Wong v Grand View PTC and ors (Ruling on specific discovery)
| Jurisdiction | Bermuda |
| Judgment Date | 05 August 2020 |
| Date | 05 August 2020 |
| Docket Number | Commercial Jurisdiction 2018 No 44 |
| Court | Supreme Court (Bermuda) |
[2020] Bda LR 45
In The Supreme Court of Bermuda
Commercial Jurisdiction 2018 No 44
Mrs E Talbot Rice QC, Mr D Hagen QC and Mr R Attride-Stirling for the Plaintiff
Mr M Howard QC, Mr J Adkin QC and Mr P Smith for the 1st – 4th, 6th and 7th Defendants
Mr S Midwinter QC, Mr S White and Mr J McSweeney for the 5th Defendant
The following cases were referred to in the judgment:
Hamilton and Dixon Group SIPP v Hastings Solicitors [2014] NICh 27
Berezovsky v Hine [2011] EWCA Civ 1089
Taylor v Anderton [1995] 1 WLR 447
Barclays Bank v Eustice [1995] 1 WLR 1238
Dubai Bank v Galadari The Times 22 April 1991
O'Rourke v Derbyshire [1920] AC 581
Z v Z [2017] 1 WLR 84
Application for specific discover — Whether documents evidencing advice in connection with establishment of trust not protected by privilege — Common legal representation of defendants and non-parties — Waiver of privilege — Whether deceased's waiver rights are transmissible to his estate — Discretion to order inspection
RULING of Kawaley AJ
1. The Plaintiff's May 15, 2020 Summons (the “Summons”) sought the following relief:
“1. An Order pursuant to Order 24 Rule 2 of the Rules of the Supreme Court 1985 that the Seventh Defendant do file and serve a list of documents which are or have been in her possession, custody or power relating to any matter in question in the action.
2. An Order pursuant to Order 24 Rule 7 of the Rules of the Supreme Court 1985 that
a. The First to Fourth and Sixth Defendants (“the Trustees”);
b. the Fifth Defendant; and
c. the Seventh Defendant (“Susan Wang”)
be required to make an affidavit stating whether any of the specified documents or categories of documents identified in that part of schedules A and B attached hereto which is identified as being referable to them is or has at an time been in its/her possession, custody or power and if it was, but is not now, in its/her possession custody or power, stating when it/she parted with it and what has become of it.
3. An Order pursuant to Order 24 Rule 11(2) of the Rules of the Supreme Court 1985 and/or the Court's inherent jurisdiction (as applicable) that the Trustees do permit the Plaintiff to inspect the following categories of document in respect of which the Trustees and/or the Fifth Defendant and/or Susan Wang have objected to inspection on grounds of privilege (capitalised terms as defined in the Fifth Affidavit of Anthony R. Poulton, dated 13th May 2020).
a. The Gardere Documents
b. The Wang Family Accord Documents
c. The Baker McKenzie Documents
d. The Paul Weiss Documents
e. The GRT Trust Operation Documents
f. The redacted documents identified in schedule C attached hereto.
4. An Order pursuant to Order 24 Rule 3 and/or 5 that:
a. the Trustees and Susan Wang do forthwith and no later than 14 days hereafter produce, supply or otherwise make available to the Plaintiff and the agents or representatives duly appointed by him a list of the ‘Ocean View Litigation Documents’ (as defined in the Fifth Affidavit of Anthony R. Poulton dated 13th May 2020) being withheld from production on the grounds of privilege, detailing the date of the particular document, the author, the addressee, a brief description of its nature (without disclosing its contents) and the ground of privilege relied upon; and
b. verify the same by affidavit.
5. Further and/or other relief.
6. Costs.”
2. The Plaintiff's draft amended Summons proposed to amend paragraphs 1 and 4 of the Summons as follows:
“1. An Order pursuant to Order 24 Rule 2 of the Rules of the Supreme Court 1985 that the Fifth Defendant and the Seventh Defendant do each file and serve a list of documents which are or have been in her possession, custody or power relating to any matter in question in the action (irrespective of whether such documents have already been listed by another party).
4. An Order pursuant to Order 24 Rule 11(2) of the Rules of the Supreme Court 1985 and/or the Court's inherent jurisdiction (as applicable) that the Trustees do permit the Plaintiff to inspect the ‘Ocean View Litigation Documents’ (as defined in the Fifth Affidavit of Anthony R. Poulton dated 13th May 2020). In the alternative, an Order pursuant to Order 24 Rule 3 and/or 5 that…”
3. By the date of the hearing paragraph 1 was not contentious and D1–4, 6–7 asserted they had complied with paragraph 2. As regards paragraph 3, only sub-paragraphs e and f were still in issue. As regards paragraph 4, the Plaintiff primarily relied on the proposed amended prayer for an Order that the Ocean View Litigation Documents be inspected on the grounds that privilege could not properly be claimed.
4. The landscape portrayed in the respective Skeleton Arguments was transformed somewhat by the end of the hearing. Firstly further evidence was filed on both sides relevant to paragraph 3 of the Summons. Secondly D1–4, 6–7 through correspondence offered to carry out further searches and produce further documents. Thirdly the Plaintiff submitted a draft Order seeking relief not sought in the Summons or the draft amended Summons.
5. At the end of the hearing I granted the Plaintiff seven days to file short written reply submissions, addressing points that could not for time reasons be addressed orally by way of reply. I granted D1–4, 6–7 a further 7 days thereafter to file short written submissions addressing two areas their counsel was not able to respond to orally: (a) the evidence filed during the hearing which the Plaintiff's counsel only addressed in her oral reply (and foreshadowed addressing in her supplementary written reply submissions); and (b) the draft Order. In the event it was sensibly suggested that the terms of the Order should be addressed by counsel after this Ruling was delivered.
6. Mrs Talbot Rice QC invited the Court to remember that although the 1st to 4th and 6th Defendants were trustees they were not professional trustees. The Plaintiff and D1–4, 6–7 were in reality involved in a family dispute. This justified the Plaintiff being suspicious as to whether discovery obligations were being properly discharged. Mr Howard QC invited the Court to remember that the discovery process had to be limited to proportional levels.
7. I accept both of these submissions. The family backdrop to the present dispute does require a heightened level of scrutiny of the discovery process. On the other hand the combination of litigation motivated by highly emotional family grievances and substantial litigation resources also creates a real risk that the discovery process may be carried out in a disproportionate manner.
8. Both rules invoked by the Summons confer discretionary powers on the Court. Order 24 rule 7 (“Order for discovery of particular documents”) provides as follows:
“(1) Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been in his possession, custody or power, and if not then in his possession, custody or power when he parted with it and what has become of it.
(2) An order may be made against a party under this rule not withstanding that he may already have made or been required to make a list of documents or affidavit under rule 2 or rule 3.
(3) An application for an order under this rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power the document, or class of document specified or described in the application and that it relates to one or more of the matters in question in the cause or matter.”
9. That rule is closely connected to Order 24 rule 8 (“Discovery to be ordered only if necessary”), which provides:
“On the hearing of an application for an order under rule 3 or 7 the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or, as the case may be, adjourn the application and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.”
10. Order 24 rule 11 (“Order for production for inspection”), the second rule relied upon in the Summons, provides as follows:
“(2) Without prejudice to paragraph (1), but subject to rule 13(1) the Court may, on the application of any party to a cause or matter, order any other party to permit the party applying to inspect any documents in the possession, custody or power of that other party relating to any matter in question in the cause or matter.”
11. That rule is closely connected to Order 24 rule 13 (“Production to be ordered only if necessary, etc.”), which provides:
“(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing rules unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.”
12. Without need for recourse to the Overriding Objective, the relevant rules within Order 24 themselves superimpose a ‘necessity’ filter onto the...
To continue reading
Request your trial
-
Wong v Grand View Private Trust Company Ltd and Ors
...… (5) Each case depends on its own facts…” 27. Earlier on in the present proceedings (Wong v Grandview Private Trust Company et al[2020] Bda LR 45, I held: “75. In my judgment there is clearly only one concept, which involves balancing two competing public interests. On the one hand there i......
-
Jardine Strategic Holdings Ltd
...at that stage the court may dismiss the application for discovery. As Kawaley AJ held in Wong v Grand View Private Trust and others [2020] Bda LR 45, rule 8 (as to discovery) and rule 13 (as to inspection), “superimpose a “necessity 91 Given the process of discovery outlined at paragraphs 8......
-
Re Jardine Strategic Holdings Ltd
...[FSD 115 of 2019] FGL Holdings [FSD 184 of 2020] Re Qunar Cayman Islands Ltd [2018 (1) CILR 199] Wong v Grand View Private Trust and Ors [2020] Bda LR 45 In re Qunar [2019] (1) CILR 611 Mr R Levy QC, Mr S Salzedo QC, Mr M Chudleigh and Mr L Preston for Plaintiff 1 Mr M Watson for Plaintiff ......