Read the full judgment text of CACV 167/2013 on BabelCite. This Court of Appeal judgment was delivered on 10 January 2014 before Lam VP, Kwan JA, Barma JA.
Civil procedure – ancillary relief – enforcement of judgment – leave to disclose and use judgments for enforcement proceedings in foreign jurisdictions – implied undertaking as to confidentiality – whether appeal academic – whether judge below overstated risk of general publication – whether safeguards against general publication available – Main Judgment and Barrell Judgment of Saunders J in HCMC 5 of 2008 – redactions and stay of publication pending substantive appeals – wife obtained majority of ancillary relief award in her favour under the Main Order but award largely unpaid – wife sought leave to disclose two judgments of Saunders J, namely the Main Judgment and the Barrell Judgment, in unredacted form for the purpose of enforcement proceedings against the husband in other jurisdictions – husband and intervening parties (the father and OIL) opposed – Ng J dismissed summons on 15 May 2013, exercising discretion against wife on basis that her application was tantamount to general publication and that there was more than a reasonable prospect of wider dissemination – wife appealed with leave granted 9 August 2013 – Court of Appeal allowed wife's appeal – first issue on whether appeal was academic – held appeal not academic because whatever the outcome of substantive appeals on redaction and publication, there would be substantial amount of money outstanding and wife entitled to enforce against the husband – she sought to use the unredacted judgment so that any enforcing court would get the full picture of Saunders J's findings on the husband's beneficial ownership of assets – second issue on whether Ng J overstated risk of general publication – held judge did overstate the risk – disclosure for enforcement purposes is different from general publication of the judgment – grant of leave to disclose for limited purpose of enforcement would not impinge on determination of appeal as to general publication, as held in this court's earlier decision in CACV 166 of 2012 – implied undertaking of confidentiality would apply and could have been made express – wife gave oral indication at first instance hearing that she would consider any undertakings the court considered appropriate, which judge did not explore – responsible foreign court would honour wife's undertaking of confidentiality to Hong Kong court – relied on Vitol SA v Capri Marine Ltd & Ors (No 2) [2010] EWHC 458 (Comm) per Tomlinson J that enforcement of court's order is not collateral or alien to implied undertaking – third issue on whether leave should be granted – held wife's application was necessary, not merely for convenience – she wished to rely on findings in Main Judgment of husband's beneficial ownership of assets and should not be required to rehearse all primary evidence before each foreign court – wife's appeal allowed – order of Ng J set aside – wife permitted to make use of and disclose the Main Judgment as corrected on 6 July 2012 and the Barrell Judgment in their unredacted form for the purpose of enforcement proceedings – costs orders against the wife set aside – costs of applications below awarded to wife – order nisi that wife's costs of the appeal be paid by the husband and the intervening parties, with certificate for two counsel – application for costs on indemnity basis declined.
Legal issues: Whether the wife's appeal is academic · Whether Ng J overstated the risk of general publication · Whether leave should be granted to disclose the judgments for enforcement purposes
Outcome: Wife's appeal allowed; order of Ng J set aside; wife permitted to disclose the Main Judgment and the Barrell Judgment in their unredacted form for the purpose of enforcement proceedings.
Cited by 3 cases · Cites 2 cases