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(iv)
Recommendations
In the Working Party's view :-
(a)
The jurisdiction of the court to order disclosure before commencement of
proceedings should be widened to apply in all types of cases (and not merely in
relation to personal injury and death claims). This would require primary
legislation to amend section 41 of the HCO.
(b)
Such jurisdiction should be exercisable where it is shown by the applicant that
he and the respondent are both likely to be parties to anticipated proceedings
and that disclosure before the proceedings have been started is necessary to
dispose fairly of the anticipated proceedings or to save costs.
(c)
Any order granted should relate to disclosure
and inspection of specific
documents or classes of documents which are "directly relevant" to the issues in
the anticipated proceedings, namely, documents which would be relied on by
the parties themselves and documents which affect adversely or support any
party's case in the anticipated proceedings. It should not extend to
"background" documents or possible "train of inquiry" documents.
(d)
Applications should be made by originating summons supported by necessary
affidavits and otherwise in accordance with the provisions of O 24 r 7A, with
any necessary modifications.
It is considered that such a rule strikes a reasonable balance between the need to
protect against harassment and fishing applications on the one hand and the need to
enable a potentially meritorious plaintiff to bring a claim which could not effectively
otherwise be brought.
Since pre-action protocols have not been recommended for general adoption in Hong
Kong, it is not proposed to specify as a discretionary factor, the desirability of pre-
action disclosure in aid of early settlement.
Notes
As provided for under O 24 r 7A(5) and (6).
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