Jowers v Kinney [2019] 5 HKLRD 686 (Master Kenneth K Y Lam) – Specific Discovery in Hong Kong Defamation Actions – [2019] HKCFI 2791
https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=125392&currpage=T
P1-2 commenced an action against D1-2 relating to emails allegedly defamatory of P1 (Emails) and issued a writ with a general indorsement but had not yet served their statement of claim. Although P1 had hard copies of the Emails, Ps sought specific discovery by Ds under O.24 r.7 of the Rules of the High Court (Cap.4A, Sub.Leg.) (RHC) because, based on conversations with certain persons (Contacts), P1 believed there must have been substantially more defamatory acts other than the Emails. Ps submitted that the discovery was necessary to enable them to plead their case with precision in their statement of claim. Ds objected, arguing inter alia that Ps’ application made under O.24 r.7 instead of s.41 of the High Court Ordinance (Cap.4) (the HCO) was an abuse of process.
Held, dismissing Ps’ application, that:
(1) The mere fact that Ps invoked O.24 r.7 instead of s.41 of the HCO did not per se constitute an abuse of process. Firstly, applications for specific discovery could be made “at any time” including before service of pleadings. Secondly, Civil Justice Reform (CJR) enlarged the scope of pre-action discovery without removing the words “at any time” in O.24 r.7 which indicated that the reform was meant to provide an additional choice rather than to substitute one route with another. Thirdly, Ps had already issued a writ. It would be plainly wrong to require them to discontinue this action, apply for pre-action discovery and then commence a fresh action, which would be a waste of time and costs and contrary to the underlying objectives of CJR (Lim Siew Peng v Glaxo Wellcome Hong Kong Ltd [1997] 3 HKC 802 applied). (See paras.13-17.)
(2) Pleadings played a more important role in defamation litigation than in any other species of common law actions. However, as P1 had not attempted to ask for copies of relevant documents from his Contacts and there was no evidence that a request, made formally, would have been refused, an order for specific discovery against Ds was unnecessary at this stage. This was fatal to Ps’ application (Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173, Chang Wa Shan v Esther Chan Pui Kwan (2018) 21 HKCFAR 370 considered). (See paras.19, 25.)
(3) The scope of the discovery sought was so impermissibly wide as to be “fishing” and “oppressive”. Given that Hong Kong still followed the common law rule of “multiple publication”, Ps’ application seemed like an attempt to fish for new causes of action, when Ps were already capable of drafting their statement of claim on the materials they possessed (Trade Practices Commission v CC (New South Wales) Pty Ltd (1995) 58 FCR 426 distinguished). (See paras.18, 26-28.)
Hong Kong Defamation Law 