3 HKLRD 13
Court of First Instance
High Court Action No 473 of 2017
Deputy Judge Kent Yee in Chambers
14 May 2018
Civil procedure - writ - service out of jurisdiction - approach - Rules of the High Court (Cap.4A, Sub.Leg.) O.11
P was a company incorporated in Hong Kong and based here. D was a company incorporated in the United Arab Emirates (the UAE) and based in Abu Dhabi in that country. P brought an action in Hong Kong against D to enforce an agreement (the Agreement) for the sale and purchase of a convertible bond at its nominal value. It obtained leave from the Master to serve a concurrent writ on D in Abu Dhabi. The concurrent writ was served on D in Abu Dhabi by courier. D applied for the setting aside of the concurrent writ under O.12 r.8 of the Rules of the High Court (Cap.4A, Sub.Leg.) (the RHC). The application raised the questions referred to in the following holdings.
Held, dismissing the application, that:
(1) While the approach to O.11 of the RHC was a strict one, decisions on whether to allow service out of the jurisdiction were generally pragmatic ones in the interests of the efficient conduct of litigation in an appropriate forum (Kayden Ltd v Securities and Futures Commission (2010) 13 HKCFAR 696, Abela v Baadarani  1 WLR 2043 applied). (See paras.8-9.)
(2) Having shown a good arguable case that it had concluded the Agreement in Hong Kong, P had a good arguable case that its claim came within the gateway under O.11 r.1(1)(d)(i). (See paras.10-33.)
(3) P had also shown a good arguable case that the governing law of the Agreement was Hong Kong law and therefore also had a good arguable case that its claim came within the gateway under O.11 r.1(1)(d)(iii) (Century Yachts Ltd v Xiamen Celestial Yacht Ltd  1 HKC 331, First Laser Ltd v Fujian Enterprises (Holdings) Co Ltd (2012) 15 HKCFAR 569 applied). (See paras.34-42.)
(4) D did not argue that there was no serious issue to be tried. There was a serious issue to be tried. And Hong Kong was clearly and distinctly the proper forum for the trial of P's claim. (See paras.43-56.)
(5) There was no material non-disclosure. (See paras.57-67.)
(6) On the undisputed evidence of UAE law, D had failed to show that service by courier was contrary to UAE law. (See paras.68-77.)
This was an application by the defendant to set aside the concurrent writ served on it in Abu Dhabi by courier. The facts are set out in the judgment.
[Editor's note: This decision is another Hong Kong first instance one citing with respectful approval Lord Sumption's statement in Abela v Baadarani  1 WLR 2043 at  that decisions on whether to allow service out of the jurisdiction are generally pragmatic ones in the interests of the efficient conduct of litigation in an appropriate forum.]