Poly Products (Fiji) Ltd v Herbert Construction Company (Fiji) Ltd [2010] FJHC 149; HBC039.2009L (4 May 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 39 of 2009L

BETWEEN:

POLY PRODUCTS (FIJI) LIMITED
Plaintiff

AND:

HERBERT CONSTRUCTION COMPANY (FIJI) LIMITED
Defendant

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Faiz Khan Lawyers for the Plaintiff
Koyas for the Defendant

Solicitors: Mr F Khan for the Plaintiff
Mr F Koya for the Defendant

Date of Hearing: 31 March 2010
Date of Judgment: 4 May 2010

INTRODUCTION

[1] This is the Defendant’s application for the Plaintiff to provide a better list of documents. The Defendant complains that the list did not comply with the High Court Rules 1988 and asks this Court to stay or strike out the Plaintiffs claim or, alternatively, order the Plaintiff to provide a better list.

THE APPLICATION

[2] The application was made pursuant to O. 24, r. 5 of the High Court Rules 1988 by Notice of Motion filed on 4 November 2009. The Defendant sought the following orders:

1. The plaintiffs claim be stayed or dismissed and its defence to the counter-claim be struck out.

2. Alternatively, the plaintiff provide an amended list of documents which enumerates the documents and states what has become of the documents in Schedule 2 and whose possession the documents are now in.

3. Costs be awarded against the plaintiff.

[3] The main grounds of the application are that the list of documents did not comply with the High Court Rules 1988 (“HCR” or “Rules”), did not enumerate any documents in Part 2, Schedule 1, did not enumerate any documents in Schedule 2, and did not state what has become of the documents in Schedule 2 and in whose possession the documents are now in.

THE LIST OF DOCUMENTS

[4] The Plaintiffs list of documents is in the standard Form 13 of the Rules. The part of the list which the Defendant objects to simply states:

SCHEDULE 1
PART 1

...

PART 2

Correspondence between the Plaintiffs solicitors and the Plaintiff and the Plaintiffs advisors containing instructions from the Plaintiff to its solicitors, general legal advice from the Plaintiffs solicitors to the Plaintiff, legal advice on the Plaintiffs claim, and interlocutory matters in the proceeding and proofs of witnesses, variously dated.

SCHEDULE 2

Originals of all documents originated by the Plaintiff or its solicitors referred to in Schedule 1 hereof and which were in the Plaintiffs or its solicitors’ possession, custody or power on or about the respective dates of such documents.

[5] Schedule 1 Part 1 listed 34 documents of various dates including letters to various persons including the Defendant and a Bundle of Court documents. No documents were enumerated or listed in Schedule 1 Part 2 or Schedule 2 other than by the general references quoted above.

[6] The list also explained in paragraph 2 that the Plaintiff objects to produce the documents in Part 2 of Schedule 1 on the grounds that “the said documents consist solely of communication of a confidential nature for the purpose of obtaining legal advice which have passed between the Plaintiff and its solicitors”.

[7] As to the explanation of the whereabouts of the documents in Schedule 2, paragraph 4 of the list states that the documents “were last in the Plaintiffs possession, custody or power on or about the date of the said documents”.

[8] The Defendant is represented by Koyas as its Fiji solicitors and Elvidge and Partners of Napier as its New Zealand solicitors and also as its legal counsel in Fiji. On 19 August 2009, the Deputy Registrar ordered the parties to file and serve their lists of documents by certain dates. The Plaintiff filed its list on 20 August 2009. On 7 October 2009, the New Zealand solicitors sent a fax to the Plaintiffs solicitors complaining of the above deficiencies in their client’s list. That irated the Plaintiffs solicitors who faxed back on the same day saying that they should not be forced to communicate with two sets of lawyers and saw no point in wasting their management time and their client’s monies in dealing with them or replying to their queries.

THE LAW

[9] Order 24 rule 5 HCR provides:

(1) A list of documents made in compliance with rule or with an order under rule 3 must be in Form No. 13 in Appendix A, and must enumerate the documents in a convenient order and as shortly as possible but describing each of them or, in the case of bundles of documents of the same nature, each bundle, sufficiently to enable it to be identified.

(2) If it is desired to claim that any documents are privileged from production, the claim must be made in the list of documents with a sufficient statement of the grounds of the privilege.

[10] Form 13 has the following notations under the headings “Schedule 1” and “Schedule 2”:

Schedule 1
Part 1

[Here enumerate in a convenient order the documents (or bundles of documents, if of the same nature, such as invoices) in the possession, custody or power of the party in question which he does not object to produce, with a short description of each document or bundle sufficient to indentify it]

Part 2

[Here enumerate as aforesaid the documents in the possession, custody or power of the party in question which he objects to produce]

Schedule 2

[Here enumerate as aforesaid the documents which have been, but at the date of service of the list are not, in the possession, custody or power of the party in question].

[11] In Taylor v Batten [1878] UKLawRpKQB 74; [1878-9] 4 QBD 85, the defendant claimed in his first affidavit legal professional privilege over “certain documents, letters and correspondence which have passed between my legal advisers and myself”. The defendant filed a second affidavit with the description of these documents as: “The documents referred to in paragraph 2 of my former affidavit are numbered 50 to 76 inclusive, and are tied up in a bundle marked with the letter A and initialed by me”. The English Court of Appeal[1] said such a description was sufficient for the purposes of identification of privileged documents:

Then let us see whether further identification is required if there is an objection to produce the documents. We must remember that the plaintiff is bound to take the affidavit as true, unless it can be shown that there is some reason on the face of it why it cannot be relied on. The affidavit is sufficient if the documents are sufficiently identified. But it is said that the plaintiffs are entitled to be put in such a position as to test the truth of the affidavit by the description of the documents. That however, is, in our opinion, erroneous. The only object of the affidavit is to enable the Court to order the documents to be produced, if it think fit to make an order to that effect; and if words are used which, if true, protect the documents, no further particularity is necessary than in the case of a document for which protection is not claimed. If an affidavit claiming protection for documents some of which are, while others are not, privileged did not sufficiently shew which were entitled to protection, the Court would either order production of all or, as under ordinary circumstances would be the proper course, allow the party an opportunity of making a further affidavit to identify the documents entitle to protection. But here the protection claimed applied to all the classes of documents mentioned in the schedule.

[12] Also, the listing of a privileged document may destroy the advantage of privilege. For example, it may alert the opposition that the plaintiff obtained certain advice from a certain person on a particular date or dates and such information may be used to the detriment of the plaintiff or the party claiming privilege: see per Cotton LJ in Gardner v Irvin [1878] UKLawRpExch 51; (1878) 4 Ex. D. 49, 53:

I think the plaintiffs are not entitled to have the dates of the letters and such other particulars of the correspondence as may enable them to discover indirectly the contents of the letters, and thus to cause the defendants to furnish evidence against themselves in this action. The law was very recently correctly laid down on this point in this Court: Taylor v Baten [1878] UKLawRpKQB 74; [1878-9] 4 QBD 85.

[13] It is useful to set out what the English Court of Appeal said[2] about the requirements of the affidavit as a guide to practitioners:

An affidavit in answer to an application for discovery must be construed strictly, because the other side cannot adduce evidence to contradict it. The person seeking discovery is bound by the affidavit made by his opponent, and therefore it ought to be full. It is not sufficient for the affidavits to say that the letters are a correspondence between a client and his solicitor; the letters must be professional communications of a confidential character for the purpose of getting legal advice.

[14] The English Court of Appeal held in Taylor v Batten (supra) that a generic description of documents which are identified by numbers is sufficient where no claim for privilege is made:[3]

The plaintiff contended that this was insufficient, but, as I understand, he did not deny that it would have been sufficient, if it had referred to documents which the defendant was not unwilling to produce. In my opinion, if these documents had been merely scheduled in the ordinary way, and no objection had been made to their production, the description would have been amply sufficient for the purpose of identification. For all the Court requires, where there is no question of privilege or objection to produce the documents, is that they should be so far identified, that the Court can see that the documents referred to are produced if required.

CONSIDERATION OF THE APPLICATION

Enumeration of Privileged Documents

[15] The first complaint is that the list did not enumerate any documents in Part 2 of Schedule 1. That Part was to contain the privileged documents. The complaint is that the Plaintiff did not enumerate any documents.

[16] Does the Plaintiff have to enumerate these documents or does its generic description comply with O. 24, r. 5(1) HCR? I think the Plaintiff has complied with the rule. The rule allows the documents to be described if they were in a bundle or bundles, which I think the description in this case does, in sufficient manner to enable the documents to be identified. I also think that the claim for privilege is sufficiently stated to comply with O. 24, r. 5(2) HCR.

[17] I am also of the view that the list complies with the principles set out in Taylor v Batten (supra) and Gardner v Irvin (supra). The point decided in Gardner v Irvin (supra) was that an affidavit verifying the list of documents must clearly specify the grounds on which privilege is claimed. That is not the complaint here. The complaint is simply that the list did not enumerate the documents in respect of which privilege is claimed. Even if the complaint was that the grounds of privilege were not disclosed, the affidavit complies with the court rules in my opinion.

Enumeration of Schedule 2 Documents

[18] I also come to the same conclusion in respect of the second complaint, namely, that no documents were enumerated in Schedule 2. Documents can be described generically rather than enumerated so long as they can be identified should the Defendant wish to inspect them or wish to obtain copies of them. I think it is clear from the description of these documents in Part 1 of Schedule 1 where the original documents are or likely to be at or with.

[19] I also note O. 1, r. 6 HCR which allows the Court to permit departures from strict compliance with the forms in Appendix A of the Rules.

COSTS

[20] The Plaintiff asks for indemnity costs of $3,500. I agree that this application was a hopeless application justifying an award for indemnity costs: Lok v Singh [2010] FJHC 7; HBC321.2000L (20 January 2010); Khan v Carpenters Fiji Ltd [2009] FJHC 149; HBC132.2003 (23 July 2009); Singh v Naupoto [2008] HBC 199/08 (Costs Decision of 8 August 2008) and Rokotuiviwa v Seveci [2008] FJHC 221; HBC374.2007 (12 September 2008).

[21] However, I think the amount claimed is on the high side. Instead, I award costs of $1,500 as reasonable and order accordingly.

ORDERS

[22] The Orders are therefore as follows:

1. The Defendant’s application by motion filed on 4 November 2009 is dismissed.

2. The Defendant shall pay the Plaintiffs costs of $1,500 within 21 days.

Sosefo Inoke
Judge

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^[1]Bramwell, Brett and Cotton LJJ; judgment delivered by Cotton LJ.
^[2] Per Cotton LJ at p 53.
^[3] [1878] UKLawRpKQB 74; [1878-9] 4 QBD 85, 87