Introduction

Sometimes, a Claimant may not have all relevant documents that enable him to decide whether he has a viable personal injury claim to pursue. There are two ways that a Claimant may obtain the relevant documents before he commences proceedings.

Firstly, when a Claimant sends his pre-action letter to the potential defendant pursuant to Practice Direction 18.1 which applies to all personal injuries claim, he may request the potential defendant to disclose relevant documents specified in the letter. Practice Direction 18.1 also provides that, when the pre-action letter is received, the parties should communicate constructively and provide mutual disclosure of information and documents with respect to issues of liability and quantum.

In spite of the said provision, the potential defendant or its insurer may choose to ignore the Claimant’s request or refuse to disclose the specified documents. In such circumstances, the Claimant may consider making an application to Court for an order against the potential defendant for the disclosure of documents before the commencement of proceedings.

The Application

The pre-action discovery application is made by way of Originating Summons with supporting affidavit. The supporting affidavit must demonstrate that:-

(1)    the Defendant appears to be likely to have or to have had in his possession, custody or power the specified documents sought in the application;

(2)    the specified documents sought are directly relevant to an issue arising or likely to arise out of that intended claim; and

(3)    the specified documents sought are necessary either for disposing fairly of the cause or matter or for saving costs.

According to the decision of the Court in Lau Tsz Hung Ringo v First Refrigeration Engineering Limited HCMP 1166/2013, the Plaintiff’s honest belief that the Defendant is likely to have in his possession custody or power of the documents will suffice to satisfy condition (1).

The background of Lau Tsz Hung Ringo is that the Plaintiff was a refrigeration technician employed by the Defendant. The Plaintiff sustained an accident in the course of his employment. He was advised that the Defendant and the principal contractor were liable. The Plaintiff did not know the identity, name and address of the principal contractor. When the Plaintiff sent to the Defendant a pre-action letter pursuant to the pre-action protocol in Practice Direction 18.1, he requested the Defendant to disclose the documents revealing the identity of the principal contractor. The Plaintiff’s request was not acceded to which subsequently led to the Plaintiff’s application for pre-action discovery.

Before the hearing of the application, the Defendant’s solicitors disclosed documents which showed that there was no principal contractor. In such circumstances, it was not necessary for the Court to make any order on the documents sought by the Plaintiff. However, the Judge held that:-

1.       The court approaches such matter with a modicum of common sense. Logically speaking, either the subject works were carried out by the Defendant (a) directly as principal, or (b) indirectly as sub-contractor to the principal contractor. Bearing in mind that the works were limited to the installation of the refrigeration system at the site which site was then under construction/decoration, the possible presence of a principal contractor being responsible for overall construction/decoration at the site cannot be excluded.

2.       The Plaintiff’s supporting affirmation has provided adequate basis for concern that there might have been a principal contractor. The fact that it subsequently turned out there was no principal contractor is neither here nor there.

3.       Once the affirmation has demonstrated that there might have been a principal contractor at the material time, there can be no question that the Defendant is the proper party who can identity the principal contractor from the documents that are likely to be in its possession, custody or power.

To satisfy condition (2), i.e. the relevance test, it should be noted that pre-action discovery is subject to a higher threshold than the general relevance test for specific discovery. A document is to be regarded as directly relevant to an issue arising or likely to arise out of a claim in the intended proceedings if (a) the documents would be likely to be relied on in evidence by any party in the proceedings; and (b) the document supports or adversely affects any party’s case.

To satisfy condition (3), i.e. the necessity test, not only it is necessary for the Plaintiff to show that discovery of the documents sought is necessary but also that discovery before commencement of the action is necessary, such as, without the document the Plaintiff cannot formulate his case for the purpose of commencing an action.

Costs

The usual costs order is that the Defendant shall be entitled to his costs of the application and of complying with any order made thereon unless the Court otherwise directs. Therefore, the Court may exercise its discretion to deny the Defendant’s costs or order him to pay the Plaintiff’s costs if the Defendant is at fault at resisting disclosure of the requested documents despite repeated requests made by the Plaintiff before the application is taken out.

In Lau Tsz Hung Ringo, the Defendant had been dilatory in its response to the Plaintiff’s pre-action request for information/documents. The Plaintiff requested the Court to exercise its discretion to award costs in his favour because if the Defendant had provided the requested information/documents, it would not be necessary to commence the pre-action discovery proceedings.

The Court considered that the Defendant was merely dilatory in its response. There was no overt opposition or resistance to the application. When the Defendant was served with the Originating Summons, it promptly disclosed the relevant documents sought by the Plaintiff. Therefore, the Court made no order as to costs. The Court was of the view that it is only in cases where the Defendant was clearly unreasonable to oppose the application or the manner of the opposition was so unreasonable or there was misconduct on the part of the Defendant that the Court will make him bear costs of both parties.

The Court also considered that such costs order (i.e. no order as to costs) will not itself debar the Plaintiff from recovering costs of the pre-action discovery application against the Defendant or any other Defendant in the subsequent proceedings that may be commenced against them.

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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.