NISSEI SANGYO AMERICA, LTD. v. PHILIP LAWRENCE CHOY

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J U D G M E N T

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Penlington, J.A.:

1. On the 28th of January 1992 this Court, differently constituted, allowed an appeal by the plaintiff against part of an order by Mayo, J., in which he had struck out that part of its claim herein in which it sought discovery as to the eventual recipient of certain funds apparently remitted from Hong Kong by the defendant via a foreign exchange dealer. It is the plaintiff's case that these funds were profits received in the United States of America as commission on the sale of the plaintiff's cassette players to the Chrysler Corporation. Tax was not deducted by the plaintiff from those payments and the plaintiff may be liable for payment of such tax but not if it can be shown that the funds were remitted back to the United States of America to a recipient who was liable to pay United States tax thereon.

2. The Court found that there was considerable authority, in particular the dicta of Lord Reid in Norwich Pharmacal Co. v. Customs and Excise Commissioners [1974] AC 133 to support the proposition that a person who becomes involved in the tort of another person, even if not a party to the tort himself, has a duty to disclose information to the person injured by such a tort to enable him to identify the tortfeasor and to recover damages from him. While in no way ruling that the plaintiff must succeed in its quest for discovery the Court considered that the plaintiff should be allowed to bring its action.

3. The defendant now seeks leave to appeal that decision to Her Majesty in Council. It was submitted by Mr. Barrie Barlow that the decision of this Court went considerably further than previous authorities in that what was being sought by the plaintiff was not the identity of the possible tortfeasor but information from a person who was not a.party to the dispute but was only a potential witness. Even on a liberal view of Lord Reid's statement in Norwich Pharmacal that was going too far. Leave should be given so that the matter can be decided now, before trial.

4. In opposing the application Mr. Anthony Rogers, Q.C., leading counsel for the respondent, contended that the Court had not decided that discovery should be made but only that it was arguable that it should. The claim should not be struck out at this stage.

5. We agree with that view. In holding against the defendant's application to strike out that part of the statement of claim relating to discovery we held only that the question was clearly arguable and for that reason should not be struck out. If leave was given to take the point to the Privy Council at this interlocutory stage it would cause grave delay and there must be a danger that the matter would go back to the Privy Council a second time at the end of proceedings here. Clearly that would be most undesirable.

6. The application for leave to appeal to Her Majesty in Council is refused. There will be an order nisi that the respondent have its costs of this application.