HONG KONG SAR, CHINA Law and Practice Contributed by: George Lamplough, Vanessa Cheng and Curtis Pak, Holman Fenwick Willan
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 with - out notice and are accompanied by a gagging order (Simon Bushell and Gary Milner-Moore on Disclosure of Information: Norwich Pharma - cal and Related Principles, Second Edition). This was the position in Hong Kong prior to the decision in Asiya Asset Management and it is submitted that the prior approach is preferred because it is a process that is favoured by banks (because their general 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 commencement of proceedings. Form of NPO application The application is made pursuant to the inherent jurisdiction of the court by way of an originating summons and supported by affidavit evidence. 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 rel- evant” to an issue arising in the proceedings and necessary for disposing fairly of the cause or matter or for saving costs. A document is “directly relevant” if it is likely to be relied on in evidence by any party in the proceedings or the document supports or adversely affects any party’s case.
The application is made by an originating sum - mons 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 per - son 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 with a support - ing affidavit. 2.4 Procedural Orders 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 appli - cation. A number of procedural orders can be obtained on an ex parte basis, including: • Mareva injunctions and (where appropriate) ancillary disclosure orders; and • Anton Piller 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 however 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 therefore put the bank on notice. It should be noted that orders given ex parte will generally 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.
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