HONG KONG Law and Practice Contributed by: George Lamplough, Edward Beeley, Vanessa Cheng and Curtis Pak, Holman Fenwick Willan
Pre-Action Discovery A party may apply for pre-action discovery against any party under RHC Order 24 Rule 7A(1). The documents sought must be “directly relevant” to an issue arising in the proceedings and necessary for disposing fairly of the cause or matter or for saving costs. A docu - ment is “directly relevant” if it is likely to be relied on in evidence by any party in the proceedings or the docu - ment supports or adversely affects any party’s case. The application is made by an originating summons with supporting affidavit. The person against whom the order is sought must be made the defendant. Discovery Against Third Parties A party to an existing action may apply for an order for disclosure of documents held by a person who is not a party to the proceedings. The application is made pursuant to RHC Order 24 Rule 7A(2). The application is made by way of summons in the action, together Ex parte applications are appropriate in cases of urgency or where there are grounds for believing that defendants will take steps to frustrate the proceedings if they become aware of the application. A number of procedural orders can be obtained on an ex parte basis, including: • Mareva injunctions and (where appropriate) ancil - lary disclosure orders; and • Anton Piller orders. with a supporting affidavit. 2.4 Procedural Orders The court has jurisdiction to make ex parte orders against, for example, banks for Norwich Pharmacal discovery, but the courts have said that “it would how - ever be hard to think of any appropriate case where it should exercise its discretion to do so on that basis” (Asiya Asset Management). The plaintiff must there - fore put the bank on notice. It should be noted that orders given ex parte will gen - erally operate for a limited time, and a substantive, inter partes hearing will be fixed to give the defendant an opportunity to set aside the injunction or amend the orders granted.
[2021] HKCFI 650, expanded the scope of NPOs in this area when the applicants successfully persuaded the Hong Kong court to grant disclosure orders over the Macau branches of two Hong Kong banks. Under Hong Kong law, it is possible to seek an NPO in support of foreign proceedings. The two-step process In Asiya Asset Management (Cayman) Ltd v Dipper Trading Co Ltd [2019] HKCFI 1090, the court directed that in non-urgent cases a plaintiff who seeks an NPO against a bank should put the bank on notice of the impending NPO application rather than proceeding ex parte. To prevent the bank from tipping off the wrongdoer in relation to the legal proceedings, the plaintiff should separately apply ex parte for a gagging order against the bank, pending the hearing of the application for the NPO. This two-step approach should be followed in “all save the most exceptional of cases”. This is to be contrasted with the approach in England and Wales, where NPOs are often sought without notice and are accompanied by a gagging order ( Simon Bushell and Gary Milner-Moore on Disclosure of Information: Nor- wich Pharmacal and Related Principles, Second Edi- tion ). This was the position in Hong Kong prior to the decision in Asiya Asset Management , and it is submit- ted that the prior approach is preferred because it is a process that is favoured by banks (because their gen - eral preference is to maintain a neutral stance) and by applicants (who in most cases are the victims of fraud who wish to keep costs to a minimum). Of course, if respondent banks desire an inter partes hearing, they are at liberty to apply. When to apply An NPO can be obtained before or after the com -
mencement of proceedings. Form of NPO application
The application is made pursuant to the inherent juris - diction of the court by way of an originating summons and supported by affidavit evidence.
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