DEREK JOSEPH PARRY AND ANOTHER v. NICHOLAS BRYAN BENTLEY AND ANOTHER

DEREK JOSEPH PARRY AND ANOTHER v. NICHOLAS BRYAN BENTLEY AND ANOTHER

Leave to be released from the implied undertaking was required to permit use of the documents to found an independent counterclaim; no special circumstances existed to justify release here; release would prejudice the plaintiff and deter full and frank disclosure, so the court exercised its discretion to refuse release and set aside the Master's order granting release.

Citation
DEREK JOSEPH PARRY AND ANOTHER v. NICHOLAS BRYAN BENTLEY AND ANOTHER
Parties
1st Plaintiff: Derek Joseph Parry; 2nd Plaintiff: Derek Parry Limited; 1st Defendant: Nicholas Bryan Bentley; 2nd Defendant: Bentley Reid & Company (Pacific) Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
9 November 1992
Case Number
HCA3029/1990
Procedural Posture
Defamation Proceedings / Appeal to High Court From Master's Order Granting Release From Implied Undertaking (interlocutory Application Concerning Discovery Use)
Outcome
Appeal allowed; Master's order granting release set aside; application for release of implied undertaking refused.
Legal Topics
Discovery, Implied Undertaking, Use of Disclosed Documents, Counterclaim, Amendment of Pleadings, Order 24 R.14 a RSC
Source Language
EN
Civil Procedure Defamation Evidence Privacy Confidentiality Discovery Implied Undertaking Use of Disclosed Documents +3 more

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Parties

Derek Joseph Parry

1st Plaintiff

Derek Parry Limited

2nd Plaintiff

Nicholas Bryan Bentley

1st Defendant

Bentley Reid & Company (Pacific) Limited

2nd Defendant

Procedural Posture

Defamation Proceedings / Appeal to High Court From Master's Order Granting Release From Implied Undertaking (interlocutory Application Concerning Discovery Use)

Legal Issues

  1. 1 Whether the implied undertaking given on discovery may be released to permit use of disclosed documents to found a counterclaim
  2. 2 Whether a defendant may rely on documents disclosed in the present proceedings to commence a separate action or independent counterclaim without leave
  3. 3 Whether public interest or considerations of injustice to the discloser justify release

Ratio Decidendi

Leave to be released from the implied undertaking was required to permit use of the documents to found an independent counterclaim; no special circumstances existed to justify release here; release would prejudice the plaintiff and deter full and frank disclosure, so the court exercised its discretion to refuse release and set aside the Master's order granting release.

Court Disposition

Appeal allowed; Master's order granting release set aside; application for release of implied undertaking refused.

Orders

  • Appeal allowed and Master's order granting release of implied undertaking set aside
  • Defendant refused leave to use documents disclosed in discovery to found the independent counterclaim