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.
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).
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.
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.
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.
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.
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.
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.
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.
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.