趙春雨及另一人 v. 裘麗虹及另五人

HCA 3071/2016

[2018] HKCFI 118

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3071 OF 2016

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REASON FOR JUDGMENT

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THE APPLICATION

1.  This is the 1^st Plaintiff’s application by summons dated 5 September 2017 for a preservation order under Order 29, rule 2 of the Rules of the High Court (“RHC”) and inherent jurisdiction of the Court that the originals of certain documents be delivered into the custody of the Defendants’ solicitors and be retained and preserved by them.  At the end of the hearing on 22 January 2018, I dismissed the Plaintiff’s summons with reasons reserved. I now give my reasons.

2.  The 1^st Plaintiff’s summons relate to the following seven documents (the “Disputed Documents”):

(a)   a written resolution of all directors of the 3^rd Defendant dated 8 June 2015 approving the appointment of the 2^nd Defendant as the 3^rd Defendant’s director;

(b)   a written resolution of all directors of the 3^rd Defendant dated 8 June 2015 approving the transfer of 3,000 shares in the 3^rd Defendant from the 1^st Defendant to the 4^th Defendant;

(c)   a resignation letter from the 1^st Plaintiff dated 25 September 2015 in respect of his resignation as director of the 3^rd Defendant;

(d)   a board resolution of the 3^rd Defendant dated 25 September 2015 in respect of the 1st Plaintiff’s resignation as director of the 3^rd Defendant;

(e)   the bought and sold notes dated 25 September 2015 effecting the transfer of the 1^st Plaintiff’s 6,000 Shares in the 3^rd Defendant from the 1^st Plaintiff to the 3^rd Defendant;

(f)   the instrument of transfer dated 25 September 2015 effecting the transfer of the 1^st Plaintiff’s 6,000 Shares in the 3rd Defendant from the 1st Plaintiff to the 4^th Defendant; and

(g)   the board resolution dated 25 September 2015 approving the transfer of the 6,000 Shares from the 1^st Plaintiff to the 4^th Defendant. 

3.  The 1^st Plaintiff also applies for leave to inspect and take photocopy or photograph of the Disputed Documents on reasonable notice given to the Defendants and in the presence of the Defendants’ solicitors. 

4.  At the hearing on 15 January 2018, the 1^st Plaintiff’s counsel, Ms Li, clarified that her client is seeking order against the 1^st, 2^nd, 3^rd and 6^th Defendants only.  The 3^rd Defendant is the subject company whereas the 1^st, 2^nd and 6^th Defendants are the current directors of the 3^rd Defendant.  

5.  Also, at the hearing on 15 January 2018, Ms Li submitted a revision of the preservation order sought on the following terms:

(a)   on or before 2 pm on 22 January 2018, the Disputed Documents be delivered by the 1^st to Defendants to the 1^st Plaintiff’s solicitors for the 1^st Plaintiff’s forensic handwriting expert to inspect and examine;

(b)   liberty to apply;

(c)   costs to be paid by the Defendants.

6.  On 15 January 2018, I adjourned the hearing to 22 January 2018 to enable the parties to make submission on a question I had raised, namely, whether the objective of the 1^st Plaintiff under the present summons can be achieved by an application under Order 24 of RHC. 

7.  On 18 January 2018, the 1^st and 2^nd Plaintiffs filed an application returnable on the date of the adjourned hearing pursuant to Order 24, rule 11(2) of RHC seeking an order against the 1^st, 2^nd, 3^rd and 6^th Defendants for the delivery up of the originals of the Disputed Documents (or copies if the originals are not in the possession custody or power of the Defendants) to the office of the Plaintiffs’ solicitor for the Plaintiff’s forensic handwriting expert to inspect and examine. 

BACKGROUND

8.  The 3^rd Defendant is incorporated in Hong Kong.  By a Co-Operation Agreement dated 10 July 1993 entered into between the 3^rd Defendant and廣州地下鐵道總公司 (“Guangzhou Metro”), the 3^rd Defendant through its wholly owned subsidiary in the People’s Republic of China (“PRC”) was given the right to develop and operate a real estate project held by Guangzhou Metro.  Due to the lack of funding, the development of the project has been delayed until today. 

9.  The 2^nd Defendant is the 1^st Defendant’s husband.  The 4^th Defendant is a company owned by the 1st and 2^nd Defendants.  The 2^nd Plaintiff is a company controlled by the 1^st Plaintiff. 

10.  In 2008, the 1^st, 2^nd and 4^th Defendants entered into an agreement (the “2008 Agreement”) and a supplemental agreement (the “2008 Supplemental Agreement”) with the 2^nd Plaintiff whereby the 1^st, 2^nd and 4^th Defendants agreed to sell to the 2^nd Plaintiff the whole of the 3^rd Defendant’s issued capital totalling 10,000 shares. 

11.  On 6 June 2008, pursuant to the agreements signed in 2008, 6,000 shares (60% of the entire issued share capital) in the 3^rd Defendant were transferred to the 1^st Plaintiff who also became a director of the 3^rd Defendant.  Apart from the 1^st Plaintiff, the other director of the board was the 1^st Defendant.  

12.  The 1^st Plaintiff alleged that the remaining 4,000 shares were held by the 1^st Defendant pending completion of the 2008 Agreement. 

13.  Four of the Disputed Documents were the board resolution of the 3^rd Defendant:

(a)   appointing the 2^nd Defendant as a director;

(b)   approving the transfer of 3,000 shares from the 1^st Defendant to the 4^th Defendant;

(c)   approving the resignation of the 1^st Plaintiff as a director; and

(d)   approving the transfer of 6,000 shares from the 1^st Plaintiff to the 4^th Defendant. 

14.  The remaining three documents were purportedly signed by the 1^st Plaintiff resigning from the board and transferring 6,000 shares in the 3^rd Defendant to the 4^th Defendant.  

15.  The 1^st Plaintiff disputed that he had ever transferred his shares in the 3^rd Defendant to the 4^th Defendant.  He also denied having resigned from the board of the 3^rd Defendant.  The 1^st Plaintiff challenged the authenticity of the signatures on the Disputed Documents that were purportedly signed by him.  He alleged that the Disputed Documents were forged.  

16.  There are other documents signed around that time.  Suffice to say that the effect of those documents was that the Plaintiffs were no longer a shareholder or director of the 3^rd Defendant.  The 3^rd Defendant is now held as to 60% by the 4^th Defendant, 10% by the 1^st Defendant and 30% by the 5^th Defendant.  The current board of the 3^rd Defendant consists of the 1^st, 2^nd and 6^th Defendants.  

17.  At the relevant time, the quorum for board meeting under the articles of association of the 3^rd Defendant was two.  The articles also provide that for a written resolution of the board to be valid, it has to be signed by all the directors.  The 1^st Plaintiff alleged that the board resolutions were passed without his knowledge, consent or agreement. 

18.  The Defendants’ defence was that all the 1^st Plaintiff’s signatures on the Disputed Documents were genuine. 

19.  In about October 2016, the 1^st Plaintiff commissioned a forensic examination of copies of four of the Disputed Documents (namely those set out in paragraphs 2 (a), (c), (e) and (f) above) that he obtained from the Companies Registry.  The report showed that the 1^st Plaintiff’s signatures on those documents were cut and pasted from other documents and thus they were all forged. 

20.  The Plaintiff commenced this action on 24 November 2016 seeking, inter alia, declaratory reliefs that the 1^st Plaintiff remained the legal and beneficial owner of 6,000 shares in as well as a director of the 3^rd Defendant. The Plaintiffs also sought order declaring that the Disputed Documents to be invalid.  He also sought various injunction orders as well as order for the rectification of the information of shareholders and directors kept by the 3^rd Defendant with the Companies Registry. 

21.  On 27 July 2017, the 1^st Plaintiff’s solicitors wrote to the Defendants’ solicitors requesting the originals of the Disputed Documents to be delivered to the Defendants’ solicitors and be retained by them so that the 1^st Plaintiff’s expert could inspect them.  Despite reminders sent, the Defendants failed to provide any reply.  On 5 September 2017, the 1^st Plaintiff took out the present summons seeking a preservation order.  

ISSUES

22.  The issue before me was whether a preservation order should be made under Order 29, rule 2 in respect of the Disputed Documents.  I also had to deal with the latest summons taken out by the Plaintiffs under Order 24, rule 11(2).  

The applicable legal principles

23.  Order 29, rule 2 sets out as follows:

“ 2.—(1) On the application of any party to a cause or matter the Court may make an order for the detention, custody or preservation of any property which is the subject-matter of the cause or matter, or as to which any question may arise therein, or for the inspection of any such property in the possession of a party to the cause or matter.

(2) For the purpose of enabling any order under paragraph (1) to be carried out the Court may by the order authorize any person to enter upon any land or building in the possession of any party to the cause or matter.

(3) Where the right of any party to a specific fund is in dispute in a cause or matter, the Court may, on the application of a party to the cause or matter, order the fund to be paid into court or otherwise secured.

(4) An order under this rule may be made on such terms, if any, as the Court thinks just.” 

24.  I would refer to the case of Samtani v Samtani [2012] 4 HKLRD 872 for the relevant principles.  In paragraph 75, DHCJ Au-Yeung (as she then was) said:

“ 75. In respect of preservation orders under Order 29, rule 2, the source of the court’s powers is the inherent jurisdiction to secure by orders, a just and proper trial of the issues: Hong Kong Civil Procedure 2012, Vol 1, para 29/8/1. It has to be shown that:

(i)   There is property which is the subject matter of the cause or matter, or as to which any question may arise.  The property must be bona fide the subject matter of the action: Scott v Mercantile Accident Insurance Co (1892) 8 TLR 320, Hong Kong Civil Procedure 2012, Vol 1, para 29/8/6; …” 

And in paragraphs 77 to 79 :

“77.   For a preservation order, an enquiry into the relative merits of rival claims is not necessary: Johnson v. Tobacco Leaf Marketing Board [1967] VR 427, at 430.  

‘ What is involved is an exercise in salvage, pending, and for the purpose of, the ultimate determination. It is, therefore, relevant to consider what will be involved in that determination, and how it relates to the property sought to be preserved, and what justice demands in the way of making an order for the preservation of the property so as to prevent a determination one way or the other proving abortive.’

78.   Neither the rule itself nor the authorities require the applicant to show risk of dissipation of assets. 

79.   However, the court will refuse to grant a preservation order if damages will be an adequate remedy for the plaintiff: Feng Loy Chuen v Lim Yiong Lin [1977] HKLR 471.” 

ANALYSIS

25.  There is little or no dispute that the authenticity of the 1^st Plaintiff’s signatures on the Disputed Documents would be crucial for the determination of the disputes in this action.  The Plaintiffs have already indicated their intention to rely on expert evidence to prove forgery.  I am satisfied that there are serious issues to be tried in this case. 

26.  There are a number of questions I have to consider in deciding whether to exercise my discretion to make an order under Order 29, rule 2. 

Whether the Disputed Documents fall within “property” under Order 29 and that they are the subject matter of the cause, or as to which any question may arise therein?  

27.  The 1^st Plaintiff relied on the case of Re Saxton (dec’d) [1962] 1 WLR 859 and para 29/8/5 of Hong Kong Civil Procedure 2018 for the proposition that an order may be made in relation to a document where its authenticity is a crucial issue in the action. In Re Saxton, Wilberforce J (as he then was) said at page 861:

“ However, the question whether such an order should be made in any case is a matter of judicial discretion, and the order may be made on terms necessary to produce a just result.

In this case it is perfectly clear that the authenticity of this document is a crucial issue in the case, at any rate as regards the beneficial ownership of the shares which are referred to in the statement of claim.  I do not pay much attention to the fact that the defence putting forward the agreement was introduced by amendment; but it is certainly the case that a decision whether this document was signed by the deceased or not would dispose completely of that portion of the action.  In fact if the expert, having examined the document, were unable to find anything wrong with the signature of the deceased, that would inevitably put an end to that part of the action.” 

28.  When the subject matter is a document, there ought to be a distinction between whether the applicant is seeking to preserve the medium or the physical object which carries the information (such as a document, a computer disc or a tape recording) or whether he is seeking a disclosure of the information contained in the document.  In the latter case, Order 29, rule 2 has no application.  The proper way is to seek disclosure under Order 24 of the RHC. 

29.  Where the document sought to be preserved is a medium containing the information, it could be considered as a property to be preserved under Order 29.  In Saxton, the validity of the alleged agreement was directly challenged by the plaintiffs and an order was sought to have the document preserved and produced for forensic examination to determine whether it was forged.  So in Saxton, the plaintiffs were not seeking the disclosure of the information in the document.  Instead, they were seeking the production of the document for forensic examination.  

30.  In Huddleston v Control Risks Information Services Ltd [1987] 1 WLR 701, Hoffmann J (as he then was) discussed the Saxton case and the distinction between treating an agreement as a document or as a property:

“ It seems to me that a written instrument or any other object carrying information such as a photograph, tape recording or computer disc, can be both ‘property’ for the purposes of section 33(1) of the Act and a ‘document’ for the purposes of section 33(2). Whether for the purposes of a particular case it is the one or the other depends on the nature of the question which it is said may arise. In my judgment Parliament intended, whatever Marshal McLuhan might have said, to distinguish between the medium and the message. If the question will be concerned with the medium, the actual physical object which carries the information, the application is to inspect ‘property’ within section 33(1). If the question will be concerned with the message, the information which the object conveys, the application is for discovery and can be granted before writ only in the limited classes of proceedings to which section 33(2) applies. Thus in In re Saxton, decd. there was no question in issue about the message. The meaning of the writing was perfectly clear. The question was whether the medium, the characters written on a particular piece of paper, had been put there by the person purporting to have done so.

In this case the issue in any prospective libel action will be whether the defendants have published words defamatory of the plaintiffs.  The plaintiffs are not concerned with the medium by which this is done; whether it is on A4 or foolscap, printed or typewritten, roman or italics.  What matters to them is the message.  It follows that in my judgment this is not an application for inspection of property but an application for discovery which I have no power to entertain.”   

31.  And in Dun & Bradstreet v Typesetting Facilities [1992] FSR 320, the plaintiff brought an action for copyright infringement and breach of confidence relating to a computerized database.  The plaintiff there sought an order for inspection of the defendants’ database prior to service of their statement of claim.  Harman J said at pp 322–3:

“The application is made, first, pursuant to R.S.C. Order 29, rule 2. That permits the court to make an order under sub-rule (1) for the inspection of any property in the possession of any party to the cause or matter. It was said that this computer file was property and that it was open therefore to inspection thereunder. In fact I do not believe that it is a computer file to which access is now sought because what was ordered by Ferris J. was that a copy of the data be taken and stored by the solicitors pending the outcome. He made no order about the data itself, which would be, possibly, on tape, whether in cassette or not in cassette, possibly on floppy disks, I believe, though I say this with great trepidation, possibly on hard disk, or in some other form of recording electronic instructions. If materials of those tapes were the true matter of which inspection were sought under Order 29, rule 2, the difficulty would be that the notes to that Order, at page 514 of the current White Book under the rubric 29/2–3/3 and the title “Or for the inspection” state: “The rule is limited to physical things.” There is no doubt that were there a spool or tape, a cassette, or a disk, floppy or hard, any of those would be a physical thing, a chattel. There is no doubt that one would be able to look at the chattel, turn it upsidedown, see if anything is written upon it, and inspect it in that sense. That, however, would be of practically no value whatever in this case. Thus although there plainly would be jurisdiction to make an order allowing inspection of what is undoubtedly personal property, a chattel, it would be a fairly useless sort of order to make. What is wanted is not inspection of the chattel but disclosure of the contents, the data imprinted upon, I was going to say the inside of the chattel, but I am not sure that that is an accurate description, or in some way imprinted within the chattel.”

32.  In the Dun & Bradstreet case, Harman J refused to make an order under Oder 29, rule 2 as the plaintiff is not seeking to inspect the computer file.  Rather it is seeking to inspect the information in the computer file.  The proper course is to apply for discovery under Order 24.  

33.  It is clear that the purpose of the 1^st Plaintiff’s application was to secure the Disputed Documents rather than for the information contained therein.  The 1^st Plaintiff was seeking to inspect the Dispute Documents and put them under forensic examination.  As such they are “property” for the purpose of Order 29, rule 2 and they relate to one of the crucial questions to be determined in this case. 

34.  Having said that I would add this.  Where the property that the applicant seeks to inspect is a chattel or a particular circuit board in a piece of mobile telephone testing equipment (as in the case of Smith Myers Communications Limited v Motorola Limited [1991] FSR 262 which was referred to in the Dun & Bradstreet case at p 329), the proper course is to apply for preservation and inspection under Order 29, rule 2.  Order 24 would have no relevance to any party who wishes to inspect that piece of chattel or circuit board. 

35.  However, where the property in question is a document, as in this case, there is specific power under Order 24 for the Court to order inspection of the document, by the applicant or his forensic expert.  Even the Plaintiffs acknowledged that such avenue was available to them as they had on 18 January 2018 filed an application for the production of the Disputed Documents for inspection. In the further submissions made by the parties, both sides agreed that the objectives of the Plaintiffs can be achieved by an application under Order 24. Whilst I shall deal with that application below, I would say that the existence of such power under Order 24 was a significant factor to be taken into account in the exercise of my discretion under Order 29.  

Whether the Disputed Documents are in the possession of the Defendants

36.  By an affirmation of the 2^nd Defendant filed on 29 September 2017, the 2^nd Defendant deposed that the Disputed Documents were not in the possession of the Defendants as they had been handed over to the police in the PRC in connection with a complaint made by the Defendants on 5 July 2017 against the 1^st Plaintiff for embezzlement. 

37.  The 1^st Plaintiff raised a number of challenges against the credibility of the 2^nd Defendant’s evidence.  They include:

(a)   The embezzlement complaint was totally unrelated to the Disputed Documents. They were only related to the counterclaims of the Defendants in this action. The Defendants had not explained the relevance and under what circumstances they were handed over to the PRC police.  What the 2^nd Defendant said was that a male officer of the PRC authorities told him that they needed the original of the Disputed Documents for their investigation;

(b)   The Disputed Documents were not mentioned in any of the documents the Defendants had produced in support of their allegations that those documents had been submitted to the PRC police.  The Defendants had not provided any document issued by the PRC police (including a document called接受證據材料清單) to confirm their receipt of the Disputed Documents;

(c)   At the first hearing of the summons on 15 September 2017, Defendants’ counsel informed the Court that the Disputed Documents were kept by the Defendants in the PRC. The Defendants did not tell the Court that the original of the documents had been given to the PRC police.  

38.  The Plaintiffs also said that they had written to the Defendants’ solicitors on 5 January 2018 proposing to adjourn and/or withdraw the present summons if the Defendants agreed to the following :

(a)   provide the relevant documents issued by the PRC police showing that the Disputed Documents are in their possession;

(b)   provide copies of the Disputed Documents;

(c)   undertake to the court and the Plaintiffs that the Defendants would hand over the Disputed Documents to the Court for preservation once they have become available to the Defendants; and

(d)   the proposed early trial of the claims.

However, no reply was given by the Defendants as at the date of the hearing.

39.  Although I find unsatisfactory the timing of and the explanations given by the 2^nd Defendant on how the Defendants departed possession of the Disputed Documents, the 2^nd Defendant had positively affirmed that he had given the Disputed Documents to the police in the PRC.  In other words, the Defendants did not have possession of the Disputed Documents.  On this issue alone, it would not be appropriate to make an order under Order 29, rule 2. 

Whether Damages would not be a sufficient remedy

40.  The Court will usually refuse to make a preservation order if damages is an adequate remedy for the plaintiff (see the above case of Samtani v Samtani and para 29/8/7 of Hong Kong Civil Procedure 2018). 

41.  In a normal case where the property to be preserved is the very subject matter that the applicant is seeking to recover, it might not be difficult to argue that damages would not be a sufficient remedy if a preservation order is not made.  In the present case, the purpose of securing the property, namely the Disputed Documents, was for the purpose of putting them under forensic examination in order to support the Plaintiffs’ claim that they are forgery.  From that perspective and when the forensic examination is crucial for proving the applicant’s case, damages could hardly be argued to be a sufficient remedy. 

MY DECISION

42.  Whether or not to make an order under Order 29, rule 2 is a matter of the Court’s discretion.  As I have said, Order 29, rule 2 is disengaged as the Defendants did not have possession of the Disputed Documents.  Even putting the question of possession aside, in the circumstances of this case including the matters I have set out above, I would decline to exercise my discretion to make an order under Order 29, rule 2.  

APPLICATION UNDER ORDER 24

43.  As stated in paragraph 7 above, on 18 January 2018, the Plaintiffs filed an application under Order 24, rule 11(2).  

44.  Contrary to Order 24, rule 11(3), the Plaintiffs had failed to file an affirmation in support of their application under rule 11(2).  At the hearing on 22 January 2018, I adjourned the Plaintiffs’ application with directions for the parties to file affirmations. 

45.  As I had indicated to Ms Li at the hearing on 22 January 2018, the Plaintiff should consider if the application should be made under other rules in Order 24, such as under rule 11(1) where the Defendants have failed to allow inspection of the documents either in their list of documents or pursuant to a notice served on them by the Plaintiffs pursuant to Order 24, rule 10.  

46.  Unlike Order 29, rule 2, some of the rules under Order 24 require a party seeking discovery and/or inspection to show, inter alia, that the documents are in the possession, custody and power of the party against whom the application is made.  A document is in a person’s power even though it is not in his possession or custody, if it can be shown that he has a right to obtain the document from the person who has them.  

47.  Without in any way pre-judging the matter, I would expect the Defendants to at least produce a letter from them to the PRC police seeking the return of the original of the Disputed Documents for the purpose of these legal proceedings in Hong Kong. The Defendants should also produce the reply from the PRC police to their request.  In the event that the PRC police refused to return the originals, the Defendants should request the police to issue a letter or document acknowledging their receipt of the Disputed Documents.  

48.  There was one other matter that I had raised with the Plaintiffs at the hearing on 22 January 2018. 

49.  As stated in paragraph 19 above, the Plaintiffs had already obtained copies of four out of the seven Disputed Documents from the Companies Registry for examination by a handwriting expert.  Ms Li told the Court that she would like to get copies of the other three documents.  Presumably, this would enable them to consult their handwriting expert on the authenticity of the documents. 

50.  The Plaintiffs had failed to give a satisfactory explanation as to why they had not served a notice on the Defendants under Order 24, rule 10 requiring inspection of six of the Disputed Documents and for copies of them.  It would be a very straight forward exercise as six of the seven Disputed Documents were expressly referred to in paragraphs 8 and 12 of the Defendants’ Defence and Counterclaim.

51.  Notwithstanding that there was no summons before me at the hearing on 22 January 2018 for copies of those six documents, I made an order the Defendants to provide copies to the Plaintiff within 7 days.  Those documents had been referred to expressly in the Defence and Counterclaim and I saw no good reason in not providing the Plaintiffs with copies.  Mr. Chin indicated that the Defendants had no objection to the order.

ORDER

52.  At the hearing, I made the following order:

(1)   the 1^st Plaintiff’s summons under Order 29, rule 2 be dismissed;

(2)   the Defendants shall within 7 days of this order provide the Plaintiffs with a copy of six of the Disputed Documents (listed out in paragraph 2 (a), (b), (c), (d), (e) and (g) above, such documents having been expressly referenced in the Defence and Counterclaim;

(3)   the Plaintiffs’ summons under Order 24, rule 11(2) be adjourned for argument to a date to be fixed with 3 hours reserved with the following directions:

(a)   the Plaintiffs shall file an affirmation in support within 21 days;

(b)   leave be given to the 1^st, 2^nd, 3^rd and 6^th Defendants to file affirmation(s) in opposition within 21 days thereafter;

(c)   leave be given to the Plaintiffs to file affirmation(s) in reply within 14 days thereafter;

(d)   thereafter, no further affirmation shall be filed without the leave of Court. 

COSTS

53.  Generally speaking, costs should follow the event in respect of the 1^st Plaintiff’s summons under Order 29, rule 2.  However, having heard submissions by the parties and having considered all the materials before me and the conduct of the parties, I had decided to exercise my discretion to make no order as to costs.  Without affecting what I have said, I would highlight two matters. 

54.  First, at the hearing on Monday, 15 January 2018, I learned for the first time that the Defendants had changed solicitors on Friday, 12 January 2018.  Mr Chin of the Defendants’ solicitors tried to seek an adjournment of the hearing to enable him to take instructions on the matter.  No explanation was given on why the Defendants chose to change legal team at the last minute.  Mr Chin informed the Court that if his application were refused, he did not have any instructions from the Defendants to make any submission on the Order 29 application.  I declined the application to adjourn.  As a result, Mr Chin was not in a position to provide any assistance to the Court. 

55.  The other matter is in relation to the discussion on possession of the documents.  The Defendants were aware that the Disputed Documents would form a material part of the dispute in this case.  Six of them have been expressly referred to in the Defence and Counterclaim.  Yet, the Defendants considered it appropriate to provide the original of the Disputed Documents to the police in the PRC.  I refer to what I have said in paragraphs 36 to 39 above.  

56.  In the premises, I made no order as to costs of the 1^st Plaintiff’s application by summons dated 5 September 2017 under Order 29, rule 2.  

57.  I reserved the costs of the Plaintiffs’ summons dated 18 January 2018 under Order 24, rule 11(2).