RPC updates

Oral contract does not prevent agent from being paid in circumstances not catered for in contract
RPC
  • Litigation
  • United Kingdom
  • 10 December 2019

​In a recent case, the Court of Appeal held that an oral contract for a specified introduction fee payable to an agent if a property sold at a particular price did not prevent the agent from being remunerated when that property was sold for a lesser sum (despite the contract being silent on the matter). However, the sum awarded by the court was significantly lower than the introduction fee specified in the contract.

Assessment of costs in District Court out of date
RPC
  • Litigation
  • Hong Kong
  • 10 December 2019

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.

Unfair prejudice saga – Court of Appeal tries to impose some order
RPC
  • Litigation
  • United Kingdom
  • 03 December 2019

The Court of Appeal recently sought to impose some order on an unfair prejudice petition which had been mired in wrangling over pleadings for six years. The decision shows that parties presenting an unfair prejudice petition should ensure that it sets out the grounds for relief as these cannot, in general, later be extended in the points of claim. Where points of claim lack particularity or disclose no basis for the relief sought, requests for further information or applications to strike out should be brought promptly.

Prevention principle – can parties sue for breach of contract occasioned by their own breach?
RPC
  • Litigation
  • United Kingdom
  • 26 November 2019

In a recent High Court case, the defendants successfully resisted summary judgment for breach of contract on the basis of the prevention principle, which excuses a breach of contract where the other party's actions caused it. Following this decision, contracting parties may wish to consider whether to insert express wording into contracts containing no set-off clauses that would exclude this principle.

Ad hoc admission of English QC with local barrister
RPC
  • Litigation
  • Hong Kong
  • 26 November 2019

In an important and interesting judgment, the High Court declined to admit an overseas barrister unless he appeared with a local barrister. The applicant had applied for ad hoc admission to conduct a case in Hong Kong, on the basis that he would appear with the two solicitor advocates who had charge of the case. Therefore, they sought the removal of what is a usual condition to the grant of ad hoc admission – namely, that the applicant (an English Queen's Counsel) appear with a local barrister.

In-house lawyer prevented from relying on leaked email and overheard conversation
RPC
  • Litigation
  • United Kingdom
  • 19 November 2019

An email containing legal advice leaked to a claimant in an employment dispute did not fall foul of the iniquity principle and therefore remained privileged. An overheard conversation, believed to be in relation to the claimant's dismissal, could not be relied on to aid the interpretation of the email as there was no evidence that the individuals engaged in the conversation had seen it.

False statement of truth leads to prison
RPC
  • Litigation
  • Hong Kong
  • 12 November 2019

Mathnasium Center Licensing, LLC v Chang is another recent example of the courts sentencing makers of false statements of truth to a period of imprisonment for contempt of court. In this case, the defendant signed a false statement of truth in a defence filed on behalf of a company which he controlled and which was being sued by the plaintiff. The court found that it was beyond a reasonable doubt that the defendant must have known about the falsity of the admission and thus found him to be in contempt of court.

Contribution to legal costs: natural love and affection or calculated self-interest?
RPC
  • Litigation
  • United Kingdom
  • 12 November 2019

When will an order for costs be made against a family member who was not a party to the underlying proceedings but who contributed significantly to funding the losing party's defence? According to a recent case, the answer is when the funder has a personal interest in the litigation.

Risky business: the perils of taking over someone else's contract
RPC
  • Litigation
  • United Kingdom
  • 05 November 2019

The High Court recently clarified that merely contracting with another party and thereby giving it the opportunity or means to breach another pre-existing contract is not itself sufficient to constitute inducing breach of contract. More practically, the case is a reminder of the perils of becoming involved as a third party in others' disputes.

Review of 'fraud exception' to summary judgment
RPC
  • Litigation
  • Hong Kong
  • 29 October 2019

Summary judgment is not available in Hong Kong civil actions which include a claim based on an allegation of fraud. The rule has traditionally been broadly interpreted by the courts, such that any claim raising an allegation of dishonesty against a defendant prevents a plaintiff from applying for summary judgment. The inflexibility of this rule, and the ambit of the meaning of 'dishonesty' in this context, have been the subject of judicial criticism. Now, there are proposals afoot to abolish the so-called 'fraud exception'.

Anchor defendants: Court of Appeal confirms that no 'sole object' test applies
RPC
  • Litigation
  • United Kingdom
  • 29 October 2019

The Court of Appeal recently confirmed that Article 6(1) of the Lugano Convention is not subject to a 'sole object' test. Where claimants have a sustainable claim against an 'anchor defendant' that they intend to pursue to judgment, they can rely on Article 6(1) to bring a foreign co-defendant within the jurisdiction. This decision will be of significant assistance to claimants where one or more co-defendants are domiciled in their preferred jurisdiction.

When is opinion evidence admissible?
RPC
  • Litigation
  • United Kingdom
  • 22 October 2019

In a recent case involving a man killed on a motorway, the High Court set out the difference between evidence which will be subject to Civil Procedure Rule (CPR) 35's restrictions and that which will not. Specifically, where relevant opinion evidence (even hearsay) is prepared by someone qualified to give expert evidence, it will generally be prima facie admissible. However, where evidence is produced by an expert instructed by the parties for the purposes of the proceedings, it will be subject to CPR 35.

World freezing orders: recent dissipations and reasonable delays
RPC
  • Litigation
  • United Kingdom
  • 15 October 2019

The High Court has held that a delay in applying for a world freezing order was not fatal to its continuation at the return date, as the underlying transactions provided solid evidence of a risk of dissipation and the delay in seeking relief was not material and did not evidence the absence of a genuine belief in that risk. While the court may be reluctant to freeze assets on the basis of historic transactions, the ultimate question is whether solid evidence exists of a risk of dissipation even if the trail goes somewhat cold thereafter.

Permission to appeal order for production of documents to liquidators refused
RPC
  • Litigation
  • Hong Kong
  • 15 October 2019

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.

Tortious claims against third party may trigger anti-suit injunction
RPC
  • Litigation
  • United Kingdom
  • 08 October 2019

A party's attempt to circumvent a jurisdiction clause by bringing tortious claims against a third party has been thwarted by the High Court. In granting an anti-suit injunction, the court explored the substance of the claims and found them to be vexatious and oppressive and designed to evade the exclusive jurisdiction clause. This case demonstrates the courts' willingness to look into the substance of an impugned foreign claim in order to assess whether it is a tactic designed to evade an exclusive jurisdiction clause.

One bad disclosure apple can spoil the whole full and frank barrel
RPC
  • Litigation
  • United Kingdom
  • 01 October 2019

The High Court recently provided a further reminder of the perils of failing to comply with the duty of full and frank disclosure on ex parte applications. This case highlights the onerous burden on applications for worldwide freezing orders to carry out reasonable enquiries to comply with the duty of full and frank disclosure. The court expects applicants to properly investigate the factual basis of their own assertions and that of the likely defence.

Setting aside orders to extend validity of writs
RPC
  • Litigation
  • Hong Kong
  • 24 September 2019

In China Medical Technologies Inc (In Liquidation) v Bank of East Asia Ltd, the court granted an ex parte order extending the validity of a writ, effectively giving the plaintiffs an additional year in which to effect service. The High Court has now discharged that order with the consequences that service was set aside and the action dismissed. This is the latest in a number of similar decisions and suggests that the courts will in future scrutinise extension applications much more closely.

Subjective expectation versus objective intention: when will terms be implied into contracts?
RPC
  • Litigation
  • United Kingdom
  • 24 September 2019

The High Court recently implied a term into a contract for the sale of government global depositary notes by Lehman Brothers International (Europe) in order to make the contract workable. The decision is of interest because it considers how the courts should address a situation where the subjective expectation of the parties at the time is clear, but the objective intention apparent from their bargain is more difficult to determine, particularly where the objective interpretation may lead to a contract being incapable of being performed.

Pay heed to tiered dispute resolution clauses
RPC
  • Litigation
  • United Kingdom
  • 17 September 2019

The High Court recently upheld a tiered dispute resolution clause in accordance with established principles of contractual interpretation. The court ordered a stay of proceedings for mediation and, in support of the mediation, also ordered pleadings to be served in advance to optimise the prospects of a settlement. This decision continues the post-Sureterm union between commercial common sense and the plain and ordinary meaning of words.

High Court waits for no lawyer
RPC
  • Litigation
  • United Kingdom
  • 10 September 2019

An appeal was recently lost after an application for an oral hearing was made just two days late. The High Court's decision is a timely reminder of the strictness of court deadlines and of the importance of being upfront with the court which, on this occasion, was unwilling to forgive ambiguity as to whether the deadline had been met.

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