A third guidance note on the use of remote hearings for civil proceedings took effect on 2 January 2021. The guidance note (representing Phase 3) provides for wider use of videoconferencing facilities and telephone hearings with respect to all levels of civil courts in Hong Kong. In particular, Phase 3 is more comprehensive and provides more options for connecting with the courts' videoconferencing facilities.
The judiciary administration has updated the Guidance Note for Case Settlement Conferences in Civil Cases in the District Court. The guidance note extends a pilot scheme for facilitating settlement in general civil cases in the District Court and comes into effect on 2 January 2021. The updated version appears to address concerns relating to potential encroachments on parties' rights to legal representation and the protection afforded to the confidentiality of mediation and without prejudice communications.
The High Court of England and Wales recently refused a claimant permission to rely on a witness statement of one its in-house lawyers, prepared during an ongoing trial, and call that witness to give oral evidence during the trial. The new witness's evidence produced during trial could not be relied on due to its inherent unreliability and the risk that it would be tailored to the state of the party's current case. Parties should always consider what evidence is required to support their case at an early stage.
The High Court recently approved a novel order providing for service of various court documents on unnamed defendants by allowing the plaintiff to effect service by (among other means) using a quick response code. The proceedings arose out of protests at the airport in 2019 and, given the background to the case and the high-profile nature of the proceedings, the court was satisfied that service of the court documents should reasonably be expected to come to the attention of the defendants.
The High Court recently determined that an application to admit witness evidence outside the directions timetable should be treated like an application for relief from sanctions under Civil Procedure Rule 3.9. The decision suggests that the court may imply a sanction for policy reasons, even where there was no intention on the part of the rulemaker or judge to impose a sanction for a breach.
Given the severity of the 'fourth wave' of COVID-19 which Hong Kong is currently experiencing, it became inevitable that the government would roll out tougher social distancing measures and that the courts would follow suit. On 1 December 2020 the judiciary issued its latest notification for stakeholders about the general arrangement of court and registries business. The courts and their registries very much remain open for business, but they are not dropping their guard.
A recent Court of Appeal decision determined that a Part 36 offer does not alter the status of 'subject to contract' protection in solicitors' correspondence when settling a dispute. This decision reassures lawyers that they can continue to conduct subject to contract negotiations on behalf of their clients without any undue risk of being bound by what is discussed. It is also a useful reminder of the consent order's significance in conclusively settling negotiations which are expressed to be subject to contract.
BHP has successfully applied to strike out 200,000 claims as an abuse of process. Had the judge not struck out the claims, he would have stayed proceedings on jurisdictional grounds under Article 34 of the EU Recast Brussels Regulation and the doctrine of forum non conveniens. While the significant nature of the proceedings would have raised England's profile as a forum for group litigation, this was ultimately not a case which fell within the parameters under which the court can accept jurisdiction.
An appellate court has an inherent power to restore money paid or property transferred under an order which it has reversed, and not all contractual provisions are susceptible to being waived by election. These are the two key takeaways from a recent Privy Council judgment.
The High Court recently ordered the continuation of various injunction orders restraining unnamed defendants from engaging in 'doxxing' directed at judges and judicial officers in Hong Kong, together with their spouses and immediate family members. The court's decision follows an increase in such activity in connection with certain verdicts and sentences in cases where persons have been charged with offences arising out of protests or related public order incidents.
Failure to comply with a contractual requirement to give notice of a claim under a sale and purchase agreement can cause a buyer's claim to fail, even if the seller is already aware of the matters that give rise to the claim. The High Court recently provided a timely reminder that buyers should consider carefully the terms of the notice requirements and follow these rigorously.
While hearing the appeal of an application to discharge an interim order, the Court of Appeal clarified its approach to deciding when conduct is permissible and when it may amount to an abuse of process. This decision shows that parties should not assume that they will be immune to a finding of abuse of process purely because they have not done anything unlawful or dishonest. Exploring the context of such actions is key.
Some eight months after the outbreak of the COVID-19 pandemic, the courts officially resumed normal business in mid-September 2020. Normal court registry services resumed from about 28 September 2020, together with the cessation of 'ticketing arrangements', the continuation of enhanced social distancing and the introduction of special queuing arrangements for the registries and accounts offices of the High Court, the District Court, the Family Court and the Lands Tribunal.
In a recent decision, the head of the Commercial Court provided topical guidance on the construction and application of material adverse effect clauses in the context of the COVID-19 pandemic. The judgment highlights the significance of the precise words used and the importance of ensuring, insofar as possible, that they properly reflect the intended allocation of risk between the parties.
The judiciary in Hong Kong recently published a Guidance Note for Case Settlement Conference in Civil Cases in the District Court. The guidance note extends a pilot scheme for facilitating settlement in general civil cases in the District Court. While facilitating the settlement of certain civil disputes is a laudable aim and part of the underlying objectives in the court rules, the guidance note appears to raise more questions than it answers.
According to a recent Privy Council decision, the Duomatic principle can apply to ostensible authority as well as actual authority. The council found that a company's director and registered agent were not in breach of their tortious duties of care to the company where they were acting on the instructions of an agent who had ostensible authority. This case provides insight into circumstances where arrangements cloaking the beneficial owners of, in particular, offshore companies are relatively common.
The High Court of England and Wales has recently taken a flexible approach to the conditions which a victim of wrongdoing must satisfy in order to obtain information from third parties potentially mixed up in that wrongdoing. In a recent decision in which it granted a Norwich Pharmacal order, the court held that it was sufficient to establish a good arguable case for essential elements of the cause of action, even if there were significant questions over important case aspects, such as limitation.
The High Court recently dismissed a plaintiff company's application to continue an ex parte injunction to restrain the defendant bank from presenting a winding-up petition against the company. The company claimed that it had already secured the bank's debt and that, therefore, the bank could not demonstrate that it was unable to pay its debts for the purposes of Section 178(1)(a) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap 32).
There is no additional requirement for in-house foreign lawyers to be appropriately qualified or recognised or regulated as professional lawyers for legal advice privilege to extend to communications between them and company employees. The requirement for legal advice privilege to attach to communications is that the adviser was acting in their capacity as a lawyer. A recent decision by the High Court has confirmed these tenets of English legal advice privilege.
The High Court has held that banks may be liable for breaches of the Quincecare duty even where the customer's net assets have not been reduced by the breach. This judgment provides a useful review of the application of the duty and introduces the interesting suggestion that damages may be assessed differently where an individual or company is "hopelessly and irredeemably insolvent". This may give liquidators an additional avenue to pursue lost monies beyond the realm of Quincecare claims.