MOMIN LOK v. HOSPITAL AUTHORITY

HCPI 981/2014

[2019] HKCFI 466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 981 OF 2014

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R U L I N G

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1.  This ruling concerns a discrete point that has arisen in this trial on the preliminary issue of limitations. It has arisen in this manner.

2.  On the second and final day of the trial of the preliminary issue, I observed that the plaintiff had adduced little evidence to show why her 1^st application for legal aid was refused on 17 June 2011 and why her 2^nd application for legal aid was granted on 25 July 2014, and, further, that the sparseness of such evidence would handicap my exercise of discretion to disapply the three-year limitation period under section 30 of the Limitation Ordinance, particularly the sparseness of evidence on the matters set out in section 30(3)(a), (e) and (f), namely:

“(a) the length of and the reasons for the delay on the part of the plaintiff;

…

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”  

3.  For this reason, I granted leave to the plaintiff on 18 May 2018 to adduce additional evidence, if she wished to do so, on the facts and matters pertaining to 3 specific areas:

(a)  facts and matters pertaining to the refusal of the plaintiff’s first legal aid application on 17 June 2011;

(b)  facts and matters pertaining to the grant of the plaintiff’s second legal aid application on 25 July 2014; and

(c)  events which took place between those 2 dates, with particular reference to the conduct of Messrs Ho Tse Wai & Partners (“HTW”) (her former solicitors).

4.  In the result, the plaintiff availed herself of the opportunity to adduce additional evidence which was adduced in the form of Mr Nicholas Millar’s 2^nd affidavit sworn on 7 June 2018, §5 of which stated:

“5. All the documents I refer to are protected by legal professional privilege. In so far as I refer to a particular document I do not waive privilege on behalf of Madam Lok in respect of such document; such reference is purely so as to identify stages with a view to explaining. The documents exhibited hereto are not produced by way of discovery or as part of the substantive action and they are simply to seek to satisfy Mr. Justice Bharwaney’s order of the 18^th May 2018 for the purpose of the plaintiff’s summons dated 24^th March 2016 as amended by paragraph 1 of the order dated 20^th June 2017 of Mr. Justice Bharwaney and are not admissible in the substantive action. In so far as a document is referred to, but not exhibited, (the “referred to document”) in a document that is exhibited to comply with the order then privilege is not waived either expressly or impliedly in such referred to document, as not being necessary for the purpose of satisfying the order.” [My emphasis]

5.  The quoted statements are incorrect insofar as they suggest that the documents were exhibited in the said affidavit to satisfy or comply with my order of 18 May 2018.  As is clear from the terms of my order of 18 May 2018, which I set out below, it was permissive and not compulsive:

1.  Leave granted to Plaintiff to consider whether or not additional evidence will be adduced by way of affidavits and documentary exhibits in connection with the events that occurred between the refusal of Legal Aid on 17/6/2011 and the grant of Legal Aid on 25/7/2014 with particular reference to facts and matters relevant to the refusal and subsequent grant of Legal Aid and to the conduct of Messrs. Ho, Tse & Wai;

2.  Plaintiff’s solicitors to informed the Court on or before 25/5/2018 whether or not additional evidence will be adduced pursuant to the leave granted and, if so, a concise statement of what that evidence would comprise of, such evidence to be filed and served within 14 days thereafter;

3.  In the event of Plaintiff’s decision to adduce such additional evidence, leave granted to Defendant to adduce evidence in rebuttal within 14 days of the Plaintiff’s additional evidence being filed and served;

4.  Upon receipt of the aforesaid information and / or additional evidence, further directions and hearing dates will be granted and fixed;

…”

Indeed, in the plaintiff’s submissions in reply dated 5 October 2018, it is expressly stated that my order of 18 May 2018 was “not an order compelling discovery”.

6.  Upon being served with Mr Millar’s 2^nd affidavit, the defendant complained that the plaintiff had made selective discovery of the documents that were relevant to the refusal and subsequent grant of legal aid and sought additional discovery of the following classes of documents:

a.  The nature of the advice given by HTW to the plaintiff in connection with the refusal of legal aid on 17 June 2011 (including on the reports of the 2 doctors relied upon in the refusal), and her instructions thereon.

b.  The nature of the advice given by HTW to the plaintiff in connection with the advice of Dr. Hands and her report, and the plaintiff’s instructions thereon.

c.  The nature of the advice given by HTW to the plaintiff in connection with the views of:

(i)  the Hong Kong neurologist referred to in HTW’s email to the plaintiff dated 29 November 2011; and

(ii)  Dr. Huang, referred to in HTW’s correspondence with Dr. Huang and Mr. Lok between 3 May 2012 and 8 June 2012.

d.  The nature of the advice given by HTW to the plaintiff in connection with her applications to the District Court in December 2011 and in March, June and December 2012 to extend the validity of her writ in HCPI 1373 of 2011 and to adjourn those proceedings; and in connection with the expiry of that writ in July 2013 and the discontinuance of those proceedings in June 2013, and the plaintiff’s instructions.

7.  The plaintiff opposed this request for discovery and asserted privilege over the documents sought. I directed written submissions to be filed, and I heard oral submissions from the parties on 13 December 2018 on this application for discovery. Most of those submissions were focused on the point whether or not deployment of the documents exhibited to the 2^nd affidavit of Mr Millar amounted to a waiver of the privilege the plaintiff enjoyed over the additional documents that were being sought. To facilitate my decision in the matter, on 13 December 2018, I directed the plaintiff to file a list of documents identifying the documents that were in existence in relation to the matters raised in the course of the hearing that spanned from 6 May 2011 to 25 July 2014.  Identifying those documents would enable me to assess whether the request for the specific documents was reasonable, whether the claim of privilege over such documents was valid, and whether any such privilege over these documents had been waived by the deployment of the documents exhibited to the 2^nd affidavit of Mr Millar.

8.  The correspondence exchanged after my direction of 13 December 2018 raised concern on my part that there might have been a misunderstanding of my direction.  On 31 December 2018, I clarified my direction in these terms:

“ On 13 December 2018 I directed:

“The plaintiff to provide a list of documents within 21 days relating to the matters raised in the course of the hearing on 13 December 2018 that spanned from 6 May 2011 to 25 July 2014 in the form required by Order 24 of the Rules of the High Court.”

There appears to be some confusion regarding my direction.

My direction is not for the plaintiff to provide copies of any such documents. The plaintiff is at liberty to claim privilege against each and every one of the documents set out in the list that I have asked the plaintiff to prepare. The purpose of the direction is to enable me to understand the nature of each of the documents in respect of which privilege is being claimed so that I may be better enabled to adjudicate upon the defendant’s submission that the plaintiff has waived the privilege which may (or may not) attach to any such document or documents.

…”

9.  Pursuant to the extension of time I had granted, the plaintiff filed a list of documents dated 11 January 2019 by way of compliance of my direction of 13 December 2018.  It was stated in the list that:

“1. The plaintiff has in her possession, custody or power the documents relating to the matters in question in this action enumerated in Schedule I hereto, which are provided pursuant to the order of Bharwaney J., for him to determine the preliminary trial, but in respect of which privilege is not otherwise waived.

...

3.  The plaintiff objects to produce the documents enumerated in Part 2 of the said Schedule I on the ground that they are by their nature privileged from production being either obtained or prepared for the purpose of (intended) litigation against the defendant and or the giving of advice by lawyers for such purpose or for the purpose of legal advice generally.”

10.  On 17 January 2019, I made the following direction:

“ I refer to the plaintiff’s list of documents dated and filed on 11 January 2019.

I also refer to the hearing on 13 December 2018. A transcript of that hearing is attached for your reference.

In the course of the hearing, I stated that the list of documents to be provided should indicate, in respect of the documents listed, whether they are privileged, and if so, whether the plaintiff waives privilege over them, or some of them; or whether the plaintiff maintains the claim of privilege over them, or some of them (see page 30 of the transcript at A-C).

The list of documents filed refers, on page 2 paragraph 1, to the documents listed in Schedule I (which is in 2 Parts, being Part 1 and Part 2), and states “in respect of which privilege is not otherwise waived”.

Under page 2 paragraph 3 of the said list, it is expressly stated that the plaintiff objects to produce the documents enumerated in Part 2 of the said Schedule 1 on the ground that they are by their nature privileged from production.

There is no such express statement objecting to production on the grounds of privilege in respect of the documents listed in Part 1 of the said Schedule 1.

The plaintiff's solicitors are required, by close of business tomorrow, to clarify whether or not they are willing to waive privilege on all or some of the documents listed in Part 1 of the said Schedule 1; or whether they maintain their claim of privilege over the entirety of the documents listed in Part 1 of Schedule 1.”

11.  The plaintiff’s solicitors responded by 2 letters both dated 18 January 2019. The letters contained the following, amongst other, statements:

1^st letter:

“…

9. The intent of paragraph 1 of the narrative to the list of documents is to seek to say that privilege (as to schedule 1 part 1) is waived for the purpose of the preliminary trial, but only the preliminary trial, not for the main trial should His Lordship find in favour of Mrs Lok in the preliminary trial.

…

11. Should, as we anticipate, His Lordship ultimately give Mrs Lok permission to pursue her claim against the Hospital Authority, it is our position that it would be wrong to allow the Hospital Authority’s legal advisers to avail themselves in the main trial of documents disclosed, so as to satisfy His Lordship, in this preliminary trial as to limitation.

…”

2^nd Letter:

“…

3. The only issue is whether the Hospital Authority’s legal advisors accept the waiver of privilege as to the HTW documents is limited to the preliminary trial or, if they do not accept this, why not?

…”

12.  Consequently, on 18 January 2019, I made the following directions:

“ It appears to be that the stance of the plaintiff is that:

1) All of the documents listed in Part 1 of Schedule 1 are privileged documents;

2) Privilege has been waived in respect of those documents in Part 1 of Schedule 1 that have been exhibited to Mr Millar’s 2^nd affidavit;

3) The plaintiff is prepared to waive privilege in respect of the rest of the documents in Part 1 of Schedule 1 but only for the purposes of the preliminary trial, that is to say that, if the court grants leave to the plaintiff to override the limitation period and to proceed to trial, then the rest of the documents in Part 1 of Schedule 1 that are not exhibited to the 2^nd affidavit of Mr Millar may not be deployed at the trial.

No authority has been cited in support of the contention set out in paragraph 3 above. If the plaintiff is entitled to rely on negative advice given to her to justify her delay in prosecuting the claim and, based on the same, the court overrides the limitation period in her favour, it seems to me to be unfair that the defendant is prevented at the trial from relying on the same negative advice to defend the proceedings. However, I am not asked to, nor do I make a ruling on this point.

On the basis that the plaintiff maintains her position as set out in paragraph 3 above, I make the following directions:

a) The hearing fixed on 22 January 2019 at 10 am (1 hour reserved) is vacated;

b) The plaintiff is to identify by close of business on 21 January 2019, those documents listed in Part 1 of Schedule 1 that are not exhibited to the 2^nd affidavit of Mr Millar;

c) Parties to exchange and file written submissions, within 7 days thereafter, on whether or not the privilege that is claimed on the documents listed in Part 1 of Schedule 1 that are not exhibited to the 2^nd affidavit of Mr Millar has been waived, such written submissions to be in font 14 with single spacing and not to exceed 5 pages;

d) Parties to exchange and file written submissions in reply within 5 days thereafter, such written submissions to be in font 14 with single spacing and not to exceed 3 pages;

e) Unless the court otherwise directs, further oral submissions are not required.”

13.  I have perused the written submissions filed by the parties dated 25 January 2019, and the written submissions in reply dated 31 January 2019 and 4 February 2019, on whether or not the plaintiff can invoke, in this trial of the preliminary issue of limitations, the doctrine of partial waiver of privilege in respect of privileged documents that have been disclosed for a limited purpose only.  This is the discrete issue that I address in this ruling. Both parties accept that there is no authority addressing the question whether the deployment of privileged documents at the trial on the preliminary issue of limitations will have the result that the privilege over those documents is waived at the main trial that would take place if the court disapplies the limitation period.

14.  After reviewing the English authorities, including British Coal Corporation v. Dennis Rye Ltd [1988] 1 WLR 1113, B v. Auckland District Law Society [2003] 2 AC 736, and Berezovsky v. Hine [2011] EWCA Civ 1089, the Hong Kong Court of Appeal in Citic Pacific Ltd v. Secretary for Justice [2012] 2 HKLRD 701 held that the concept of partial waiver of privilege was incorporated into the law of Hong Kong[1].  Citic Pacific Ltd had disclosed privileged material to the Securities and Futures Commission (“SFC”) for the purposes of the commission’s investigations which they conducted within the scope of their own statutory enforcement regime.  Citic Pacific Ltd had made an express reservation as to this sole use, to which the SFC agreed.  The Court of Appeal upheld the claim of privilege by Citic Pacific Ltd in respect of the use of that material by the police for a criminal investigation the police conducted several months later.[2]

15.  In British Coal Corporation v. Dennis Rye Ltd, the English Court of Appeal held that where the plaintiffs made available certain privileged documents (created for the purpose of civil proceedings brought by the plaintiffs against the defendants) to the police for a limited purpose only, namely, to assist in the conduct, firstly, of a criminal investigation and then of a criminal trial of the defendants, the disclosure could not be construed as a waiver of such privilege for subsequent civil proceedings brought by the plaintiffs against the defendants[3].

16.  In Goldman v. Hesper [1988] 1 WLR 1238, the English Court of Appeal held that where privileged documents were lodged with the court by the receiving party for taxation of costs, and disclosed to the paying party upon the direction of the court to enable the paying party to raise a bona fide challenge to any item of costs claimed, the waiver of privilege is limited to the specific purpose of taxation and would not prevent the receiving party from reasserting his privilege in any subsequent proceedings[4].

17.  The English Court of Appeal in Bourns Inc. v. Raychem Corporation [1999] 3 All ER 154 followed and applied Goldman v. Hesper. Aldous LJ, giving the judgment of the court, held that:

(a)  if the receiving party had disclosed the documents pursuant to an order made by the taxing master, then clearly the privilege attaching to the documents would only have been waived for the purpose of the taxation proceedings;

(b)  but even where no order for disclosure had been made, it is the principle of natural justice that a person should normally see relevant material placed before the tribunal and it is also necessary for the proper administration of justice that parties should cooperate. There is good reason to encourage voluntary disclosure of relevant documents in taxation proceedings. In such circumstances, the receiving party should not lose his right of privilege because justice only requires that right to be lost for the taxation proceedings.[5]

18.  The Privy Council in B v. Auckland District Law Society rejected the contention that once a privileged document was disclosed, the privilege was lost for all purposes.  Lord Millett, delivering the opinion of the Privy Council, stated:

“68. The society’s argument, put colloquially, is that privilege entitles one to refuse to let the cat out of the bag; once it is out of the bag, however, privilege cannot help to put it back. Their Lordships observe that this arises from the nature of privilege; it is nothing to do with waiver. It does not follow that privilege is waived generally because a privileged document has been disclosed for a limited purpose only: … The question is not whether privilege has been waived, but whether it has been lost. It would be unfortunate if it were. It must often be in the interests of the administration of justice that partial or limited waiver of privilege should be made by a party who would not contemplate anything which might cause privilege to be lost, and it would be most undesirable if the law could not accommodate it.”

19.  In Berezovsky v. Hine, the plaintiff provided privileged documents (draft witness statements) to his business associate for a limited purpose, namely, to lend support to the latter’s asylum claim. In holding that the documents remained privileged and could not be used in proceedings in the Commercial Court, the English Court of Appeal reaffirmed the principle that it did not follow that privilege would be waived generally because a privileged document had been disclosed for a limited purpose only; and held that where privilege was waived, the question whether the waiver was limited, and, if so, the parameters of the limitation, must be determined by reference to all the circumstances of the alleged waiver, and, in particular, what was expressly or impliedly communicated between the person sending, and the person receiving the documents in question, and what they must or ought reasonably have understood[6].

20.  The limited purpose waiver of privileged documents, that had occurred in the cases referred to above, had occurred in the context of different investigations and different proceedings, including asylum proceedings and taxation proceedings. On the other hand, it is the view of the editor of Thanki’s The Law of Privilege (3^rd Ed. 2018) that a party that deploys otherwise privileged documents in interlocutory proceedings will generally be held to have waived the privilege for the use at trial[7]:

“Deployment in interlocutory proceedings

5.45 It has not always been clear whether use of a document in interlocutory proceedings as opposed to a trial involves a collateral waiver in associated material. In Great Atlantic v Home Insurance⁹⁹Templeman LJ drew a clear distinction between interlocutory proceedings and the trial itself. However, in Derby v Weldon (No 10)¹⁰⁰ Vinelott J rejected the assertion that reliance on a document in an application for a Mareva injunction did not result in a waiver for the trial, and in Dunlop Slazenger International Limited v Joe Bloggs Sports Limited¹⁰¹ the court clearly viewed the deployment of material in interlocutory proceedings as resulting in a wavier in both that and associated material.¹⁰² More recently, in Berezovsky v Abramovich¹⁰³ Gloster J held that privilege had been waived by referring to the contents of privileged interviews in support of a summary judgment application.

5.46 This is now the prevalent view and is surely correct. As with a trial, it will for most practical purposes be impossible to turn the clock back when privileged material has been relied on by a party during the interlocutory stages. It remains to be seen whether there is any remaining scope to argue that the waiver is in some way limited to an issue only arising on the interlocutory hearing. In Dunlop Slazenger International Limited v Joe Bloggs Sports Limited, Waller LJ appeared to leave the door open to this possibility:

It comes to no more than this. If in interlocutory proceedings a party has waived privilege–in that case that was on a Mareva injunction application–then, that is a waiver for all purposes and the cherry-picking principle applies. Whether that will always be right is a matter that I would reserve for future decisions. It is not necessary to say that that will always be right to dispose of this case. If there is to be an exception to that principle it would need to be framed in the following way. It would need to be argued that since it was only for the purpose of the interlocutory proceedings and in relation to an issue in those proceedings that the waiver had taken place the waiver was in some way limited.¹⁰⁴

⁹⁹ [1981] 1 WLR 529, 537. …

¹⁰⁰ [1991] 1 WLR 660.

¹⁰¹ [2003] EWCA Civ 901.

¹⁰² …

¹⁰³ [2011] EWHC 1143 (Comm), …

¹⁰⁴ [2003] EWCA Civ 901, para 17.”

21.  Having carefully considered the authorities on point and the parties’ submissions, I have reached the firm conclusion that the doctrine of partial waiver of privilege cannot apply to the trial of a preliminary issue so as to preserve, at the subsequent main trial, the privilege over the documents that were disclosed at the trial of the preliminary issue. The court’s discretionary power to order separate trials of separate issues under Order 33, rr. 3 and 4 of the Rules of the High Court is exercised when it is just and convenient to do so, having regard to the underlying objectives of the Civil Justice Reform, and under Order 1A, which aim to facilitate the more efficient, expeditious and fair disposal of a case.  The court does not order a trial of a preliminary issue as to limitations in every case where a limitations defence is pleaded.  There may be cases where the court directs that all issues of liability, quantum and limitations be tried together. Such cases may include cases where the period of delay after the expiry of the limitations period is minimal.  It would be discriminatory, in my view, that a party to the trial of a preliminary issue as to limitations enjoys the right to invoke the doctrine of partial waiver of privilege but a party to a trial where all issues of liability, quantum and limitations are tried together does not enjoy such a right.

22.  Further,  as I observed in my direction dated 18 January 2019, if the plaintiff is entitled to rely on negative advice given to her to justify her delay in prosecuting the claim and, based on the same, the court overrides the limitation period in her favour, it would be unfair if the defendant is prevented, at the main trial, from relying on the same negative advice to defend her claim.  I find support for my view from the judgment of Gloster J, as she then was, in Berezovsky v Abramovich [2011] EWHC 1143 (Comm) who stated at §21:

“In circumstances where the Claimant has deliberately chosen, in the context of the summary judgment application, to waive legal professional privilege by referring extensively to the contents of the Patarkatsishvili interviews with his former solicitors, in order to support his case on the merits of his claim, it would not be just, fair, or consistent with the principles expounded in the authorities, to permit the Claimant, on the simple pretext of saying that he had not made up his mind whether to refer to such evidence at trial, to withhold disclosure of the underlying privileged materials relating to such interviews.”

23.  Legal professional privilege is a fundamental human right which is constitutionally protected under Article 35 of the Basic Law. Article 35 provides that residents “shall have the right to confidential legal advice”. This fundamental right is vested in the plaintiff and not in her solicitors. I am concerned that the plaintiff may have been wrongly advised to waive privilege in respect of the documents that were subsequently exhibited in Mr Millar’s 2^nd affidavit in order “to satisfy or comply with” my order of 18 May 2018.  I had previously offered to grant leave to the plaintiff to withdraw the 2^nd affidavit of Mr Millar[8]. I hereby formally grant leave to the plaintiff to withdraw the 2^nd affidavit of Mr Millar, if she wishes to do so, by serving written notice of withdrawal to the court and to the defendant within 14 days from today.  I trust that she would be properly advised that she is under no compulsion to waive the privilege that she enjoys over the documents exhibited to the 2^nd affidavit of Mr Millar and over the documents listed in Part 1 of Schedule 1 of the list of documents dated 11 January 2019.

24.  I direct the parties to write to me, either jointly or separately, within 21 days from today, on the directions that I should make, in the light of this ruling and the plaintiff’s withdrawal of, or continued reliance on, the 2^nd affidavit of Mr Millar, as the case may be, for the further conduct of the application for discovery and/or the resumption of the trial on the preliminary issue of limitations.