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MICHAEL THOMAS Q.C. v. DAVID LI KWOK-PO AND OTHERS

Judgment Cited in Precedent Map Related
Vincent
Judgment Date08 July 1994
CourtHigh Court (Hong Kong)
Judgement NumberHCA5862/1993
Subject MatterCivil Action
HCA005862/1993 XCHRX MICHAEL THOMAS Q.C. v. DAVID LI KWOK-PO AND OTHERS

HCA005862/1993

1993, No. A5027

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

________________

BETWEEN
THE BARONESS DUNN Plaintiff
and
DAVID LI KWOK-PO 1st Defendant
SOCIETE ANONYME 2nd Defendant
'POLITIQUE INTER NATIONALE' PATRICK WAJSMAN 3rd Defendant
SERGE BERTHIER 4th Defendant

________________

1993, No. A5862

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

________________

BETWEEN
MICHAEL THOMAS Q.C. Plaintiff
and
DAVID LI KWOK-PO 1st Defendant
"SOCIETE ANONYME "POLITIQUE INTERNATIONALE"" 2nd Defendant
PATRICK WAJSMAN 3rd Defendant
SERGE BERTHIER 4th Defendant

________________

Coram: The Hon. Mr. Justice Barnett in Chambers

Date of hearing: 4 July, 1994

Date of delivery of judgment: 8 July, 1994

________________

JUDGMENT

________________

1. Each Plaintiff has brought an action for damages for libel and slander against the 1st Defendant and for libel against the other Defendants. The libel arises out of the publication in France, in French in a subscription magazine, of what is alleged to have been an interview given by the 1st Defendant to persons including the 4th Defendant. The slander, of course, arises from the words allegedly spoken by the 1st Defendant at that interview. Pursuant to Ord. 26 r. 1, each Plaintiff served upon the 1st Defendant without order a request that the 1st Defendant answer one interrogatory as follows :-

"Did you not, in the course of being interviewed in Hong Kong in 1992 by the 4th Defendant, speak and publish to and/or in the presence and hearing of the 4th Defendant, all or some and if any which of the words set out in paragraph 4 of the Amended Statement of Claim or words to the like effect?"

2. That was the interrogatory in A5027. The interrogatory in the other action was identical save that it referred to para. 9 of the Statement of Claim.

3. By summons in each action, the 1st Defendant applied for the interrogatory to be withdrawn. On 18th May, a Master dismissed each summons. Against the Master's two decisions, the 1st Defendant now appeals.

4. During the course of the appeal, the 1st Defendant's objections to the wording and nature of the interrogatory fell away. It is a conventional interrogatory in proceedings of this nature, following a conventional form of words. In particular, the words "all words to the like effect" are included to prevent a defendant from "swearing by the card" at trial and seeking to evade liability by asserting that he did not use the precise form of words about which complaint is made. Those words do not, however, as the 1st Defendant apparently feared, require the 1st Defendant to search through his memory of the interview and disclose any other possibly disparaging remarks which he may have made. An interrogatory requiring such an exercise would be impermissible because it would constitute a fishing expedition on the part of the Plaintiffs for an additional cause of action of which, at present, they have no knowledge or evidence.

5. The 1st Defendant, therefore, is primarily only required to answer "yes" or "no" as the case may be. Alternatively, the remarks complained of being somewhat lengthy, it would be permissible for the 1st Defendant to deny having made some part of the remarks complained of.

6. The issue between the parties crystallised upon an interpretation of Ord. 26 r. 1, the relevant parts of which read :-

"1. Discovery by interrogatories (O. 26, r. 1)

(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either -

(a) for disposing fairly of the cause or matter; or

(b) for saving costs.

(2) Without prejudice to the provisions of paragraph (1), a party may apply to the Court for an order giving him leave to serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter."

7. Ord. 26 has been amended in England, and in Hong Kong in 1991. Previously, leave of the court was required before interrogatories could be administered. Interrogatories were regarded as part of the process of discovery and as being in the discretion of the court. Mr. Barlow for the 1st Defendant submitted that under the new regime, it is a condition precedent for an interrogatory served pursuant to r.1(1)...

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