HONG KONG SAR, CHINA Law and Practice Contributed by: George Lamplough, Vanessa Cheng and Curtis Pak, Holman Fenwick Willan
4. Overseas Parties in Fraud Claims 4.1 Joining Overseas Parties to Fraud Claims Joinder of Parties Under RHC Order 15 Rule 6, the courts can add any of the following persons as a party to an action: • any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute can be completely determined; or • any person with whom there may exist a question connected to any relief or remedy claimed by a party to the action, which the court considers it just and convenient to determine as between the person and that party as well as between the parties to the cause or matter. Extraterritorial Jurisdiction There are generally three distinct ways for a civil plaintiff to establish the jurisdiction of the Hong Kong courts: • submission to jurisdiction – by demonstrating that the defendant has, or is deemed to have, voluntarily submitted to the jurisdiction of the Hong Kong courts; • service of process on the defendant within Hong Kong; and • service of process on the defendant outside Hong Kong – in most cases, leave from the court must be obtained. 4.2 Service of Proceedings out of the Jurisdiction If a foreign party is added as a defendant to a claim, the plaintiff must seek leave from the court under RHC Order 11 to serve the writ out of the
jurisdiction. An application for leave is typically made ex parte. The plaintiff must satisfy the court that: • the claim falls within one or more of the “gate - ways” under RHC Order 11 Rule 1(1) (or at least a good arguable case that it does); and • there is a serious issue to be tried on the mer- its of the underlying claim. The court will also consider whether Hong Kong is the appropriate forum to hear the claim. Necessary Person Gateway The gateway in RHC Order 11 Rule 1(1)(c) is helpful in fraud claims and permits servicing out in actions begun by writ where: • one of the defendants, the “anchor defend- ant” , has been duly served (whether within or out of the jurisdiction); • the person out of the jurisdiction is a neces - sary or proper party to the claim; • genuine, properly commenced proceedings are pending before the Hong Kong courts which involve a real issue, which the plaintiff may reasonably ask the court to try; and • the Hong Kong court is the appropriate forum to hear the case but bearing in mind the Another important gateway is RHC Order 11 Rule 1(1)(p), which provides that service of a writ out of the jurisdiction is permissible where: “the claim is brought for money had and received or for an account or for other relief against the defendant as a constructive trustee, and the defendant’s alleged liability arises out of acts committed whether by him or otherwise, within the jurisdiction” . action already pending here. Constructive Trust Gateway
188 CHAMBERS.COM
Powered by FlippingBook