NATIONAL PETROCHEMICAL INDUSTRIA CO v. ERM-HONG KONG, LTD trading as ERM HONG-KONG, LTD and/or ENVIRONMENTAL RESOURCES MANAGEMENT and/or ERM

HCCT 79/2020

[2026] HKCFI 2948

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO. 79 OF 2020

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BETWEEN

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DECISION

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A. INTRODUCTION

1.  By summons dated 13 November 2025 (“Summons”), the Defendant seeks specific discovery of documents listed in the schedule to the Summons (“Schedule”), namely:

“1. Pleadings and written submissions (including any exhibits thereto) in the arbitration proceedings commenced by the Plaintiff against TECNIMONT S.p.A. and TECNIMONT Arabia Ltd (collectively, the “Tecnimont Entities”) on 11 November 2020 with the International Chamber of Commerce (“ICC”) (ICC case no. 25791/AZR) (the “Tecnimont Arbitration”), including but not limited to:

a. The Request for Arbitration filed by the Plaintiff on 11 November 2020;

b. The Answer to the Request for Arbitration filed by the Tecnimont Entities on 2 February 2021;

c. The Statement of Claim filed by the Plaintiff on 22 December 2021;

d. The Statement of Defence filed by the Tecnimont Entities on 12 April 2022; and

e. The “second exchange of briefs between the parties... between August and November 2022” referred to in MAIRE S.p.A.’s 2024 Annual Financial Report published in or around 4 March 2025 (the “Report”);

2. The Terms of Reference dated 6 October 2021;

3. Documents produced by way of disclosure in the course of the Tecnimont Arbitration;

4. Witness evidence given in the course of the Tecnimont Arbitration, including but not limited to:

a. Witness statements; and

b. Transcript of proceedings recording the testimony given by all the witnesses at the hearing(s); and

5. Order(s), ruling(s) and award(s) in the Tecnimont Arbitration, including but not limited to:

a. “Procedural Order No.1 which included the procedural schedule” after the Case Management Conference in May 2021 referred to in the Report;

b. Ruling on 15 November 2021 on the two preliminary issues concerning “statute of limitations for [the Plaintiff’s] claims under the contracts, and the eventual settlement of those claims as a result of the Global Settlement Agreement entered into between the parties at the time of the issuance of the Final Acceptance of Plant Certificate” referred to in the Report; and

c. The Award issued on 23 July 2024.”

(collectively, the “Tecnimont Arbitration Materials”)

2.  The Plaintiff opposes the Summons.

B. BACKGROUND

B1. OVERVIEW OF FACTS AND ISSUES

3.  The following is an overview of the facts and issues that are relevant to the determination of the Summons. For the avoidance of doubt, the matters stated in this Section B do not represent any findings of fact or law, which are matters for trial.

4.  The Plaintiff is a company incorporated in the Kingdom of Saudi Arabia (“KSA”) carrying on the business of production of polypropylene. The Defendant is part of the ERM Group which provides environmental, safety, risk and social consulting services.

5.  The Plaintiff operates an integrated propane dehydrogenation and polypropylene plant (“Plant”) in the KSA. The Plaintiff engaged Tecnimont S.p.A (“TSPA”) and Tecnimont Arabia Limited (collectively, the “Tecnimont Entities”) to build and design the Plant.

6.  By an acceptance letter dated 26 September 2005 (“2005 HAZOP Contract”), the Defendant agreed with TSPA to provide Chairman and Secretary services for a Hazard and Operability Study of the Plant (“2005 HAZOP Study”). The 2005 HAZOP Study was conducted by a committee comprising representatives from, inter alia, TSPA and the Plaintiff (“HAZOP Committee”). The Defendant produced the final report of the 2005 HAZOP Study on or about 15 November 2005 (“2005 HAZOP Report”).

7.  There was no contractual relationship between the Plaintiff and the Defendant.

8.  These proceedings arose out of an incident on 2 October 2018 involving explosions at the Plant, causing death and injury to persons and serious damage to the Plant (“Incident”).

9.  It is the Plaintiff’s pleaded case that:

(1) The HAZOP Committee did not properly consider the operation of D602 and the risk of over-pressure thereto which would likely lead to catastrophic consequences. The HAZOP Committee and the chairman from the Defendant should have reported the risk.

(2) The Defendant should have identified the risk of a valve (“V1”) being inadvertently closed and the over-pressure to D602, and should have recommended robust safeguards in the design of the blowdown system to eliminate or mitigate that risk.

(3) The Plaintiff claims for US$328,000,000, being the sum paid out by insurers/reinsurers for property damage (US$80 million) and business interruption (US$248 million), minus US$3,175,000 being recovery from other parties.

10.  It is the Defendant’s pleaded defence that:

(1) The Defendant owed no duty of care to the Plaintiff because (1) the Defendant never assumed any duty to the Plaintiff; (2) any alleged duty is negated by the contractual structure between the Plaintiff and TSPA on the one hand, and TSPA and the Defendant on the other; and (3) the Defendant’s General Terms and Conditions of Business and the 2005 HAZOP Contract disclaimed such duties.

(2) Alternatively, any duty owed by the Defendant to the Plaintiff is limited to acting as Chairman and Secretary of the HAZOP Committee with reasonable skill and care. Any loss suffered is limited by the scope of the duty, including any contractual limitations within the overall matrix of the relevant contracts.

(3) The Defendant’s Chairman and Secretary roles were performed with reasonable skill and care.

(4) Further, the Plaintiff was contributorily negligent.

11.  Accordingly, it is common ground between the parties that the legal issues which the Court will need to determine at trial are mainly as follows:

(1) At the material times, whether or not the Defendant owed a duty of care to the Plaintiff in chairing and producing the 2005 HAZOP Report.

(2) If so, what is the scope of such duty (in particular, whether the scope of such duty is limited or negated by the terms of the 2005 HAZOP Contract).

(3) If so, whether there was any negligence on the Defendant’s part.

(4) If so, whether such breach had caused the Incident.

(5) If so, whether the Plaintiff had suffered any loss as a result of the Incident.

(6) If so, whether the Defendant was liable for the Plaintiff’s loss suffered as a result of the Incident.

(7) If so, what is the quantum of loss suffered by the Plaintiff as a result of the Defendant’s breach of duty.

(8) Whether the Plaintiff was contributorily negligent in the Incident.

(9) If so, whether the Defendant’s liability should be reduced by the Plaintiff’s contributory negligence and/or compensation recovered by the Plaintiff in other related proceedings.

12.  It is also common ground that the factual issues in dispute in this Action include the following:

(1) The roles and responsibilities of the HAZOP Committee and each individual member of the HAZOP Committee (including representatives from TSPA, P, Worley Parsons, as well as the Chairman and Secretary) in connection with the 2005 HAZOP Study.

(2) Matters which the HAZOP Committee had considered when preparing the 2005 HAZOP Report.

(3) The design intent of D602.

(4) Which codes and standards applied or were relevant to the 2005 HAZOP Study and whether the 2005 HAZOP Study was non-compliant with such codes and standards.

(5) In light of a subsequent 2016 HAZOP report, whether P had placed any reliance on the 2005 HAZOP Report at the time of the Incident.

(6) The root cause of the Incident.

B2. THE TECNIMONT ARBITRATION

13.  Relevant to this Summons is an arbitration commenced by the Plaintiff against the Tecnimont Entities filed with the International Chamber of Commerce (ICC case no. 25791/AZR) (“Tecnimont Arbitration”), which the Defendant alleges that they first became aware of from a “Half-Year Report at June 30, 2024” published by the parent company of the Tecnimont Entities (MAIRE S.p.A. (“MAIRE”)) on around 31 July 2024 (“Half-Year Report”). The Half-Year Report (and also an Annual Report published by MAIRE on 4 March 2025) disclosed the following details about the Tecnimont Arbitration:

(1) The Plaintiff commenced the Tecnimont Arbitration on 11 November 2020 pursuant to an arbitration clause in an “Umbrella Agreement” referred to in contracts signed by the Plaintiff with the Tecnimont Entities in 2005 for the construction of the Plant. The Plaintiff sought a sum of US$350 million (which was later reduced to US$80 million in the Terms of Reference dated 6 October 2021) as damages for the explosion at the Plant caused by breach of contract and/or negligence.

(2) On 2 February 2021, Tecnimont filed an Answer to the Request for Arbitration. After a Case Management Conference in May 2021, the Arbitration Tribunal (“Tribunal”) issued Procedural Order No. 1 which included the procedural schedule and scheduled a hearing to rule on two preliminary issues for 5 October 2021.

(3) On 15 November 2021, by a ruling of the Tribunal, the Tribunal refused to accept that the limitation period for the Plaintiff’s claims had expired and further rejected the notion that the Tecnimont Entities could be liable for any claims for compensation or damages accrued at the time of a settlement agreement.

(4) The Plaintiff then filed its Statement of Claim on 22 December 2021 and the Tecnimont Entities filed their Statement of Defence on 12 April 2022. A second exchange of briefs between the parties followed between August and November 2022 and hearings were held between April and May 2023.

(5) On 23 July 2024, an award was issued and the Tribunal rejected the Plaintiff’s claims against the Tecnimont Entities in their entirety (“Award”).

C. RELEVANT LEGAL PRINCIPLES

14.  The principles on specific discovery are generally not in dispute between the parties, save and except the difference between the parties on who bears the burden to demonstrate the necessity of the disclosure (which I will address below).

15.  The relevant principles are summarised in K&L Gates v Navin Kumar Aggarwal & Ors, unrep., HCA 1061/2011 & HCA 349/2012, 27.11.2017 (“K&L Gates (No. 1)”) at §§15-20 per Lok J:

“15. The following legal principles for specific discovery applications are trite:

(i) There is no jurisdiction to make an order under RHC O.24 r.7, unless (1) a document exists which the other party has not disclosed, (2) it is in or has been in the respondent’s possession, custody, or power, and (3) the document is relevant.

(ii) The discovery must be necessary either for disposing fairly of the cause or for saving costs. The court should have regard to third party interests, including confidentiality, in deciding whether to order discovery.

(iii) Jurisdiction aside, the court has a discretion not to order disclosure.

(iv) The order must identify with precision the documents or categories of documents which are required to be disclosed, for otherwise the person making the list may find himself in serious trouble for swearing to a false affidavit, even though doing his best to give an honest disclosure.

(v) Where discovery is sought in relation to a class of documents, it is important that the class should not be defined or described too widely, and should not be defined so as to include documents which are not relevant.

(vi) Statements in a party’s affidavit of documents are conclusive. The respondent may answer an application for specific discovery by an affidavit stating that he does not have the documents, and this will be conclusive at the interlocutory stage.

16. In respect of relevance, the test remains that of Peruvian Guano relevance, i.e. the document is relevant if: (1) it is reasonable to suppose that it contains information which may, not must, either directly or indirectly enable the party requiring the same either to advance his own case or to damage the case of his adversary; or (2) it is a document which may fairly lead the party to a train of inquiry which may have either of those two consequences. However, the courts have also cautioned the excessively wide application of the Peruvian Guano test. Ultimately, the question is whether the discovery is necessary for disposing fairly of the proceedings.

17. Despite the Peruvian Guano test for relevance, “fishing” is not allowed, and discovery should not be oppressive. If oppression is suggested, the court will weigh any such potential oppression against the possible injustice that would be caused if the materials were not available at trial.

18. In terms of necessity of order discovery, it is up to the party objecting to discovery to show that it is not necessary for disposing fairly of the cause or for saving costs.

19. Further, the court should take into account the objectives of the CJR, which are to promote proportionality, cost effectiveness and fairness between the parties, in considering any discovery application.

20. If the court is of the view that a request is oppressive, too wide or imprecise, where such request contains within it a proper request which can be revealed without prejudice to the other side, the “blue pencil” test can be applied to limit the scope of the order.” (underlining emphasis added)

16.  Ultimately, it is common ground between the parties that the Court is exercising a discretion in deciding whether to allow the specific discovery requests made by the Defendant, and that the Court will need to consider a number of discretionary factors in doing so.

D. DISCUSSION

D1. EXISTENCE AND POSSESSION

17.  The parties do not dispute that the Tecnimont Arbitration Materials exist and are in the Plaintiff’s possession, custody or power. The real dispute is on relevance and necessity of the disclosure.

D2. RELEVANCE AND NECESSITY

D2.1 Parties’ submissions

18.  The Defendant submits that the Tecnimont Arbitration Materials are relevant to the issues in dispute in this Action. The Defendant’s submissions may be summarised as follows:

(1) First, at the core of the Defendant’s pleaded defence is that the scope of its duty of care (if any) is circumscribed by, inter alia, the contractual relationship between the Plaintiff and the Tecnimont Entities. Thus, for the court to ascertain the scope of any duty of care owed by the Defendant, it is directly relevant to understand the extent of the contractual rights and obligations between the Plaintiff and the Tecnimont Entities.

(2) The Defendant therefore submits that the Tecnimont Arbitration Materials are relevant as the Tecnimont Arbitration “necessarily” dealt with the issue of the extent of the contractual rights and obligations between the Plaintiff and the Tecnimont Entities. Thus, the Award is necessary and relevant as it would have considered the proper construction of the contracts between the Plaintiff and the Tecnimont Entities (which is exclusively a matter within the Tribunal’s jurisdiction by reason of the arbitration clause in those contracts).

(3) Second, the Tecnimont Arbitration Materials are also relevant as the Plaintiff would have adduced documents in that arbitration relating to quantum. These documents would be relevant to the court’s assessment of quantum in this Action.

(4) Third, the Tecnimont Arbitration Materials are relevant as there is a “real risk” that the Plaintiff has taken inconsistent positions in the arbitration as compared to these proceedings. As there are reasons to believe that the Tecnimont Arbitration also concerned other studies (including LOPA (Layer of Protection Analysis), SIL (Safety Integrity Level) and SIS (Safety Instrument System)), the Defendant suggests that the Plaintiff would have argued in the arbitration that these other studies should have been commissioned (and not just HAZOP), suggesting that the 2005 HAZOP Study was not the cause of the explosions.

(5) Fourth, as the Plaintiff’s intended expert in this Action also served as the Plaintiff’s expert in the Tecnimont Arbitration, the Defendant should be permitted to review his earlier reports to determine whether his opinions are consistent.

19.  By contrast, the Plaintiff rebuts the above grounds and submits that the Tecnimont Arbitration Materials are neither relevant nor necessary for the fair disposal of the matter or for saving costs. The Plaintiff’s submissions may be summarised as follows:

(1) First, the Defendant is merely speculating about the issues which the Tecnimont Arbitration would have determined.

(2) Second, what the Tribunal ruled in the Tecnimont Arbitration (and hence the Tecnimont Arbitration Materials) are inadmissible and irrelevant because reliance on the same would fall foul of the rule in Hollington v Hewthorn. Accordingly, the Award is inadmissible as evidence of facts so found.

(3) In this connection, it is also irrelevant for the court to consider the Tecnimont Arbitration Materials for the purpose of construing the contracts between the Plaintiff and the Tecnimont Entities. Not only would the Award be inadmissible to show how the Tribunal construed the contracts, but the Hong Kong court itself can construe the contract.

(4) Third, the present application is a “fishing expedition”. It is simply used by the Defendant to “check” whether the Plaintiff has advanced arguments or evidence inconsistent with those advanced in the present Action. The Defendant’s suggestion of risk of inconsistent positions is simply speculation without evidential basis.

(5) Fourth, the present application must also be rejected in light of the need to protect the privacy and confidentiality of arbitral proceedings. In particular, the Plaintiff refers to Emmott v Michael Wilson & Partners Ltd [2008] Bus LR 1361 and submits that disclosure of documents generated in an arbitration would only be permissible if the disclosure is necessary for the fair disposal of the Action.

(6) The Plaintiff submits that the Defendant has failed to demonstrate the necessity of the disclosure so as to justify overriding the implied obligation of confidentiality in an arbitration.

(7) Fifth, there are other factors against relevance and necessity, namely: (a) the Tecnimont Arbitration Materials are extremely voluminous and would not save time and costs; (b) the documents are irrelevant and unnecessary for the determination of the expert issues in these proceedings; and (c) there is delay in taking out the Summons.

D2.2 Reversal of burden?

20.  As noted above, parties dispute who bears the burden of demonstrating that the present application is necessary for disposing fairly the cause or for saving costs.

21.  The authorities explain that where a party seeking discovery has established a prima facie case, the court has a discretion to order disclosure; and it is for the party who resists discovery to satisfy the court that the discovery is not necessary either for disposing fairly the cause or for saving costs: Ape Accessories of Pet Express (Hong Kong) Ltd v Lau Ki Wai & Ors, unrep., HCA 2224/2014, 13.1.2017 at §7 per Lee J; Tullett Prebon (Hong Kong) Limited v Chan Yeung Fong Nick & Ors, unrep., HCA 2197/2009, 9.6.2011 at §12 per To J; see also K&L Gates (No. 1) (supra) at §18.

22.  However, the Plaintiff contends that the burden is reversed in this case (ie it is for the Defendant to demonstrate necessity) in light of the public policy of protecting the privacy and confidentiality of arbitral proceedings.

23.  I am not persuaded by the Plaintiff’s submission in this regard. I accept the Defendant’s submission that the Plaintiff has provided no authority in support of its proposition that the burden in demonstrating necessity is necessarily reversed every time the issue of arbitral confidentiality is engaged (assuming it was engaged for present purposes). The Plaintiff’s reference, at the hearing, to the passage in §73 of Emmott (supra) does not address the question of burden and in any case does not support the Plaintiff’s aforesaid proposition.

24.  In any event, I do not think that my rejection of the Plaintiff’s submission above on the reversal of the burden changes the result of this application, as I will explain in the following paragraphs.

D2.3 Relevance and necessity

25.  I have carefully considered the submissions of the parties, the authorities and the evidence filed in support of the Summons. I have come to the view that the Tecnimont Arbitration Materials are neither relevant nor necessary for the fair disposal of the matter or for saving costs. My reasons are as follows.

26.  First, the Court notes that the Tecnimont Arbitration Materials cover a wide range of documents. In effect, as submitted by the Plaintiff, the Defendant is seeking discovery of all the documents generated in the Tecnimont Arbitration, which may well cover all sorts of documents that are unrelated or even irrelevant to the present proceedings, contrary to the principles set out in K&L Gates (No. 1) (supra) at §15. This is especially when the Summons also seeks documents which are “including but not limited to” documents listed in the Schedule, which is wide and imprecise.

27.  In doing so, the Court notes that the Defendant has not sought to justify the relevance of each of the documents or classes of documents sought under the umbrella term “Tecnimont Arbitration Materials” (apart from, perhaps, the Award, contractual documents with the Tecnimont Entities, quantum and expert documents) and simply attempts to justify disclosure of all documents in a broad-brush manner. It therefore appears, as a starting point, that the Defendant has not demonstrated the prima facie relevance of each and every document or class of document(s) under the Tecnimont Arbitration Materials in justifying the present discovery application.

28.  Second, in respect of those documents which the Defendant has sought to justify the relevance of (such as the Award, expert reports, quantum documents), I am not persuaded by the Defendant’s submission that these documents meet the criteria of relevance.

(1) First, I agree with the Plaintiff’s submission that the Defendant is merely speculating about the issues which the Tecnimont Arbitration would have (and has) determined. Indeed, it is a matter of pure speculation that the proper construction of the contracts between the Plaintiff and the Tecnimont Entities was an issue in the Tecnimont Arbitration and that the Tribunal had ruled on the same.

(2) This is especially when I agree with the Plaintiff’s submission that there would have been differences between what was argued in the Tecnimont Arbitration (for example, about the design and build of the Plant as against the Tecnimont Entities) compared to what the parties will argue in these proceedings (concerning the chairing and commissioning of the 2005 HAZOP Study as against the Defendant).

(3) Second, the same may be said of the issue of quantum. It is clear from the Half-Year Report that the Tecnimont Arbitration did not involve identical issues of quantum, as the Plaintiff also claims business interruption (US$248 million) in this Action (but not in the Tecnimont Arbitration).

(4) Third, in respect of the Defendant’s argument that there is a “real risk” that the Plaintiff has taken different positions in related proceedings (including the Tecnimont Arbitration) which makes the Tecnimont Arbitration Materials relevant, I am unable to accept this submission:

(a) As a starting point, the Defendant pleads in its defence at §115F that “[t]he Defendant considers that there is a real risk that the Plaintiff has taken different positions in the three sets of proceedings referred to in paragraph 88 of the Re-Re-Amended Statement of Claim; and in these proceedings”. The mere fact that the Defendant has pleaded in its defence that there is a “real risk” of inconsistent positions is not enough to demonstrate relevance, as it has been said that relevance of an issue cannot be dictated by a party unilaterally simply by importing it in the pleadings: K&L Gates v Navin Kumar Aggarwal & Ors [2019] HKCFI 702 at §7(i) per Lok J.

(b) From the Defendant’s submissions, the primary basis for the Defendant’s plea that there is a “real risk” of inconsistent positions comes from the Affirmation of Iain Corbett (filed in support of the Summons), where §§25-28 set out the Defendant’s basis for suspecting that the Tecnimont Arbitration also concerned arguments on other safety studies, including LOPA, SIL and SIS studies, relying on a barrister’s website profile page from a set of chambers in London.

(c) However, I accept the Plaintiff’s submission that the Defendant’s suspicion of inconsistent positions is mere conjecture without evidential basis. One is simply unable to draw any inference from the barristers’ profile page that there would be a “real risk” of inconsistent positions taken by the Plaintiff in the Tecnimont Arbitration. I discuss the need for evidential basis in more detail in paragraph §33(4) of my judgment below.

(d) Further, even assuming these other types of studies were put in issue in the Tecnimont Arbitration, I accept the Plaintiff’s submission that this would not necessarily be inconsistent with the Plaintiff’s case that the 2005 HAZOP Study was not carried out properly and the Defendant had breached its duty of care.

(5) Fourth, in respect of the Defendant’s submission that the expert reports generated in the Tecnimont Arbitration would be relevant to determine whether the Plaintiff’s expert has taken consistent positions in the arbitration and in this Action, it is well-established that discovery must not relate solely to credit, see Ngan In Leng v Chu Yuet Wah (No 1) [2013] 1 HKLRD 717 at §25 per DHCJ Queeny Au-Yeung (as she then was). That much is not disputed by the Defendant. What the Defendant submits, rather, is that the expert evidence generated in the Tecnimont Arbitration is necessary for the Defendant to attack the substance of the Plaintiff’s expert’s evidence, and not just credibility, especially if the expert’s evidence has changed as a result of the rejection of the Plaintiff’s claims in the Tecnimont Arbitration. However, such submission ignores the well-established rule that every expert in proceedings in Hong Kong (whether instructed by the Plaintiff or the Defendant) would have an overriding duty to the court (and not to the person from whom the expert has received instructions) to assist the court impartially and independently on matters relevant to the expert’s area of expertise. The Defendant’s submission, in effect, assumes that the Plaintiff’s expert would necessarily change or skew his expert opinion to suit the circumstances of this Action in a way that is inconsistent with his opinion in the Tecnimont Arbitration. I do not accept that this is a proper basis upon which to seek discovery of the expert evidence in the Tecnimont Arbitration. In any event, similar to the point above on inconsistent positions, it is simply a matter of pure speculation at this stage that the expert has changed his evidence. I am not persuaded that the Defendant has demonstrated the relevance of these documents.

29.  Third, even if the Tecnimont Arbitration Materials (such as the Award) involved issues concerning the sufficiency of the 2005 HAZOP Study and/or the same issues of quantum as in the present Action, the key objections raised by the Plaintiff, and which this Court will need to determine are: (1) whether the Tecnimont Arbitration Materials (in particular the Award) would be inadmissible under the rule in Hollington v Hewthorn; (2) whether disclosure would be precluded by the implied obligation of arbitral confidentiality; (3) whether the present application is a “fishing” expedition; (4) whether disclosure would be proportionate or necessary for saving costs; and (5) whether there is delay in the making of the present application.

30.  I will consider each of the Plaintiff’s objections below in turn.

31.  In respect of (1), I accept the Plaintiff’s submission that the rule in Hollington v Hewthorn would apply to render the findings and conclusions of the Award inadmissible in these proceedings:

(1) There is no dispute between the parties as to the rule in Hollington v Hewthorn, which provides that factual findings and conclusions of another court in separate proceedings are inadmissible as evidence of facts so found: China Medical Technologies, Inc. (in liquidation) & Ors v Bi Xiao Qiong & Ors [2020] HKCA 541 at §13 per Lam VP (as he then was); Capital Century Textile Company Ltd v Li Dianxiao & Anor [2018] HKCFI 729 at §§23, 28 per Lisa Wong J.

(2) The rationale behind the rule is that it is for the trial judge to decide a case on the evidence received and in the light of the submissions made on the evidence presented, such that findings of fact made by another tribunal are irrelevant to the court or tribunal hearing a case: ANZ Commodity Trading Pty Ltd v Excellence Raise Overseas Ltd [2023] HKCFI 179 at §46 per Mimmie Chan J.

(3) However, the evidence referred to in an earlier judgment, such as the contents of documents or statements of the evidence of witnesses are not excluded and are admissible, as not falling foul of the rule in Hollington v Hewthorn: ANZ Commodity Trading Pty Ltd (supra) at §46.

(4) Applying these authorities, I accept the Defendant’s submission that the Plaintiff’s objection in reliance on the rule in Hollington would not apply to, for example, the pleadings, written submissions, evidence and certain parts of the Award (summarising the documents or witness evidence).

(5) However, insofar as the findings, opinions and conclusions of the Award are concerned, I am of the view that the Hollington rule applies to render those parts of the Award inadmissible. The same applies to the findings and conclusions in the “Ruling on 15 November 2021” mentioned in the Schedule to the Summons, which would also be inadmissible.

(6) In the Defendant’s written submissions and at the hearing, Mr Manzoni SC (for the Defendant) submitted that: (i) the Award would not run into the Hollington problems because the contract between the Plaintiff and the Tecnimont Entities provides that the Tribunal is the final determiner of the meaning of the contract; and (ii) any Hollington or admissibility issue should be left for the trial judge to decide and discovery should not be refused on this basis.

(7) Despite the force of Mr Manzoni’s submissions, I am unable to accept the same for these reasons. First, and as noted above, it is simply a matter of pure speculation that the Award had discussed (and had ruled on) the proper construction of the relevant contracts between the Plaintiff and the Tecnimont Entities. Second, the Defendant’s submissions do not answer the point that any ruling by the Award on the proper construction of the contracts would have been based on the facts and evidence before it, and such opinion of the Tribunal on the proper construction would plainly be caught by the Hollington rule. Third, as accepted by the Defendant at the hearing, the Award is not binding on the Hong Kong courts. There is nothing to prevent the Hong Kong court from forming its own independent view based on the evidence before it. Fourth, the Defendant has not cited any authority to support its submission that the Court is not entitled to refuse an application for discovery on the basis of the Hollington rule, and must allow the application and leave any questions of admissibility to the trial judge. In fact, the case of Capital Century Textile Company Ltd (supra) (as cited by the Defendant) is an example of a case where the court considered the question of the admissibility of a foreign judgment before the trial of the action (see §§1, 2). As such, I am of the view that this Court is entitled to take into account the Hollington rule in determining the present application.

32.  In respect of (2), I consider the issue of arbitral confidentiality to be relevant to the Court’s exercise of discretion in determining whether to order disclosure:

(1) To begin, documents prepared for and used in an arbitration (such as the Tecnimont Arbitration) are subject to an implied obligation of confidentiality, with the basic position being stated in Emmott (supra) at §81.

(2) Notwithstanding such an implied obligation of confidentiality, the Plaintiff accepts that the court has the power to order disclosure of the Tecnimont Arbitration Materials if it takes the view that the disclosure is necessary for the fair disposal of these proceedings. The authority for this proposition may be found in Emmott (supra) at §72 per Lawrence Collins LJ. In addition, Lawrence Collins LJ further set out the circumstances when disclosure of arbitration documents would be permitted at §107, including where (i) the disclosure is reasonably necessary for the protection of the legitimate interests of an arbitrating party; and (ii) the interests of justice require disclosure:

“107. In my judgment the content of the obligation may depend on the context in which it arises and on the nature of the information or documents at issue. The limits of that obligation are still in the process of development on a case-by-case basis. On the authorities as they now stand, the principal cases in which disclosure will be permissible are these: the first is where there is consent, express or implied; second, where there is an order, or leave of the court (but that does not mean that the court has a general discretion to lift the obligation of confidentiality); third, where it is reasonably necessary for the protection of the legitimate interests of an arbitrating party; fourth, where the interests of justice require disclosure, and also (perhaps) where the public interest requires disclosure.” (underlining emphasis added)

(3) At the hearing, Mr Manzoni submitted that the principles set out in Emmott above do not apply to the present case. Specifically, Mr Manzoni drew the distinction between cases where one of the parties to the arbitration wishes to use documents arising from the arbitration in a different set of proceedings (such as Emmott (supra) or Westwood Shipping Lines Inc v Universal Schiffahrtsgesellschaft MBH [2013] 1 Lloyd’s Rep 670), and cases like the present where it is a non-party to the arbitration who wants to use such documents. In the former situation, the question is whether that party to the arbitration is permitted to disclose the documents by virtue of the exceptions to the rules of confidentiality, and in the latter situation, these principles have no application.

(4) However, I do not think there is any real difference between the parties’ respective positions on the relevance of arbitral confidentiality in an application for discovery of documents generated in an arbitration. As noted above, the Plaintiff accepts that the court can order disclosure of arbitration materials, so long as it is necessary to do so. Similarly, the Defendant, as confirmed at the hearing, also accepts that the existence of the confidentiality obligation is clearly relevant to discretion, and to the question of whether it is necessary for the fair disposal of the action.

(5) Further, I do not accept the submission that the principles in Emmott (supra) are inapplicable to the present case. In fact, contrary to the Defendant’s submission, the present application does involve the disclosure by a party to this Action (who was also a party to the arbitration, eg the Plaintiff) of documents generated in that arbitration. Whether it is a party to an arbitration who seeks disclosure of documents generated in an arbitration or it is a non-party to an arbitration (such as the Defendant) who seeks such disclosure, I am of the view that the same principles on confidentiality as set out in Emmott (supra) apply, as the Court is being asked in either situation to sanction a departure from the confidentiality of the arbitration. See Russell on Arbitration (24^th edn) at §5-216, footnote 766; Glidepath BV v Thompson & Ors [2005] 1 CLC 1090 at §30 per Coleman J.

33.  Thus, on the basis that arbitral confidentiality is relevant to the exercise of this Court’s discretion, and in the circumstances, I am of the view that arbitral confidentiality is a factor that supports the refusal of the Defendant’s application for disclosure:

(1) First, the authorities cited by the parties on arbitral confidentiality make clear that the courts generally allow disclosure of arbitral documents if they are strictly necessary for the fair disposal of the separate set of proceedings.

(2) This is clear from Westwood Shipping Lines Inc (supra), where the claimants in that case (including the first claimant, Westwood Shipping Lines, who was a party to an arbitration) applied to use documents in the arbitration to pursue a claim in the Commercial Court against a number of individuals for unlawful means conspiracy. At §14, the English court held that the disclosure was necessary since the claim was one that the claimant “could not pursue properly, possibly not at all, unless they have access to the materials from the arbitration”.

(3) On the facts of the present case, and by contrast, I accept the Plaintiff’s submission that the Tecnimont Arbitration Materials are not necessary in order for the Defendant to defend against the Plaintiff’s claims in this Action. There is no suggestion by the Defendant that they could not plead its defence without the documents. In fact, as acknowledged at the hearing by the Defendant (although in the context of challenging expert evidence), whilst the documents would make the Defendant’s job a lot easier, they were not absolutely needed for the Defendant to advance its case.

(4) Second, insofar as the Defendant requires the documents to check if the Plaintiff has advanced any inconsistent positions in the Tecnimont Arbitration and in these proceedings, I accept the Plaintiff’s submission that the authorities speak with one consistent voice in requiring there to be evidential basis before the court would order disclosure of arbitration documents to prevent a party from taking inconsistent positions.

(5) The need for evidential basis is clear from the case of Emmott (supra) itself, where a claimant to a London arbitration (MWP) made claims against Mr Emmott for breaches of contract and tort, including claims of fraud and conspiracy (which were later abandoned in the arbitration). Meanwhile, MWP also made claims against other individuals in New South Wales (“NSW”) (but not Mr Emmott) and sought to advance claims of fraud against them. In doing so, MWP represented to the NSW court that the allegations sought to be advanced in NSW were the same as those being advanced in the London arbitration (when they were not). In the end, the English court granted Mr Emmott’s application to disclose documents generated in the London arbitration, so that the NSW court would not be misled (see Lawrence Collins LJ’s judgment at §111). Thus, in this case there was an evidential basis to suggest that the NSW court would be misled.

(6) The need for evidential basis is also clear from the case of Ali Shipping Corporation v Trogir [1999] 1 WLR 314 (which is cited in the passage from Mustill & Boyd: Commercial and Investor State Arbitration (3^rd edn) at §11.62 as relied upon by the Defendant). There, the defendant sought to rely on materials in a first arbitration with Ali Shipping Corporation in other arbitrations commenced against other companies (p317F-H). Potter LJ observed as follows at pp332B-G and 333B-C:

“…The evidence given by Mr. Maehle and Captain Hoem for Ali at the first arbitration is evidence which is subject to an obligation of confidentiality unless or until a situation arises in which it appears that they are proposing to give inconsistent evidence for Lavender, Leeward and Leman in the second arbitrations. That position has not yet arisen, and Mr. Kentridge submits there is no present reason to suppose it will do so. If the evidence they give is consistent, then the time to demonstrate its inadequacy as a defence will be in final submissions to the arbitrators. If the evidence given is inconsistent, then Mr. Kentridge concedes that, in the interests of justice, the yard would be entitled to disclose and rely on the previous inconsistent statement or evidence in the second arbitrations, but not until then.

I think Mr. Kentridge is right. I have considerable sympathy with the position of the yard. They wish to obtain an interim award in respect of payments which on the face of it are due under the terms of the Hull 204 to 206 shipbuilding contracts, and in relation to which a number of defences have been mounted which plainly did not appeal to Mr. Harris when he was considering them collaterally or incidentally to the issues between the yard and Ali in the first arbitration. For that purpose the yard are anxious to put the Phillips material before the second arbitrators in an attempt to obtain an interim award on a basis analogous to Order 14 proceedings for summary judgment in the High Court, in which the plaintiff seeks to establish from statements or admissions made by a defendant in other proceedings that his pleaded defence is either not advanced bona fide or can be demonstrated to be without substance. However, quite apart from problems of admissibility, the yard face two substantial difficulties in that attempt. First, the arbitrators do not, without the consent of the parties, have any power equivalent to that of the High Court under Order 14. Second, the materials sought to be relied on were generated in the course of an arbitration with a third party who is unwilling to waive confidentiality. That being so, the ability of the yard to make use of those materials must be governed by the principle of confidentiality already discussed. That principle seems to me to preclude disclosure of the transcripts, at least at this stage of the proceedings.

…

Turning briefly to the yard's submissions (5) and (6), these have essentially been covered in the course of dealing with submissions (1) to (4). If it appears that Lavender, Leeward and Leman will be seeking to rely upon evidence which is significantly at odds or inconsistent with the evidence of witnesses in the first arbitration, then it would indeed be contrary to the interests of justice to allow Ali to seek to suppress that earlier evidence. However, that is not a position which has been reached or, in my view, ought to be assumed at this stage. Finally, for the reasons already stated, I do not think it right to say that Ali has no “legitimate interest” in seeking to restrain the disclosure of the Phillips material. While, in broad terms, the position of Ali appears to be more tactical than meritorious, it is based upon an assertion of principle which, in my view, entitles Ali to relief.” (underlining emphasis added)

(7) As held above, I am not persuaded that there is at this stage any evidential basis to suggest that the Plaintiff has taken an inconsistent position in these proceedings compared to the Tecnimont Arbitration such as to justify the disclosure of the Tecnimont Arbitration Materials in these proceedings.

(8) Third, insofar as the Defendant relies on Joe Zhixiong Zhou v Saif Partners II LP, unrep, HCA 1551/2010, 31.10.2014 as an example where a Hong Kong court granted disclosure of arbitration documents as being relevant to the disputed issues (at §66), I do not think this authority assists the Defendant. There was no express discussion in the judgment of the issue of arbitral confidentiality and, in my view, this decision is simply one that was decided on its own facts.

(9) Fourth, insofar as the Defendant contends that the Plaintiff is “cherry-picking” what documents from the arbitration they wish to refer to in reliance on a paragraph in the Witness Statement of Rajesh Kumar (at §11) which appears to make reference to “the Tribunal”, I am not persuaded by this submission. There is nothing sinister in this, and in any event, the existence of these words do not justify the disclosure of all the documents generated in the Tecnimont Arbitration without regard to principles of confidentiality.

(10) Fifth, I also consider it relevant to take into account that the Summons would require the disclosure of confidential arbitration documents notwithstanding the fact that the Tecnimont Entities (who were parties to the Tecnimont Arbitration) are not parties to this Action, and consequently it is not clear whether the Tecnimont Entities consent to such disclosure. I do not accept the Defendant’s submission that the Tecnimont Entities would necessarily agree to disclosure simply because they were successful in the Tecnimont Arbitration.

(11) Overall, I am not persuaded that the disclosure of the Tecnimont Arbitration Materials is necessary for the fair disposal of the matter in order to override or depart from the confidential nature of arbitration documents.

34.  In respect of (3), as to the Plaintiff’s submission that there is an element of “fishing” involved in the present application:

(1) As noted in K&L Gates (No. 1) (supra) at §17, fishing is not allowed. “Fishing” was described in Re State of Norway’s Application, unrep, 12.2.1986 (English Court of Appeal) as being “the search for material in the hope of being able to raise allegations of fact, as opposed to the elicitation of evidence to support allegations of fact, which have been raised bona fide with adequate particularisation” (per Kerr LJ).

(2) Further, it has been said that discovery will not be ordered for the purpose of “fishing” or to enable a party to turn a non-issue into an issue, see Lee Sai Nam v Li Shu Chung, unrep, HCA 1711/2009, 10.1.2014 at §54 per DHCJ Marlene Ng (as she then was) citing the judgment of Chu J (as she then was) in Re the Estate of Ng Chan Wah:

“It is not sufficient for the plaintiffs to say that because there is on the pleading allegation of improper conduct against the defendants as executors, they are entitled to test the basis of the estate accounts generally or to check the accuracy of the items presented in the estate accounts, irrespective of whether they are in issue. It is not the purpose of discovery to give the plaintiffs an opportunity to hunt around the documents in the hope that they will reveal some improprieties on the defendants’ part or will provide information for them to pursue more enquiries.” (underlining emphasis added)

(3) Whilst the parties do not dispute the principles in determining whether there is “fishing”, the Defendant submits that there is no fishing involved in the present application. Mr Manzoni has drawn my attention at the hearing to examples of what is and what is not “fishing”, referring to the case of Re State of Norway’s Application and the example given by Kerr LJ as follows:

“I will give one example which may be relevant to the present case. The State of Norway evidently alleges that Mr. Jahre was the settlor and ultimate beneficiary of the Trust. Or it may have alleged — we have not considered the material underlying the Sandefjord action — that X was the settlor and beneficiary and that he in fact administered the Trust and used its assets for the benefit of Mr. Jahre. Under our rules — and presumably equally in Norway — such allegations cannot be based on bare assertions, but would have to be adequately particularised by any facts relied upon in support of them. In that event, any questions to witnesses designed to elicit answers showing whether or not either of these allegations were true would be requests for “evidence”. But if these questions were unproductive, the further question, “Who, then, was it?”, would in my view be “fishing”.”

(4) Mr Manzoni therefore submits that the present application is not fishing because the Defendant is simply looking for evidence to support its pleaded case, rather than formulating a pleaded case in the first place.

(5) But I agree with the Plaintiff’s submission that there is an element of fishing involved as the present application is used to substantiate the Defendant’s pleaded defence at §115F on the “real risk” of inconsistent positions (as quoted above), which lacks material particulars and/or evidential basis as I considered above. What the Defendant is seeking to do, by the present application, is to search for materials in the hope of making good its speculation that the Plaintiff is running (or has run) an inconsistent case in the various proceedings. The same may be said of the Defendant’s attempts to search for materials to check if the Plaintiff’s expert evidence in the Tecnimont Arbitration is consistent with the Plaintiff’s expert evidence in these proceedings.

(6) Likewise, I accept Mr Dawes SC’s submission (for the Plaintiff) that the Defendant is also speculating as to the issue of contractual interpretation that the Tribunal may have determined in the Tecnimont Arbitration, and is now trying to hunt for documents that will be helpful to make good its conjecture.

(7) In any event, I consider the request under the Summons to be simply too wide, which may well cover documents that are not relevant. As stated in Lee Sai Nam (supra) at §54, it is not permissible for the Defendant to seek disclosure to hunt around for improprieties on the Plaintiff’s part or to obtain information that will allow further enquiries to be made.

(8) For these reasons, the Defendant’s present application comes under the definition of “fishing” in the authorities referred to above and is another reason why the present application should be refused.

35.  In respect of (4), I agree with the Plaintiff’s submission that the disclosure would not be necessary for saving time and costs:

(1) There is no dispute that the documents requested (ie essentially all documents in the Tecnimont Arbitration) are voluminous. Whilst the Defendant submitted that they may undertake to consider the Tecnimont Arbitration Materials quickly, the fact of the matter is that such disclosure may give rise to further applications and issues (whether procedural or otherwise) which may lead to further delay and costs in these proceedings.

(2) I was also informed at the hearing by Mr Dawes that the relevant contracts between the Plaintiff and the Tecnimont Entities (including some relevant correspondence) have already been disclosed in these proceedings. As some of the documents sought by the Defendant have already been disclosed in these proceedings, this no doubt diminishes the force of the Defendant’s argument that the requested documents are necessary for disposing fairly the cause or for saving costs.

(3) Whilst the Defendant confirmed at the hearing that not all the contemporaneous documents have been disclosed, this does not support the Defendant’s application for disclosure of all of the documents generated in the Tecnimont Arbitration (which could well cover documents that are entirely irrelevant as noted above). Insofar as the Defendant wishes to seek any missing contemporaneous documents not disclosed in the list of documents, I accept the Plaintiff’s submission that a request for such documents could be made in another way (eg by identifying a particular missing contemporaneous document or category of documents then seeking disclosure of the same), and not by asking for disclosure of everything under the Tecnimont Arbitration.

(4) Lastly, the mere fact that the amount of the Plaintiff’s claim is very large does not justify the necessity of the Tecnimont Arbitration Materials for fairly disposing the matter or for saving costs.

36.  In respect of (5), whilst it may be said that the present application could have been taken out earlier (and not only on 13 November 2025, which was some time after lists of documents were exchanged in March 2025), I tend to agree with the Defendant that delay is not, in itself, enough to dismiss the present application. In any event, as accepted by Mr Dawes at the hearing, this point does not add much to the existing objections raised by the Plaintiff as discussed above.

D2.4 Summary

37.  Overall, I am of the view that the Defendant’s specific discovery application must be rejected as the Defendant has failed to demonstrate the relevance of the Tecnimont Arbitration Materials. Further, I accept the Plaintiff’s submission that discovery of the Tecnimont Arbitration Materials would not be necessary for the fair disposal of the cause or for saving costs, for all the reasons I have held above.

E. DISPOSITION

38.  For the above reasons, I dismiss the Summons.

39.  There is no reason why costs should not follow the event. I therefore make an order nisi that costs of the Summons (including the hearing on 10 March 2026 and all costs reserved) be paid by the Defendant to the Plaintiff with certificate for two counsel, such costs to be taxed if not agreed. The costs order nisi shall become absolute 14 days from the date of handing down of this decision.