Litigation, RPC updates

Hong Kong

Contributed by RPC
Disclosure orders against banks' overseas branches
  • Hong Kong
  • 13 April 2021

In A1 v R1 a novel point appears to have arisen as to whether the High Court could grant Norwich Pharmacal relief in relation to the disclosure of documents and information concerning a bank account held not in Hong Kong but with the overseas branch of a Hong Kong bank. The Court of First Instance decided that it did have such power and, in doing so, reviewed the usual procedures for the grant of Norwich Pharmacal orders against a bank and the general principles that underpin ex parte applications.

Burden of proving witness competency
  • Hong Kong
  • 30 March 2021

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.

Banks on notice about costs of complying with orders for disclosure
  • Hong Kong
  • 16 March 2021

In a recent case, the Court of First Instance ordered a bank to disclose certain records that it held relating to two of the defendants. In this judgment, the court noted not only that there were cost efficiencies to be had by providing electronic disclosure, but also that banks should not in effect be making a profit from complying with disclosure orders. While, in this instance, the plaintiff had agreed to pay the bank's costs, the amount of those costs (per account and per page) appears to have raised judicial eyebrows.

Court of Appeal sets aside contempt regarding statement of truth
  • Hong Kong
  • 02 March 2021

In a recent case, the Court of Appeal allowed the defendant's appeal against a lower court's finding that he had made a false statement of truth with respect to an admission in a defence filed on behalf of a company. As is normal in such appeals, the Court of Appeal was reluctant to disturb a lower court's primary finding. However, in this case, the Court of Appeal considered that the lower court had been plainly wrong to make an order for committal for contempt of court.

Court reviews implied undertaking not to use documents for collateral purpose
  • Hong Kong
  • 16 February 2021

The High Court recently released a party from an implied undertaking not to use documents for a collateral purpose. In this case, the documents in question had been provided by the second respondent to the police in support of its criminal complaint against the applicant. The case serves as a useful reminder of some general principles in an area of practice that can cause problems for the unwary.


United Kingdom

Contributed by RPC
Reasonable enquiries must be made upon receipt of potentially confidential information
  • United Kingdom
  • 23 March 2021

The Court of Appeal recently held that a recipient of information will be bound by a duty of confidentiality if it was reasonable for them to have made enquiries as to the confidential nature of the information and they failed to do so. The decision arguably imposes a greater burden on a recipient of potentially confidential information to make enquiries of the discloser as to the nature of the information where a reasonable person would do so.

When do UK-domiciled parent companies owe a duty of care to individuals affected by acts of their foreign subsidiaries?
  • United Kingdom
  • 16 March 2021

A recent Supreme Court decision on jurisdiction provides helpful guidance on the circumstances in which a UK-domiciled parent company may owe a common law duty of care in respect of the actions of a foreign subsidiary. The decision highlights the importance of carefully considering the way in which parent companies exercise (or purport to exercise) control over the actions of their subsidiaries.

Lack of list of issues for disclosure does not bar specific disclosure under DPS
  • United Kingdom
  • 23 February 2021

According to a recent case, the High Court can order specific disclosure under the Disclosure Pilot Scheme, even where there is no agreed or approved list of issues for disclosure. The decision provides clarification as to the court's jurisdiction to vary orders for extended disclosure. It also confirms that where parties have yet to agree a list of issues for disclosure, it will not prevent the court from making an order to vary a pre-existing order for extended disclosure.

Does an expert owe a fiduciary duty to its client?
  • United Kingdom
  • 16 February 2021

For the first time the Court of Appeal has considered the duties of an expert concurrently engaged in two potentially conflicting disputes. While the case involved an unusual set of circumstances, it provides an interesting review of the duties owed by expert witnesses to their clients and the court and highlights important considerations for those engaging expert witnesses and drafting engagement letters.

New cause of action must arise out of substantially same facts that remain in issue at time of amendment
  • United Kingdom
  • 09 February 2021

The Court of Appeal recently ruled that pleadings which have previously been struck out cannot be used to introduce a new, limitation-barred claim that arises out of substantially the same set of facts as the struck out claim. Parties looking to discontinue a claim or defend a strike-out application should carefully consider the implications that a strike out could have on any future claims which they may want to introduce by amendment.


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