Civil Procedure — Leave never required even in Late Disclosure Applications?
In Lam Kong So, the Administrator of the estate of Lam Chun Sing, deceased v Shui Dian Bao Air Conditioning Limited and 冼鎮浩 [2024] 4 HKLRD 708, the Court, inter alia, dismissed the Applicant’s late application for leave to insert a newly disclosed bank statement into the existing trial bundle and to adduce it as part of the evidence for trial. In doing so, the Court sought to review the applicable principles regarding disclosure of documents and the use of such documents for trial.
Valerie Tang appeared for the 1st and 2nd Respondents.
Facts
The matter was an employees’ compensation case in which the alleged employee (the “Deceased”) had passed away prior to trial. On the 1st day of trial, inter alia, the Applicant made an oral application to insert a single page of a bank statement into the existing trial bundle and sought to rely upon it as part of the evidence in trial (the “New Evidence Application”).
This was opposed by the Respondents on the basis that the new document was only belatedly produced by the Applicant on the day before trial, and was unsupported by any affirmation explaining the delay. In particular, the Respondents relied on Kinetics Medical Health Group Company Ltd & Ors v Dr Tse Ivan Cheong Yau (HCA 1115/2010, unrep., 8 May 2013) where it was stated expressly that “where discovery is given at the eleventh hour just before trial, it is quite impermissible for the litigant giving such discovery to do so under the guise of voluntary discovery without seeking leave of the court to give further discovery out of time”.
Decision
The Court dismissed the New Evidence Application but put forward alternative grounds (the “Decision”).
In arriving at the Decision, the Court took the view that since there is an existing and continuing legal duty of disclosure, leave is never required even if it is exceedingly late (§16). The learned Judge further went on to say that the suggestion in Kinetics Medical (supra) that “out of time” discovery required leave is wrong. In that regard, the disclosure of a document and the reliance of such documents at trial were differentiated: the former does not require leave as disclosed documents do not automatically become evidence at or for trial, whereas the latter required leave.
In the circumstances, the Court found the New Evidence Application to have been properly taken out and did not require leave. It was nevertheless dismissed given that the bank document had no probative value (§§19-20). The transfer record in the bank statement per se could not prove the Deceased’s monthly earnings, and there was plainly no other evidence which supported the Applicant’s case on the nature of bank payment as the Deceased’s salary.
Takeaways
While the learned Judge was of the view that leave is never required even in situations of very late disclosure, practitioners should nevertheless be mindful that the Decision is one at District Court level. In other words, Kinetics Medical (supra) and the remarks of DHCJ Marlene Ng (as she then was) therein remain binding and good law. As of the date of this Commentary, the Decision has not yet been affirmed by any higher level decisions. As such, care should be taken in placing any reliance on the Decision for the time being.
It is also respectfully suggested that any difference between late disclosure and reliance upon the disclosed documents at trial is often more academic than real. Where a party seeks to disclose documents belatedly, the said party almost invariably seeks to rely on the same; an application for late disclosure would not have otherwise been warranted in the first place.
Valerie Tang
“Valerie is quick-witted, articulate in her advocacy and very knowledgeable with a sharp legal intuition. She is definitely a rising star in the legal industry and one to look out for.”
Legal 500 Asia-Pacific 2025, Commercial Disputes — Rising Star
Valerie was called to the Bar in 2019. She enjoys a broad civil practice with a special focus on company and commercial law. Valerie also regularly acts as sole advocate in family, land, probate, trust and personal injury matters. She has also been developing a niche practice in mental health related matters, including MHO Part II and Beddoe applications.
Recently, in SA & Ors v BH & Anor [2024] HKCFI 1357, Valerie acted for the Plaintiffs (as sole advocate) against Senior Counsel to resist an application for security for costs in arbitration proceedings which were initiated by parties to set aside an arbitral award. This was the first time the Court confirmed the jurisdiction to do so in an arbitration-related court proceedings.
Valerie is also well-versed in injunction applications. In A v B (HCMP 1625/2021), Valerie (with Mr Jose Remedios) acted for the successful Plaintiff in obtaining a Mareva injunction and Anton Piller Order under Section 21M in aid of foreign proceedings concerning HK$708 million worth of cryptocurrency.
In addition to her Court practice, Valerie has also been a Member of the Chartered Institute of Arbitrators since 2020 and accepts instructions as arbitration counsel.
More details can be found in Valerie’s profile.
This article was first published on 30 December 2024.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.