IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 2101 OF 2009
||CHEUNG SIU TAK ANTHONY
||SHUN TAK-CHINA TRAVEL SHIP MANAGEMENT LIMITED
Coram : Before Master Roy Yu in Chambers
Date of Hearing : 11 December 2009
Date of Judgment : 29 January 2010
J U D G M E N T
1. This is an application by the Plaintiff under section 41 of the High Court Ordinance and Order 24 rule 7A of the Rules of High Court for pre-action discovery against the intended Defendant for the following classes of documents :-
a. The statements of the Operator, Master and Chief Officers of jetfoil Funchal;
b. The statements of the Operator, Master and Chief Officers of Santa Maria;
c. Documents revealing the particulars of the Operators, Owners and Insurers of jetfoils Funchal and Santa Maria;
d. A sample ticket containing all the Terms and Conditions and/or Notes to Passengers at the time of the accident of the jetfoils Funchal and Santa Maria;
e. The statements or records concerning the occurrence of the accident, in particular, statements made by crew members, other passengers and any eye-witnesses;
f. The operation manual or training manual issued by the Operators to crew members;
g. Photographs of the damaged jetfoils, Santa Maria and Funchal and the accident scene;
h. Any survey reports of the damaged jetfoil.
2. Further, by summons dated 4 November 2009, the Plaintiff also applied for discovery of the employment contracts of the Master and/or Chief Officer of Santa Maria and Funchal, and I call this class i documents.
3. The applications were opposed by the Defendant.
The Accident and pre-action Protocol
4. On 11 January 2008, the Plaintiff was then traveling onboard a jet foil, Santa Maria. Santa Maria collided with another jet foil, Funchal. As a result of the collision, the Plaintiff suffered injuries. It is not disputed that the Defendant was the operator of both Santa Maria and Funchal. The Defendant is a potential defendant in the personal injury case to be brought by the Plaintiff.
5. It is the case of the Plaintiff that the collision and the consequent injuries suffered by him were caused by the recklessness, negligence and breach of statutory duties and breach of the contract of carriage by Defendant, and its servant employees or agents.
6. By letter of demand to the Defendant dated 27 October 2008, the Plaintiff’s solicitor requested the Defendant to disclose a number of documents similar to those requested herein.
7. By then, the Defendant was represented by Messrs. Ince and Co. By letter dated 7 November 2008, Messrs. Ince and Co. did not commit to provide any of the documents. They further argued that the amount of the Plaintiff’s claim would be subject to limitation according to the Athens Convention 1974. As the Defendant had been paying for the medical expenses of the Plaintiff after the accident, Messrs. Ince and Co. put on records that their client should have paid more than they would be liable under the said Convention. It is therefore the Defendant’s case that the Plaintiff could not recover any further damages on top of the medical expenses already paid on his behalf by the Defendant.
8. By letter dated 6 December 2008, the Plaintiff responded by claiming that the medical expenses were paid voluntarily by the Defendant and he denied having agreed for such expenses be deducted from the damages.
9. Plaintiff sent further letters in January and June 2009 to Messrs. Ince and Co. requesting for the said documents. By a letter from Messrs. Ince and Co. dated 28 October 2009 (“the October letter”), they agreed to provide the investigation report by the Marine Department containing the consolidated statement of the Masters, Chief Officers, crewmembers and other relevant people in respect of Santa Maria and Funchal. There was no agreement to provide the statement of all these witnesses. Messrs. Ince and Co. agreed to re-confirm the names of the owners, operators and insurers. For the terms and conditions of passengers, it was confirmed that they were publicly available on the Defendant’s company website. They agreed to provide copy of the terms and conditions to the Plaintiff. They also agreed to provide photographs of the damaged jet foil and the accident scene as required.
10. Regarding the operation manual and training manual, Messrs. Ince and Co. argued that they were irrelevant to any claim that might be brought by the passenger. And they also claimed litigation privilege on the surveyor reports of the jet foils.
11. Notwithstanding the October letter, the documents had not been provided and as a result, the Plaintiff issued the present proceedings. After the action commenced, Messrs. Holman Fenwick Willan replaced Messrs. Ince and Co. as the solicitors for the Defendant. By letter dated 17 November 2009 (“the November letter”), Messrs. Holman Fenwick Willan objected to the application by the Plaintiff. They also referred to the investigation report by the Marine Department which the Plaintiff has obtained, together with the Register records of the two jet foils. They claimed that the Plaintiff had all the relevant information to commence the proceedings. They confirmed again that at the material time the two vessels were chartered to Far East Hydrofoil Company Limited and the Defendant was the employer of the two vessels’ officers and crewmembers.
12. It is further stated in the November letter that the Defendant does not deny that the incident occurred in the course of carriage. According to Article 3 Rule 3 of the Athens Convention, liability was presumed on the part of the carrier, namely, the Defendant. What they are arguing was quantum, in that Article 7 limit the liability of the Defendant for...