Litigation, RPC updates

Hong Kong

Contributed by RPC
Courts confirm basis for indemnity costs
  • Hong Kong
  • 23 April 2019

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.

Court ruling highlights importance of cross-examination
  • Hong Kong
  • 09 April 2019

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.

Lawyers go where angels fear to tread
  • Hong Kong
  • 26 March 2019

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.

Waiver of privilege during court proceedings
  • Hong Kong
  • 12 March 2019

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.

Expert witness allowed to rely on appended reports
  • Hong Kong
  • 26 February 2019

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.


United Kingdom

Contributed by RPC
Duty of care can exist between parent company and third parties affected by subsidiaries' actions
  • United Kingdom
  • 23 April 2019

A recent Supreme Court decision concerned a mass tort claim and the potential liability of an English parent company for the actions of its foreign subsidiaries. The court found that a duty of care can exist between a parent company and third parties affected by the actions of its subsidiaries, but was reluctant to place limits on the types of case where a parent company might incur a duty of care.

Should fraud unravel all? The Supreme Court thinks so
  • United Kingdom
  • 16 April 2019

According to a recent Supreme Court decision, if a claimant applies to have a judgment set aside due to fraud, they need not attempt to uncover that fraud before the judgment, even where it is suspected. The case indicates that fraud should unravel judgments in order to safeguard against injustices. Further, the court has made clear that innocent parties should not be burdened with an obligation to constantly keep their eyes peeled for acts of forgery.

English court trumps FBI
  • United Kingdom
  • 02 April 2019

In a high-profile acquisition claim, the High Court held that the implied undertaking against collateral use of documents received in the course of litigation prevented disclosure of those documents to the Federal Bureau of Investigation. The court's comments show clearly the level of scrutiny which will be given to requests or demands made by third parties for the disclosure of documents obtained through ongoing proceedings, no matter the standing of the person or authority that makes it.

Defendants need not make reasonable enquiries of third parties where they cannot admit or deny allegations
  • United Kingdom
  • 26 March 2019

A recent case before the Court of Appeal provides clear guidance that a defendant may properly plead that it is unable to admit or deny an allegation in circumstances where the allegation's truthfulness or falsity is neither within the defendant's factual knowledge nor capable of being determined from documents or other information available to it.

Circumstances in which acting in breach of EU sanctions will kill claims
  • United Kingdom
  • 19 March 2019

A recent High Court case is an interesting example of the extent to which entities complicit in the breach of EU sanctions are still able to bring legal proceedings relating to matters arising out of those breaches. However, it is difficult to draw any broad principles from this case given its specific factual circumstances. Of particular interest is the judge's analysis that it was considered material that the relevant activity breaching the sanctions at the time was no longer prohibited.


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