In the recent Court of First Instance decision of Koay Ai See v St. Teresa’s Hospital and others, an injunction was granted restraining the Defendants from relying on privileged expert reports which had been obtained by the Plaintiff and provided inadvertently to the Defendants in the course of discovery.
The Plaintiff brought an action and claimed damages against the Defendants, who are medical practitioners, alleging that they were negligent in failing to diagnose her as suffering from Meniere’s Disease.
In the Plaintiff’s Check List Review questionnaire, the expert on liability was identified as Dr David East, and his report was subsequently served. The report was identified as an item on the schedule of medical and expert reports accompanying the Plaintiff’s Statement of Claim and Statement of Damages. An order was made at the Check List Review hearing in which the Plaintiff’s expert was identified as Dr David East. However, when the Plaintiff subsequently filed a List of Documents, the reports of a different doctor (John K.S. Woo) were listed under “Section F: Expert Reports”, while the report of Dr East was not listed. A Hearsay Notice served in respect of the List of Documents also included Dr Woo’s reports. The Plaintiff’s solicitors sent a letter to the Defendants’ solicitors enclosing copies of the listed documents, including Dr Woo’s reports. The Plaintiff’s solicitor only realised the error after a few letters had been exchanged between the parties.
The Plaintiff then applied to Court for an injunction restraining the Defendants from relying on Dr Woo’s reports and requiring them to deliver up and return to the Plaintiff’s solicitors all copies of Dr Woo’s reports in their possession. The Defendants accepted that Dr Woo’s reports were documents in respect of which the Plaintiff could have claimed legal professional privilege, but they opposed the Plaintiff’s application on the ground that privilege had been waived.
Ordinarily, a party to litigation who sees a particular document referred to in the other side’s List of Documents without privilege being claimed and who is subsequently permitted inspection of the document, is fully entitled to assume that any privilege which might otherwise have been claimed for it, has been waived.
However, if the other party or his solicitor either (i) has procured inspection of the relevant document by fraud, or (ii) on inspection, realises that he has been permitted to see the document only by reason of an obvious mistake, the court has the power to intervene for the protection of the mistaken party by granting an injunction restraining the other party from relying on such document. The above exception applies in the following circumstances: (i) if the mistake was evident; or (ii) if the recipient ought to have realised that a mistake was evident. The burden lies on the party seeking to restrain the use of the document in question. There are no rigid rules when the court is exercising an equitable jurisdiction, and the court needs to consider the particular circumstances of the case and decide whether it would be inequitable or unjust to grant relief. It is noteworthy that in Hong Kong, unlike in England, the recipient may make use of the document in question unless restrained by the court from doing so.
The Court’s Decision
The Court accepted the Plaintiff’s solicitor’s evidence that his clerk had mistakenly listed Dr Woo’s reports and that he had approved the List of Documents and letter to the Defendants’ solicitors enclosing Dr Woo’s reports, without noticing the error.
The Court held that the Defendants’ solicitors should have realised that a mistake had been made. A hypothetical, reasonable solicitor, standing in the shoes of the Defendants’ solicitor, having the conduct of the litigation, would have queried why Dr Woo’s reports were being relied upon, when the Plaintiff’s nominated expert was Dr East. Under the current case management regime, expert evidence can only be adduced with the court’s leave and any leave granted would not be in general terms but in respect of identified experts, and usually leave would only be granted in respect of one expert from a particular speciality. Once this query was raised, the mistake would soon have been discovered and made obvious. The result is that the hypothetical, reasonable solicitor would realise that he had been permitted to see Dr Woo’s reports by reason of an obvious mistake on the part of the Plaintiff’s solicitors. The Court also made a remark that, in practice, the inadvertent listing of privileged documents ought rarely to create any problems. In the current regime of cooperative communication, a solicitor who is unsure whether privilege has been deliberately waived by the disclosure of a privileged document should confirm the position with the disclosing solicitor.
For the above reasons, the Court granted an injunction restraining the Defendants from relying on Dr Woo’s reports and allowed the application for delivery up of Dr Woo’s reports. The Court also granted leave to the Plaintiff to amend the List of Documents.