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Several new approaches to the discovery obligation were canvassed. However, the
preponderance of opinion was significantly against change and in favour of retaining
the Peruvian Guano principles, many taking the view that in Hong Kong, insufficient
compliance rather than excessive disclosure represents the problem. It was also
suggested that the new approach adopted in the CPR has not yielded significant
benefits.
Many consultees argued, and the Working Party agrees, that case management is the
preferable way of tempering possible Peruvian Guano excesses, for instance, by the
court directing, where appropriate, that discovery should take place in stages or
initially in relation to particular issues; or that it should be limited to particular classes
of documents; or that documents need not be listed individually but by bundle or by
file in certain categories, and so forth. Ample powers already exist in the RHC for this
purpose. Accordingly, the Working Party does not recommend adoption of a different
discovery obligation but favours retention of the Peruvian Guano test coupled with
judicious case management to restrain excessive discovery.
The Working Party recommends that the jurisdiction conferred on the court by section
41 of the HCO to order potential parties to make pre-action disclosure be widened so
that the jurisdiction is exercisable in all types of cases (and not merely in relation to
personal injury and death claims).
The applicant should have to show that he and the respondent are likely to be parties
to anticipated proceedings and that the requirements of O 24 r 7A are satisfied. In
other words, the documents must be shown to be (i) likely to be in the possession,
custody or power of the person from whom they are sought; (ii) relevant to an issue
arising out of the claim in question; and (iii) by (virtue of O 24 r 13) necessary either
for disposing fairly of the cause or matter or for saving costs. Only specific
documents or classes of documents which are directly relevant to the issues in the
anticipated proceedings should be covered. The power should not extend to
background documents or "train of inquiry" documents.
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