Hong Kong Court decision on unsuccessful application for specific discovery/ interrogatories

Wong Ying Grace v Dr Ho Wing Chiu Clement and Dr Humphrey Choi [2022] HKCFI 3109 (HCPI 804/2017)

In this case the Hong Kong Court dismissed the defendants’ summons for (i) specific discovery of documents relating to the plaintiff’s earnings, and (ii) an Order that the plaintiff do file and serve her answers to the defendants’ interrogatories without order. The defendants were ordered to pay costs of the entire summons although they did not pursue the specific discovery application and abandoned part of their interrogatories as the Court found that the defendant’s requested documents and information were not necessary.

Background

The plaintiff, a specialist doctor in Obstetrics and Gynaecology, sued the defendants (also specialist doctors in the same field of medical practice), for medical negligence, which it was alleged had caused her psychiatric injury. As a result, the plaintiff’s performance at work decreased and she alleged there was substantial reduction in her earnings. The plaintiff claimed a sum of $23.2 million for pre-trial loss of earnings alone.

The defendants denied that the alleged reduction in the plaintiff’s earnings was caused or contributed to by the psychiatric injury suffered by the plaintiff as a result of the defendants’ negligence as alleged. The documents originally requested by the defendants and their interrogatories related to the plaintiff’s claim for pre-trial loss of earnings. The defendants raised questions regarding the actual earnings of the plaintiff after the incident and the number of days she was absent from work or experienced decreased performance at work as a result of the alleged psychiatric injury.

Legal principles

It is standard practice that interrogatories must relate to a matter in question between the parties and must be necessary either for disposing fairly of the cause or matter, or for saving costs. This is the key consideration of the court in the exercise of its discretion, having regard to the requirements that interrogatories should be precise, and a ‘fishing’ exercise or oppressive request will not be allowed.

In terms of necessity, in general, interrogatories must not be questions which go to the evidence the opposing party intends to adduce, nor questions which require an answer which is a matter of opinion. In addition, interrogatories must not be effectively asking for documents or discovery, or requests for information ascertainable by cross-examination at trial. However, in exceptional circumstances, interrogatories may be considered necessary if it can be shown that a clear litigious purpose will be served, or irremediable prejudice will be done to a party’s conduct at trial if the requested information is not made available before trial. The court will also take into consideration the likelihood of the trial being unduly interrupted or disorganised by the late emergence of the information.

Was it necessary for disposing fairly of the cause or matter, or for saving costs to order the plaintiff to answer the questions raised by the defendants?

In their Answer to the plaintiff’s Revised Statement of Damages, the defendants admitted that there was a reduction in the plaintiff’s income to the extent reflected by the tax documents. However, it was denied that the alleged loss was caused by the defendants’ negligence. The defendants submitted that it was necessary to have a proper understanding of the plaintiff’s/clinic’s net income and the calculation thereof, including the reasons why there was a reduction of the plaintiff’s directors’ fees which were part of her earnings.

However, the Court found that the defendants had already admitted that there had been a reduction in the plaintiff’s income and there was no dispute as to the figures of annual earnings as reflected in the tax documents. Therefore, there was no longer any live issue concerning the actual earnings of the plaintiff in the relevant financial years, and it was not necessary to look beyond the tax documents to ascertain the amount of the plaintiff’s earnings. The Court also found that the plaintiff had disclosed all of the relevant audited accounts of her clinic and the defendants could ascertain from those, most of the answers required.

The defendants also submitted that the reduction of the director’s fees received by the plaintiff might well be due to reason(s) unrelated to the defendants’ negligence, so the question raised by the defendants in this regard was necessary. However, this was rejected by the Court as the defendants did not plead a positive case on this issue. While the defendants submitted that they would not be able to plead such matter without getting an answer from the plaintiff, the Court considered it was a ‘fishing’ exercise for the purpose of ascertaining whether any aspects of the information sought would support the defendants’ case.

Moreover, the Court also considered that it would not assist the defendants at all by knowing the calculation of director’s fees received by the plaintiff or the allocation of the clinic’s net profit for distribution of the director’s fees to be paid to the plaintiff.

Was the information requested essential for the proper preparation of the case?

The defendants submitted that it was necessary for them to know the exact impact of the alleged psychiatric injuries on the plaintiff’s income and that of the plaintiff’s other life events that occurred during the period of alleged loss, which were unrelated to the defendant’s negligence.

The Court, however, found that there was no reason why the defendants could not  wait until the trial to raise such questions during cross-examination. The Court rejected the defendants’ submission that leaving the matter to trial would cause prejudice to both parties.

Observations

The decision highlights the potential impact an admission in pleadings may have on the court’s assessment of the necessity of subsequently requested documents or information in an application for discovery and interrogatories. Prior to making an admission, consideration should be given to whether any further evidence is to be sought, given the stringent test for necessity that will be applied when making an application for specific discovery or interrogatories.

Read more items in Hong Kong Medical Law Brief - December 2022 edition