A recent judgment concerning a rather bold request for judicial assistance by the Chapter 11 trustee of a company within the China Fisheries Group provides a useful reminder of the common law criteria to be applied for recognition of foreign office holders. However, a more interesting point, perhaps, is that the Hong Kong courts will not be afraid to defend the integrity of their orders if and when attempts are made to circumvent them.
The Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region (HKSAR) was recently signed by the Supreme People's Court and the HKSAR government. This is the sixth arrangement with the mainland on mutual legal assistance in civil and commercial matters and the third arrangement providing for recognition and enforcement of judgments in civil and commercial matters.
In a series of recent judgments, the first-instance courts in Hong Kong have demonstrated an increasing flexibility in assisting victims of internet and email fraud, including granting declaratory relief without trial. The courts' increasing willingness to grant declaratory relief without trial in these circumstances is a significant step in the right direction, as it has simplified the civil action to be taken by those affected by email fraud and similar scams.
The High Court recently considered the general legal principles for the grant of injunctive relief to protect an employer's confidential information alleged to have been taken by one or more former employees for the benefit of their new company. The outcome in the case (to date) illustrates the balance that the courts must often strike between recognising the legitimate interests of an employer and a former employee's entitlement to use their own skills and knowledge without obtaining an unfair advantage.
The recent decision of the High Court in Ninotre Investment Ltd v L & A International Holdings Ltd is a further example of the court's statutory power to grant a qualifying shareholder access to and inspection of company records. Section 740 of the Companies Ordinance (Cap 622) has become an established mechanism for aggrieved shareholders, with legitimate complaints in their capacity as shareholders, to obtain access to and inspection of company records.
Section 14A of the Limitation Act sets out the position on latent damage in negligence claims. Litigation around the application of Section 14A has predominantly centred on when the claimant has the requisite knowledge to bring a claim and if a claim could, and should, have been brought earlier. This has been brought into sharp focus in a recent case relating to a claim brought against the Bank of Scotland.
A recent Court of Appeal decision examined a dispute concerning entitlements under an earn-out provision in a share purchase agreement. The claimant argued that, under the agreement, he was entitled to provide consultancy services for a further period to be agreed by the parties. However, the court found that there is no obligation on parties to negotiate in good faith about matters which remain to be agreed and that the defendant was free to negotiate in accordance with its own commercial interests.
The High Court recently confirmed on appeal from a master's decision that although an entire agreement clause concerning the sale of Nottingham Forest Football Club purported to extinguish all previous representations, it did not in fact exclude liability for misrepresentation. That there were contractual indemnities covering effectively the same subject matter did not, without clear language, mean that liability had been excluded.
A recent High Court of Justice case reinforced the courts' desire to remain the guardians of honest behaviour in relation to financial market practices; the objective standards of dishonesty are to be set by the courts rather than the market. Parties must therefore rely on contemporaneous documents when trying to prove claims for dishonest assistance, as the court will not permit them to adduce expert evidence of wider market practice.
The recent decision in Barclays Bank plc v Price extends the established test that a demand made under a guarantee for an excessive amount may nevertheless be effective as a demand for what is due in circumstances where the amount that has been demanded exceeds an express liability cap. This judgment will surely be a welcome extension of the authorities relating to the operation of guarantees (and the demands made thereunder) for the creditors that benefit from such arrangements.