A Co. v. B Co.

HCMP336/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.336 OF 2002

----------------------

-----------------------

Coram: Hon Ma J in Chambers

Date of Hearing: 1 March 2002

Date of Decision: 1 March 2002

Date of Reasons for Decision: 12 March 2002

-------------------------------------------------------

REASONS FOR DECISION

-------------------------------------------------------

The Issues

1.On 24 January 2002, I granted an order restraining the defendant, a bank, from revealing or disclosing to any persons save for the purpose of ensuring compliance with the order or seeking legal advice, the proceedings which were about to be commenced by the plaintiff. This order is commonly known as a "gagging order".

2.The proceedings that the plaintiff intended to commence by Originating Summons sought relief in the form of what is now commonly referred to as Norwich Pharmacal discovery (named after the decision of the House of Lords in Norwich Pharmacal Company v. Customs & Excise Commissioners [1974] AC 133).

3.The Originating Summons was issued on 25 January 2002. It was in the general form of originating summons following Form No. 8 of Appendix A to the Rules of the High Court. In my view, it would have been more appropriate given the nature of the relief sought to have used the expedited form (Form No. 10). This is something to be borne in mind for the future.

4.Having instructed solicitors in the matter, the defendant applied to set aside or vary the 24 January 2002 order. Mr Kinnison, who appeared for the defendant at the hearing before me on 1 March 2002, initially submitted that all that the defendant was doing was bringing certain matters to the attention of the court and that the defendant was maintaining a neutral stance. Ultimately though, he accepted that the application before the court was for a discharge or variation of the order which I had earlier made.

5.At the start of the hearing, I commented that the date set down for the application could have been better spent on the substantive hearing of the originating summons itself. It seemed to me that the gagging order was peripheral to the Originating Summons and, given the nature and urgency of the relief sought (i.e. Norwich Pharmacal discovery), the sooner that such applications were determined by the court the better.

6.The parties then very sensibly in my view agreed to have the substantive hearing of the Originating Summons take place before me at that time.

7.After hearing argument, I made the following order, namely that :-

"1. The Defendant does disclose to the Plaintiff's legal advisers, Freshfields Bruckhaus Deringer (Freshfields), and Freshfields be at liberty to inspect and take copies of, all documents in the possession, custody or power of the Defendant for the period from 1 June 1997 to the date referred to in paragraph 2 below relating to:

(a) all accounts of Streamflow Holdings Limited (Streamflow) and Dynamic Capital Holdings Limited (DCH) (together, the Companies) with the Defendant wherever held, in particular the Streamflow accounts numbered 015-514-20-09649-3 and 015-514-20-09528-4 and the DCH accounts numbered 514-20-10817-3 and 514-20-10816-5 (the Accounts);

(b) payments into and out of the Accounts;

(c) the source and destination of all payments into and out of the Accounts;

(d) the person or persons giving instructions for all transactions on the Accounts;

(e) the identity of the directors or persons authorised to give instructions on the Companies' behalf;

(f) the opening of the Accounts and the mandates.

Such documents are to include, in particular:

(i) correspondence;

(ii) records;

(iii) account statements;

(iv) computer entries (in which case only hard copy printouts of the relevant entries need be provided);

(v) cheques relating to the above.

Where any such documents have been microfiched, then only copies from the relevant microfiche need be disclosed.

2. The Defendant use best endeavours to comply with the order specified in paragraph 1 above as quickly as possible, but in any event no later than 14 days from the date of this Order.

3. The Plaintiff does reimburse the Defendant for its costs of complying with paragraph 1 above on a full indemnity basis.

4. The Defendant be restrained until 29 March 2002 or until further Order (whether by themselves, their directors, officers, servants or agents or any of them, or otherwise howsoever):

(a) from revealing or disclosing to any third party (including any servants or agents of the Defendant or any companies connected or associated with the Defendant) any information relating to these proceedings, including (but not limited to) the following matters:

(i) all information provided to this Court in connection with this matter, including but not limited to that contained in the Affidavits of Patrick James Swain, Harley Irwin Lewin and Andrew Keith Kinnison and the skeleton arguments served by both parties in relation to this matter;

(ii) that the Plaintiff has made the application for this Order;

(iii) that this Order has been made, and its effect;

(iv) that the Plaintiff has issued and served the Originating Summons;

(v) that this Order has been made pursuant to the Originating Summons, and its effect;

(vi) that the Defendant shall take or has taken any steps in compliance with this Order;

save for the purpose of taking legal advice or ensuring compliance with this Order.

(b) From warning any third party that the Plaintiff may make any claim or commence any proceedings against any party arising out of the abovementioned matters.

5. The Court file in relation to this matter be sealed and not be available for further inspection by a third party save with the leave of the Court, to be granted only after an inter partes hearing to be held in camera.

6. This matter be referred to and identified in the daily cause list by its action number and not by reference to the names of the parties, who shall be referred to as X company and Y company.

7. Both parties have liberty to apply on notice, if necessary, on an expedited or urgent basis.

8. Costs be reserved to a date to be fixed."

8.Given the way that the hearing has in the end proceeded, the issues before the court can be identified as follows :-

(1) Should Norwich Pharmacal relief be granted to the plaintiff in the first place? (Issue 1 : Entitlement to Norwich Pharmacal relief)

(2) If the plaintiff is entitled to such relief, what should be the terms of the order to be made? (Issue 2 : The terms of the order)

(3) Ought a gagging order have been made on 24 January 2002 and in any event, should it be continued? (Issue 3 : The gagging order)

9.I now set out the reasons for the order made on 1 March 2002, dealing with the three issues as I have just set out.

Issue 1 : Entitlement to Norwich Pharmacal relief

10.Where innocent parties are caught up or have become involved in the tortious or wrongful activities of others and thus facilitating the perpetration (or continuation) of such activities, justice may require (and therefore the court may order) that such innocent persons come under a duty to assist the victim of the tort or wrongful activities, by the provision of full information even though such innocent persons cannot be shown to incur any personal liability at that stage. The foundation of the court's jurisdiction here is its equitable jurisdiction. The court's ability to make such orders was confirmed by the House of Lord's decision in Norwich Pharmacal : see in particular the speech of Lord Reid at 173F-175E. The principles and approach established by that decision have consistently been applied in Hong Kong.

11.The jurisdiction is a wide one. It is not restricted, as was at one time thought, to the disclosure of the names of wrongdoers only. In particular, where a plaintiff wishes to investigate the passage of monies in and out of bank accounts in aid of a tracing claim, discovery can be ordered of a bank's books and documents : see Bankers Trust Company v. Shapira [1980] 1 WLR 124, at 1281F-1282F.

12.Though founded ultimately on notions of justice, nevertheless, it is important to emphasis the extraordinary nature of this relief because it is not a usual order and is not one that a court would lightly grant in the absence of powerful factors. I emphasis the following characteristics of this type of order :-

(1) It is made against an innocent party whose only involvement is to become mixed up in the tortious or wrongful activities of others. There is at that stage no evidence of any wrongdoing on the part of the innocent party.

(2) Instead, whatever wrongdoing there is, exists only on the part of a person or persons against whom no relief may be sought at that stage and indeed against whom there is probably insufficient evidence to found an action. In other words, this person or these persons will most probably not be before the court and would not be able to answer what are often very serious allegations made against them.

(3) Usually, there will, moreover, exist a legal relationship between the innocent person against whom a discovery order is sought and the alleged wrongdoer and this relationship may involve strict duties to be observed on the innocent party's part. The present case offers what is a common scenario : the innocent defendant is a bank and the alleged wrongdoers its customers. In this situation, any discovery to be made by the innocent party may well, apart from a court order, expose that innocent party to liability, both civil and possibly even criminal. At the very least, a breach of confidentiality is involved.

(4) The court, accordingly, in applications for Norwich Pharmacal relief must, in its discretion, balance the competing in interests of the victim of the alleged wrongdoing and an innocent party caught up in the wrongdoing.

13.Given these characteristics as I have outlined, such orders are therefore not lightly made as I have said. In my view, it is essential for the court to bear the following in mind before a Norwich Pharmacal order is made :-

(1) There must be cogent and compelling evidence to demonstrate that serious tortious or wrongful activities have taken place. And where fraud or similar serious allegations are made, the degree of proof must correspondingly be high : see In re. H (Minors) [1996] AC 563, at 586C-H. All the more so when the alleged wrongdoer is not and will not likely before the court.

(2) It must also be clearly demonstrated that the order will or will very likely reap substantial and worthwhile benefits for the plaintiff. Where, as in the present case, the plaintiff is likely to make a tracing claim, there must be a serious possibility that the discovery sought must either allow the plaintiff to preserve what may well be his assets or realistically lead to the discovery of such assets : see Arab Monetary Fund v. Hashim (No.5) [1992] 2 All ER 911, at 916D-E, 918J-919A.

(3) The discovery sought must not be unduly wide. There is no entitlement to general discovery (by general discovery is meant discovery in the Peruvian Guano sense) : see Arab Monetary Fund at 918D-E, 919H. It follows therefore that not only must any order be specific, it must also be restricted to those or those classes of documents that are necessary to enable the plaintiff to preserve or discover assets. This is not to say that discovery orders cannot be wide; what is important is that the discovery, whether wide or narrow, is necessary.

14.With these principles in mind, I now turn to the facts of the present case.

15.The plaintiff is a US company which is a designer, distributor and retailer of footwear and clothes bearing its label. Toward the end of 1997, the plaintiff employed one SB as its Vice President of Global Sourcing for a term of three years. The terms of employment were governed by an Employment Agreement dated 1 November 1997. SB left the plaintiff's employment in late 2000.

16.One of SB's duties was to increase and develop the plaintiff's operations in Asia and to this end, he was to establish the development of operations within the PRC. Inevitably, SB came into contact with many PRC companies. One of these, XS, was utilised by the plaintiff to develop its sourcing operations in Asia. This included putting the plaintiff into contact with PRC supply factories.

17.There is evidence before me (albeit hearsay in nature) pointing to the fact that SB received secret commissions from XS. Apparently these were deposited into a Macau company set up by SB, called ALIL. Documents have been provided to me showing that on 9 June 1999, some US$45,000 was deposited by ALIL into the account of a BVI company, SHL, held at the defendant bank (account numbered 015-514-20-09649-3).

18.SHL is, as I have said, a BVI company set up by SB and one JR. Nothing is known about the precise identity of the shareholders as the BVI Company Registry allows almost complete anonymity.

19.There is also evidence before me, again hearsay, that SB eventually terminated the arrangement of XS being the middleman and instead dealt directly with the PRC supply factories. SB demanded secret commissions from these factories for himself and directed that the commissions be deposited into SHL's bank account at the defendant bank.

20.There is documentary evidence showing that substantial sums were paid by or on behalf of two such PRC supply factories into one of SHL's accounts at the defendant bank (account numbered 015-514-20-09528-4) from late 1999 to early 2001 totalling over US$1.5 million.

21.Other documents show transfers out in early 2001 of nearly US$3 million from SHL's accounts at the defendant bank into accounts in the names of SB and an individual called DM at BGL, a Luxembourg Bank. DM was an employee of the bank.

22.From BGL's accounts, monies amounting to some US$1 million were deposited into two accounts of a company called DCH, again at the defendant bank (accounts numbered 015-514-20-18165 and 015-514-20-18173). DCH is another BVI company bearing a name very similar to a US company operated by JR. Like DCH, the BVI Company Registry records reveal very little as to the shareholders of this company.

23.From DCH's two accounts at the defendant, there is evidence to show that in mid to late 2001 substantial sums of money were remitted to various companies linked to SB or JR, and to JR himself.

24.From the foregoing, it is clear there is evidence of a breach of fiduciary duty on the part of SB on a very significant scale. The defendant has become involved in this wrongdoing : monies which may well represent secret commissions have passed in and out of accounts held in the defendant bank in the names of companies associated with SB.

25.In my judgment, the plaintiff has satisfied the requisite threshold in its establishing an entitlement to Norwich Pharmacal relief. A very serious case of breach of fiduciary duty has made out, a breach in which the defendant has become involved. I am also of the view that an order is justified as it would enable the plaintiff to trace the passage of the secret commissions so as to enable it to commence proceedings or to preserve assets, whether in Hong Kong or abroad.

26.Mr Kinnison resisted the making of an order on the following grounds :-

(1) The alleged wrongdoer or wrongdoers have been identified and evidence exists enabling the plaintiff to commence proceedings. What seems to be argued here, I think, is that it was therefore somehow unnecessary or even impermissible for an order to be made. Mr Kinnison argued that the court was somehow deprived of jurisdiction in these circumstances. Reference was made to the judgment of Hoffmann J in Arab Monetary Fund at 914E, where he said, "The Norwich Pharmacal case is no authority for imposing upon 'mixed-up' third parties a general obligation to give discovery or information when the identify of the defendant is already known."

(2) Alternatively, if the plaintiff did have insufficient information to commence proceedings, then the present application is a "fishing" application. In particular, Mr Kinnison says that the plaintiff does not or cannot assert a proprietary claim over the assets.

27.In my view, these are not sufficient grounds to justify not making an order in the present case :-

(1) the fact that wrongdoers have been identified does not by itself necessarily mean that a Norwich Pharmacal order should not be made, much less deprive the court of jurisdiction. As I have said, the court's jurisdiction is wide enough to order not just the disclosure of names of wrongdoers but also documents or other information : see Bankers Trust at 1282D-E; Hong Kong Civil Procedure 2002, Vol.1 at paragraph 24/2/1. What Hoffmann J said in Arab Monetary Fund in the passage quoted, does not restrict the information available in a Norwich Pharmacal order to just the names of wrongdoers. Rather, the learned judge was merely commenting that where the identity of the wrongdoers was known, this would not justify the imposition of a "general" obligation to give discovery. This went to the width of the order, an aspect to which I shall return.

(2) The fact that the plaintiff may have sufficient information to commence proceedings is again not by itself a bar to Norwich Pharmacal relief. None of the authorities say so. It is, I accept, a factor to be taken into consideration because if a Norwich Pharmacal order is unnecessary, then given the exceptional nature of such an order, one would not be made. In the present case, it is clear that the information sought is necessary to enable the plaintiff to trace the passage of all secret commissions and thus at least facilitate the institution of proceedings in what may be a number of different jurisdictions.

(3) As to the argument that the plaintiff is "fishing" for information, it is to be borne in mind that to an extent all applications for Norwich Pharmacal relief to an extent involve the plaintiff "fishing" for information. That therefore cannot by itself be a ground of objection. It only assumes importance where the plaintiff is unable to demonstrate to the court's satisfaction those factors I have referred to in paragraph 13 above. In this context, I draw attention to the case of P v.T Limited [1997] 1 WLR 1309, in which a Norwich Pharmacal order was granted even though it could not even be ascertained without the information sought whether or not a third party had committed a tort against the plaintiff in the first place.

(4) Nor is it a requirement that the plaintiff must have sufficient information to establish a tracing claim before establishing an entitlement to relief. It will often be the case that where banks are involved, there will necessarily be a tracing claim but this is not a pre-requisite. Afterall, Norwich Pharmacal itself did not involve a tracing claim. The more important point (and this may in the end be what Mr Kinnison was arguing) is that there should be sufficiently cogent evidence of wrongdoing. In this respect, I am satisfied that the plaintiff has demonstrated this in the present case. Insofar as necessary, I also find that the plaintiff has demonstrated that a strong case for tracing can be made out at this stage.

28.For the above reasons, I am satisfied that a Norwich Pharmacal order should be made in the present case.

29.Finally, in this context, I should just deal with the hearsay nature of much of the evidence adduced by the plaintiff. Hearsay evidence is of course more acceptable nowadays than before. The modern trend is reflected in the 1999 amendments to the Evidence Ordinance, Cap. 8 : see in particular section 47 of the Ordinance. No point was taken by Mr Kinnison on the hearsay nature of the evidence but I would hope that in future applications for Norwich Pharmacal relief, given the requirements I have set out above, the persons who have direct knowledge of the relevant facts should be asked to depose to affidavits and that correspondingly, hearsay or multiple hearsay is avoided as much as possible. In the present case, given the sensible way in which Mr Kinnison and Ms Ismail (who appears for the plaintiff) have agreed to expedite the substantive hearing of the Originating Summons, it may not have been possible or practical to ask for further affidavits to be provided.

Issue 2 : The terms of the order

30.Mr Kinnison argued that the order sought by the plaintiff (as reflected in the Originating Summons) was too wide and imprecise. I agree to the following extent :-

(1) Despite SB having commenced his employment with the plaintiff in late 1997, the order for discovery sought by the plaintiff is not restricted in time. There should, in my view, be some form of limitation and I therefore ordered that the relevant documents be for the period as from 1 June 1997.

(2) The Originating Summons is not altogether clear in the exact documents that are sought. While the general class of documents sought are "entries in all records" in the accounts of SHL and DCH, the particular documents sought are beyond just entries. For example, cheques are sought. The order should accordingly be made referable to specific classes of documents. It is important in relation to Norwich Pharmacal orders (as indeed for any order for discovery) that the obligations on the party obliged to produce, are clear.

31.The defendant being an innocent party, it is right that the cost and expense that will be incurred by it in relation to the discovery exercise should be reimbursed by the plaintiff on an indemnity basis. The defendant should not be made out-of-pocket in this exercise.

32.Lastly, it is important to fix a time within which the defendant is to provide the discovery sought. Ms Ismail asked that the defendant comply with the order by 6 March 2002. The reason given for the urgency was it was likely that some injunction proceedings would, in the near future, be taken against SB in another jurisdiction. Mr Kinnison stated that using best endeavours, the defendant would be able to comply with its obligations within two weeks.

33.However much one sympathizes with the plaintiff, the position of the defendant (I emphasis at this stage an innocent party) must also be borne in mind. It would be unfair that the defendant be required to go to extraordinary lengths to comply with an order in the light of circumstances that the plaintiff should arguably have anticipated. The nature of SB's activities was that the seeking of relief on an urgent basis by third parties must or should have been contemplated. I ascribe no fault here but merely wish to emphasis the need to be fair not only to the plaintiff but also to the defendant. I should perhaps also add in fairness that Ms Ismail did not press the point that the urgency was such that there would be devastating consequences if a limit of two weeks was imposed. Indeed, if she had pressed this point, I would have wanted an affidavit to this effect.

Issue 3 : The gagging order

34.Ms Ismail seeks a continuation of the gagging order granted on 24 January 2002.

35.Mr Kinnison's position here was as follows :-

(1) There was no jurisdiction in the present case to grant a gagging order.

(2) Even if there was jurisdiction, in its discretion, the court should not continue it and indeed ought not to have granted one on 24 January 2002. In particular, he emphasised the prejudice that would be caused if a gagging order were made.

36.The defendant accordingly asked that the gagging order made on 24 January 2002 be discharged or varied and in any event that no further gagging order ought to be made.

37.The jurisdiction point can be quickly dealt with. In my view, the court undoubtedly has jurisdiction to grant a gagging order. Section 21L of the High Court Ordinance gives the court a very wide statutory jurisdiction to grant injunctions where the justice of the case requires. The court therefore has the power to grant injunctions to ensure that the proceedings before it or its process are rendered effective and just. Section 21L represents a statutory statement of what has always been the court's inherent jurisdiction. A classic example of this jurisdiction (now embodied in statute by section 21L(2) of the High Court Ordinance) is the development of the Mareva injunction. The underlying reason for the grant of a Mareva injunction is to ensure that proceedings brought by a plaintiff are not rendered effective or even nugatory.

38.And so this provides also the rationale for the grant of a gagging order. A gagging order is granted where there are grounds to believe that once a wrongdoer is aware he is being pursued, steps may be taken by him to frustrate any claim that may be made against him or any investigations being carried out. In Banco Ambrosiano Andino v. Banque Nationale de Paris [1985] HKLR 72, Mantell J was asked to grant a gagging order following the grant of Norwich Pharmacal relief. He did so, remarking at 74G-H,

"It seems to me that if the first part of the order is not to be nugatory [i.e. the Norwich Pharmacal order], the supposed wrong-doers must not discover that they are being pursued. The second part of the order would seem to follow. I am fortified by the knowledge that in a case in which the same Plaintiff together with Bellatrix sought relief against Lloyds Bank International Ltd. and Lloyds Bank PLC, Mr Justice Hobhouse sitting in the Commercial Court of the Queen's Bench Division made a similar order."

For further discussion of this jurisdiction, see Gee : Mareva Injunctions and Anton Piller Relief (4th edition) at 249-252.

39.I therefore reject Mr Kinnison's submissions as to the existence of the jurisdiction to make a gagging order.

40.Gagging orders are also exceptional remedies. By depriving the party affected of the opportunity to investigate facts in circumstances where that party may incur personal liability, is a serious intrusion into what otherwise would be a party's basic rights. It also in a sense condemned the person identified as a wrongdoer without a balanced picture being provided to the court at this stage.

41.In these circumstances, a strong case has to be made out that an order should be made. In the present case, I am of the view that the plaintiff has prima facie satisfied at this test. One of the main purposes of the discovery order granted was to enable the plaintiff to commence proceedings and, if necessary, to seek interlocutory and injunctive relief. Were the wrongdoer or wrongdoers to be forewarned that action was about to be taken or was being taken against them by the plaintiff, this might cause them to embark on an activity that may well prove to be prejudicial to the plaintiff. The nature of the allegations that have been made in the present case, involving breaches of duty and corruption, makes this risk a real one.

42.A strong prima facie case having been made out that a gagging order should be made, are there any factors that should militate against such an order being made in the exercise of the court's discretion? Here, of more substance were Mr Kinnison's submissions based on whether the court's jurisdiction should be exercised in the present case. Chief amongst these was the prejudice which would or might be caused to the defendant. The bank's concern is that it has now been made aware of the plaintiff's claim on breach of fiduciary duty and the tracing claim it intends to make. This may very conceivably include monies at the moment held in accounts at the defendant. In these circumstances, if instructions were to be given to operate the relevant accounts, the defendant might be put in a dilemma. Should it follow the instructions (which would probably involve monies leaving the bank) and therefore risk a claim by the plaintiff based on constructive trust (knowing assistance)? Or should it decline to follow the instructions given by its customer and risk a claim by the customer for breach of mandate? Whichever decision the defendant arrives at in such a situation is of course a matter for it to take and banks not infrequently have to make such decisions (usually upon legal advice), but where a gagging order is in place, its ability to make enquiries is seriously hampered. The defendant is thus put in an invidious position.

43.In the present case, what adds to the defendant's difficulties is that, predictably, the plaintiff of course reserves its rights against the defendant in the event it complies with any instructions regarding the relevant accounts. This potential prejudice to the defendant has caused me the most anxiety but in the end, I have decided on balance that it would be right to continue the gagging order. The following factors have influenced me :-

(1) The particular prejudice caused to the plaintiff if a gagging order were not be granted in the circumstances to which I have referred, is great. The evidence strongly points to a serious breach of fiduciary duty which, as I have remarked, involves corruption.

(2) The prejudice that the defendant has asserted is at this stage a hypothetical one. No evidence has been placed before the court suggesting either that instructions have actually been given for the operation of the relevant accounts or that such instructions are likely to be forthcoming.

(3) That is not to say that such instructions will not be made in the future. As I have said, the defendant would then be placed in a dilemma. There is no easy solution to this but in the end I am persuaded by Ms Ismail that the solution comes in the form of the liberty to apply to court for further directions, if necessary on an urgent basis. I note here that in Governor and Company of the Bank of Scotland v. A Ltd, B & C, unreported, 18 January 2001, English Court of Appeal, the solution preferred by Lord Woolf MR was that the court could make declarations to enable guidance to be given to banks : see here in particular paragraphs 40-41, 47 of the judgment. While that case dealt with prohibitions against disclosure arising from statutory provisions rather than a gagging order and also involved the Serious Fraud Office in the UK rather than a private litigant like the plaintiff, the principles I believe are the same. In paragraph 47 of the judgment, Lord Woolf said :-

"The use of the court's power to grant interim declarations in proceedings involving the SFO will protect a bank from criminal proceedings but it will not automatically provide protection for the bank against actions by customers or third parties. However, it seems almost inconceivable that a bank which takes the initiative in seeking the court's guidance should subsequently be held to have acted dishonestly so as to incur accessory liability. The involvement of the court should however enable, in the great majority of cases, a practical solution to be determined which protects the interests of the public but allows the interests of a bank to be safeguarded."

(4) The gagging order is only of a limited duration, i.e., to be effective until 29 March 2002.

44.I have not ignored the other claims of prejudice made by Mr Kinnison. In particular, he referred to the possibility of proceedings against the defendant by its customer or even by other persons, whether here or abroad. Again, this is speculative as there is no evidence to suggest that the defendant is or may be under such difficulties. Apart from that, I would have thought it a good defence to proceedings brought in Hong Kong (or indeed any responsible jurisdiction) that the bank was acting under the order of the court. I note as far as the defendant's customers are concerned, Mr Kinnison accepted it was likely that the relevant contract would be governed by Hong Kong law.

45.I hope that I shall be forgiven for not dealing with the other points raised by Mr Kinnison. They seemed to me either to be refinements of the points I have already dealt with or were of such a technical nature (and not correct either) that it would cause, and not give rise to, injustice if they were acceded to. For example, one of the points made was that a gagging order should not be given since the plaintiff had instituted the present proceedings by originating summons rather than by writ. I presume that what was meant was that an originating summons procedure was inappropriate where there were allegations of breach of fiduciary duty and fraud. However, it has to be borne in mind that the originating summons procedure is often suitable for the hearing of Norwich Pharmacal relief : see Hong Kong Civil Procedure 2002, Vol. 1 at paragraph 24/2/1. In any event, at its highest, this is a very technical point which, with respect, has little to commend it.

46.In the circumstances, there was in my judgment sufficient justification for the gagging order to have been made on 24 January 2002 and continued to 29 March 2002 or until further order.

Representation:

Ms Roxanne Ismail, instructed by Messrs Freshfields Bruckhaus Deringer, for the Plaintiff

Mr Kinnison, instructed by Messrs Holman, Fenwick & Willan, for the Defendant