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.
The High Court recently clarified the rules applicable to defendants domiciled in states that are party to the EU Recast Brussels Regulation (1215/2012). Following the decision, the court has jurisdiction to hear a claim against a non-UK defendant under Article 8(1) of the regulation only if the claim against the UK-domiciled anchor defendant is sustainable.
Although parties are expected to exchange key documents before starting proceedings in the English courts, a recent Commercial Court decision highlights the limited nature of those obligations, particularly in a commercial context. Even though the judge was prepared to accept, albeit with some hesitation, that the jurisdictional threshold for making an order had been met, the application was unsuccessful.
In a recent High Court decision, a successful party was declined some of its costs on the basis of its unreasonable refusal to engage in mediation. The court's approach is consistent with two other recent cases in which the courts awarded indemnity costs against litigants that had failed to follow directions or give serious consideration to the obligation to engage in alternative dispute resolution.
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.
In what circumstances will a party waive privilege over legal advice by referring to it in evidence? Reference to the fact of the advice may not be sufficient but reliance on that advice is likely to be. Further, a limited waiver of privilege over certain documents does not mean that those documents are irrelevant from a privilege point of view thereafter and that their subsequent deployment could not result in collateral waiver.
In a recent decision the High Court considered the scope of the existing exceptions to the without prejudice rule. This well-known rule protects communications made in a genuine attempt to settle an existing dispute from later deployment in court. The High Court allowed passages from papers prepared for a mediation to be admitted into the proceedings under two exceptions to the without prejudice rule.
The High Court has issued an important reminder of the need for solid evidence of a real risk that a respondent will take steps to dissipate their assets to frustrate a judgment in applications to continue a worldwide freezing order. Evidence of dishonesty alone is not enough, and conduct falling short of dishonesty is less likely to suffice.
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.
English law's flexible, rational, yet stable approach to contractual interpretation has been demonstrated again in a recent decision concerning commission payments. The decision is logical and sensible by reference both to the case's commercial context and the contract's wording and exemplifies the benefit of choosing English law as the forum for resolving contractual disputes.
A consultant was alleged to be in material breach of a consultancy contract for refusing to supply his services. He responded to a material breach notice by stating that he was willing to perform. However, the Court of Appeal held that this was insufficient to remedy the breach. According to the court, actual performance, rather than an indication of a willingness to perform, was required to remedy the material breach of contract.
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.
Parties should tread carefully when considering whether and how to reference privileged documents; deployment of a document may draw back the cloak of privilege but a mere reference may not. A Court of Appeal judgment has shown that the context will be key. The guidance given on the difference between references to a document's effect and a document's content is useful and demonstrates that in some scenarios it is possible to refer in limited detail to a document without waiving privilege.
Applying for permission to advance new evidence on appeal is a complex application which has had varying degrees of success in the courts. A recent decision is a useful example of the application of the criteria in the context of insolvency proceedings. This case clarifies that if unreliable evidence is put before the court, decisions based on that unreliable evidence can be challenged on appeal or by a new action being brought.
In a reminder not to 'over-lawyer' witness statements, a High Court judge has ordered that statements be revised to remove inappropriate content. The judge held that witness statements should not contain arguments or references to documents with which the witness had no personal dealing. Further, fraud allegations do not give parties an increased latitude concerning what witness statements should (and should not) contain.
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.
A parent company does not exercise control over the documents of, or held by, its subsidiaries merely by virtue of its shareholdings in those subsidiaries. The situation is different when there is standing consent. The High Court has provided useful guidance on the circumstances in which documents held by subsidiaries would be within the parent company's 'control' for the purposes of disclosure.