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.
The High Court recently allowed a defendant to rely on an expert's reports at trial, even though the expert witness had failed to verify his reports with a statement of truth or include a declaration that he agreed to be bound by the Code of Conduct for Expert Witnesses. In the normal course of events, an expert report that lacks a statement of truth or a declaration will be inadmissible.
Since the general adjourned period (GAP) ended on 3 May 2020, when the courts resumed normal business in Hong Kong, reported cases of COVID-19 infection have approximately tripled. At the time of writing, Hong Kong is experiencing a 'third wave' of infections. The next few weeks appear to be crucial in ascertaining whether the rate of infection will ease – failing which court users face the possibility of another GAP, during which the courts could close again save for urgent and essential court business.
In Hwang v Golden Electronics Inc, the Court of First Instance of the High Court has approved a novel order allowing the plaintiffs to serve certain court documents on several of the defendants using a data room. The order provides that the plaintiffs shall send a court-approved letter by post or email to the defendants providing a link to the data room and, by separate post or email, an access code with instructions to access the data room.
A second guidance note on the use of remote hearings in civil proceedings took effect on 15 June 2020. The guidance note (representing Phase 2) provides for expanded videoconferencing facilities and telephone hearings with respect to the civil business of the first-instance courts and the Court of Appeal. Phase 2 is to be read together with the Phase 1 guidance note issued on 2 April 2020. Phase 2 is more comprehensive and provides more options for connecting with the courts' videoconferencing facilities.
As expected, the judiciary in Hong Kong has announced that it will expand the use of remote hearings for civil cases. To date, under the Guidance Note for Remote Hearings for Civil Business in the High Court (Phase 1) – which came into effect during the general adjourned period – remote hearings using videoconferencing facilities have focused on civil hearings in the High Court involving interlocutory applications or appeals that can be decided on documents and legal submissions.
The general adjourned period, during which the courts in Hong Kong were closed save for urgent and essential court business, ended on 4 May 2020. From that date, the civil courts generally resumed normal business, although certain public health measures remain in place and it will take some time before the backlog of civil cases is cleared, particularly as the courts' resources were already stretched before COVID-19.
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 and listed for a return date (for continuation or discharge) that falls during the GAP.
Given the extended general adjourned period, during which the courts in Hong Kong have been closed except for urgent and essential court business, the judiciary has adopted an incremental approach to the use of technology for remote hearings. Set against the background of the COVID-19 public health emergency, the new Guidance Note for Remote Hearings for Civil Business in the High Court represents Phase 1 of the courts' adoption of IT initiatives for civil proceedings in Hong Kong.
The 'general adjourned period' (GAP) during which the courts in Hong Kong have been closed, save for urgent and essential court business, has been extended to 13 April 2020. The GAP is a consequence of the extraordinary measures adopted in Hong Kong to combat the coronavirus public health emergency.
The High Court recently decided that it can, as part of its case management powers and of its own volition, order that a directions hearing take place by means of a telephone conference without the physical presence in court of the parties or their legal representatives. The court's decision is set against the background of the extraordinary measures adopted in Hong Kong to combat the coronavirus public health emergency.
In a recent case, the Court of First Instance discharged ex parte (without notice) injunctions restraining the second defendant from disposing of or dealing with its assets in Hong Kong. The injunctions were granted in aid only of the plaintiffs' claims against the first defendant which were being pursued in parallel proceedings in mainland China. This was on the basis that the second defendant's assets should be available to satisfy the plaintiffs' eventual judgment against the first defendant.
The High Court has rejected an application for summary judgment of a claim to release money frozen by a bank. This was in the context of an investigation into the alleged use of the account for criminal activity. In its defence, the bank argued that the customer agreement contained an implied term that the bank could act on evidence of suspected fraudulent conduct to suspend operation of the account.
The Court of Final Appeal recently reaffirmed the principles applicable when the courts consider making an enhanced award of costs in favour of the successful party (ie, 'indemnity costs'). The judgment makes it clear that the courts' discretion to award indemnity costs is unrestricted – although, as a basic requirement, such costs should be ordered only when it is appropriate to do so and the receiving party must be able to show that the case has some special or unusual feature.
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.
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.
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.
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.
In an important and interesting judgment, the High Court declined to admit an overseas barrister unless he appeared with a local barrister. The applicant had applied for ad hoc admission to conduct a case in Hong Kong, on the basis that he would appear with the two solicitor advocates who had charge of the case. Therefore, they sought the removal of what is a usual condition to the grant of ad hoc admission – namely, that the applicant (an English Queen's Counsel) appear with a local barrister.