Hong Kong, RPC updates

Litigation

Contributed by RPC
Without prejudice according to a 'reasonable person'
  • Hong Kong
  • 11 May 2021

The Court of First Instance of the High Court recently reviewed the legal principles that underpin the protection afforded to without prejudice communications. The court's decision makes it clear that for a communication to be without prejudice, there must be a dispute in existence, as well as a genuine attempt at settlement – an issue that a court determines applying an objective (reasonable person) test. Mere negotiation without more is not enough.

Court reviews witness's reluctance to travel to Hong Kong because of COVID-19
  • Hong Kong
  • 27 April 2021

The Court of Appeal recently refused a defendant (who resides outside Hong Kong) permission to appeal a trial judge's decision not to allow her to give evidence by videoconferencing facilities at trial. Apparently, the defendant had been reluctant to travel to Hong Kong from Beijing (where she resides) to attend the trial because of concerns about the COVID-19 public health pandemic. Both the trial judge and the Court of Appeal appear to have been unimpressed by the defendant's application.

Disclosure orders against banks' overseas branches
  • Hong Kong
  • 13 April 2021

In A1 v R1 a novel point appears to have arisen as to whether the High Court could grant Norwich Pharmacal relief in relation to the disclosure of documents and information concerning a bank account held not in Hong Kong but with the overseas branch of a Hong Kong bank. The Court of First Instance decided that it did have such power and, in doing so, reviewed the usual procedures for the grant of Norwich Pharmacal orders against a bank and the general principles that underpin ex parte applications.

Burden of proving witness competency
  • Hong Kong
  • 30 March 2021

The Court of Appeal recently reviewed what appears to have been a novel point regarding which party in civil proceedings has the burden of proving that a witness is competent to give evidence at the time of giving evidence. The decision of the first-instance judge and Court of Appeal on the principal point in dispute accords with what is the commonly held understanding – namely, that it is for the party calling a witness to prove (if challenged) that their witness is competent.

Banks on notice about costs of complying with orders for disclosure
  • Hong Kong
  • 16 March 2021

In a recent case, the Court of First Instance ordered a bank to disclose certain records that it held relating to two of the defendants. In this judgment, the court noted not only that there were cost efficiencies to be had by providing electronic disclosure, but also that banks should not in effect be making a profit from complying with disclosure orders. While, in this instance, the plaintiff had agreed to pay the bank's costs, the amount of those costs (per account and per page) appears to have raised judicial eyebrows.


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