HCPI 298/2015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO 298 OF 2015
_________________________
BETWEEN
| | TAI YUK CHEUNG | Plaintiff |
| | and | |
| | HUNG SING CONSTRUCTION ENGINEERING CO | 1st Defendant |
| | YAU LEE – HSIN CHONG JOINT VENTURE | 2nd Defendant |
_________________________
| Before: Master Leong in Chambers |
| Date of Hearing: 8 March 2016 |
| Date of Decision: 1 June 2016 |
_______________
D E C I S I O N
_______________
1. This is the plaintiff’s application for specific discovery.
Background
2. For what I will come to later in this decision, I will need to go into some details about this claim.
3. This is a personal injury claim.
4. The plaintiff was employed by the 1st defendant, a sub contractor (with the 2nd defendant being the principal contractor) as a labourer on a construction site.
5. The plaintiff was assigned by the 1st defendant to install kitchen units. The plaintiff claimed that there was some glass panes being stored in the working premises and in the process of installing the base for the kitchen stove, the plaintiff’s left hand came into contact with the glass panes and was cut.
6. The injury was a 3cm laceration with a partial (70%) cut of one of the 2 extensor tendons (extensor indicis, the other, the extensor digitorum communis, was intact) of left index finger.
7. This would appear to be a rather straightforward personal injury claim, what I would call a “bread-and-butter” claim of a relatively minor and simple accident at a construction site. One would imagine that the crux of the claim must centre around whether the glass panes were stored as alleged, whether this would create an unsafe working environment which caused the accident, and what reasonable precautions, if any, was taken by any liable parties under the circumstances.
8. Against this background, the plaintiff’s solicitors, Messrs Burke & Co, filed a 15-page long Statement of Claim.
9. Much of the pleadings in the Statement of Claim were information which was of little or no relevance to the crux of the claim, for example, under paragraph 1, it was pleaded that, amongst others, that the plaintiff was born in Guangdong, his native language is Hakka, is 1.73 m tall and weighed 135 pounds at the time of the accident.
10. Further, under paragraph 2(4), it was pleaded that:
“The contract between the Hong Kong Housing Society and the 2nd defendant would include provisions regarding safety at the site including matters such as :
(a) To submit a sub contract management plan with quarterly updates
(b) To counter sign daily site diary
(c) Prepare a safety plan covering key elements including
i) Safety policy
ii) Safety organizations
iii) Safety & Health training
iv) Safety rules and regulations
v) Safety committees
vi) Safety & health inspections
vii) Job hazard analysis – with method statements
viii) Personal protective equipment
ix) Accident / incident investigations
x) Emergency preparedness
xi) Safety promotion
xii) Health assurance programme
xiii) Evaluation, selection and control of sub contractors
xiv) Process health programme – including safety rules, regulations safe working procedures and in particular method statements and permit to work systems incorporating the findings of risk assessments conducted for identified high risk processes including manual handling
(d) To employ safety officers, supervisors and representatives including safety inspections and safety audits
(e) To provide training to worker at the site”
11. Under paragraph 2(11), the plaintiff alleged that he was not provided with nor required to wear safety gloves when working at the site.
12. And under paragraph 2(13), it was pleaded that the site (known as Tak Long Estate):
“This included:
(a) 9 blocks of residential buildings
(b) Each residential block was 40 to 41 floors in height
(c) Each residential floor had 23 to 26 flats on it
(d) The size of flat would vary”
13. Under paragraph 2(14), it was pleaded:
“In each flat there were:
(a) A kitchen
(b) Bathroom toilet
(c) Living area; and
(d) Windows”
14. Under paragraphs 2(26) to (32), there were detailed pleadings of the sizes and number of the glass panes, where and how they were placed, and how that there were no protective covers or barriers.
15. At various subparagraphs of paragraph 2, it was pleaded that the defendants did not perform any “risk assessments”, give any “specific guidelines nor written instructions”, I perform any “job hazard analysis” etc.
16. Under paragraph 4 “Particulars of negligence” and “Particulars of breach of statutory duty”, there were also allegations of failure to do “risk assessment”.
17. The defendants did not admit to paragraph 2 of the Statement of Claim save that the defendants “were engaged in construction work at the material times, had duties as to safety as imposed by the law and the plaintiff worked as a labourer at the site at the material times”.
18. The defendants specifically denied paragraph 2(11) of the Statement of Claim and averred that the plaintiff was “provided and supplied with safety gloves were required to wear the same while working at the site and had been trained and instructed to use the same when working”.
19. The defendants also pleaded, amongst others, that the plaintiff could have arranged to move the glass panes elsewhere, and that it was unnecessary to come into contact with the edges of the glass panes in the plaintiff’s work etc.
20. Therefore, it must be clear for the parties what the relevant matters in dispute are in this claim.
The Plaintiff’s application for specific discovery
21. Against this background, the solicitors acting for the plaintiff, Mr Patrick Burke wrote to the Court on 19 August 2015, prior to the Check List Review hearing, enclosing a “table of documents sought from the defendants”.
22. The “table” runs to some 8 pages. I am copying this table below using the plaintiff’s own numbering system: -
“1. The Construction Site
1.1 Contracts
1. Contract between D2 and HK Housing authority
1.2 Statutory notice
1. Notice of
(a) Commencement – with name of every sub contractor
(b) Further information
(c) Change
(d) Completion
of Construction work to Labour Department – form LD 202
2. Notification of establishment of workplace
2. Safety at the Construction Site
2.1 Other accidents
1. Safety / accident book
2. Recording incidents / dangerous occurrences / near misses
2.2 Employees Handbook
2.3 All documents relating to the safety management system operated by the Defendant, including:
1. The company safety policy statement
2. Safety plans
3. Minutes of safety committees
4. All documents relating to safety audits or safety reviews
5. All documents relating to safety training to the employee’s of the Defendant
6. Form 2 & 3 for the period covering 6 months before and after the accident, prepared pursuant to the Factories & Industrial Undertaking (Safety Officers & Safety Supervisors) Regulations, Cap 59 – or similar documents
2.4 All documents relating to the employment of, and qualifications, of safety officers and safety supervisors at the site
2.5 Risk Assessments
2.6 Method statement for work being done by the Plaintiff at the time of the accident
3. The work being done by the Plaintiff
3.1 Permit to work
3.2 Written instructions given to the Plaintiff / his team of workers
4. The Accident
4.1 Statutory report made under FIU Regulations – Section 17, or Employee’s Compensation Ordinance
4.2 Accident investigation report prepared by or on behalf of the Defendants, including reports prepared pursuant to regulation 15(1) of the Factories & Industrial Undertakings (Safety Officers & Safety Supervisors) Regulations, Cap 59
4.3 Photographs of the accident scene
4.4 Statements from witnesses
5. Previous / subsequent accidents
5.1 Same document as in 4 – for previous / subsequent similar accidents
6. The flat / Glass panes
6.1 Plan of the flat
6.2 Dimensions of glass panes
7. Employment
7.1 Contract of employment between the Plaintiff and the Defendant, or other documents etc. to identify the terms and conditions of employment – including different items / categories of wages and allowances
7.2 Personal records file of the Defendant for the Plaintiff including
1. Leave record
2. Training record
3. Performance appraisal
7.3 All documents relating to payments to the Plaintiff in the period of 12 months prior to the accident:
1. Time card record / daily signing record / computer scanner
2. Monthly pay slips
3. Record of wages paid
4. MPF/ ORSO record
5. Return to IRD
7.4 All documents relating to payments to the Plaintiff following the accident for:
1. Sick leave pay
2. Payment for re-imbursement for medical expenses
3. Payment for or re-imbursement for non-medical expenses
4. MPF records
5. Return to Inland Revenue
7.5 Records of wages paid to person (s) (up to 3 employee’s) currently employed by the Defendant in the same or similar position to that occupied by the Plaintiff, for the last 12 months – with documents to show
1. Their name
2. Their job title
7.6 Records of wages paid to person(s) (up to 3 employee’s) currently employed by the Defendant who have suffered similar injury and disability as the Plaintiff – with documents to show
1. Their name
2. Their job title
3. Their disability / pervious accident”
The plaintiff’s affidavit in support of the application
23. Mr Burke subsequently filed and served an Affirmation in support of this application (First Affidavit of Patrick Michael Burke dated 16 September 2015). Mr Burke submitted that “in support of the application, I intend to rely on all relevant documents in the draft bundle of (1) pleadings (2) witness statements…. To save costs, these are not exhibited – and there is now shown to me marked “PMB-1” a copy of the up-dated index of the same…”
24. “PMB -1” is a 14-page long “Indexes of draft Trial Bundle”. As a passing comment, I am concerned that Mr Burke saw it fit to prepare an “Indexes of draft Trial Bundle” and apparently kept it “updated” at this early stage of the proceedings.
25. As usual practice, the court does not give directions for the preparation of Trial Bundle index until the case is ready to set down for trial (and ideally after failed mediation) in order to save costs and time. The spirit of the CJR is such that the court disapproves any unreasonable attempt to load up the costs “upfront”.
26. I would therefore put it on record that should there be future dispute in costs, the Plaintiff would have to justify the need for such work.
27. Mr Burke then produced “PMB-2” which was “Extracts from HK OSH Guide” which ran to 48 pages. There was no more submission in Mr Burke’s Affidavit as to which part of this “guide” he was referring to as support for his application.
28. Mr Burke further produced “PMB-3” which was a “Table of material facts” which was a list of (claimed) “material facts” pleaded in the Statement of Claim with the “response” to these by the Defendants in the Defence. There was a column titled “Comment” with abbreviations (without explanations) and brief notes like “NTA”, “OK”, “FBP – which law”, “Discovery”, “Did D investigate accident”, “OK – no positive case”….
29. Mr Burke then listed the “accident background” which was more like a summary of the Statement of Claim. Then he listed the “discovery background” which was more like a brief summary of the Defence (along with some unnecessary personal observation: “In this case, as so often, the Insurers and their lawyers have not addressed the issues and do simple “Non Admission” defences.”) and an allegation that the Defendant’s List of Documents “does not deal with most the documents sought etc.”.
30. The only submission Mr Burke made on specific discovery in the whole affidavit was on page 5, and his submission only ran to one paragraph (paragraph 10) stating that “proper description”, “existence”, “relevance” and “why it is reasonable for the same to be disclosed” were “set out on the Table” (presumably he meant “PMB-3”).
31. Mr Burke then made some submission on the defendants’ response at the call-over hearing and then there was a repeat of the plaintiff’s position that various matters were pleaded in the Statement of Claim but was not admitted in the Defence. These matters were again listed out.
The 1st defendant’s affirmation in opposition to the application
32. The 1st defendant filed and served an Affirmation in Opposition (Affirmation of Chu Kau dated and filed on 27 November 2015).
33. Mr Chu made some general comments on the extensiveness and lack of reference (both with regard to the facts of the case and failure to identify to which defendant the request was being made against) in the plaintiff’s request.
34. Mr Chu then confirmed that the 1st defendant did not have items 1- 6, 7.2 and 7.6: of which items 1, 2, 4 and 5, if they exist, should be with the 2nd defendant (there was no dispute that the 1st defendant was the principle contractor and the 2nd defendant was the sub-contractor), and items 3 and 7.2 did not exist.
35. Mr Chu then stated that items 7.1, 7.2(2), 7.3 and 7.4 have already been disclosed as items 1, 6, 7, 10, 12, 14, 15, 17 and 19 of the Defendants’ List of Documents. This was filed on 29 July 2015, or 3 weeks before the plaintiff’s letter to the court seeking specific discovery.
36. As for 7.5, Mr Chu stated that “the 1st defendant will disclose the record of one employee who is still engaged in such similar job…by way of supplemental list of documents.”
The 2nd defendant’s affirmation in opposition to the application
37. The 2nd defendant also filed and served an affirmation in opposition (Affirmation of Lam Chan Sing dated 25 November 2015 and field on 27 November 2015).
38. Like Mr Chu, Mr Lam made similar general comments on the conduct of the specific discovery application.
39. Mr Lam confirmed that the 2nd defendant does not have items 2.1, 2.2, 2.4, 2.6, 3.1, 3.2, 5, 7.1, 7.2 and 7.6.
40. Mr Lam further argued that the plaintiff failed to establish any prima facie case that the 2nd defendant holds some of the documents (2.2, 2.6, 3.2, 4.4, 7.1, 7.2): eg no case was made as to why a principal contractor should hold personal records file for a casual construction site worker, or why there was “method statement” in existence for the rather simple work done by the plaintiff.
41. Mr Lam also argued that some items were irrelevant (2.1, 2.4, 5, 7.6): “as it is quite clear that accident of the nature….and the responsibilities of the parties…depends on the facts and circumstances of the present case and has nothing to do with other instances and accidents…The principle of proportionality clearly tips…the balance against the making of any order for discovery in this respect.”
42. Mr Lam confirmed that the 2nd defendant had not interviewed any witness after the accident so 4.4 did not exist.
43. As to items 1, 2.3, 2.4, 2.5, Mr Lam agreed that they were possessed by the 2nd defendant but were irrelevant. There were contract between the Housing Authority and the 2nd defendant and a whole class of documents called “statutory notices”, general safety system, employment and qualification of the safety officers.
44. Mr Lam argued: “that there were safety officers, safety management systems generally and risk assessment and other method statements generally are not proof that the defendants were not at fault. Likewise, the absence of such….does not decide one way or another whether the defendants were negligent or at fault in relation to the present accident. It will not be conductive to resolution of any matter or issue involved. It only adds to costs…unreasonably….the construction site was a large one and there must be hundreds and thousands of such documents but which are totally irrelevant.”
45. Mr Lam then made the same submission as Mr Chu as stated in paragraph 35 above.
46. Mr Lam agreed to disclose items 4.2 and 4.3 (photographs of the accident scene and an accident investigation report) by way of a supplemental list of documents.
Subsequent event
47. The 1st and 2nd defendants filed and served a Supplemental List of Documents on 3 December 2015 disclosing the 3 items that the 1st and 2nd defendants agreed to disclose in the respective affirmations of Mr Chu and Mr Lam as I stated above.
48. Mr Burke then wrote to the Court on 9 December 2015 enclosing a “Schedule of documents believed to be in the possession, custody or power of the defendant” which ran to 22 pages and the letter itself was 5 pages long and a large part of it were in form of submission attempting to rebut points raised in the defendants’ affirmations. In my view, it is entirely unnecessary and inappropriate to make such submission at this stage. The plaintiff might still file and serve an affidavit in reply and such submissions should be made, if needed, at the time of the hearing and not in a letter to the Court.
49. Then, on the very next day (10 December 2015), Mr Burke wrote again enclosing another “Schedule of documents believed to be in the possession, custody or power of the defendant” which had now been reduced, in the space of one day, to 7 pages listing the items “outstanding” (which now identified against which defendant the discovery was sought). Mr Burke maintained his request for 12 items: -
(a) Item 1 against D2 (contract with Developer)
(b) Item 2.1 against D2 (Accident / incident book or reports)
(c) Item 2.3 against D2 (Safety management system)
(d) Item 2.4 against D2 (Safety Officers)
(e) Item 2.5 against D2 (Risk assessments)
(f) Item 4.1 against D2 (Statutory report)
(g) Item 4.4 against D2 (witness statements)
(h) Item 5.1 against D2 (Other accidents)
(i) Item 6.1 against D2 (Plan of the flat)
(j) Item 6.2 against D2 (documents show dimensions of glass)
(k) Item 7.1 against D1 (Contract of employment at the time of accident)
(l) Item 7.5 against D1 and D2 (current wages of 3 comparable workers)
The plaintiff’s 2nd affirmation
50. Mr Burke filed and served a second affirmation on 25 February 2016.
51. Mr Burke disputed the existence of documents sought “on the issue of safety”. He exhibited, as “PMB – 4”, 114 pages of materials identified as “print outs from Hong Kong Housing Authority Safety Website” and argued “whilst the Defendants deny such documents exist – this is a Housing Authority project and on the Housing Authority own safety website, they give full deals (typo: details?) of such a system.”
52. However, Mr Burke failed to clarify which documents in his list of specific discovery are “documents on the issue of safety” and where amongst the 114 pages of print-outs are the evidence that such documents (relevant to the current case) actually exist.
53. Notwithstanding the unhelpfulness of Mr Burke, I have perused the print-outs. These are general safety principles and statistics published by Hong Kong Housing Authority in its website and, as far as I can see, the entire content of the “Safe Working Cycle Handbook” published by Occupational Safety and Health Council. One page, for example, demonstrates stretching exercises to be performed before starting work.
54. I fail to see how these materials support Mr Burke’s argument that “such documents exist” (even if he thought that he was entitled to do so after the defendants’ affirmations).
The hearing
55. During the hearing on 8 March 2016, Mr Burke agreed that he was only seeking specific discovery for the 12 items as listed in paragraph 49 above.
56. In essence, Mr Burke justified his application by the following:
(a) the Judgment of Bokhary, J (as he then was) in Chan Tam Sze v Hip Hing Construction Co Ltd [HCA 1931 of 1988] and 2 Others.
(b) That he has pleaded the matters in the Statement of Claim but the defendant has not admitted to them.
Chan Tam Sze v Hip Hing Construction Co Ltd
57. Mr Burke argued that documents he requested were within the “scope of discovery” as listed under paragraph 14 of that judgment.
58. I am of the view that Bokhary, J in that case was dealing a non-party discovery against the Commissioner for Labour where 2 of the 3 accidents concerned were not investigated.
59. More importantly, this decision concerns with the “scope” of documents that the party may seek “if discovery is correct in principle” (see paragraph 16 of the Judgment).
60. In other words, the seeker would still need to satisfy the principle of specific discovery, that is, Order 24 r 7 and r 8 of the Rules of the High Court.
The principle of specific discovery
61. Order 24 r 7 states: -
(1) Subject to rule 8, the Court may…on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified…is, or has at any time been, in his possession, custody or power, and if not…when he parted with it and what has become of it.”
(2) …
(3) An application…must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought…has, or some time had, in his possession, custody or power the document…specified…and that it relates to one or more of the matters in question in the cause or matter.
62. Order 24 r 8 states: -
(1) On the hearing of an application for an order under rule…7 the Court, if satisfied that discovery is not necessary…may dismiss…the application and shall in any case refuse to make such an order if an so far as it is of the opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.
63. The principle is clear.
(a) The party seeking specific discovery should:
(i) provide sufficient description to identify the specific documents or class of documents sought against which particular party;
(ii) demonstrate his belief by way of an affidavit that such documents exist and that the other party has or at some time had, in possession, custody or power of such documents, and that the documents are related to the “matters in question in the cause or matter”.
(b) Even if a) is satisfied, the Court may grant such an order only if it is of the opinion that it is necessary either for disposing fairly of the cause or matter or for saving costs.
64. Further, in view of the CJR (which came well after the case of Chan Tam Sze), the Court must look at time, cost and proportionality in applying the “necessity” test.
The pleadings in the Statement of Claim
65. With such principles in mind, it is wrong to suggest that the Court should grant the order for specific discovery just because the plaintiff pleads a matter which the defendant does not admit to (or denies).
66. The Court must look at how relevant this matter is and whether discovery of documents related to this matter is necessary. Otherwise, the procedure would be open to abuse by one party making laborious and irrelevant pleadings and wasting time and costs in seeking specific discovery in relation to such matter.
67. As I stated in paragraph 7 above, this is a simple claim and the crux of the claim (or what constitutes “cause or matter in question”), must centre around whether there was an unsafe working environment which caused the cut in the plaintiff’s finger (as alleged), and what reasonable precautions, if any, was taken by the defendants under the circumstances.
68. This would be a finding of fact by the Court. I fail to see how this will turn on much of the pleadings in the Statement of Claim eg the plaintiff’s weight and height, place of birth, what language the plaintiff speaks, how many blocks of flats and how many floors in each block etc were in the project, what were the plans of the flat, the exact dimensions of the glass panels, whether this was a Housing Authority project, whether there was a “safety plan”, there were “safety officers” (and their qualifications) etc.
69. As such, specific discovery on documents regarding many of such matters pleaded (ie item 1 (contract of the 2nd defendant), item 2.3 (safety management system), item 2.4 (matters regarding safety officers), item 2.5 (risk assessments), item 5.1 (documents on “other accidents”), item 6.1 (plan of the flat), item 6.2 (documents on dimension of glass panels) are neither relevant nor necessary with regard to the principles stated above.
Item 4.4: the “witness statements”
70. As for item 4.4 (witness statements), Mr Burke simply stated “common practice as part of safety investigation” in the table he exhibited in his first affidavit. No effort was made to inform the court as to why he believed there were witnesses in such an investigation, who they were, and that written statements were taken as “common practice” etc.
71. In short, there was utter failure on part of Mr Burke to demonstrate his belief that such documents existed in the first place.
72. This is more surprising given that the plaintiff already pleaded that “The accident happened when the plaintiff was working alone…” (see paragraph 2(19) of the Statement of Claim) and, of course, there is nowhere in Mr Burke’s affidavits that suggested there was any witness. So one wonders what the point is of this exercise.
73. When I asked Mr Burke during the hearing to identify the witnesses whose statements he was requesting for, he replied that he did not know.
74. So this was a “fishing exercise” right from the beginning.
75. But this was worst: a “fishing exercise” is when one party wishes to “fish” for something useful for his case. Given the plaintiff’s case that the accident happened when he was alone, Mr Burke should be aware that this “fishing exercise” would be futile right from the beginning, and would only incur unnecessary time and costs.
Affidavits should be taken as conclusive
76. Given what Mr Burke should have known, it is even more incredible that, despite the affirmations by the defendants denying the existence of any witness statements, Mr Burke still maintained the request at the hearing.
77. Mr Burke also maintained his request for other documents when the affirmations of the defendants already denied the existence or questioned the irrelevancy of such documents.
78. It was well-established law that the statements in the affidavits should be taken as conclusive on the question of whether the party has or has had any documents other than those disclosed, or as to their relevancy (see White Book 2016 24/7/1).
79. As such, it was entirely inappropriate for the plaintiff to maintain his application when the defendants’ affidavits clearly stated that they did not hold such documents, that they do not existed, or that they were irrelevant.
80. Further, it is also trite that the party seeking discovery could not, with a view to obtaining further and better affidavit of documents, adduce evidence to show that the affidavit already filed was insufficient or untrue (see 24/7/1 White Book 2016).
81. Mr Burke was clearly attempting to do so in his 2nd Affidavit and even then, he made little attempt to assist the court and simply burdened the Court with a huge amount of materials, effectively asking the Court to search for what might support his case. As stated above, the Court found none.
Item 4.1: Statutory Report
82. This is what Mr Burke described as “Statutory report made under FIU Regulations – Section 17, or Employee’s Compensation Ordinance.”
83. I note that this item was not specifically addressed in either of the defendants’ affirmations.
84. However, I note that Mr Lam did deal with the discovery of the Accident Investigation Report (item 4.2) in his affirmation and such a report was disclosed in the Supplemental List of Documents of the 1st and 2nd defendants.
85. During the hearing, I understand from Mr Lee, solicitor for the defendants, that there was no further investigation report and this report would be the same as the “Statutory Report” as requested under item 4.1.
86. Although it might be ideal for this to be dealt with by way of a further affirmation by the 2nd defendant, I would accept Mr Lee’s submission and not to dwell on this which would only cause further waste of time and costs.
The remaining items
87. I am of the view that the remaining items (copy employment contract of the only comparable worker, photograph of the accident site, accident investigation report) have been disclosed and dealt with in the Supplemental List of Documents of the 1st and 2nd defendants.
Concern in the handling of the plaintiff’s case
88. I have serious concerns about the handling of the plaintiff’s case.
89. I have already commented on the practice of preparing an “Indexes of draft Trial Bundle” at such an early stage.
90. The laborious and irrelevant pleadings in the Statement of Claim may be a result of the failure on part of Mr Burke to analyse the claim properly. It may also be a result of a lack of a sense of time/cost proportionality.
91. Similarly, the handling of the current application may be a result of Mr Burke not understanding of both the principle and application of specific discovery: he failed to specify the documents requested adequately, failed to adequately show that such documents existed in the possession etc of the defendants, failed to specify which defendants the requests were directed against, failed to show the “relevancy” and “necessity” of such requests, and he maintained the application despite the affirmations from the defendants.
92. If this is true, there is cause of much concern given the experience of Mr Burke.
93. On the other hand, one may question, given the experience of Mr Burke, whether this was all along a sinister attempt to “milk” a “bread-and-butter” claim by padding up the pleadings to provide a fruitful ground for irrelevant specific discovery applications in order to generate costs.
94. Of course, there may be other explanations, but I have not thought of any as yet.
95. I have previously criticised Mr Burke’s practice in the use of “schedules” with his own abbreviations (with no or inadequate explanations) in a similar application in another case (my decision dated 6 June 2014 in HCPI 264/2012). I note that Mr Burke handled the specific discovery application in that case much in the same way as the current one (sharing many of the “failures” as listed in paragraph 91 above) and I have already raised concern in that decision. It is unfortunate that Mr Burke failed to take notice of that and still maintained his ways.
96. I am also concerned that Mr Burke has simply exhibited huge amount of materials which are largely if not entirely irrelevant. Not once has Mr Burke referred to any specific passage in the material either in his affidavits or during the hearing in support of the existence of any documents relevant to this claim.
97. This raises the question of whether Mr Burke has actually read the materials he exhibited carefully or at all. In passing, I note that page 24 of “PMB-4” is a blank page.
98. In any case, it does not show that much thought has gone into it and gives the impression of an attempt to generate as much material (and costs) for as little effort as possible. Much of the Court’s time is wasted dealing with such materials as well as the extensive lists in the various “schedules”.
99. I can think of scenarios when certain aspects of this application may be appropriate. For example, if the plaintiff’s case was that certain specific safety procedures concerning storage of certain materials (eg glass panels) on construction sites were breached (and that this had caused the accident) and that this was denied by the defendants. And if Mr Burke had then produced an affirmation (perhaps from the plaintiff) giving evidence that, say, on a particular day, he had attended a safety meeting concerning such specific safety procedures, or that he had seen a risk assessment document listing such specific safety procedures.
100. In such scenarios, it would be perfectly proper to seek specific discovery for the safety meeting minutes of that particular meeting, or the risk assessment document concerning that set of safety procedures.
101. The plaintiff’s case is so far from the above scenario that I wonder how, as an experienced personal injury litigator, Mr Burke might ever believe that his application would achieve anything other than incurring unnecessary costs and time.
102. The CJR aims to prevent precisely these types of “satellite litigation” proceedings and this application is making a complete mockery of it.
103. I would follow the recent judgment in CACV 192 of 2014 to direct that a copy of this decision be provided to the Director of Legal Aid for him to consider, in light of the experience relating to this case, whether there is any need for closer monitoring on how costs are being spent in legal aid cases in order to protect the legal aid fund.
Order
103. As the plaintiff’s application of specific discovery has already been adequately addressed by the defendants’ respective affirmations and the Supplemental List of Documents of the 1st and 2nd defendants, there is no need for any order under Order 24 r 7 of the Rules of the High Court.
104. The only remaining issue is costs.
105. The application is almost entirely frivolous, out of some 40 poorly specified documents or classes of documents originally requested by the plaintiff, only the 3 abovementioned documents disclosed may be of some possible relevance to the claim. The time and cost incurred was wholly disproportionate.
106. As such, the 1st and 2nd defendants should be awarded a large proportion of the costs of and occasioned by this application. However, I see no reason why public money from Legal Aid should be used under the circumstances, either to pay for this proportion of the defendants’ costs or to pay the plaintiff’s lawyers via Legal Aid taxation. I am, therefore, considering whether it is appropriate to give a wasted costs order.
107. I am inviting the parties to fix a hearing for 30 minutes before me to address the issue of costs, and this would be an opportunity for Mr Burke to address me on why a wasted costs order should not be considered.
| (Harold Leong)
|
| Master of the High Court |
Mr Burke, of Burke & Company, for the plaintiff
Mr W Lee, of William Lee & Associates, for the defendants