The Law Reform Commission published a long-awaited report proposing the introduction of a comprehensive regime for multi-party litigation by way of class actions. However, the question of funding class actions is a major issue, which must be resolved if the regime is to be successfully implemented.
The Court of Appeal has allowed the appeal of the Securities and Futures Commission (SFC) in the Tiger Asia proceedings, which raised an important issue about the extent of the SFC's powers in cases of suspected market misconduct. The decision means that it is open to the SFC to bypass the Market Misconduct Tribunal process and apply directly to the court for relief.
For several years, lawyers have been seeking clarification as to whether the English law of privilege applies in Hong Kong in all its rigour. A recent judgment has finally addressed the practical application of the legal principles involved in Three Rivers (No 5). Parts of the judgment make uncomfortable reading and it is eminently appealable, but for now it represents the best guidance on how these vexed issues will apply in Hong Kong.
The Court of Appeal recently tackled the difficulties that can be caused by an arb-med process. A key risk of the arb-med practice is that an arbitral award made following a failed mediation can be tainted by bias and rendered unenforceable, thus leading to the courts being asked to adjudicate.
In a recent application to the High Court, a company failed to secure the return of certain privileged documents which had been provided to the Securities and Futures Commission and separately seized by the police. Among other points, the judge questioned whether, as a matter of law, a limited or partial waiver of legal professional privilege is possible.
Companies that do business with governments or nationalised companies will have more difficulty in enforcing judgments or arbitral awards in Hong Kong following a recent court decision. The Court of Final Appeal has ruled that sovereign immunity applies to states even when they are contracting in a purely commercial capacity.
The High Court recently refused to enforce an award because of the risk of bias by an arbitrator who acted as a mediator between the parties; however, the court stressed that it was the way in which the attempted mediation had been approached that had tainted the award, not the concept of med-arb itself.
Any communication that is recorded in a document may have to be produced to the other party in subsequent litigation if it is relevant to the proceedings. This update examines the extent to which in-house lawyers can communicate with business in a variety of contexts and addresses the question of when communications are protected by legal advice privilege and litigation privilege.
A recent decision affirms the steps already taken in the High Court Rules to promote dispute settlement. If a party to a dispute ignores mediation, it must be prepared to suffer the costs consequences. As the case illustrates, the courts are prepared to make adverse costs orders to ensure that parties engage sensibly and reasonably in the mediation process.
Hong Kong's courts are keeping up with advances in technology. The Evidence Ordinance and the Rules of the High Court deal with the admissibility of electronic evidence and the litigant's obligation to disclose such evidence.
A recent English case gives important guidance as to the stance the courts in Hong Kong will take in considering an application for security for costs, and it is likely that they will look beyond the case itself to other relevant factors.