Discovery against a non-party to an intended civil suit

Victims of personal injuries can institute civil actions to obtain compensation from the wrongdoers. It could be very frustrating, however, when the identity of the wrongdoer is unknown because a third party or a government authority is withholding or obstructing disclosure of information concerning the identity of the wrongdoer, without which the victim is unable to commence the civil action.

In fact, a litigant in an intended civil action can seek discovery against a non-party, even before any civil action is commenced, if the non-party possesses information that are necessary for identifying the wrongdoer. Such non-parties can be individuals, government departments (e.g. the Police, Building Department etc.) or private institutions.

This application is based upon the Norwich Pharmacal principle, the rationale of which was laid down by the House of Lords in the case Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133: “Where a person albeit innocently and without incurring any personal liability, became involved (or gets mixed up) in the tortious acts of others he came under a duty to assist one injured by those acts by giving him full information by way of discovery and disclosing the identity of the wrongdoers, and for that purpose it mattered not that such involvement was the result of voluntary action or the consequence of the performance of a duty, statutory or otherwise.”

Case illustrations

In the case of Chan Chuen Ping v The Commissioner of Police [2013] HKCU 2670, the Plaintiff was injured when he was struck by a wheelchair being pushed by an unknown woman.  The incident had been reported to the Police and accordingly, the Plaintiff’s solicitors requested information about the identity of the tortfeasor from the Police.  The Police repeatedly refused to cooperate for 7 months and during that period wrote a series of letters with baseless reasons to the solicitors.  The Plaintiff eventually took out non-party discovery against the Police seeking disclosure of the identity of his tortfeasor. This was initially resisted by the Police but eventually provided.  The matter came before the court as regards the appropriate costs order.  In light of the unreasonable conducts (i.e. the long delay) and the Police’s proliferation of pointless letters, the court exceptionally ordered the Defendant to pay the costs of the Norwich Pharmacal discovery action, which are normally borne by the Plaintiff, who has right to recover from the wrongdoer.  In the judgment, the judge confirmed that the Norwich Pharmacal principle was applicable as against the Police.

In a case involving a private institution, Able Force Freight Limited v East Sun Estate Management Limited (怡生物業管理有限公司) [2010] HKCU 1037, the Plaintiff was the victim of a suspected theft of goods from its warehouse under the management of the Defendant. The Plaintiff applied for discovery by the Defendant of the CCTV tape of the warehouse for the purpose of identifying the identity of the wrongdoer(s) in the suspected theft.  The court ordered discovery of the CCTV tape on the basis of the Norwich Pharmacal principle. The essential principles governing a Norwich Pharmacal discovery have been summarised in A Co v B Co [2002] 3 HKLRD 111. Interested readers may make further reference to that case.

 “Personal data” did not justify withholding disclosure

In both of the illustrated cases, the Plaintiffs were met with objection that the information sought to be discovered contains “personal data”, the use of which was restricted under “Data Protection Principle 3 – use of personal data” in Schedule 1 of the Personal Data (Privacy) Ordinance (Cap. 486) (“PDPO”).  Data Protection Principle 3 requires the Defendant to ensure that the personal data should not be used, without the consent of the data subject, for any purpose other than for the purpose for which the data were to be used at the time of the collection of the data or a purpose directly related to that purpose.

In response, the judge in Chan Chuen Ping made clear that administration of justice requires parties to comply with their disclosure obligations and “personal data” is no ground for refusal.  Further, Section 60B of the PDPO allows personal data to be used for a purpose other than that for which it is originally collected if its use is required by order of a court or in legal proceedings in Hong Kong. The judge criticized that some government departments appeared to withhold information needed by litigants in intended civil suits due to a “misconstruction” or “misunderstanding” of the PDPO.

In the case of Able Force, the judge thinks the court’s decision in the case of Lily Tse Lai Yin & Ors v The Incorporated Owners of Albert House and Ors HCPI 828/1997 has provided the answer.  In short, (1) pursuant to Section 58(2) of the PDPO, personal data are exempted from Data Protection Principle 3 where the data is used for the purposes of prevention, preclusion or remedying (including punishment) of unlawful or seriously improper conduct, or dishonesty or malpractice, whether or not the data are held for any of those purposes; and (2) bringing of a civil claim for damages in tort amounts to the remedying of unlawful or seriously improper conduct.  Apparently, the purpose of installing the CCTV system and the collection of data in the form of the recording was for the purposes, or directly related to the purposes, stipulated under the Section 58 exemption.

Conclusion

From the above cases, we learnt that the court has wide discretion in ordering discovery against non-parties to an intended civil suit, where it is necessary for the administration of justice. Furthermore, breach of privacy or “personal data” would not justify withholding disclosure in these cases.  Government departments and private institutions should provide prompt assistance to civil litigants shall they be required to disclose information that are necessary for the litigants to commence actions, failing which they may suffer costs consequences of unreasonably failing to co-operate with civil litigants.

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.