Dp World Djibouti Fzco and Others v. China Merchants Port Holdings Co Ltd

HCA 1951/2018

[2025] HKCFI 3208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1951 of 2018

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D E C I S I O N

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1.This Decision is for determination of the 1^st and 3^rd Plaintiffs’ application for leave to adduce the 9^th affidavit of Isabelle Michou (“Michou 9”). This followed a hearing in March 2025 of (inter alia) the Defendant’s summons to strike out the claims of the 3^rd Plaintiff in this action, for want of authority (“Authority Summons”), when the hearing was adjourned. The adjournment was as a result of the Plaintiffs’ service of the 8^th affidavit of Isabelle Michou (“Michou 8”) shortly before the hearing on 3 March 2025, and by the Court’s order dated 4 March 2025 (“4/3 Order”), leave was granted to the Defendant to file evidence in response to Michou 8. Pursuant to such leave, the Defendant filed the affidavit of Aurelie Lopez (“Lopez 1”) and the 7^th affirmation of Mohamed Abayazid (“Abayazid 7”) on 15 April 2025.

2.The Authority Summons issued in these proceedings relates in essence to the question of whether the Hong Kong Court should refuse recognition of an order made by the Djibouti Court of First Instance for the dissolution of the 3^rd Plaintiff (“Dissolution Order”). The 3^rd Plaintiff had appealed to the Djibouti Court of Appeal against the Dissolution Order (“Dissolution Appeal”), and shortly before the hearing of the Authority Summons in March 2025, the Djibouti Court of Appeal (“Djibouti CA”) dismissed the appeal (“CA Judgment”). The Plaintiffs sought to rely on Michou 8 at the hearing in March 2025, for the purpose of showing that there was manifest unfairness and lack of due process leading to the CA Judgment. By the 4/3 Order, leave was granted to the Plaintiffs to do so, and out of fairness to the Defendant, the Court granted time to the Defendant to respond to the evidence in Michou 8, resulting in the adjournment of the hearing.

3.Lopez 1 filed by the Defendant set out the account given by the Defendant’s lawyer of the Dissolution Appeal, to show that the proceedings before the Djibouti CA had been conducted fairly and that the 1^st Plaintiff had been given ample opportunity to make submissions. Abayazid 7 set out the Djibouti law on service and when time commences to run for appeals, to establish that the Djibouti Judgment is correct in law.

4.On 27 June 2025, the Plaintiffs issued their summons for leave to adduce Michou 9 (“Plaintiffs’ Summons”), explaining that this was necessary in order to correct “patent errors and omissions” in Lopez 1 and Abayazid 7, which purported to set out events leading up to and concerning the dismissal of the Dissolution Appeal. By Michou 9, the Plaintiffs seek to adduce evidence from a lawyer of the 1^st Plaintiff (Camille Kamil (“Camille”)) who was present at the hearing of the Dissolution Appeal before the Djibouti CA. The Plaintiffs contend that whereas Lopez 1 and Abayazid 7 set out largely hearsay evidence on the Dissolution Appeal, based on a one-sided and incomplete account of the Djibouti proceedings, Camille has personal and first-hand knowledge of the conduct of the Dissolution Appeal, and her evidence is material to the Court’s decision on whether the Dissolution Order should be recognized. It was pointed out that neither Lopez nor Abayazid was present at the hearing before the Djibouti CA, but they had made assertions on the hearing and exhibited documents which were not produced before the Djibouti CA in order to support the correctness of the CA Judgment.

5.According to the Plaintiffs, Camille represented the 1^st Plaintiff in the Djibouti courts, and her evidence set out in a letter dated 23 June 2025 from her (“Camille Letter”) contains her personal and direct account of what had transpired before, leading up to, and at the hearing before the Djibouti CA, to show the “highly abnormal and unusual manner” in which the Dissolution Appeal was handled by the Djibouti CA. On the basis of the evidence contained in the Camille Letter, the Plaintiffs claim that the Djibouti CA made its decision to dismiss the Plaintiffs’ Dissolution Appeal, in the absence of the 3^rd Plaintiff, without hearing submissions from the 3^rd Plaintiff, and allowing only the Public Prosecutor to file submissions and new evidence without adversarial debate as requested by the 1^st Plaintiff, all in breach of adversarial principles applicable under Djibouti law.

6.In addition to adducing the Camille Letter, Michou 9 points to what are said to be material omissions in the Defendant’s account of the requirements for service abroad under Djibouti law, which were raised by the Defendant for the first time in Lopez 1 and Abayazid 7 when they referred to Article 687-2 of the French Code of Civil Procedure. According to those provisions, there is deemed service of documents where service has not been possible, or no information is available from the foreign authorities on service. According to the Plaintiffs, the Defendant’s evidence failed to point out that for there to be deemed service, it is necessary to prove that there had been attempted service. This question of service pertains to the service of the Dissolution Order, and whether the Djibouti CA’s decision that the Dissolution Appeal was out of time is erroneous.

7.On the Plaintiffs’ case, therefore, Michou 9 contains important aspects in the evidence, as it is necessary for the Hong Kong Court to have a complete and accurate picture of how the Dissolution Appeal was conducted, as well as of the relevant rules under Djibouti law as to service, for a decision to be made on whether the Dissolution Order is contrary to public policy, and/or obtained in breach of rules of natural justice, such that the Hong Kong Court should not give effect to it.

8.On the Defendant’s part, Counsel argued that when the Plaintiffs had at the March hearing asked for leave to file evidence in response to the reply evidence to be filed for the Defendant after the adjourned hearing, the request had already been rejected by the Court on the basis that the Plaintiff should have included all the relevant facts in Michou 8 which they sought to adduce just before the March hearing. The Defendant claims that by the Plaintiffs’ Summons, they are seeking to do the very thing which the Court had indicated should not be done. The Defendant contended that the Plaintiffs’ Summons should be dismissed because it was a late application, with no good reason shown for the delay, causes prejudice to the Defendant, and does not satisfy the Ladd v Marshall conditions which should apply on the facts of this case and in particular on the basis of what transpired at the March hearing.

9.Counsel for the Defendant contended that if the evidence from Camille on the procedural history of the Dissolution Appeal was relevant, then the Plaintiffs should have adduced such evidence before the hearing in March 2025. The Defendant pointed out that Camille’s criticisms of the CA Judgment on the date of service had already been made in Michou 8, and it was not necessary. It was also pointed out that the Camille Letter seeks to advance new issues relating to (1) the conduct of the hearing before the Djibouti CA as being in breach of the adversarial principle under Djibouti law, and (2) the fact that the 1^st Plaintiff would not be entitled to appeal against the CA Judgment in the absence of any question of law being involved.

10.According to the Defendant, it is not correct for the Plaintiffs to assert that Lopez 1 and Abayazid 7 raised new points, as Lopez 1 only sought to respond to Michou 8, by presenting the factual and procedural steps which were taken in the Dissolution Appeal, and the Plaintiffs should not be given a second bite of the cherry when Michou 8 was filed for the very purpose of presenting what (according to the Plaintiffs) had occurred before the Djibouti CA.

11.The Defendant highlighted the delay in the issue of the Plaintiffs’ Summons. Lopez 1 was filed on 15 April 2025, 1.5 months after the hearing on 4 March 2025, and there was no explanation from the Plaintiffs why they required 2 months to issue the Plaintiffs’ Summons on 27 June 2025. This is only more unreasonable when the 1^st Plaintiff is a party to the Dissolution Appeal, had always had access to the court documents in Djibouti and the Plaintiffs were privy to the Dissolution Appeal, in contrast to the position of the Defendant which is not a party to the Djibouti proceedings. Having delayed the issue of the Plaintiffs’ Summons for the service of Michou 9 by 2 months, the Defendant pointed out that it was unfairly prejudicial to expect the Defendant to have sufficient time to obtain instructions and to file evidence in response to Michou 9 in the interim of 5 weeks before the substantive hearing fixed in early August 2025.

12.Counsel for the Defendant argued that the principles governing Order 32 rule 11A (4) RHC should apply, when it is implicit from the Court’s rejection of the Plaintiffs’ request for automatic leave to file reply evidence, that no further evidence should be filed after the March hearing without further leave of the Court. Citing Tian Hongmei v Zhang Wei [2023] HKCFI 2675, it was contended that the Ladd v Marshall conditions have to be satisfied, and on the facts of this case, they do not. Michou 9 could have been adduced much earlier with reasonable diligence. Camille’s evidence is not apparently credible because it is only unsworn evidence adduced in the form of a letter, and not on affidavit (Hong Kong Civil Procedure 2025 para 41/4/1). The Defendant further claims that the Camille Letter cannot constitute admissible evidence on foreign law, as it is defective for failing to contain the expert declaration referred to in Order 38 rule 37C.

13.As a starting point, I would agree that there must be an end to the filing of evidence for interlocutory matters, bearing in mind in particular, on the facts of this case, that Michou 8 was itself filed and served at a very late stage, shortly before the hearing in March 2025, which was already the adjourned hearing of the Authority Summons originally fixed for 16 and 17 April 2024. The April hearings were adjourned to allow amendments to be made to the Authority Summons. A belated and further round of evidence was allowed by the 4/3 Order, on the rather exceptional circumstances and development in the case. That should have been the end of the matter.

14.However, it has to be accepted that this case and the dispute concerning the Authority Summons raise complex issues, and each party should be given the opportunity to present all the relevant facts relating to the process and hearings before the Djibouti courts, for this Court to have a clear and complete understanding of the circumstances in which the Dissolution Order was made and the Dissolution Appeal was heard and disposed of.

15.It is undesirable that the parties have given evidence in a piece-meal manner but to some extent, this is unavoidable due to: (1) the different location of the parties; (2) there have been difficulties in the parties’ ability to get prompt responses from those individuals who are in Djibouti; and (3) the Defendant is not even a party to the proceedings in Djibouti, and is required to make inquiries with third parties for information concerning the state and progress of those proceedings.

16.On the question of delay as claimed by the Defendant, the Plaintiffs have explained that Michou 8 was filed so late because the Dissolution Appeal was only dismissed (unexpectedly) by the Djibouti CA on 26 February 2025. The Plaintiffs were only informed of the dismissal on 27 February 2025, and Michou 8 was prepared within 2 business days, before the hearing on 3 March 2015. In that available time, it had not been possible for the Plaintiffs to acquire a full understanding of the situation or to deal with more details of the Dissolution Appeal, nor could they have anticipated the misstatements and omissions contained in Lopez 1 and Abayazid 7 which require correction by Michou 9 (as the Plaintiffs maintain). With regard to the Defendant’s complaint of the expert declaration missing from the Camille Letter, the Plaintiffs highlighted the fact that neither Lopez 1 nor Abayazid 7 contains the expert declaration.

17.I have to bear in mind that under Order 1A rule 2(2) RHC, the Court must have regard to the fact that in giving effect to the underlying objectives of the Rules of the High Court, the Court shall always recognize that the primary aim in exercising the powers of the court is to secure the just resolution of disputes in accordance with the substantive rights of the parties. Notwithstanding the complaints made by each side with regard to the evidence so far filed, all parties are anxious to avoid yet another adjournment of the substantive hearing of the Authority Summons. I accept that for the issues to be determined on the Authority Summons, the Court should have all the relevant facts which have been referred to at paragraph 14 above.

18.I take note of the fact that Michou 9 has been provided to the Defendant since 27 June 2025. The Defendant has also been provided with an account of the Disposition Appeal and the relevant Djibouti law provisions by its experts, as set out in Lopez 1 and Abayazid 7. Michou 9 can be admitted for the purposes set out above. Any difference in the accounts of the hearing and on the effect of Djibouti law will simply have to be resolved at the substantive hearing of the Authority Summons on the available evidence.

19.The Plaintiffs have made it clear that if the Defendant considers it necessary to respond to Michou 9, they agree to give the opportunity to the Defendant to do so. It is further noted from the Defendant’s written submissions that it is prepared to have its evidence filed and served in reply to Michou 9 by 28 July 2025, with a view to having the matter argued in full at the hearing fixed for 4 August 2025. Both sides have demonstrated that they are prepared to be reasonable.

20.Taking a pragmatic view of the matter and with Order 1A rule 2(2) in mind, I will grant leave to the Plaintiffs to adduce Michou 9, with consequential leave to the Defendant to file and serve evidence in reply thereto by 28 July 2025. No more evidence shall be admitted.

21.The costs of the Plaintiffs’ Summons will be reserved.

Ms Sara Tong SC and Ms Astina Au, instructed by Deacons, for the 1^st & 3^rd plaintiffs

Mr Benjamin Yu SC, Mr Law Man-Chung SC and Mr Danny Tang, instructed by Reed Smith Richards Butler LLP, for the defendant