Latest updates

Court continues injunction against unidentified 'doxxers'
RPC
  • Litigation
  • Hong Kong
  • 24 November 2020

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.

Can an appeal court order repayment after it has reversed the relevant order?
RPC
  • Litigation
  • United Kingdom
  • 24 November 2020

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.

More is more when giving notice of claims under SPAs
RPC
  • Litigation
  • United Kingdom
  • 17 November 2020

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.

Courts return to some normality
RPC
  • Litigation
  • Hong Kong
  • 10 November 2020

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.

When is an application to court an abuse of process?
RPC
  • Litigation
  • United Kingdom
  • 10 November 2020

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.

To MAE or not to MAE? Court delivers preliminary issues judgment in first COVID-19 MAE case
RPC
  • Litigation
  • United Kingdom
  • 27 October 2020

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.

Settlement 'solutions' looking for problems?
RPC
  • Litigation
  • Hong Kong
  • 27 October 2020

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.

Hidden owners, ostensible authority and Duomatic principle
RPC
  • Litigation
  • United Kingdom
  • 20 October 2020

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.

Court refuses to restrain presentation of winding-up petition and comments on ex parte proceedings
RPC
  • Litigation
  • Hong Kong
  • 13 October 2020

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).

Fishing expedition or genuine application? Norwich Pharmacal relief when wrongdoing is still unknown
RPC
  • Litigation
  • United Kingdom
  • 13 October 2020

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.

Overseas in-house lawyers' advice covered by legal advice privilege
RPC
  • Litigation
  • United Kingdom
  • 06 October 2020

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.

Court highlights judicial oath in dismissing recusal application
RPC
  • Litigation
  • Hong Kong
  • 29 September 2020

In a recent case, a High Court judge dismissed the defendants' application that she recuse herself from a substantive hearing in contempt proceedings. The application was based on what the defendants submitted was a reasonable apprehension of bias ('apparent bias') – in particular, they claimed that in an earlier decision involving the same parties, the judge had prejudged a question of fact that was crucial in the contempt proceedings.

Quincecare duty bowls out HSBC
RPC
  • Litigation
  • United Kingdom
  • 29 September 2020

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.

What does 'market practice' entail? Court of Appeal rules on use of term in ISDA master agreement
RPC
  • Litigation
  • United Kingdom
  • 22 September 2020

The Court of Appeal recently held that 'market practice' is too wide a term to be implied into an International Swaps and Derivatives Association (ISDA) master agreement covering currency trading transactions by dismissing a claim arising from the 'de-pegging' of the Swiss franc from the euro. The desire to maintain the certainty and stability of the relationship between those contracting based on the ISDA master agreement underpinned the court's decision.

'Stale claims' on the way out?
RPC
  • Litigation
  • Hong Kong
  • 15 September 2020

In a recent case, the High Court allowed the defendants' applications to dismiss the plaintiff's two actions on the ground of abuse of process – in particular, given that no procedural step had been taken by the parties since 1 April 2009, just before the civil procedure reforms came into effect in Hong Kong. Although each application for dismissal based on abuse of process turns on its facts, this case demonstrates that egregious delay and inaction can prove fatal.

Security for costs not ordered despite looming economic downturn caused by COVID-19
RPC
  • Litigation
  • United Kingdom
  • 15 September 2020

Evidence of the adverse impact of the COVID-19 pandemic on the claimant's financial position was not enough to show an inability to pay adverse costs in a recent application for security for costs in the High Court. Although this decision demonstrates the court's willingness to consider the impact of the pandemic and the looming economic downturn in considering a party's financial viability for the purposes of a security for costs application, general evidence of the pandemic's economic impact will not suffice.

Stick to the process: further reminder of how useful process agent clauses can be, especially following Brexit
RPC
  • Litigation
  • United Kingdom
  • 08 September 2020

In a recent case, a court explored whether a borrower had been validly served when the borrower had failed to comply with its contractual obligation to ensure that a process agent remained in place at all times. The court's decision shows that it will adopt a commercial approach to the interpretation of process agent clauses and, where possible, it will give effect to such clauses' primary purpose of allowing a speedy and certain means of service.

No interim injunction over bitcoin account where damages would be adequate
RPC
  • Litigation
  • United Kingdom
  • 01 September 2020

In a recent case, the court declined to continue interim injunctions granted in respect of a 'coin depot account' holding bitcoin over which the claimants asserted a proprietary right. On this occasion, the balance of convenience in respect of continuing the injunctions did not lie with the claimants, including because damages would be an adequate remedy.

Court of Appeal reviews summary judgment in 'water leakage' disputes
RPC
  • Litigation
  • Hong Kong
  • 01 September 2020

The Court of Appeal recently considered the general principles for granting summary judgment (judgment without trial) in the context of cases involving 'water leakage' between apartments above and below one another. Summary judgment is difficult to obtain in Hong Kong, save for simple debt-type actions. However, there tend to be few winners in neighbour disputes involving water leakage which are ripe for alternative dispute resolution, provided there is goodwill on both sides.

Privy Council rules on remoteness of damage in contract law in judgment on damages for breach of separate but related contracts
RPC
  • Litigation
  • United Kingdom
  • 25 August 2020

Where parties have entered into separate but related contracts, a breach of one contract does not necessarily preclude the recovery of damages under another. In a recent ruling, the Privy Council summarised the law in respect of remoteness of damage for breach of contract. In principle, the purpose of damages for breach of contract is to put the party whose rights have been breached in the same position, so far as money can do so, as if their rights had been observed.