ELLIOTT INTERNATIONAL, L P AND OTHERS v. THE BANK OF EAST ASIA, LTD AND OTHERS

HCMP 1812/2016

[2018] HKCFI 2321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1812 OF 2016

________________

________________

________________

________________

D E C I S I O N

________________

1.  On 28 August 2018 I handed down my decision in respect of discovery applications made by both the Petitioners and the 2^nd to 19^th Respondents. The orders that were made were lengthy and complicated and two issues have arisen concerning the precise terms of certain paragraphs in the light of my decision. One relates to the order made against the 1^st to 4^th Respondents. The other to that made on the application of the 2^nd to 19^th Respondents against the Petitioners.

2.  Paragraph 10 of the schedule to the summons issued by the Petitioners sought:

“Minutes of meetings or discussions which took place between 1 January 2014 and 1 September 2014 attended by or involving any BEA Custodian and one or more representatives of SMBC, which record SMBC’s interest in raising its stake in BEA.”

3.  I deleted “BEA Custodian”, which is given a very wide definition in the summons and replaced it with “of the Respondents”.  The Petitioners argue that, they assume inadvertently, I excluded Samson Li (who was one of the 41 people included in the definition of “BEA Custodian”), who is not one of the Respondents, but, and this is uncontroversial, had a central role in terms of the generation and receipt of documents.  This is correct.  One of the difficulties in disposing of the applications was that the descriptions of classes were lengthy and subject to criticism without in all cases, like class 10, alternative descriptions being proffered.  In these circumstances it is unsurprising that some changes made by me to class descriptions may have contained oversights such as the one that I accept was made in the case of class 10.

4.  Mr Yu argues that although the court has jurisdiction to vary an order before it is sealed this jurisdiction should only be exercised in exceptional circumstances.  Mr Yu referred me to the decision of Yuen JA in Re Kennedy [1] in which her Ladyship says this: “… strong reasons are required before the court would do so and this power would only be exercised in exceptional cases”.  It seems to me that quite how this jurisdiction will be exercised will depend in large part on the nature of the variation.  In Re Kennedy the Court of Appeal was invited to allow an appeal, which in its reasons it had concluded should be dismissed, for the reasons explained in the judgment of Yuen J.  One would expect such a major variation to be exceptional.  In the present case the court is not being asked to change its conclusion.  It is being asked to make a relatively minor alteration to the wording of one paragraph of a multi-paragraph interlocutory decision.  It does not seem to me that Yuen JA’s reasoning was directed to this type of variation.  In my view it falls within the type of omission that Godfrey JA was referring toin Skink Ltd v Comtowell Ltd,[2] namely, a correction required to ensure that the court’s intention is correctly expressed.

5.  I will, therefore, amend paragraph 10 of the schedule to the Petitioners’ summons to refer to Samson Li and the Respondents.

6.  The Petitioners also seek a variation to the 2^nd to 19^th Respondent’s order, which currently requires discovery up to the date of judgment.  In paragraphs 106 and 107 of my judgment I say this:

“106. It does, however, seem to me that documents recording Elliott’s strategy at the time of its investment in the Bank in 2010 and the strategy’s implementation and change up to the presentation of the Petition are generally relevant. Just as the placement to Caixa in 2009 informs an assessment of the reasons why the Board approved SMBC’s subscription some years later, Elliott’s reasons for investing in the Bank and continuing to hold and increase its shareholding in it will inform an assessment of whether or not the petition was presented to facilitate and further a takeover plan or other, allegedly, impermissible purpose.

107. Subject to the amendments referred to in [100] and [102] I will order that the following classes are disclosed in addition to class 7: classes 1, 2, 4, 5 and 6 (subject to the deletion of ‘other’ and the words in the second parenthesis).”

7.  The Petitioners argue that the reference to “up to the presentation of the Petition” must have been intended to qualify the various paragraphs of the summons that I allowed, which seek discovery “to the date of judgment in this Petition”.  On rereading my reasons, I agree that this was my intention.  It, follows, that in order to ensure that the order reflects my intention that it should be amended so that in the current draft order the reference to judgment is replaced with “to the date of presentation of the Petition”.

8.  There is one further matter, which was discussed at the hearing.  I will order that each of the parties files and serves an affirmation verifying their respective lists of documents, which should comply with RHC O 24, r 5(1) and (2), in compliance with RHC O 25, r 5(3).