Cosimo Borrelli and Others v. Linklaters (A Firm)

On 2 October 2026, the Court of Appeal (Au and Coleman JJA) handed down judgment in Borrelli v Linklaters [2026] HKCA 1731, granting in part CNG's application for a stay of execution pending appeal. Mr Norman Nip SC leading Mr Leon Guo, instructed by GH Legal, acted for the intervener CNG; Mr James Wood, instructed by Karas So LLP, acted for the plaintiffs.

The dispute arises from HKIAC arbitration proceedings in which Linklaters acted for both SIL and CNG under separate retainers (August and December 2020). After Linklaters was replaced in August 2023, SIL (with the Receivers) sought delivery up of documents from Linklaters' files by Originating Summons dated 17 March 2025. CNG intervened to oppose delivery of certain invoices and Category 2 documents, contending they were subject to CNG's legal professional privilege (LPP) by virtue of common interest privilege.

Harris J ordered delivery up, finding at §§53-54 of [2025] HKCFI 5293 that the Category 2 documents "belong to" both SIL and CNG, making LPP irrelevant to the delivery-up question. CNG's application for a stay before Harris J was refused ([2026] HKCFI 1910), with an interim stay granted pending this application.

The Court of Appeal held that: (1) Ground 1 of the appeal (challenging the finding that Category 2 documents belong to SIL) "just meets" the reasonable prospects threshold. The Court accepted that the Judge likely used "belong to" in the sense of being properly in SIL's hands rather than strict ownership, but considered the argument arguable given the interplay with common interest privilege and partial waiver principles (§§31-36). (2) Grounds 2, 3, 4, 5, 6, 7, 8, 9 and 10 did not individually meet the threshold. Ground 2 was a "strawman" argument; Ground 3 was "entirely arid" as CNG had no standing to interfere in the Linklaters-SIL relationship; Grounds 4-7 challenged factual findings open to the Judge; Grounds 8-10 on abuse of process did not reach the minimum standard. (3) The stay of §1 (delivery-up) and §5 (costs order in SIL's favour) was granted, conditional on the appeal being immediately set down for hearing on 8 January 2027. The stay of §§6 and 8 (costs orders in Linklaters' favour) was refused because execution would not render the appeal nugatory and Linklaters, as a neutral party forced into proceedings, should not be kept out of pocket.

Costs as between CNG and SIL were reserved to the appeal; CNG was ordered to pay Linklaters' costs of the stay application.

For practitioners: where a former client seeks delivery up of documents from its solicitors, common interest privilege arguments by a co-client face a high bar on appeal, particularly where the documents were previously in the requesting party's possession. The conditional stay with an early fixture date reflects the Court's reluctance to delay substantive proceedings where grounds are only marginally arguable.