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The New Flexible Approach in Assessing Third-Party Discovery Affirmations

6 Mar 2023

INTRODUCTION


1. When faced with a summons for discovery, a party (whether as a litigant party or a third party) may make a discovery affirmation setting out whether it has in its possession, custody or power the documents that are being sought. Courts generally accepted the principle that such discovery affirmations were invariably taken at face value and subject to limited exceptions, considered conclusive as to relevance and existence or otherwise of documents being sought.


2. However, on 27 February 2023, the Court of Appeal (“CA”) handed down the Chinese judgment of 劉華 對DR LAUAU CHU PAK [ 2023] HKCA 262, which significantly changes the Court’s approach in assessing discovery affirmations as it relates to third-party discovery.


BACKGROUND


3. The plaintiff, LH, received an invasive medical procedure known as electrophysiological study, which is used to identify underlying cause and mechanism of abnormal heart rhythm. At the same time, catheter ablation was also performed. The catheter is advanced to the heart under X-ray guidance and a tiny electric current is delivered for the purpose of treating arrhythmia (collectively, “the Medical Examination”). The Medical Examination was performed by the defendant doctor, Dr Lau, at the Hong Kong Sanatorium Hospital (“the Hospital”) on 24 July 2013.


4. Subsequently, LH commenced a high court personal injury claim (“HCPI Case”) against Dr Lau as she alleged that his negligence during the Medical Examination caused a hole in her atrial septum (the wall between the left and right atria). Dr Lau denied any wrongdoing and alleged that LH’s condition was congenital.


5. On 31 August 2020, pursuant to section 42(1) of the High Court Ordinance (Cap. 4) and Order 24 rule 7A of the Rules of High Court (Cap. 4A), LH took out a third-party discovery application against the Hospital (“the Application”) for the disclosure of, inter alia, the automatically recorded video of the X-ray machine created during the Medical Examination, the VCD that captured the hole in her atrial septum.


6. In response to the Application, the Hospital filed a third-party discovery affirmation (“the Hospital’s Affirmation), which stated the X-ray machine used in the Medical Examination would automatically record a low-resolution video of the procedure. If there were no special directions given by the handling doctor to the X-ray technician, the automatically recorded video (“ARV”) would be deleted in a week. If the handling doctor determined that there were matters that required followed-up, then he could press a button that would capture an image of the procedure. Such an image would either be static or dynamic (being one to a few seconds). Such images would be stored for further diagnosis or stored as medical records.


7. During the Medical Examination, 4 static and 4 dynamic X-ray images were taken. These images were stored on a VCD and provided to LH on 23 January 2014. As for the ARV, As Dr Lau did not give special directions to the X-ray technician, LH’s ARV was deleted a week after the procedure. Hence, the Hospital stated LH’s ARV was simply no longer in existence.


FIRST INSTANCE JUDGE ADOPTS A NARROW VIEW


8. The Application came before High Court Judge Marlene Ng (“the Judge”). LH sought to rely on the following publicly available documents (“the Public Documents”) in aid of the Application. These included:


(1) A government press release dated 2 December 1998. This document encapsulated the response of the Secretary for Health and Welfare in the Legislative Council when asked about the retention and disclosure of patients’ medical records. The Secretary had referred to the Personal Data (Privacy) Ordinance (Cap. 486) and stated that the Hospital Authority and Department of Health had issued guidelines to respective hospitals on retention periods of medical records. The Judge held that the government press release was not binding on the Hospital and in any event, the Hospital Affirmation had conclusively stated the ARV no longer existed.


(2) The Report on Public Consultation on the Legal, Privacy and Security Framework for Electronic Health Record Sharing dated June 2012. The Judge held that the findings in the report were inconclusive and, in any event, irrelevant to the Application.


(3) The Code of Practice for Private Hospitals dated 2019. However, the Judge had reservations on the application of this code to a medical procedure conducted in 2013.


9. In considering whether to allow the Application, the Judge reminded herself that an exercise of discretion to grant third-party discovery chiefly depended on the existence, relevance and necessity of the documents sought.


10. Referring to her own case of UOB Kay Hian Futures (Hong Kong) Ltd v Lai Lawrence and Another [2015] HKCFI 927, the Judge held that discovery affirmations were generally conclusive as to the relevance and existence of the documents being sought. In this case, the Hospital Affirmation stated the ARV being sought for disclosure simply did not exist and hence the Hospital was not in possession of them.


11. The Judge was of the view that discovery affirmations would not be regarded as conclusive if it was shown that there had been insufficiency of discovery, which could be demonstrated by 3 categories of documents (a) the pleadings, the list and affirmation of documents themselves, or documents referred to therein; (b) any other source that constituted an admission of the existence of a discoverable document not so far discovered and (c) an apparent exclusion of documents from discovery by a party under a misconception of the case. LH had failed to demonstrate the insufficiency of the Hospital Affirmation based on these 3 categories of documents.


12. For these reasons, the Judge refused to exercise the Court’s discretion to grant the third-party discovery sought by LH and dismissed the Application. LH appealed.


THE COURT OF APPEAL ADOPTS A MORE FLEXIBLE APPROACH


13. On appeal, the Court sought to address, inter alia, whether LH could rely on the Public Documents to challenge the sufficiency of the Hospital Affirmation. Furthermore, if such affirmation was found to be inadequate, could the Court order the Hospital to make a follow-up affirmation for the purpose of explaining or further disclosing the Hospital’s handling of LH’s case.


14. In determining and assessing the conclusiveness or inadequacy of a third-party disclosure affirmation, the Court needed to determine the scope of documents and relevant materials it could rely on. In this case, the CA needed to determine whether the Public Documents constituted relevant materials which the Court could examine.


15. After referring to a number of English[1], Canadian[2]and Irish[3]authorities, the CA determined that it should not be restricted to only the 3 categories of documents as identified in UOB, but instead, depending on the circumstances of the case, the available evidence and relevant materials, adopt a more flexible approach in assessing the conclusiveness or inadequacy of a third-party discovery affirmation.


16. The CA’s reasons were as follows.


17. First, between litigating parties, if one party alleges the other party has withheld documents, this issue would be crucially relevant to the issues in trial and could be properly determined after the trial judge has heard all the evidence. To try the issue at an interlocutory stage could cause injustice to both sides. In addition, a party could request interrogatories for additional information against the disclosing party. Such interrogatories could act as an additional protection to prevent a party improperly withholding information.


18. Second, the dynamics of a third-party discovery were different from discovery between litigating parties. First and foremost, there is no distinction of interlocutory or final stage as between a litigating party and the third-party. In addition, as the third-party is not a litigant, he would not be required to adduce evidence or be subjected to cross-examination at trial. As a result, whether or not the third party has adequately disclosed documents is an issue separate from the issues that would be adjudicated in the main trial between the litigants.  Hence, no prejudice would be caused to the litigants if the Court were to handle the issue of third-party disclosure at an interlocutory stage.


19. Third, as the third party is not party to the main proceedings, a dissatisfied party could not request interrogatories as against the third party. Furthermore, the first category of documents as identified in UOB, being the pleadings, the list and affirmation of documents themselves etc would also be inapplicable to a third party (the Hospital in this case) as it was not party to the main proceedings.


20. By adopting a more flexible approach, the CA determined it could rely on the Public Documents to assess the conclusiveness or inadequacy of the Hospital Affirmation. This was because the Public Documents were independent, objective and publicly available documents that were clearly relevant to the Hospital’s disclosure to LH.


21. Upon examination of the Hospital’s Affirmation, the Court expressed reservation as to its conclusiveness and adequacy. For example, the Hospital Affirmation failed to explain the basis for deleting the ARV after one week, especially in light of the Public Documents. There was also no explanation as to why the Hospital considered it could solely rely on a handling doctor’s judgment on which images captured during the medical process should be retained. Finally, there was also no evidence on the Hospital’s policy on the storage of medical records for patients with a risk of litigation.


22. Consequently, the CA allowed the appeal and ordered the Hospital to make further disclosure on the handling and storage of the ARV and relevant policies related to the storage of medical records.


CONCLUSION


23. The previous narrow view surely prevented the Court from investigating the adequacy of third-party discovery affirmations and inevitably forced the Court to accept at face value whatever was stated therein.


24. In contrast, the more flexible approach now permits the Court to properly assess the adequacy of a third-party discovery affirmation. This is consistent with common law authorities that suggest that the Court must always retain the power and make available the necessary machinery to ensure that it is not so limited in administering justice.


25. While LH’s case does not exhaustively set out the criteria documents must meet before the Court can rely on them in assessing a third-party affirmation of discovery, the Court’s observations that the documents in the case being “independent, objective and publicly available” is a good starting point. In any event, with increased flexibility, a judge faced with a third-party discovery application should be able to determine in the circumstances of each case on whether certain documents could be used to assess the quality of an affirmation of discovery.


26. In practice, this would mean a litigant has greater opportunity to challenge the adequacy of a third-party discovery affirmation. On the other hand, a third party can now no longer rely on a half-baked discovery affirmation and raise the shield of conclusiveness in hopes of quickly disposing a third-party discovery application.


Written by: Isaac Yung, Barrister-at-law


First Instance decision here.

CA Judgment at here.


[1] British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] AC 709, 714; West London Pipeline and Storage Ltd v Total UK Ltd & Ors [2008] EWHC 1729 (Comm)

[2] Mark Fishing CO Ltd v United Fishermen & Allied Workers Union (1968) 68 DLR (2d) 410, 411-415, 419-424.

[3] Duncan v Governor of Portlaoise Prison [1997] 1 IR 558, 572-574

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