.

2.  On 15 April 2008, I made an order requiring, inter alia, Deacons to discover the invoices, narratives and the corresponding receipts issued by them to Wonderyouth (their client) from 1 January 1998 to 10 April 2006.  These documents were sought under class 3 of Mr Bowers’ discovery application.

3.  The discovery order was then sealed and perfected on 21 April 2006.  Regarding the above specific order, it is stated at paragraph 3 of the perfected order as follows:

“The Plaintiff [Deacons] do give discovery of invoices/narratives and corresponding receipts issued by the Plaintiff [Deacons] to Wonderyouth between 1 January 1998 and 10 April 2006”.

4.  Deacons now applies under O 22 r. 11 to “correct” paragraph 3 of the order by amending it to as follows:

“The Plaintiff do give discovery of invoices/narratives and corresponding receipts issued by the Plaintiff to Wonderyouth for matters handled by the Defendant between 1 January 1998 and 10 April 2006.” (proposed amendments emphasized)

Discussion

5.  It is common ground that the Court would only exercise its power under O 22 r 11 to correct its order or judgment, where there is in it a clear clerical mistake, or there is an error arising from an accidental slip or omission, or if there is some ambiguity in expression in an unambiguous decision.  It is said that the error or omissions must be one in expressing the manifest intention of the court.  See:  Hong Kong Civil Procedure 2008, para 20/11/1.

6.  Mr Shaw for Deacons submits that the correction asked is needed to reflect the clear intention of the Court in granting the order.  This is so because the Court at the last hearing dismissed class 12 of Mr Bowers’ discovery application for “All invoices/bill details/narratives/receipts/invoice reminders/statements of account/covering letter issued by the Plaintiff to Wonderyough in connection with any intended sale/mortgage of La Salle Court.”    Mr Shaw submits that paragraph 3 of the perfected order as it presently stands would have the effect of including this particular discovery, of which the Court had specifically disallowed.  This contended by Mr Shaw could not have been the intention of the Court.

7.  Mr Shaw therefore says it is necessary to clarify paragraph 3 of the order to avoid this ambiguity.  He is also concerned that if the order is not “corrected” as asked, Mr Bowers might be able to widen the scope of the discovery as ordered, by slipping in those documents under class 12 of his earlier (but dismissed) application. 

8.  By their letter dated 21 April 2008, Deacons raised their concern on the above apparent effect of the order with Mr Bowers.   The letter stated as follows:

“As to paragraph 2 of the draft order [which becomes paragraph 3 of the perfected order], we have clarified that the order concerns solely invoices, receipts and narratives issued to [Wonderyouth] for matters handled by you from 1 January 1998 to 10 April 2006.

You did not make this clear in class 5 of the schedule to your application for discovery but it is apparent from class 12, for which no discovery was ordered and which would have been unnecessary if the scope of class 5 was to be understood wider than we understand it.”

9.  By a reply letter of the same date, Mr Bowers sent to Deacons the discovery order as perfected, and only confirmed that its terms had been approved by the Court.   In other words, Mr Bowers did not confirm or clarify that he did not read the order as including class 12 of the his discovery application. 

10.  Mr Bowers now submits that there is no “mistake” that needs to be corrected in the perfected Order, as this is clearly what the Court has ordered in the first place.

11.  In my view, although if paragraph 3 of the perfected order were read alone, it would have given the meaning as suggested by Mr Shaw, the proper meaning of the terms of the discovery order should and has to be read together as a whole by the parties.   Paragraph 4 of the perfected order provides that class 12 of Mr Bowers’ discovery application is dismissed.  As such, when paragraph 3 and paragraph 4 of the order are read together, it is in my judgment clear that the discovery ordered under paragraph 3 does not include the discovery of the invoices, narratives and receipts concerning Wonderyouth in relation to the mortgage transaction.

12.  In the circumstances, I do not think there is any ambiguity in the order.  It is also unnecessary to “correct” paragraph 3 of the perfected discovery order as now sought by Deacons. 

13.  I therefore dismiss Deacons’ present application.

Costs

14.  Mr Bowers’ asks for costs of the application as it is dismissed, and costs should follow the events.

15.  However, in my view, the application could well have been avoided if Mr Bowers had clarified and confirmed in his reply letter dated 21 April 2008 that, in his own reading of the perfected order (if this was his reading), it did not include the discovery of class 12 documents sought under his discovery application.  In not clarifying the same, it had intensified Deacons’ concern as expressed in their letter, and thus resulted in the present application.

16.  For the above reasons, I think it is just and fair in all the circumstances to make no order as to costs of this application.