Latest updates

Without prejudice according to a 'reasonable person'
RPC
  • Litigation
  • 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.

Hand in your notice – how to bring a successful warranty claim
RPC
  • Litigation
  • 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with contractual warranty provisions and the difficulties of bringing a misrepresentation claim where warranties have superseded any pre-contractual discussions.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
RPC
  • Litigation
  • 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.

Court reviews witness's reluctance to travel to Hong Kong because of COVID-19
RPC
  • Litigation
  • 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.

When can deliberate concealment postpone limitation periods?
RPC
  • Litigation
  • 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.

Disclosure orders against banks' overseas branches
RPC
  • Litigation
  • 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
RPC
  • Litigation
  • 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.

Reasonable enquiries must be made upon receipt of potentially confidential information
RPC
  • Litigation
  • 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.

Banks on notice about costs of complying with orders for disclosure
RPC
  • Litigation
  • 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.

When do UK-domiciled parent companies owe a duty of care to individuals affected by acts of their foreign subsidiaries?
RPC
  • Litigation
  • 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.

Court of Appeal sets aside contempt regarding statement of truth
RPC
  • Litigation
  • Hong Kong
  • 02 March 2021

In a recent case, the Court of Appeal allowed the defendant's appeal against a lower court's finding that he had made a false statement of truth with respect to an admission in a defence filed on behalf of a company. As is normal in such appeals, the Court of Appeal was reluctant to disturb a lower court's primary finding. However, in this case, the Court of Appeal considered that the lower court had been plainly wrong to make an order for committal for contempt of court.

Lack of list of issues for disclosure does not bar specific disclosure under DPS
RPC
  • Litigation
  • United Kingdom
  • 23 February 2021

According to a recent case, the High Court can order specific disclosure under the Disclosure Pilot Scheme, even where there is no agreed or approved list of issues for disclosure. The decision provides clarification as to the court's jurisdiction to vary orders for extended disclosure. It also confirms that where parties have yet to agree a list of issues for disclosure, it will not prevent the court from making an order to vary a pre-existing order for extended disclosure.

Court reviews implied undertaking not to use documents for collateral purpose
RPC
  • Litigation
  • Hong Kong
  • 16 February 2021

The High Court recently released a party from an implied undertaking not to use documents for a collateral purpose. In this case, the documents in question had been provided by the second respondent to the police in support of its criminal complaint against the applicant. The case serves as a useful reminder of some general principles in an area of practice that can cause problems for the unwary.

Does an expert owe a fiduciary duty to its client?
RPC
  • Litigation
  • United Kingdom
  • 16 February 2021

For the first time the Court of Appeal has considered the duties of an expert concurrently engaged in two potentially conflicting disputes. While the case involved an unusual set of circumstances, it provides an interesting review of the duties owed by expert witnesses to their clients and the court and highlights important considerations for those engaging expert witnesses and drafting engagement letters.

New cause of action must arise out of substantially same facts that remain in issue at time of amendment
RPC
  • Litigation
  • United Kingdom
  • 09 February 2021

The Court of Appeal recently ruled that pleadings which have previously been struck out cannot be used to introduce a new, limitation-barred claim that arises out of substantially the same set of facts as the struck out claim. Parties looking to discontinue a claim or defend a strike-out application should carefully consider the implications that a strike out could have on any future claims which they may want to introduce by amendment.

The jurisdiction eagle has landed… in court
RPC
  • Litigation
  • United Kingdom
  • 02 February 2021

Does the governing law for passing-off claims fall under Article 6 or 8 of the EU Rome II Regulation? The High Court recently explored this question in a case concerning two well-known clothing brands. The court's decision remains relevant to English law in light of Brexit as the United Kingdom has legislated to incorporate Rome I and II into English law following the end of the transition period.

When is an error a serious irregularity? Court demonstrates approach to correcting arbitration awards
RPC
  • Litigation
  • United Kingdom
  • 26 January 2021

The High Court recently found that a tribunal's admission of a simple computational error, and its refusal to correct it, was a serious irregularity that caused substantial injustice. Based on this, the court remitted an arbitration award back to the tribunal for correction. This is an interesting case; it is rare for Section 68 challenges to be successful and even rarer for an English court judge to find that there has been a serious irregularity that caused or would cause substantial injustice in such a straightforward manner.

Court considers claim to money in court once injunction discharged
RPC
  • Litigation
  • Hong Kong
  • 26 January 2021

The High Court recently allowed a defendant's application for the release to him of a sum of money paid into court by the plaintiffs in order to fortify an asset freezing injunction that the plaintiffs had obtained against (among others) the defendant. The case reviews some interesting legal issues with regard to Quistclose trust claims in the context of payments into court. It also draws attention to the status of money paid into court for the purpose of fortifying an undertaking as to damages once that purpose becomes spent.

Phase 3 of court guidance for remote hearings for civil business
RPC
  • Litigation
  • Hong Kong
  • 12 January 2021

A third guidance note on the use of remote hearings for civil proceedings took effect on 2 January 2021. The guidance note (representing Phase 3) provides for wider use of videoconferencing facilities and telephone hearings with respect to all levels of civil courts in Hong Kong. In particular, Phase 3 is more comprehensive and provides more options for connecting with the courts' videoconferencing facilities.

Case settlement conferences given a 'festive' touch
RPC
  • Litigation
  • Hong Kong
  • 22 December 2020

The judiciary administration has updated the Guidance Note for Case Settlement Conferences in Civil Cases in the District Court. The guidance note extends a pilot scheme for facilitating settlement in general civil cases in the District Court and comes into effect on 2 January 2021. The updated version appears to address concerns relating to potential encroachments on parties' rights to legal representation and the protection afforded to the confidentiality of mediation and without prejudice communications.