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28 April 2020
In Hong Kong, the courts have generally been closed, save for urgent and essential court business, as a result of COVID-19. Details have been set out in various public notifications issued from time to time by the judiciary administration. However, a court has held that the general adjourned period (GAP) does not generally extend the duration of an injunction granted on an urgent basis before the GAP commenced on 29 January 2020 and listed for a return date (for continuation or discharge) that falls during the GAP. In such circumstances, the proper thing for a plaintiff to do is to apply to extend the duration of the injunction before its expiry on the basis that the application is an urgent matter that could be dealt with during the GAP.
In Essilor Manufacturing (Thailand) Co Ltd v Wong,(1) the plaintiff obtained ex parte (without notice) injunctions on 24 January 2020, the duration of which lasted until 7 February 2020. On 28 January 2020 the judiciary announced the GAP, in light of the COVID-19 public health emergency. The GAP commenced on 29 January 2020 and has been extended several times since – the most recent extension is until 3 May 2020 (subject to the prevailing health circumstances).(2)
In Essilor Manufacturing (Thailand), a hearing on or before the return date as specified in the injunctions did not take place because of the GAP. It appears that the plaintiff did not apply to continue the duration of the injunctions until its application on 13 March 2020.
An issue arose as to whether the duration of the injunctions had expired (as argued by some of the defendants) or whether the injunctions remained in force because of the GAP and in the absence of any order varying or discharging them.
In its decision, the Court of First Instance of the High Court held that in the absence of any order prolonging the duration of the injunctions, they had expired and ceased to have any effect after 7 February 2020. Therefore, the plaintiff's application to continue the injunctions was dismissed. The court noted that an application for an order to extend the duration of an injunction granted on an ex parte basis was properly to be regarded as an urgent matter and, as such, it could have been heard and disposed of during the GAP.
Interestingly, the court also rejected the plaintiff's application for new injunctions in the absence of an inter partes (with notice) application. Furthermore, the court was reluctant to grant new injunctions on an ex parte basis because by the time of the hearing, some six weeks had passed since the expiry date of the original injunctions and the matter was no longer urgent or deserving of secrecy. As such, if the plaintiff wished to apply for new injunctions, it would have to make a fresh application on an inter partes basis.
It appears from the publicly available court list (diary) on the judiciary website that the plaintiff has taken out an application for interlocutory injunctions that was due to be heard by the court on 24 April 2020.
When the GAP was announced on 28 January 2020 (at the end of the extended Chinese New Year holiday in Hong Kong) there had been little prior notice and it would be fair to suggest that a significant degree of confusion existed as to how matters would transpire in its early stages.
Since then there has been more clarity as to what constitutes urgent and essential court business. This includes hearings of 'urgent matters' before the duty judge – for example, applications for Mareva (freezing of assets) injunctions and Anton Piller (search and seizure) orders (subject to certain public health considerations). It also includes some winding-up and bankruptcy-related proceedings. In these types of urgent matter, court documents may be filed through one-way 'no-reply' email accounts and – in the case of submissions, legal authorities and electronic hearing bundles – via a new court e-lodgement platform.
While general court business may have been adjourned, court users should be reviewing their litigation matters and case managing those that are urgent and essential. The courts in Hong Kong are dealing with urgent and essential matters (the ambit of which has widened as the GAP has been extended) and they are determining some matters by remote hearings conducted by videoconferencing facilities.(3)
For further information on this topic please contact Antony Sassi or David Smyth at RPC by telephone (+852 2216 7000) or email (firstname.lastname@example.org or email@example.com). The RPC website can be accessed at www.rpc.co.uk.
(2) According to a judiciary announcement dated 22 April 2020 ("Resumption of court proceedings"), the GAP will end on 3 May 2020, with a gradual reopening of court proceedings and court registries (as safely as the circumstances permit) from 4 and 6 May 2020, respectively.
For civil proceedings, the court will continue to adopt a flexible and multi-pronged approach. Judges and judicial officers will continue to proactively manage their cases and directions will be given to the parties as necessary. Where appropriate, judges and judicial officers will consider disposing the cases on paper as far as possible. Judges and judicial officers may also invite parties to explore the use of Video Conferencing Facilities or conduct hearings by telephone where appropriate.
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