Ab also known as Abw v. Maw

FCMC 6310/2015

[2018] HKFC 34

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 6310 OF 2015

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Coram: HH Judge C.K. Chan in Chambers (not open to public)

Date of Hearing: 13 March 2018

Date of Decision: 13 March 2018

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D E C I S I O N

(EX-PARTE INJUNCTIONS)

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1.I have an application for an ex-parte injunction against the petitioner wife.

2.From the limited information I have gained by reading the respondent solicitor’s affidavit, I understand that the parties have gone through a rather lengthy and acrimonious trial before Judge Bruno Chan resulting in a 131-page judgment on Ancillary Relief handed down on 8 May 2017. I note that the Ancillary Relief proceedings are not yet completed as there are still applications on costs and for leave to appeal pending before Judge Bruno Chan.

3.In this ex-parte application, I note that the respondent is asking for the following orders:

(i) The petitioner to withdraw her claim in UK for the enforcement of the HK Judgment, which is in the form of a mandatory injunction.

(ii) The petitioner or her agents to be restrained from taking any further steps in the UK proceedings.

(iii) The petitioner to be restrained from disclosing the terms of this order and the contents of the UK proceedings to any third parties except her legal advisors.

4.I note that in support of this application, the respondent solicitor has filed an affidavit enclosing a draft but unsworn affidavit of the respondent.  This is highly unsatisfactory.

5.I have to confess that as I am not the trial judge, I am not in a position to have a full understanding of the history and the facts of the case.  However, I note that the first injunction being asked for is for the petitioner to withdraw the UK proceedings.  This will have the effect of a dismissal of her UK proceedings. This is in effect a mandatory injunction which I believe should not be granted on an ex-parte basis. The first application is therefore refused.

6.As to the 2nd and 3rd applications, they are applications for prohibitory injunctions. After hearing counsel’s submissions, I am not convinced that they should be granted on an ex-parte basis.

7.These 2 applications are in effect anti-suit injunctions.  Anti-suit injunctions are granted to prevent parallel proceedings in different jurisdictions. However, in our present case, I do not see such parallel proceedings in existence.  The Hong Kong Ancillary Relief proceedings have already been concluded in the sense that a final judgment has been granted, subject only to the argument on costs and appeal.  The UK proceedings are for the enforcement of a final order on Ancillary Relief, which happens to be granted in Hong Kong.  The situation would be entirely different if the wife is pursuing 2 sets of similar proceedings for Ancillary Relief, one in Hong Kong and one in the UK.

8.In the course of submission, Mr. Coleman raised the issue on set off, arguing that the wife has not mentioned this in her UK proceedings. In other words, Mr. Coleman is saying that the wife is not entitled to enforce the Hong Kong Judgment in UK in the form as being presently argued by her. This is in effect touching upon the merits of the wife’s UK enforcement proceedings, which I believe should be argued in the UK, not in HK. 

9.I understand that another concern of the husband is about the disclosure of the information in the HK judgment in the UK enforcement proceedings.  As I see it, the disclosure on the HK proceedings is bound to happen if one is trying to enforce a HK award in UK.  Apart from the implied undertaking of confidentiality as argued by the husband, I was not referred to any specific rule, that the HK court’s leave is required before one can proceed to enforce a HK judgment in the UK. Enforcement of a judgment overseas, at least on the face of it, is a legitimate course to be taken. I am not convinced that a judgment creditor should be denied such remedy because of this implied undertaking of confidentiality.

10.The last point that I want to mention is about such applications being made on an ex-parte basis. It is well established that an ex-parte injunction should only be made in extreme urgency or there is a need to keep it confidential.  I accept that the husband has until 26 March 2018 to file his Acknowledgment of Service. There will be another 13 days before any such risk of unwanted disclosure is materialized. I am not satisfied such an application should be considered on an ex-parte basis.

11.Therefore, despite the very forceful and able argument of counsel, I am not convinced that the 3 ex-parte injunctions applied for by the husband should be granted.

12.The ex-parte summons is to be dismissed.

13.I will consider the question of costs.

(Discussion re costs)

14.Costs to follow event. The wife shall have the costs of this summons, to be taxed if not agreed.

Representation:

Mr. John Massie of Messrs. Massie & Clement, solicitors for the Petitioner

Mr. Russell Coleman S.C., instructed by Messrs. Oldham, Li & Nie, solicitors for the Respondent