BRISTFULL LTD v. FOSROC HONG KONG LTD

HCA 1519/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1519 OF 2006

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D E C I S I O N

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1. An interlocutory summons was taken out by the defendant on 24 July 2007 for 2 reliefs: -

(a)	for the plaintiff to supply further and better particulars of the P’s statement of claim; and
(b)	for the plaintiff to provide specific discovery of 481 documents referred to in the schedule of the summons.

2. On 19 July 2006 the plaintiff filed a claim for damages against the defendant for sequential loss of HK$11 million for faulty sealant supplied by the defendant to the plaintiff.  The action was brought under 3 heads of breaches: (i) breach of contractual terms; (ii) breach of warranty; and (iii) misrepresentation.

3. The defendant disputed there was misrepresentation or that the sealant supplied was defective.  The defendant counterclaimed against the plaintiff for outstanding payment (a sum of HK$856,680 or alternatively a sum of HK$820,589.40) of delivered materials.

4. The chronology of the events showed the defendant has filed a request on 16 February 2007 for the plaintiff to supply further and better particulars.  Two weeks later, on 2 March 2007, the defendant took out a summons for directions.  On 23 March 2007 a Court Order was granted by the Registrar for the parties to file and serve their list of documents within 21 days of the order.  In the same Court Order the plaintiff was also ordered to supply its answers to the defendant’s request (of 16 February 2007) for further and better particulars by 5pm on 30 March 2007; in default of which the plaintiff’s claim would be struck out and the defendant would be at liberty to enter judgment against the plaintiff on its counterclaim.

5. Subsequent to the Court Order granted on 23 March 2007 the plaintiff provided its answers on 30 March 2007 and filed its list of documents on 13 April 2007 naming only 18 items in its 1st schedule.

6. The defendant filed its list of documents on 21 May 2007 naming 569 items in its 1st schedule.

7. The defendant was not satisfied with the plaintiff’s list of documents filed on 13 April 2007.  There followed a number of exchanges between the parties about the insufficiency of the list of documents.  Nothing was mentioned about the answers provided by the plaintiff on 30 March 2007 regarding the defendant’s request for further and better particulars.

8. The plaintiff filed its supplemental list of documents on 25 May 2007 adding 75 documents.

9. The defendant was not satisfied with the plaintiff’s lists of documents and its answers to the defendant’s request for further and better particulars.  On 24 July 2007 the defendant took out the present interlocutory summons for specific discovery and better answers.

Specific Discovery

10. After the defendant has taken out the interlocutory summons on 24 July 2007, the plaintiff filed its 2nd supplemental list of documents on 10 September 2007 incorporating 427 documents in Part 1 and items 2 – 4 in Part 2 of its list.

11. On 14 November 2007, a few days before the hearing of the current interlocutory summons, the plaintiff filed its 3rd supplemental list of documents dealing with the majority of the documents referred to in the defendant’s summons.  There remains 12 items in dispute between the parties: -

Part 1 of the Schedule
(A)	Standard and Test Reports
	A total of 7 items, namely items 1, 3, 5 to 8 and 10, which the plaintiff says it does not have possession.
(B)	Quotations, purchase orders, invoices
	Item 21 which the plaintiff says it does not have possession of the said document.
(C)	Inter-parties correspondence
	Items 448, 474 and 476 which the plaintiff says are dealing with a different project.  The defendant’s solicitor abandoned seeking an order for specific discovery of item 474 at the present hearing.
Part 2 of the Schedule
	The plaintiff objects to inclusion of the main contract as the relevant portions of the main contract have been disclosed in the plaintiff’ supplemental list of documents.

12. Items 1, 7 and 8 in Section A of Part 1 of the Schedule, according to the description of the documents, appear to be laboratory reports prepared for the defendant.  There is nothing in the description of these documents to suggest they were the plaintiff’s documents.  The applicant of this interlocutory summons, i.e., the defendant, did not exhibit any document to enable this court to form a view on whether the disputed documents would be relevant for the dispute resolution in the ultimate trial between the parties.  Further, I am unable to see why the plaintiff ought to have possession of these documents, which were the defendant’s documents. No order was made for the discovery of the same.

13. The main contract referred to in Part 2 of the Schedule would likely contain the criteria and standards required for the materials and works to be provided by all sub-contractors.  Nevertheless Mr. Chan on behalf of the plaintiff affirmed to the fact that all relevant provisions of the main contract have been disclosed in the plaintiff’s supplemental list of documents.  No contrary argument has been presented with reference to the subcontracts between the plaintiff and the defendant to indicate the main contract would likely be required to add to what have already been disclosed.  I made no order for specific discovery of this item.

Request for Further & Better Particulars

14. The defendant accepted 3½ months has lapsed before it gets back to the plaintiff to seek better answers on the answers last provided by the plaintiff on 30 March 2007.  In the normal course of events one would expect a separate request to be filed after a long lapse of time.  To avoid further costs to be incurred, I am prepared to consider the defendant’s present application for better and further details to be provided in respect of the plaintiff answers of 30 March 2007.

15. According to the submission of the solicitor on behalf of the defendant, he is seeking further particulars to paragraphs 1(2), 15, 16, 17, 21, 22, 30 and 31 of the defendant’s request on the ground that the answers provided by the plaintiff on 30 March 2007 did not sufficiently particularize or crystallize the issues in dispute between the parties.

16. From the answer provided by counsel acting on behalf of the plaintiff in this hearing, the correct answer to request 1(2) should really be “The relevant correspondence and documents are the “fax message” dated 11^th April 2002 and the “fax message” dated 12^th June 2003.” as opposed to the existing answer of “The relevant correspondence and documents include the “fax message” dated 11^th April 2002 and the “fax message” dated 12^th June 2003.”

17. In requests 15, 16 and 17 the defendant is seeking to ask the plaintiff to provide all the fact circumstances which the plaintiff relied on to give rise to the plaintiff’s claim of (i) giving business efficacy to the sale of goods contract; (ii) reflecting the obvious common intention of the parties; and for the plaintiff to specify the reason and the basis on which the plaintiff pleads to its contention that such terms were implied to reflect the obvious common intention of the parties.  The plaintiff provided its answer that paragraphs 1 to 10 of its statement of claim deal with all the facts relied upon by the plaintiff in its pleas of business efficacy and common intention of the parties.  I accept those were sufficient answers for the purpose of particularizing the facts to be relied upon by the plaintiff on its contention of implied terms, business efficacy and common intention.  To go further would be venturing into evidence, legal submissions and legal construction from the pleaded primary facts relied upon by the parties.

18. By request no. 21 the defendant is seeking particulars from the plaintiff of the method by which the sealant was applied.  I accept the reference to “by whom” would be canvassing upon evidence.  With the deletion of “by whom” in request 21, the plaintiff ought to particularize the method by which the sealant was applied.

19. The plaintiff ought to answer request no. 22 to particularize the material difference between the sealant supplied by the defendant and the standards set out under BS 5889 or those provided by Fosroc Guangzhou Limited.

20. Regarding request no. 30 the portion of request “as to who was employed to carry out” ought to be deleted as that would be a request for evidence.  The rest of the request, i.e. “Please identify and provide full particulars of the necessary remedial works and provide full particulars of the said remedial works.” ought to be answered by the plaintiff.

21. An answer to request no. 31 would provide a statement of damages for the defendant to consider if the claim for the various heads of damages by the plaintiff is a reasonable claim against the defendant.  Such request ought to be answered by the plaintiff.

Order to Supply Further and Better Particulars

22. The plaintiff is ordered to provide answers to requests 1(2), 22, 31 and requests 21 and 30 as modified in paragraphs 18 and 20 of this judgment.

Costs

23. The plaintiff only disclosed about 18 documents in its first list of documents filed on 13 April 2007.  After some debate, the plaintiff added 75 more documents in its supplemental list filed on 25 May 2007.  It was only after the defendant had taken out the present interlocutory summons on 24 July 2007 that the plaintiff filed its 2nd supplemental list to incorporate 427 documents.

24. In making provision for costs, this court bears in mind the following: -

(i)	the defendant made erroneous description (of the name, nature or date) of about 30 documents;
(ii)	some of the documents were likely the defendant’s document rather than the plaintiff’s document;
(iii)	3 of the documents were likely to be unrelated to the present dispute;
(iv)	the defendant obtained further discovery of over 430 documents (as referred to in the plaintiff’s 2nd and 3rd supplemental lists of documents) after taking the present interlocutory summons against the plaintiff; and
(v)	the defendant has not been successful in securing an order for specific discovery against the plaintiff since the defendant has failed to exhibit the relevant documents for further arguments.

25. In relation to the costs spent over the preparation of the summons for specific discovery the plaintiff shall bear 75% of the defendant’s costs up to 10 September 2007 when the plaintiff filed its 2nd supplemental list.  There shall be no order for costs from 11 September 2007 onwards in respect of the portion of costs attributable to the specific discovery application and the hearing for specific discovery since the defendant has failed to obtain an order for specific discovery of the remaining items and the defendant was partly at fault in providing erroneous description for some of the documents.

26. In relation to the request for further and better particulars, the plaintiff ought to have provided better answers in relation to requests 1(2), 22, 31, and modified requests 21 and 30.  Bearing in mind the defendant only succeeded in about 60% of this request, and the defendant has been late in applying for further particulars after the answers were first provided, the plaintiff shall only bear 40% of the defendant’s costs in respect of the defendant’s present request for further and better particulars.

27. The above is a costs order nisi which would be made absolute in 14 days’ time.