CHINA MEDICAL TECHNOLOGIES, INC. (IN LIQUIDATION) v. WU XIAODONG AND OTHERS

CHINA MEDICAL TECHNOLOGIES, INC. (IN LIQUIDATION) v. WU XIAODONG AND OTHERS

The court found the Subject Materials were created after the protective writ was filed and for the dominant purpose of anticipated or actual litigation by the liquidators, thus attract litigation privilege; further, no waiver occurred because plaintiffs only deployed the effect/conclusions of expert advice rather than the contents of privileged communications; accordingly the discovery summons was dismissed.

Citation
[2023] HKCFI 1892
Parties
1st Plaintiff: China Medical Technologies, Inc (in liquidation); 2nd Plaintiff: CMED Technologies Ltd; 3rd Plaintiffs (joint and Several Liquidators): Cosimo Borrelli and Yuen Lai Yee; 1st Defendant: Wu Xiaodong; 2nd Defendant: Samson Tsang Tak Yung; 7th Defendant: Supreme Well Investments Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
26 July 2023
Case Number
HCA1417/2013
Procedural Posture
Civil Proceedings Concerning Insolvency, Recovery of Assets and Discovery (interlocutory Discovery Application) / Interlocutory (hearing of Summons for Discovery / Privilege)
Outcome
Summons for discovery dismissed
Legal Topics
Litigation Privilege, Discovery, Privilege Waiver, Necessity Test for Discovery, Expert Evidence, Liquidators' Investigations, Mareva/asset Preservation
Source Language
EN
Civil Procedure Company Law Insolvency Law Evidence Law Commercial Litigation Litigation Privilege Discovery Privilege Waiver +4 more

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Parties

China Medical Technologies, Inc (in liquidation)

1st Plaintiff

CMED Technologies Ltd

2nd Plaintiff

Cosimo Borrelli and Yuen Lai Yee

3rd Plaintiffs (joint and Several Liquidators)

Wu Xiaodong

1st Defendant

Samson Tsang Tak Yung

2nd Defendant

Supreme Well Investments Limited

7th Defendant

Procedural Posture

Civil Proceedings Concerning Insolvency, Recovery of Assets and Discovery (interlocutory Discovery Application) / Interlocutory (hearing of Summons for Discovery / Privilege)

Legal Issues

  1. 1 Whether communications and materials between liquidators and experts (Subject Materials) are protected by litigation privilege
  2. 2 Whether any such privilege has been waived by deployment in ex parte affidavits/applications
  3. 3 Whether the documents sought are necessary for disposing of the cause or for saving costs (necessity)

Ratio Decidendi

The court found the Subject Materials were created after the protective writ was filed and for the dominant purpose of anticipated or actual litigation by the liquidators, thus attract litigation privilege; further, no waiver occurred because plaintiffs only deployed the effect/conclusions of expert advice rather than the contents of privileged communications; accordingly the discovery summons was dismissed.

Court Disposition

Summons for discovery dismissed

Orders

  • Summons dismissed
  • Costs to follow the event: costs to the Plaintiffs to be summarily assessed and paid by the 2nd Defendant forthwith