BRIGHTFORD LTD v. SAM TAT MACHINERY CO LTD

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4439 OF 1994

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JUDGMENT

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1. This is an application by the Defendant under Ord.24 r.7 for specific discovery of a surveyor's report or letter as a result of an inspection of the crane on 19th March 1994. What happened was that the Plaintiff supplied a crane to a customer hirer under an agreement dated 24th December 1993 which was guaranteed by the Defendant. The agreement commenced in January 1994 with monthly payment for hire. Trouble started in January and then proceeded in February with the parties in dispute in discussion as to the problems relating to the crane's defecitve performance.

2. There was a letter dated 4^th March 1994 from the hirer, a copy of which was not shown to the Court but now relied on by the Defendant which suggests that the crane hire was terminated by the hirer on 5th March 1994. This letter was then followed by the inspection on 19th March 1994. The application for discovery was opposed by the Plaintiff who had put in an affidavit to say that the survey was done with the contemplation of pending advice on the litigation because by 19th March, it is quite clear that litigation was likely to come. There was a serious dispute and litigation was contemplated.

3. Miss Lam submitted to the court that discovery ought to be made because it was necessary. It was pointed out to her by the court that there is a claim of privilege which, on the face of it, seems to be perfectly valid and there is no counter-affidavit to challenge the assertion of privilege being bona fide. There was an argument by Miss Lam that nevertheless the court should exercise its discretion in favour of at least the inspection of the document. I disagree.

4. First of all, there was no application under Ord.24 r.13 whereby inspection of the document was sought. Secondly, it seems to me that the marginal note in the White Book under 24/13/5 relied on the case of Westminster Airways v Kuwait Oil is in point. Prima facie when the affidavit asserted privilege as in this case, the court accepts that there is privilege. There are no circumstances here which should induce the court to exercise its discretion to inspect the document.

5. In all the circumstances of the case, the application for discovery is not made out and I dismiss the Summons with costs.