Litigation, RPC updates

Hong Kong

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.


United Kingdom

Contributed by RPC
Hand in your notice – how to bring a successful warranty claim
  • United Kingdom
  • 11 May 2021

Buyers wishing to make a claim under contractual warranty provisions must comply with those provisions to the letter; sufficient and timely information is key. The case discussed in this article is a salutary reminder of the importance of complying with contractual warranty provisions and the difficulties of bringing a misrepresentation claim where warranties have superseded any pre-contractual discussions.

Forum conveniens – context is key
  • United Kingdom
  • 27 April 2021

The High Court has allowed conspiracy proceedings brought by two Russian banks against several Russian nationals to proceed in England. The court accepted that the case before it was "essentially a Russian dispute" but held that England was the forum in which the claims against a number of the defendants could be suitably tried in the interests of justice. This decision illustrates that even though key aspects of a dispute may favour another jurisdiction, the forum conveniens may still be England.

When can deliberate concealment postpone limitation periods?
  • United Kingdom
  • 20 April 2021

The Court of Appeal recently explored the meaning of 'deliberate concealment' and held that there need not be active steps of concealment for the start of a limitation period to be delayed under Section 32(1)(b) of the Limitation Act. In addition, the conduct giving rise to the cause of action need not be separate to the act of concealment.

Reasonable enquiries must be made upon receipt of potentially confidential information
  • United Kingdom
  • 23 March 2021

The Court of Appeal recently held that a recipient of information will be bound by a duty of confidentiality if it was reasonable for them to have made enquiries as to the confidential nature of the information and they failed to do so. The decision arguably imposes a greater burden on a recipient of potentially confidential information to make enquiries of the discloser as to the nature of the information where a reasonable person would do so.

When do UK-domiciled parent companies owe a duty of care to individuals affected by acts of their foreign subsidiaries?
  • United Kingdom
  • 16 March 2021

A recent Supreme Court decision on jurisdiction provides helpful guidance on the circumstances in which a UK-domiciled parent company may owe a common law duty of care in respect of the actions of a foreign subsidiary. The decision highlights the importance of carefully considering the way in which parent companies exercise (or purport to exercise) control over the actions of their subsidiaries.


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