In the course of the hearing of a direct payment application filed under the Construction Industry Payment and Adjudication Act, the issue arose as to whether direct payment could be ordered against an employer when winding-up proceedings were underway against its contractor. To avoid protracted arguments, the subcontractor withdrew the winding-up proceedings during the hearing of the direct payment application. However, another creditor served a winding-up petition on the main contractor shortly thereafter.
In re Zadeh v Registrar of Companies, the Court of First Instance held that an application by an overseas company to intervene as a party in existing proceedings in Hong Kong did not expose it to a liability to provide security for costs and that, even if the court did have jurisdiction to order security for costs, it would not have ordered the intervener to do so. Although security for costs against overseas or dubiously solvent plaintiffs is a useful tool in civil litigation, this case demonstrates some of the procedural limits.
Concern that current practice in relation to factual witness evidence does not achieve the best evidence at proportionate cost prompted the creation of the Witness Evidence Working Group to consider how the current practice could be improved in the business and property courts. The group's recommendations focus on the more consistent enforcement of existing rules with some limited new measures.
A long-running Jersey fraud case illustrates the difficult task that the Channel Island courts sometimes have in comparing and distinguishing between developed principles of English law and foundational elements of the islands' customary law. The case tackles two Jersey law 'hot potatoes': the question of the rights between wrongdoers to claim an indemnity or contribution outside the scope of the limited statutory scheme between joint tortfeasors and the extent and nature of the doctrine of unjust enrichment under Jersey law.
New year, new reminder of the obligation to make full and frank disclosure in without notice applications, this time in the context of a falling out within the UK Independence Party. The obligation can be satisfied only by drawing the court's attention to legal or factual matters which could undermine the applicant's own application; it is not enough to simply put relevant matters in evidence before the court.
In Lakatamia Shipping Co Ltd v Morimoto, the Court of Appeal overturned a decision to discharge a worldwide freezing order. According to the court, evidence that the respondent had previously assisted her son to dissipate assets, while being aware of an earlier freezing order and judgment against him, demonstrated a real risk of dissipation if a second freezing order was not continued against her.
The Supreme Court recently rejected a Greek appellant's request for the annulment of a European arrest warrant (EAW) which had been issued against him in order to investigate alleged criminal offences. Although the court erroneously accepted the appellant's appeal of the ne bis in idem principle (ie, the prohibition of double jeopardy), it rightly concluded that Cyprus was not prevented from executing the EAW by investigating the case against the appellant.
In Poon v Poon, the defendant successfully applied to have certain paragraphs excluded from witness statements filed on behalf of the plaintiff on the basis that they referred to without prejudice conversations and meetings. The judgment applies established principles that underpin the protection given to without prejudice communications and demonstrates the court's reluctance to allow a party to 'cherry pick' from parts of wide-ranging discussions that were clearly undertaken on a without prejudice basis.
Earlier in 2019, the Supreme Court held that in light of a bilateral treaty, the Austrian courts must apply Iranian law in inheritance matters concerning Iranian nationals. However, provisions of Iranian law that differentiate between heirs on the basis of gender must be treated as violations of the fundamental values of Austrian law and should thus be exempt from application.
Funding arrangements should be in writing or at least impose a primary obligation on the funder to pay. So said the Court of Appeal when exploring whether an oral arrangement to fund a litigant was an unenforceable guarantee or an enforceable agreement to pay in any event. This case shows that as with all contracts, recording them in writing gives all parties certainty.
In a recent case, a settlement agreement was concluded between a plaintiff and several defendants that were parties to a claim, which included an allocation of liability and the amount of damages. As a result, the claim against the settling defendants was dismissed. This judgment solves a problem often faced by parties to a tort claim in which one co-defendant objects to a settlement offer and the negotiations are halted as the agreeing defendants fear being exposed as a third party by the objector.
In a recent appeal case, the Supreme Court ruled that the wording of a guarantee signed in respect of a tenancy lease agreement did not fall within the context of an explicit commitment to cover the statutory tenancy as well. Therefore, it could not be concluded that the parties intended to extend the guarantee to this form of tenancy and that the guarantor was committed to pay the rent during said period.
In Zhang Hong Li & Ors v DBS Bank (Hong Kong) Ltd & Ors, the Court of Final Appeal interpreted a so-called 'anti-Bartlett clause' in a trust deed and held that it excluded the imposition of a "high-level supervisory duty" on the trustee to supervise or review the investment decisions of an investment adviser appointed by the underlying private investment company.
In Luxembourg, several time limits apply with regard to prescription periods. Notably, the inclusion of specific prescription periods in the Law of 10 August 1915 on Commercial Companies does not preclude the application of prescription periods as provided for in the Civil Code. The Luxembourg District Court recently reiterated this position in a judgment regarding prescription periods for invalidating shareholder decisions.
The Supreme Court recently ruled in a case concerning two elements of international law: state immunity from enforcement and declarations of enforceability. This ruling is significant because it states that the only precedent on the topic of enforcement immunity is a 2005 decision and because it applies the United Nations Convention on Jurisdictional Immunities of States and Their Property, which is not yet in force. The ruling is also significant with regard to its interpretation of an 'enforceability declaration'.
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.
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.
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.
The directors of a credit company placed under extraordinary administration for serious irregularities learned that an employee had covertly given the company's former general manager some confidential company documents, which he had had no reason to access. The employee was subject to internal disciplinary proceedings and dismissed for a serious breach of the obligation of loyalty to her employer, but challenged her dismissal in court.
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.