“Doctors’ Notes”

Rather than appealing a judgment of the High Court of Hong Kong, a party can apply to have it set aside pursuant to the Rules of the High Court O. 35, r.2 (“Judgment, etc., given in absence of party”). This (not so well-known provision) applies in exceptional circumstances. In practice, such circumstances are likely to be a party’s serious illness and the court exercises a discretion in deciding whether to set aside a judgment.

So it was in the second instalment of Karla Otto Ltd v Bayram & Anor, HCA 821/2011, 18 May 2017. The background to the case is set out in an Industry Insights in April 2017 (“Tainted Love”).

Readers may recall that the defendants comprehensively lost at trial and were found liable to repay the plaintiff a substantial sum of money. The first defendant’s late attempt to adjourn the trial was unsuccessful. Apparently, the first defendant (writing from an address stated to be in London) had been ill in the run-up to the trial and unable to travel to Hong Kong. The first defendant had faxed to the court a brief doctor’s note (the doctor being based in Berlin) stating that he was unable to travel due to “acute illness”. At trial, the doctor’s note appears to have had little evidential value and the trial proceeded in the defendants’ absence.

Dissatisfied with this, the defendants made a late application to set aside the judgment on the basis that the first defendant’s absence was because of illness. This time a second doctor’s note was produced suggesting a “flu” diagnosis. Applying a principled based discretion to the facts, the second judge dismissed the defendants’ application. In short, the second judge appears to have shared the trial judge’s scepticism about the value of the doctor’s notes in the circumstances.

“Doctors’ Notes” can come in a variety of shapes and sizes. It is one thing to produce a doctor’s note to justify (for example) a day off work, college or school. However, a medical certificate produced to a court, tribunal or regulator usually requires more detail.

A practical lesson to be drawn is that when seeking to adjourn a trial in Hong Kong, on the basis of an individual’s serious illness, a court expects to see an authentic and timely medical certificate that gives adequate details of the illness. Such details are more convincing if they include confirmation (where appropriate) that, based on a physical examination, an individual is unfit to travel overseas not just for the first day of trial but the whole trial. The party seeking an adjournment should in other respects be ready for trial.

Concerns about the confidentiality of an individual’s health should (in part) be eased by the knowledge that doctors’ notes contain “personal data”. Therefore, those to whom such notes are sent in Hong Kong should hold them in accordance with applicable personal data principles; including, subject to limited exceptions, Personal Data (Privacy) Ordinance (Cap. 486) Data Protection Principle 2 (accuracy and duration of retention of personal data), Principle 3 (use of personal data) and Principle 4 (security of personal data).

Editorial Note: Also see Industry Insights, October 2013 (“Video Testimony and ‘doctors’ notes’”).


Senior Consultant, RPC