Introduction
Background
Decision
Comment


Introduction

In Wong v Mang,(1) a High Court judge dismissed a party's appeal against a refusal to grant permission to issue subpoenas directed at another party's legal representatives. At the same time, the judge reminded litigants and their legal representatives that subpoenas (directing a witness to attend court to give evidence, produce documents or do both) should be issued in a timely manner, and that late subpoenas which upset the court's case management of trial dates are likely to be frowned upon. In this case, the judge saw fit to order adverse costs against the party seeking permission to issue the subpoenas.

Background

Subpoenas are in effect court orders directing a prospective witness to attend trial to give evidence, produce documents or do both. They are much like witness summonses in some other jurisdictions. Obtaining the court's permission to issue a subpoena in Hong Kong should be a relatively straightforward exercise, requiring the subpoena and certain administrative matters to be filed with the court registry, where a practice master attends to the relevant court papers. If approved, the subpoena is sealed and returned to the applicant for personal service on the witness. The process should be relatively straightforward and is quite common.

In Wong, the plaintiff's solicitors appear to have corresponded with the defendant's solicitors about their potentially being required to give evidence at the trial of the proceedings. The case arose out of a dispute involving (among other things) financial arrangements following the plaintiff and defendant's divorce. In light of the plaintiff's claims concerning the validity of a maintenance agreement between the two parties, it appears that his solicitors considered that the defendant's solicitors might be able to give relevant evidence and provide relevant documents. Notably, subpoenas directed at another party's legal representative are not so common in Hong Kong.

On 1 August 2018 the case was set down for trial for seven days commencing on 16 April 2019, with the expectation of there being five witnesses. As far as the court was concerned, at that point the proceedings were ready for trial (save for any last minute adjustments that did not interfere with the trial dates).

Despite their interest in issuing subpoenas against the defendant's solicitors, it appears that the plaintiff's solicitors did not formally apply to do so until 11 January 2019 – some three months before the seven-day trial. Before then it appears that the plaintiff's solicitors had corresponded with court registry staff and there may have been some confusion as to whether the subpoenas should be issued with or without notice to the defendant's solicitors. Further, in the case management documents filed before the case management conference, at the conference and at a pre-trial review hearing, the plaintiff's solicitors appear to have made no mention of the plaintiff's intention to issue the subpoenas against the defendant's solicitors.

On 26 February 2019 a court official refused permission to grant the subpoenas. The plaintiff sought to set aside that decision by application listed before a judge, who heard the matter afresh. It appears that such was the shortage of time that the matter came before the trial judge on the first day of the trial.

The main issue before the judge was whether to allow the subpoenas to be issued. This in turn required the judge to consider the delay on the part of the plaintiff and the effect that granting the subpoenas could have on the trial.

Decision

In an interesting judgment, which analysed considerations of delay in issuing subpoenas, the judge dismissed the plaintiff's challenge. While exercising his discretion afresh (in effect, de novo), the judge saw no good reason to allow the late issue of the subpoenas. The judge's decision appears to be firmly rooted in case management considerations. First, the plaintiff appears to have had plenty of opportunity to apply to issue the subpoenas at the time of the case management conference or the pre-trial review or at least to have brought the matter to the attention of the case managing judge at the time, but failed to do so. Second, the plaintiff's application to issue the subpoenas had been made some three months before trial and the trial had been set down for a specific number of days with a specific number of witnesses identified.

Quoting from the Hong Kong Civil Procedure 2019 (the 'White Book'), the judge noted that:

Any application to issue a subpoena should be disposed of before the pre-trial review. In the absence of good and strong reasons, a late application may be dismissed on the basis of delay alone. Such dismissal applies with even greater force when it is taken out in the course of the trial.(2)

Accordingly, the plaintiff's challenge failed on the grounds of delay alone. The judgment also appears to have questioned what added probative value the intended evidence sought by the subpoenas would have over and above suitable applications for disclosure of documents by the plaintiff or examination of the respective parties at the trial.

For good measure, the judge categorised the plaintiff's late application as (in effect) an unmeritorious appeal of a case management decision. As such, it deserved to be met by an adverse costs order.(3)

Comment

One might be forgiven for thinking that the plaintiff or his solicitors appear to have been the author of their own misfortune. Indeed, it is not entirely clear why the application to issue the subpoenas was left quite so late.

With respect to witnesses in Hong Kong, applying for the issue of a subpoena is a relatively straightforward process which by and large is not controversial. In this case, the intended witnesses were the defendant's legal representatives, which is more unusual. However, that is not (of itself) a bar to the issue of a subpoena, although it does raise a practical matter – much of what a party's lawyers know will be covered by legal professional privilege and, therefore, is not disclosable without that party's consent. Had the fact that lawyers were the intended recipients of the subpoenas been an issue, this could have been made known to the case managing judge earlier, and the plaintiff had arguably had plenty of opportunity to do this – for example, either at the case management conference or the pre-trial review.

There is a suggestion in the judgment that parties should generally give more thought to their preparations for a case management conference and before setting a case down for trial. This observation has force. Courts tend not to like surprises and certainly not ones that might upset a milestone date such as trial. This is also consistent with a more 'cards on the table approach', encouraged by the case management ethos of the civil justice reforms adopted in 2009.

The judgment should also be seen from a wider perspective. Provided that they are issued in a timely manner, subpoenas are by and large good practice with respect to a party's own expert witnesses and supporting lay witnesses – neither of whom should be concerned about being subpoenaed provided that they are informed of the process and the consequences in advance.

For further information on this topic please contact Antony Sassi or Warren Ganesh at RPC by telephone (+852 2216 7000) or email ([email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.

Endnotes

(1) Wong Wai Wing v Mang Fan Lin [2019] HKCFI 1185, 6 May 2019.

(2) Commentary to Order 38/19/3.

(3) Supra 1 at paragraphs 40 and 41.