COMPUTER PERSONNEL LTD v. DIGITAL EQUIPMENT (HK) LTD

IN THE COURT OF APPEAL

1987, No. 29
(Civil)

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JUDGMENT

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Cons, V.-P.:

1. These proceedings derive from a writ issued by the Plaintiffs, Computer Personnel Ltd., claiming commission from the Defendants, Digital Equipment (HK) Ltd., for advertising, and then submitting a list for consideration of candidates for the post of General Manager in the Defendant company.

2. In essence, the Statement of Claim pleads the contract and the terms of payment. The first third of the commission is said to be payable in effect upon the signing of the contract, the second third when the short-list of candidates is presented, - said to be on or about 29th March 1985, - and the final third upon acceptance of a candidate. The Statement of Claim notes that no candidate was accepted and no claim for the final third is made. The contract is said to have been partly oral and partly in writing.

3. The Defence accepts that a particular document, said to be part of the agreement, was in fact signed, but otherwise amounts to a blanket denial of the Plaintiff's case.

4. The litigation has proceeded in the usual way. Documents have been exchanged. There was a summons for directions. At no time has there been any request for further discovery, for interrogation, or for the admission of facts. The case has been set down in the Fixture List on the grounds that the principal witness for the Plaintiffs is a person who travels in her work a great deal.

5. On the 18th February this year praecipes for subpoenas duces tecum were issued against 7 persons employed by the Defendant firm. Four of those persons were senior officers in the firm. We understand that the firm has business spread throughout the Far East, and that although it would not be impossible, it would-.be extremely disruptive to the Defendant's business if all four had to be together in Hong Kong for 1 or 2 days or more in order to be present at the trial.

6. An application to set aside the subpoenas in respect of those 4 was taken this morning before Liu, J. He rejected the application. We have not been told what reasons he gave for that rejection. That is partly no doubt because this appeal has been brought as a matter of urgency this afternoon. Objection was taken to the rushing of the matter in this way, but it appeared to us that the reasons for the objection and the merits of the appeal were so intertwined that it was appropriate to deal with them together.

7. It is suggested in support of the subpoenas that the pleadings as they stand, that is the Statement of Claim and the Defence, put in issue in the nature of the post offered. It is further suggested, and accepted, that all four required as witnesses interviewed the candidate supplied by the Plaintiffs. Their evidence then would indicate, should the interviews have been for the post of General Manager, that that was indeed the post in question and also that in all probability a short list had been submitted earlier, thereby entitling the Plaintiffs to the second third of their commission.

8. We know however from the affidavits which have been filed in the action, and to which our attention has been drawn this afternoon, that the real defence does not relate to the nature of the post, but rather to the nature of the contract. The suggestion is that the introduction was not made under the contract which is pleaded in the Statement of Claim, but under another contract, under which the terms of payment were different. These witnesses cannot therefore be of any possible value to the Plaintiffs.

9. That in itself is not sufficient to set aside the subpoenas, but in the circumstances I find it difficult, if not impossible, to avoid the feeling that the issue of the subpoenas was less with a view to obtaining evidence than causing inconvenience. That is not a proper purpose and for my part I would allow the appeal, abridge the time necessary for the service of the notice of appeal and set aside the four subpoenas.

Hunter, J.:

10. I agree for the reasons given by my Lord. These subpoenas, in my judgment, are irrelevant, fishy and oppressive, to use the words of Lord Denning in Senior v. Holdsworth[1], and should be set aside.