1. Pre-action discovery against potential defendants: getting documents before starting a claim

1. Pre-action discovery against potential defendants: getting documents before starting a claim

Pre-action discovery allows a person to obtain documents from another before a lawsuit is formally commenced. It applies where both the applicant and the respondent appear “likely to be a party” to subsequent proceedings. In other words, the applicant has not yet started the action, but believes that the respondent is likely to become a defendant or another party in that action.  

In the High Court, pre-action discovery is governed by section 41 of the High Court Ordinancehttps://www.hklii.hk/en/legis/ord/4 (Cap. 4) and Order 24, rule 7A(1) of the Rules of the High Court (Cap. 4A). In the District Court, it is governed by section 47A of the District Court Ordinance (Cap. 336) and Order 24, rule 7A(1) of the Rules of the District Court (Cap. 336H).  

This procedure may help a potential plaintiff decide whether there is a proper basis for bringing a claim. It is not meant to be used as a general investigation or a fishing expedition to see whether some claim might possibly exist. 

What is the “directly relevant” test for pre-action discovery? 

For pre-action discovery, the documents sought must be “directly relevant”. This is a narrower test than the ordinary discovery test. 

A document is directly relevant if it is likely to be relied on in evidence, or if it supports or adversely affects a party’s case. The applicant must identify the documents with sufficient clarity and explain why they meet this standard. 

This is different from the wider Peruvian Guano test, which may include documents that could indirectly lead to a line of inquiry. For pre-action discovery, the court requires a closer and more immediate connection between the document and the likely dispute. 

How is an application for pre-action discovery made? 

An application for pre-action discovery must be made by originating summons (Form No. 10). The supporting affidavit/affirmation must show a claim “may well” be made if discovery is granted, provided the claim has a reasonable basis and is not irresponsible or speculative. The supporting affidavit/affirmation should explain: 

• why the applicant and respondent are likely to be parties to later proceedings; 
• what documents or classes of documents are sought; 
• why those documents are directly relevant; and 
• why the applicant believes the documents are, or are likely to be, in the respondent’s possession, custody or power. 

The court will also consider whether the order is necessary for fairly disposing of the matter or for saving costs. It is typically granted where it enables a potential plaintiff to advance a meritorious claim that could not otherwise be brought without the documents, or where early disclosure would avoid litigation altogether or save substantial costs. 

Further, the court may impose conditions on the order, such as requiring the applicant to provide security for the costs of the respondent.