The Court of Appeal recently reviewed what appears to have been a novel point regarding which party in civil proceedings has the burden of proving that a witness is competent to give evidence at the time of giving evidence. The decision of the first-instance judge and Court of Appeal on the principal point in dispute accords with what is the commonly held understanding – namely, that it is for the party calling a witness to prove (if challenged) that their witness is competent.
The High Court recently allowed a defendant's application for the release to him of a sum of money paid into court by the plaintiffs in order to fortify an asset freezing injunction that the plaintiffs had obtained against (among others) the defendant. The case reviews some interesting legal issues with regard to Quistclose trust claims in the context of payments into court. It also draws attention to the status of money paid into court for the purpose of fortifying an undertaking as to damages once that purpose becomes spent.
The Court of Appeal recently considered the general principles for granting summary judgment (judgment without trial) in the context of cases involving 'water leakage' between apartments above and below one another. Summary judgment is difficult to obtain in Hong Kong, save for simple debt-type actions. However, there tend to be few winners in neighbour disputes involving water leakage which are ripe for alternative dispute resolution, provided there is goodwill on both sides.
In a recent case, the Court of First Instance discharged ex parte (without notice) injunctions restraining the second defendant from disposing of or dealing with its assets in Hong Kong. The injunctions were granted in aid only of the plaintiffs' claims against the first defendant which were being pursued in parallel proceedings in mainland China. This was on the basis that the second defendant's assets should be available to satisfy the plaintiffs' eventual judgment against the first defendant.
In Poon v Poon, the defendant successfully applied to have certain paragraphs excluded from witness statements filed on behalf of the plaintiff on the basis that they referred to without prejudice conversations and meetings. The judgment applies established principles that underpin the protection given to without prejudice communications and demonstrates the court's reluctance to allow a party to 'cherry pick' from parts of wide-ranging discussions that were clearly undertaken on a without prejudice basis.
The monetary jurisdiction for civil cases heard by Hong Kong's busy District Court was significantly increased in December 2018. In light of this, the District Court now determines more complex and important civil cases. Therefore, a good case can be made for the abolition of the so-called 'Two-Thirds Rule'. If this is a step too far, a legislative provision should be implemented that provides judges with a wide and flexible discretion to depart from the rule where appropriate in all the circumstances.
The Court of Appeal has refused permission to appeal an apparently wide-ranging order for the production of documents made in favour of the liquidators in China Medical Technologies Inc v Tsang. Despite the respondent's best efforts, the Court of Appeal decided that the issues stated to arise out of its judgment did not raise questions of great general or public importance. The outcome of the appeal is bolstered by a legislative amendment which amounts to a more coextensive power.
The High Court recently rejected a defendant solicitors' firm's application to strike out a plaintiff's claim on the ground that it was commenced too late. Given the relatively high threshold in Hong Kong for an applicant to succeed with an application to strike out a claim before trial, the court's decision is not surprising. However, the written reasons given in the decision are a useful analysis of the legal principles involved in determining when a cause of action accrues for the tort of negligence.
The issue of liability for costs plays a big part in the settlement of protracted civil litigation in Hong Kong. In particular, where the parties refuse to bear their own costs, which party will pay the other's costs becomes an important consideration. As another recent case demonstrates, without prejudice settlement offers can (among other things) seek to protect a party's position as to costs. Such offers are a common feature of the local litigation landscape for good reason.
In a recent case, the High Court allowed the plaintiff's application for an order that the first defendant and a representative of the second defendant attend a court hearing to be cross-examined on affirmations made by them in the proceedings. The case is a timely reminder of the seriousness of making affidavits or affirmations and of the need to be mindful of the documents to which they refer.
The High Court recently reiterated the general principles which govern its power to order a non-party to pay the costs of another party to court proceedings. The court's power is statutory but the general principles that govern the exercise of its discretion arise out of case law. The case law demonstrates that the court's discretion to make an order for costs against a non-party is wide. The interests of justice are paramount.
A High Court judge recently dismissed a party's appeal against a refusal to grant permission to issue subpoenas directed at another party's legal representatives. At the same time, the judge reminded litigants and their legal representatives that subpoenas (directing a witness to attend court to give evidence, produce documents or do both) should be issued in a timely manner, and that late subpoenas which upset the court's case management of trial dates are likely to be frowned upon.
The High Court recently handed down a practice note relating to the practice of making settlement offers or payments into court in cases involving claims on behalf of persons under a disability. The practice note confirms the previously understood position that the self-contained procedural regime for formal sanctioned offers and sanctioned payments in Order 22 of the court rules does not apply to claims for money arising out of proceedings on behalf of persons under a disability.
A couple of recent first-instance decisions demonstrate the courts' wide discretion to award costs between parties based on a higher rate of recovery (referred to as an 'indemnity basis'). Such costs are not literally an indemnity – the receiving party does not recover all of their costs from the paying party. While indemnity costs are not the norm, many parties and their legal representatives often seek such costs without sufficient regard to whether this is actually justified.
A recent High Court decision confirms that the normal practice for trial of proceedings commenced by writ is for a witness statement to stand as the witness's evidence-in-chief without them having to give such evidence verbally prior to cross-examination. Further, where a person gives a witness statement but is unable to attend the trial, the weight to be attached to that statement (if any) is a matter for the trial judge.
In a relatively close-knit community such as Hong Kong, it is not uncommon for parties to proceedings or their witnesses, lawyers or experts to be known to a judge or tribunal member, which could create a perception of potential bias. In these circumstances, applications might be made for the recusal of the judge or tribunal member and for the case to be reassigned. Two recent cases serve as a timely reminder of the inherent difficulties and sensitivities involved in an assessment of apparent bias.
In a recent case before the High Court, a novel issue arose as to whether a party's deployment of privileged documents for the purposes of the trial of a preliminary issue concerning limitation would result in privilege in the documents being waived (lost) for the purposes of the main trial, in the event that the court held that the claim was not time barred. The case is a useful reminder of the potential danger of trying to deploy privileged material for the purposes of only part of court proceedings.
In a recent judgment of the Court of Appeal, an issue arose as to whether certain technical survey reports appended to one of the party's expert reports required the court's permission to be adduced as evidence for trial. Taken together, the decisions of the lower court and the appeal court are an interesting summary of what constitutes expert opinion. They are also a good example of the courts' increased scrutiny of the use of expert reports at trial in civil proceedings.
A recent judgment concerning a rather bold request for judicial assistance by the Chapter 11 trustee of a company within the China Fisheries Group provides a useful reminder of the common law criteria to be applied for recognition of foreign office holders. However, a more interesting point, perhaps, is that the Hong Kong courts will not be afraid to defend the integrity of their orders if and when attempts are made to circumvent them.
The High Court recently considered the general legal principles for the grant of injunctive relief to protect an employer's confidential information alleged to have been taken by one or more former employees for the benefit of their new company. The outcome in the case (to date) illustrates the balance that the courts must often strike between recognising the legitimate interests of an employer and a former employee's entitlement to use their own skills and knowledge without obtaining an unfair advantage.
The Securities and Futures Commission (SFC) has been using Section 213 of the Securities and Futures Ordinance (Cap 571) to good effect to secure (among other things) compensation on behalf of counterparty investors to impugned transactions. As a result of a recent landmark judgment of the Court of Final Appeal, the SFC's remit under Section 213 extends not only to (for example) insider dealing involving locally listed securities and regulated trades, but also to contraventions of Section 300.
The High Court recently considered whether in principle a judgment creditor is entitled to a charging order over funds paid into court by a judgment debtor in a different action involving another party. The case is an interesting review of the respective interests of the parties when funds are paid into court pursuant to a court order. It concerns the application of established principles to what appears to be a different situation, but one that may give other litigants pause for thought.
The Court of Appeal's judgment in Shenzhen Futaihong Precision Industry Co Ltd v BYD Co Ltd is another recent example of the courts in Hong Kong trying to narrow the issues in respect of which parties seek permission to adduce expert evidence. In this case, the court refused to interfere with a lower court's case management decision that had granted the defendants permission to adduce expert evidence with respect to only one issue out of 10 contested issues that the defendants sought to raise.
Defendants should welcome the recent judgment in Fiscalink International Ltd v Yiu Yu Sum Alex, in which the court struck out the plaintiffs' claims against a majority of the defendants on the basis that the lack of progress over many years was an abuse of process such that the entire action against those defendants should be dismissed. The court's judgment is another example at first instance of a pragmatic application of the relevant principles concerning dismissal for abuse of process.
A recent landmark judgment of the Court of Final Appeal confirms that in deciding whether it is fair and just to grant a protective costs order in public interest litigation, the courts should be apprised of an applicant's financial position. In the case of a corporate applicant, it is proper to inquire not only into the assets belonging to the company, but also other sources of funding to which it has access. The case is the first in Hong Kong in which the courts have extensively set out the relevant legal principles in this regard.
A recent case involved a contested dispute over the liquidators' access to certain documents stated to be in the respondent's possession or control. At first instance, the court refused to order the respondent to give wide-ranging production of documents to the liquidators on the basis that the documents sought did not fall within Section 221(3) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance. This judgment was recently successfully appealed by the liquidators.
The recent judgment in Tao Soh Ngun v HSBC International Trustee Ltd arose from an interesting piece of litigation. In this case, the plaintiff appears to have tried to amend her pleading to add new allegations of breach and loss based on matters that did not exist at the time when the proceedings commenced. To have allowed such amendments would not have sat comfortably with the 'relate back' principle (ie, that an amendment takes effect from the date of the original pleading).
In Bespark Technologies Engineering Ltd v JV Fitness Ltd the High Court recently took the opportunity to remind liquidators of their duty to give full and frank disclosure when making an ex parte (without notice) application to the court. A failure to do so could have serious consequences, including a refusal to approve the appointment of a liquidator or an order for his or her removal. The duty to be full and frank applies to all ex parte applications, so there are general lessons to be learned.
There has been a number of recent cases in Hong Kong in which successful parties have been awarded their costs on a more generous basis against unsuccessful parties – known as an 'indemnity' basis (in contrast to what is commonly called a 'standard' or 'party and party' basis). A recent example in the Court of Appeal is Qiyang Ltd v Mei Li New Energy Ltd. One might be forgiven for sometimes thinking that orders for indemnity costs are a norm, but they are not.
In Competition Commission v Nutanix Hong Kong Ltd a High Court judge recently considered the scope of the 'direct use prohibition' contained in Section 45(2) of the Competition Ordinance, which protects a person who is required to answer questions as part of an investigation by the Competition Commission pursuant to Section 42. The case decides that the protection does not extend to a third party, even where the third party is the subject of the commission's investigation.
The High Court of Hong Kong has a wide discretion to grant shareholders access to company documents, pursuant to Section 740 of the Companies Ordinance (Cap 622). The court has been astute in assisting shareholders to protect their legitimate interests by allowing access to company documents while, at the same time, preventing them from launching so-called 'fishing' expeditions. What may amount to fishing, in this context, was recently considered by the court.
In an age of electronic scams, with money passing through bank accounts in Hong Kong, foreign plaintiffs are increasingly pursuing defendants in Hong Kong to recover their money. In seeking summary judgment, some plaintiffs are careful not to allege fraud on the part of the defendants – rather, their claims may be for the return of money unjustly received by the defendants for no consideration. A recent case is a good example.
In an important recent judgment, the Court of Final Appeal clarified the general principles that underpin the exercise of the courts' discretion to grant Mareva injunction relief (freezing of assets) in aid of overseas court proceedings, pursuant to Section 21M of the High Court Ordinance (Cap 4). Following the outcome in the final appeal (and the overturning of the lower court judgment), the plaintiff has obtained a Mareva injunction over some of the defendant's assets in Hong Kong.
The Court of Appeal recently rejected an application for permission to appeal its judgment in Harvest Treasure Ltd v Cheung Fat Enterprises Ltd to Hong Kong's top court. The court decided that an expert witness has no obligation to disclose pending disciplinary proceedings against him or her when giving evidence in civil proceedings.
In the most recent so-called 'mis-selling' case in Hong Kong, three claimant investors succeeded in establishing that a bank owed them a contractual duty to exercise reasonable care and skill with regard to their portfolio of investments held with the bank. While the decision is a rare example in Hong Kong of a bank being found to have owed an advisory duty and to have breached it, the case turned on its facts – in particular, the bank was not acting on an execution-only basis.
The Court of Appeal recently ruled that an expert witness is not obliged under the Code of Conduct for Expert Witnesses to give voluntary disclosure of pending disciplinary proceedings against him or her. An obligation of disclosure would arise where the expert witness has been sanctioned by the relevant professional body in such a way as to curtail his or her right to practise.
Since the financial crisis, only a handful of so-called 'mis-selling' claims by investors against banks have gone to trial in Hong Kong and resulted in reported judgments. In none of these cases has the investor succeeded. Of these cases, to date only one has been decided by the Court of Appeal. The investor lost on all material points, in a decision which highlights the challenges of bringing such claims.
The courts in Hong Kong have traditionally held that the so-called 'fraud exception' to the jurisdiction to grant summary judgment is to be construed widely. Therefore, any allegation of dishonesty by a plaintiff against a defendant is caught by the exception, be it an allegation in a formal pleaded case, sworn statement or supporting legal submission. This was recently confirmed in an interesting decision.
The courts in Hong Kong have generally been consistent in rejecting investors' mis-selling claims and in upholding the banks' reliance on the principle of contractual estoppel. This is why a recent High Court judgment is of particular interest. While the plaintiff investor's claim was unsuccessful, he was able to make significant inroads into the usual defence used by banks in this situation.
In a judgment earlier this year, the Court of Appeal considered the ambit of the fraud exception to applications for summary judgment (judgment without trial) in Hong Kong. The court held that the fraud exception is construed widely; therefore, applications for summary judgment are barred if the plaintiff's claim raises an issue of fraud in the traditional sense or in a wider sense (ie, involving an allegation of a dishonest act intended to deceive).
Section 213 of the Securities and Futures Ordinance can be used by the regulator to seek declarations in civil proceedings that a person has committed acts in contravention of a "relevant provision" without first having to obtain a finding of (for example) market misconduct. A recent case demonstrates that Section 213 has become a powerful weapon in the regulator's arsenal with respect to alleged wrongdoers, both at home and abroad.
In an important recent High Court judgment, the judge refused to grant an anti-suit injunction solely on the basis of delay. The judgment emphasises the need for promptness when making an application for an anti-suit injunction in Hong Kong in order to enforce an arbitration or jurisdiction clause. It also clarifies that delay is a free-standing objection to anti-suit injunctive relief.
The Court of Appeal has ruled that legal advice privilege does not extend to communications by an accountant giving advice on tax law. Therefore, it is now clear that in Hong Kong the privilege applies only to confidential communications between a qualified lawyer (acting as such) and a client. Legal advice privilege does not extend to communications between an accountant and a client even if they are to do with advice on tax law (or on any other law).
Section 21M of the High Court Ordinance gives the High Court power to grant interim relief in aid of or in anticipation of overseas court proceedings. Often that interim relief is in the form of a Mareva injunction. As recent case law confirms, an application under Section 21M for Mareva relief is likely to have a greater chance of success if it is in support of similar relief already obtained in the courts exercising a primary jurisdiction overseas.
Deciding whether to apply for an injunction ex parte in civil proceedings in Hong Kong requires a more careful exercise of judgement on the part of an applicant's lawyers than used to be the case. Recently, the courts have continued the trend in scrutinising an applicant's need to apply ex parte for injunctive relief. The lessons are clear: ex parte applications are for cases of genuine urgency or secrecy.
Recently, the Hong Kong Bar Association (HKBA) revised its Practice Guidelines for Ad Hoc Admission of Overseas Counsel. Applicants and their instructing solicitors would be well advised to review the revised practice guidelines, particularly given the HKBA's role in such applications and the court's repeated emphasis on the need for timely engagement with the HKBA.
In an important and much-anticipated judgment, the Hong Kong Court of Appeal recently decided that legal advice privilege (often referred to as 'solicitor-client' or 'attorney-client' privilege) can extend to confidential internal communications between employees of a client organisation, provided that those communications were created for the sole or dominant purpose of obtaining legal advice.
While there appears to be no precise legal definition of 'dormant claim' in Hong Kong, the expression tends to refer to stale proceedings in which nothing much has happened for over a year or more. As a recent case shows, there has been some welcome judicial willingness to strike out dormant claims (and counterclaims) where one or more parties have effectively abandoned the proceedings.
In a series of recent cases in Hong Kong, the courts have brought welcome clarification to the vexed issue of the interaction between disclosure of relevant documents in civil disputes and balancing competing confidentiality and personal data concerns arising out of the contents of such documents. In light of these cases, public bodies should pay closer attention to information requests involving personal data.
In a recent case an unsophisticated investor invested significant sums of money through a series of transactions with a "best friend" adviser. When the funds were not repaid on time, he sued the friend. The case is a useful reminder that investing money on behalf of someone else in these circumstances can give rise to a duty of care and/or a fiduciary relationship.
Recent cases highlight the need to exercise care when applying for a Mareva injunction before trial. Mareva injunctions come with a heavy responsibility on the part of the plaintiff in terms of the application, the grant and enforcement. By being transparent with the court at the outset, a plaintiff reduces the risk of the defendant successfully applying to discharge the Mareva injunction.