THE LONDON SPEAKER BUREAU LTD v. THOMSON TAM

DCCJ 1812/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1812 OF 2012

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DECISION

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1.  The defendant Mr Tam is appealing against the order of Master D Ho of 7 February 2013 dismissing the defendant’s application for further and better listing of documents of the plaintiff with costs.  The appeal is by way of rehearing (58/1/2 of the Hong Kong Civil Procedure 2013 p 1018).

2.  The defendant made an application by summons to Registrar Lui on 1 November 2012 after the plaintiff served a plaintiff’s list of documents on 21 September 2012, asking for :-

(1)   Discovery by interrogatories; and

(2)   Further and Better listing of documents.

3.  On 13 November 2012, Registrar Lui granted leave to the defendant to withdraw paragraph 1 of the summons and adjourned the argument of paragraph 2 of the summons to 7 February 2013 before Master D Ho.  Leave was granted to the parties to file affidavits in support of and opposition to the application.

4.  Master D Ho, after hearing arguments, ordered the plaintiff to file and serve a supplemental list of documents disclosing the signed agreements of the parties but dismissed the defendant’s application for a further and better list of documents in relation to item 9(b) to 9(h) of the defendant’s request on 1 November 2012 with costs.

5.  The defendant in his present appeal complained that he was not served a copy of the plaintiff’s written submission to Master Ho until the morning of the hearing.  As this appeal is by way of re-hearing, it is not a matter in issue before me.

6.  Under the defendant’s notice of appeal paragraphs 1 (a) – (e) he asks for further and better particulars of the following:-

(a)   all electronic mail correspondences between Mr Tom Slaney representative of the plaintiff and defendant that materially involve plaintiff’s statement of claim and defendant’s defence and counterclaim, from September 1^st 2006 to 1 May 2011 using tommy@hkue.edu.hk, tommy@londonspeakerbureau.co.uk, tommy@londonspeakerbureau.hk,

Plaintiff’s electronic mail address

tom@londonspeakerburear.co.uk or

tom@londonspeakerbureau.com;

(b)   correspondence between Mr Tom Slaney and the office of Prime Minister Gordon Brown detailing Mr Brown’s interest to sign with the London Speaker Bureau, UK from the date of initial contact of finalisation;

(c)   Monthly payroll names of those who were/are employed by the London Speaker Bureau, UK between October 2006 to 23 April 2011.  For the sake of confidentiality, dollar amounts could be blotted out;

(d)   Dated communiqué/s between Mr Jeffrey Meng and Mr Tom Slaney on the erecting of the London Speaker Bureau;

(e)   Record/s of the number of inquiries that were forwarded to India between 2007 to April 2011, Malaysia between January 2008 to April 2011, Japan between December 2010 to April 2012, and Beijing between May 2011 to now from the London Speaker Bureau, UK office.

7.  The application for a further and better list of documents is made under Order 24 rule 3 of the Rules of Supreme Court.  The notes in the Hong Kong Civil Procedure 2013 24/3/7 on p 540 stated:-

“24/3/7 Application for a further and better list of documents – A list of documents, verified by affidavit is normally conclusive (see r.7, n. “Effect of the rule”, para. 24/7/1) subject to two qualifications, namely (1) that an application may be made under r.7, for an affidavit in regard to specific documents or classes of documents, where the facts fall within that rule and (2) that an application may be made for a further and better list of documents in the following conditions. 

An order may be made for a further and better list of documents where it appears (a) from the list itself, or (b) from the documents referred to in it, or (c) from admissions made either in the pleadings of the party making discovery or otherwise, that the party making discovery has or has had other relevant documents in his possession, custody or power.

As regards the claim for privilege, the only cases in which the affidavit can be controverted are those in which it can be seen from the whole affidavit or from the nature of the case or of the documents themselves, that the party making discovery has erroneously represented or misconceived their nature or effect (Att. Gen. v. Emerson (1882) 10 Q.B.D. 191 at 198, 203, 204, CA; Roberts v. Oppenheim (1884) 26 Ch.D. 724; Frankenstein v. Gavin’s Cycle Cleaning and Insurance Co. [1897] 2 Q.B. 62; Lyell v. Kennedy (No. 3) (1884) 27 Ch.D. 1 at 20-23; Brookes v. Prescott [1948] 1 All E.R. 907, CA).  But the court will not speculate upon such misrepresentation or misconception, and will accept the list, verified by affidavit, as conclusive unless it can see distinctly that the oath of the party cannot be relied upon (Roberts v. Oppenheim (above); see also Jones v. Andrew (1888) 58 L.T. 601).  An application for a further and better list (as distinct from an application under r.7) should not normally be supported by an affidavit.

The requirements in the case of an application under r.7 are different from the requirements in an application under this rule.  A party seeking an order for further discovery should therefore consider carefully under which rule he should proceed or whether he should rely on both rules.  If or to the extent that he resorts, or can only resort, to r.7 he must comply with the requirements of para. (3) of that rule or his application must fail.”   

8.  24/3/7 has made it clear that a list of documents verified by affidavit is conclusive.  An application under 24/3/7 for further and better particulars where it appears (a) from the list itself, or (b) from the documents referred to in it, or (c) from admissions made either in the pleadings of the party making discovery or otherwise, that the party making discovery has or has had other relevant documents in his possession, custody or power.  As the defendant is relying solely on Order 24 rule 3, he must comply with the requirements of rule 3 which application is normally not supported by an affidavit.  In the present application before the master, affidavits in support have been filed with the leave of the master.  Even so, the application remains a 24/3/7 application, it should satisfy the requirements under rule 3, unlike  rule 7 application which relies on the assistance of evidence or explanations on affidavit.

9.  Under rule 3, the burden is on the defendant who is making the application for further and better particulars of the plaintiff’s list of documents to show which document on the list or from the documents referred to in the list or admissions made in the pleadings that the plaintiff has in his possession, custody or power the documents sought by the Defence are relevant and related to the action.  Furthermore, the existence of the documents requested are obvious from the list or pleadings, hence affidavit evidence is not called for.

10.  The defendant in his written submission referred to a number of authorities on specific discovery of documents and the test of relevance.  Such as the Peruvian Guano case, Re Estate of Ng Chan Wah HCA 95/2003 and HSBC Private Bank (Suisse) SA v Mission Bridge Ltd and Anor [2012] HKCFI 938, they are all cases on order 27 rule 7.  So far as the defendant’s application under Order 24 rule 3 is concerned, the primary test is whether it complies with the requirements of rule 3.  It has been re-iterated by Deputy High Court Judge Coleman SC at paragraphs 49-51 of Paul’s Models Art GMBH & Co v UT Limited & Ors (HCA 1501/2000, 18 January 2011, unreported) that:-

“there is no jurisdiction to make an order under rule 3 unless (a) there is sufficient evidence that the document exist that the other party has not disclosed; (b) the document or documents relate to matters in issue in the action; and (c) there is sufficient evidence that the document is or was in the possession, custody or power of the other party. If those matters are established, the court has a discretion whether or not to order disclosure.”

Request (a) all emails between Mr Tom Slaney and the defendant between 1 September 2006 and 1 May 2011, that materially involve the plaintiff’s statement of claim and defendant’s defence and counterclaim. 

11.  A number of emails exchanged between Mr Slaney and the defendant have been disclosed in the list under items 2-8, 11, 17-24, 50, 59.  The burden is on the defendant to identify which of the emails between him and Mr Slaney are relevant to this action and have been referred to in the plaintiff’s list or which document(s) in the list referred to all the correspondences between them or if admissions were made in the pleadings that all the emails between them related to the present action and they are in the plaintiff’s possession and custody.

12.  I agree with Mr Chen, counsel for the plaintiff, if they were email correspondences between Mr Slaney and the defendant, the defendant surely must already possess a copy of them and should be able to name them specifically.  I reject the defendant’s application because the requirements of Order 24 rule 3 have not been satisfied and the request is too wide and too general.

Request (b) correspondences between Mr Slaney and the office of Prime Minister Gordon Brown detailing Mr Brown’s interest to sign with the London Speaker Bureau, UK from the date of initial contact to finalisation

13.  The plaintiff claimed that it had disclosed all the relevant correspondences with Mr Brown’s office in the list.  Therefore, the defendant has to show the plaintiff had either made an admission or pleaded it was in possession further correspondences related to the subject.  I find the defendant has failed to show the plaintiff’s list referred to the existence of such further documents and they are related to the present action.  Therefore, the defendant’s request fails.

Request (c) monthly payroll names of those who were/are employed by the London Speaker Bureau, UK between October 2006 and 23 April 2011

14.  There was no reference on the plaintiff’s list to its monthly payroll or any documents referring to it nor was it admitted in the pleadings that they were related documents.  The defendant admitted he requested for them in order to find out whether certain employees were officers or employees, this is not the purpose intended by an Order 24 rule 3 application.  I am not satisfied the plaintiff’s employees payroll is an issue in the trial of this action.

Request (d) dated communiqué(s) between Mr Jeffrey Meng and Mr Tom Slaney on the erecting of the London Speaker Bureau

15.  I cannot find any reference to correspondences or communications between Mr Jeffrey Meng and Mr Slaney in the plaintiff’s list, neither were they referred to in the documents on the list or admissions made that these correspondences were related in the pleadings. Mr Meng’s name was not mentioned in the pleadings at all.  The request is refused.

Request (e) Record(s) of the number of enquiries forwarded to India between 2007 and April 2011, Malaysia between January 2008 and April 2011, Japan between 2010 and April 2012, and Beijing between May 2011 to now from the London Speaker Bureau, UK office

16.  There was no reference to the records or documents referring to these enquiries in the list, nor were there any admissions in the pleadings relating to these enquiries.  The request is refused. 

17.  The defendant’s application is rejected under the requirements of Order 24 rule 3, if the defendant’s application is made under Order 24 rule 7, different criteria are applicable.  It must be emphasized that the court will only allow discovery of documents which are relevant and necessary for the fair disposal of the matters and issues in the action.

18.  I see no reason to depart from the principle that costs should follow the event.  As the defendant’s appeal is dismissed, he shall pay the costs of the plaintiff in the appeal, to be taxed if not agreed.