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 recent decision of the High Court in Ninotre Investment Ltd v L & A International Holdings Ltd is a further example of the court's statutory power to grant a qualifying shareholder access to and inspection of company records. Section 740 of the Companies Ordinance (Cap 622) has become an established mechanism for aggrieved shareholders, with legitimate complaints in their capacity as shareholders, to obtain access to and inspection of company records.
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.
In a cautionary tale, a group company and its current liquidators have had their claim against the group company's former liquidators struck out under the 'no reflective loss' principle. The strike-out was granted on the basis that the group company's subsidiaries had a closer nexus to the relevant loss than the group company. The appeal judgment demonstrates that the courts will not shy away from dismissing defective claims against professional advisers without trial.
The High Court recently considered applications for retrospective permission to make collateral use of documents disclosed under a pre-action disclosure order where there had been a breach of the implied undertaking as to the use of disclosed documents. Although retrospective permission may be given, an application for permission should not be used to circumvent the usual procedure for obtaining consent to collateral use of documents.
The Court of Appeal has dismissed an application to strike out a claim for abuse of process on the basis of Summers v Fairclough in circumstances where final judgment had already been handed down. There are already established methods of challenging judgments allegedly obtained by fraud, and these should be utilised instead.
With privilege remaining a hot topic, and with the recent SFO v ENRC decision still fresh in many legal professionals' minds, another judgment on legal advice privilege has been handed down – this time with a lesson for solicitors drafting supporting witness statements. It is of crucial importance to ensure that the utmost care is taken when making a claim to privilege, not least because the opposing party will usually have no choice other than to rely on what it is told.
In the latest of a long line of higher court authorities debating the boundaries between black letter and more purposive approaches to contractual construction, the Court of Appeal has taken another step away from the high-water marks of the business common sense approach to contractual meaning. The decision confirms that parties are more likely to be able to work contractual machinery according to the black letter terms in which it is set out on the face of the contract.
The test for inducement in cases of fraudulent misrepresentation is whether 'but for' the misrepresentation, the claimant 'might' have acted differently. The lower hurdle was clarified by the High Court in Nederlandse Industrie Van Eiprodukten v Rembrandt Enterprises and represents a departure from previous authorities, in which the test had been said to be whether but for the misrepresentation the claimant would have entered into the contract anyway.