HUTHART MUGAR & CO LTD v. GUY ROBERT HENRY MILLER

HCA1659/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.1659 OF 2002

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D E C I S I O N

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1. The defendant, by summons dated 2 April 2004, seeks to strike out and dismiss the present claim of the plaintiff and to enter interlocutory judgment for damages to be assessed on the defendant's counterclaim, and for the setting aside of the interim injunction ordered by Ma J (as he then was) dated 10 September 2002 consequential upon the dismissal of the action.

2. The defendant relies on two broad grounds. The first ground was that the plaintiff and their solicitors have failed despite instructions of the court to expedite this action in the light of the fact that the interim injunction has been granted against the defendant. Secondly, the other broad ground was that the plaintiff has failed to comply with various orders for discovery of documents which have been ordered to be disclosed by the plaintiff. A related ground under this head is that it is alleged that the plaintiff has deliberately misled the court in relation to the documents which are or may have been in their possession, custody and power.

3. I have listened to the submissions on both sides carefully. From the evidence and the materials before me, I am not satisfied that the plaintiff has failed to prosecute the action with expedition. I note firstly that there has been no order requiring the plaintiff to prosecute the action in any particular fashion although I note, of course, that any plaintiff who has obtained an interim injunction against the defendant must prosecute the action with diligence. However, as I said, on the materials before me I am not satisfied that the defendant has shown that the plaintiff has, in any way, deliberately procrastinated in the prosecution of this action.

4. In relation to the other ground on the discovery, I have looked at the materials placed before me and I have listened to the submissions made by both sides. While there may be some reasons for the defendant to believe that the plaintiff's discovery has not been complete, most of the grounds relied on by the defendant are contentious and have not been shown on the evidence to be entirely correct. I will just quote one example. The defendant said that some of the documents referred to by the plaintiff's affirmant Ching Fei Fei in the affirmation filed in compliance with the order for discovery were employment agreements of employees that the deponent allegedly had seen, while at the same time it is the plaintiff's claim that there is no employment agreements for employees employed before 1999. It is said that certain persons who were employed by the plaintiff before 1999 were the employees whose employment contracts allegedly had been seen by the deponent of that affirmation. It is put before me a letter dated 10 March signed by one of those persons saying that he was employed by the plaintiff from 1994 to 1998. However, that letter was not verified by affidavit and in relation to the other persons named, there is no evidence before me that those persons were employed before 1999.

5. I quote that as an example to show that while there is some material on which the defendant can say that the discovery has not been complete or not accurate, those grounds were disputed and that is not a matter that I am able to decide on the basis of the materials before me. These are matters, in my view, that should be canvassed at trial. The defendant may well have a field day in cross-examining the plaintiff's witnesses but at this stage, on the materials before me, I am not satisfied that the plaintiff has failed in its obligation to comply with the order for discovery.

6. For the same reason, I am not satisfied that the plaintiff or its solicitors has been deliberately misleading the court. That is a very serious allegation. On the materials before me, I am not satisfied that that allegation has been made out.

7. I would only add that, given the background to this case, I would hope that in future the parties can co-operate as much as possible to bring this unhappy matter to its proper end in as quickly a time as possible and I hope that the court will not have to deal with interlocutory skirmishes which will only serve to delay the final resolution of this matter. So for these reasons, I will dismiss the defendant's summons.

8. I will now hear the parties on costs.

[Submissions on Costs]

9. In the circumstances of this case I think it would not be appropriate for me to order costs to follow the event. In the exercise of my discretion, I will order that the costs of and occasioned by the defendant's summons be the plaintiff's costs in the cause.