COSIMO BORRELLI AND OTHERS v. LINKLATERS (A FIRM)

HCMP 410/2025

[2025] HKCFI 5293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 410 OF 2025

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J U D G M E N T

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Introduction

1.  There are two summonses before the Court.  The first is an Originating Summons filed on 17 March 2025 by the Plaintiffs for an order requiring the Defendant (“Linklaters”) to produce the documents as set out in Annexure A thereto (“Delivery-Up Summons” and “Annexure A” respectively).  The second is a summons filed on 16 April 2025 by China National Gold Group Hong Kong Limited (“CNG”) for leave to be joined as an interested party to these proceedings (“Intervention Summons”). Before me the Delivery-Up Summons was only pursued by the 3^rd Plaintiff (“SIL”) in order to avoid a dispute about the 1^st and 2^nd Plaintiffs’ (who are receivers) right to the documents.  The 1^st and 2^nd Plaintiffs, who I will refer to as the “Receivers”, asked me to adjourn their application sine die.  I deal with that matter at the end of this judgment.

2.  Linklaters does not object to delivering to SIL, in its capacity as Linklaters’ former client, documents that form part of SIL’s client file.  The Plaintiffs do not object to the Intervention Summons, but take issue with CNG’s opposition to the Delivery-Up Summons.

Background

The Parties

3.  CNG is a Hong Kong company primarily engaged in the business of mining operations.  Gerald Metals LLC (“Gerald”) is a Delaware company and an international commodity trader specialising in the merchanting of precious metals. Global Mining Development LP (“Global”) is a limited partnership formed under the laws of the British Virgin Islands (“BVI”) and an affiliate of Gerald. Global and Gerald are collectively referred to as the “Gerald Parties”.

4.  SIL is a BVI company which, together with its subsidiaries, held various mining assets, exploration permits and exploitation permits in the Republic of Congo (“Congo”) and carried on the business of developing and operating a polymetallic mining and processing project (“Project”).

5.  Prior to the appointment of the Interim Receivers (defined in [16] below), the board of directors of SIL consisted of four directors appointed by CNG (“CNG Directors”) and two directors appointed by Global (“Global Directors”).

6.  The Gerald Parties took over the Project in Congo in or around 2004 and incorporated in 2005 a 90% owned subsidiary of SIL (“Soremi SA”) to hold the Project’s relevant exploration and/or mining licences.  SIL was merely a holding company and did not conduct any substantive business of its own save for holding assets.

7.  In 2010, Global became the 100% shareholder of SIL.

8.  On 18 December 2013, the Gerald Parties and CNG entered into a sale and purchase agreement (“SPA”) for CNG to purchase 65% of the shares in SIL (“Shares”) from Global, followed by a shareholders agreement entered on 17 March 2014 (with SIL as an additional party) (“SHA”).

Arbitral Proceedings

9.  On 13 November 2020, the Gerald Parties commenced a HKIAC arbitration against both CNG and SIL for alleged breaches of the SPA and the SHA (“Existing Arbitration”).

10.  By separate engagement letters, Linklaters was engaged by CNG and SIL on 5 August 2020 and 11 December 2020 respectively to represent them in the Existing Arbitration.

11.  In August 2023, Herbert Smith Freehills Kramer[1] (“HSFK”) replaced Linklaters as the legal representative of SIL and CNG in the Existing Arbitration.

12.  To date, four partial awards (collectively “Partial Awards”) have been issued in the Existing Arbitration.  Relevantly, CNG was ordered to transfer the Shares to Global pursuant to the first partial award dated 8 February 2023 (“1^st Partial Award”).  The Tribunal further ordered specific performance of the transfer of Shares by the third partial award dated 21 November 2023 (“3^rd Partial Award”).

13.  The 1^st Partial Award and 3^rd Partial Award were recognised by the BVI Court (“Recognition Orders”).  CNG applied to the BVI Court to set aside the Recognition Orders, but the application was dismissed on 15 April 2024.

14.  Subsequently, CNG commenced two separate arbitrations which were consolidated into the Existing Arbitration and are ongoing.

15.  CNG mounted a number of challenges to the Partial Awards in Hong Kong.  For instance:

(1)  On 27 April 2023, CNG sought to set aside the 1^st Partial Award.  Mimmie Chan J dismissed the application and ordered CNG to pay costs on an indemnity basis.  She criticised the case as being “a typical example of a party which has agreed to submit its contractual disputes to the final and binding determination of an arbitral tribunal, but being aggrieved when the tribunal makes an award against it, makes all attempts to find loopholes and problems in the award”[2].

(2)  On 29 November 2024, CNG applied to remove the presiding arbitrator and to set aside the fourth partial award.  Mimmie Chan J dismissed the application and noted that the “parties remain bitterly embroiled in what appears to be never-ending dispute”[3].

Receivership Order

16.  Due to CNG’s failure to transfer the Shares, the Gerald Parties applied to the BVI Court for an urgent appointment of receivers over the Shares. By an order of the BVI Court dated 17 September 2024 (“Receivership Order”), the 1^st and 2^nd Plaintiffs were appointed as receivers of the Shares on an interim basis (“Interim Receivers”).

17.  Since 18 September 2024, the Shares have been registered in the 1^st Plaintiff’s name.  The remaining 35% of the shares in SIL remain registered in Global’s name.  The CNG Directors were replaced by the Interim Receivers and two of their colleagues from Kroll (HK) Limited. The Global Directors remained as directors of SIL.  The CNG-appointed officers in SIL were removed.

Interim Receivers’ Request for Documents

18.  As I explained in [10] on 5 August 2020 CNG retained Linklaters to represent it in the Existing Arbitration.  The terms of Linklaters’ engagement was contained in Linklaters’ letter of that date.  Five months later on 11 December 2020 SIL signed a similar retainer letter with Linklaters.  In paragraph 4.2 of the December retainer Linklaters recorded that it would be representing both SIL and CNG in the Existing Arbitration. In paragraph 4.3 Linklaters stated that SIL and CNG have a common interest in the Existing Arbitration (see definition of Matter in clause 1.1), the role Linklaters would perform for each of them, and that Linklaters believed that there was no significant risk of them not being able to act in SIL’s best interests.  Linklaters billed SIL and CNG separately, although the invoices, which are items 15, 17-19, 21-28 and 30-41 in the Opposed Documents[4] were paid by CNG.  On 9 August 2023 both CNG and SIL replaced Linklaters with Herbert Smith Freehills.

19.  Since November 2024, the Interim Receivers have requested Linklaters to produce, inter alia, books and records of SIL, details of SIL’s bank accounts, and correspondence between SIL and Linklaters or third parties.  Linklaters raised queries regarding the legal basis for the requests and the enforceability of the Receivership Order.

20.  Pursuant to the order of DHCJ Gary Lam dated 24 April 2025, Linklaters provided a list of documents based on Annexure A to the Delivery-Up Summons to CNG and the Plaintiffs on 22 May 2025 (“List of Documents”).  Many are not objected to by CNG.  The List of Documents consists of two broad categories of documents, namely (1) documents which Linklaters believe exclusively belong to SIL (“Category 1”), and (2) documents which Linklaters believe belong to both SIL and CNG (“Category 2”).

21.  CNG opposed the production of the following documents:

(1)  Items 15, 17-19, 21-28 and 30-41 under Category 1, which are essentially various invoices issued by Linklaters to SIL (“Invoices”);

(2)  Documents in Appendix 1, 2 and 3 (Tabs 3 and 4) of Category 2, which include documents prepared by Linklaters for SIL and CNG in the Existing Arbitration, correspondence between Linklaters and SIL and/or CNG, emails between Linklaters, counsel and experts in the Existing Arbitration.

(collectively “Opposed Documents”)

22.  I shall deal with CNG’s Intervention Summons before turning to the Delivery-Up Summons.

Intervention Summons

23.  The legal principles in relation to a joinder application are summarised in Re Leung Yat Tung[5] at [11]-[12].  The salient paragraph explains:

“11. Order 15 rule 6(2)(b) of the Rules of the High Court (‘RHC’) provides that.

‘(2) Subject to the provision of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application—

(a) […]

(b) order any of the following persons to be added as a party, namely —

(i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.’

12. In Man Whi Chung v Man Ping Nam [2003] 1 HKC 549, DHCJ A Cheung (as the Chief Justice then was) explained the operation of the said rule as follows:

(1) The applicant must show that he is sufficiently interested in the proceedings to which he or she wishes to be joined as an additional party. Under Order 15 r.6(2)(b)(i) (‘the Necessity Limb’), a person ‘who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon’ may be added as a defendant: [14];

(2) Adopting what Lord Diplock said in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 at 56, a party might be added under the Necessity Limb if his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action: [20];

(3) An alternative basis for joinder is set out in Order 15 r.6(2)(b)(ii) (‘the Just and Convenient Limb’), which confers on the Court a wider jurisdiction to allow joinder. There must exist an issue common to (a) the applicant and any party to the cause or matter and (b) the parties to the cause or matter, which is ‘just and convenient to determine’: [21] – [22];

(4) The Court has a discretion to exercise even if a case falls within the provisions. But the fact that a case falls within either limb is by itself a strong reason for allowing the joinder.  The rules of natural justice require that a person who is ‘affected’ (in the sense of either the Necessity Limb or Just and Convenient Limb), or is potentially affected, by a decision of the court be given a proper chance to be heard: [43] (‘the Discretionary Limb’).”

24.  It seems to me clear that the criteria are satisfied in the present case.  CNG has raised an issue relating to privilege and the use of the Opposed Documents that is relevant to the determination of the application, which in my view it is plainly just and convenient that as between SIL and CNG should be determined in these proceedings.  Accordingly, I made an order at the commencement of the hearing allowing CNG to intervene.

Delivery-Up Summons

25.  The first issue that the Delivery-Up Summons requires to be determined is whether as between CNG and SIL the Opposed Documents are covered by Legal Professional Privilege (“LPP”).  If the documents are not privileged as between them there is nothing (subject to the abuse of process complaint, which I address separately) objectionable to SIL seeking copies of documents that Linklaters have by virtue of acting for both in conducting the Existing Arbitration.

26.  LPP is described by Lord Taylor of Gosforth CJ in R v Derby Magistrates’ Court, ex p B[6] as follows:

“The principle which runs through all these cases … is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.”

27.  The privilege is that of the client and only he can waive it.  His legal advisers cannot.  This principle is not controversial. What is in dispute in the present case is whether by virtue of Linklaters acting for both CNG and SIL, as between them LPP applies.

28.  SIL argues that the circumstances in which Linklaters came to act for both SIL and CNG either gave rise to a joint retainer or a joint interest with the consequence that as between them there is no LPP.  Whether a retainer is separate (as CNG maintain) or joint (as SIL assert) is a matter of fact.  As Burnett J (as he then was) observed in R (on the application of Ford) v Financial Services Authority[7] one would expect lawyers to establish clearly who they are advising and the basis upon which they do so. Some care needs to be taken in ascertaining whether the relationship between a law firm and two clients being advised in connection with the same matter gives rise to separate privilege or joint privilege.  If the latter the clients cannot assert privilege against the other in respect of documents that came into existence for the purposes of the law firm representing them.  The mere fact that both clients chose to retain the same law firm in respect of the same matter does not of itself gives rise to a joint retainer[8].

29.  If, as in the present case, two separate retainer letters have been signed, particularly using language, which is consistent with there being separate retainers with each client to advise them on same matter, this points to separate retainers rather than a joint one.  In the case of a joint retainer both clients are responsible for the fees and disbursements of the solicitor and the discussions in the authorities and textbooks concerning what distinguishes joint and separate retainers focus on this issue, which commonly has arisen in the context of a dispute over liability for fees[9].

30.  It would seem to me clear that CNG and SIL retained Linklaters separately.  The language of the SIL retainer (the second in time), in particular, is more consistent with separate retainers of a common solicitor for the defence of the Existing Arbitration than a joint retainer and as I have already explained SIL and CNG were billed separately.  Consequently, each party is able to maintain privilege against the other unless common interest privilege arises between them[10].

31.  Joint interest is not relevant where although party A and party B have retained the same law firm they have done so separately[11].  However, common interest privilege arises if either SIL or CNG voluntarily disclosed privileged documents to one another in connection with the Existing Arbitration, because they have a common interest in the conduct of the Existing Arbitration[12].  This is the position in the present case and both SIL and CNG may assert against third parties LPP in the documents that passed between either of them and/or Linklaters.

32.  SIL says that to the extent that any of the CNG Exclusive Documents[13] were shared with SIL (in practice by becoming available to SIL’s solicitors, Linklaters for use in the joint defence), LPP as between CNG and SIL was lost and cannot now be asserted against SIL by CNG.  It is correct that generally once a document has been disclosed voluntarily to a specific party then in respect of the specific party privilege has been lost[14].  CNG submits that this general principle is subject to the qualification that privilege is not lost generally if a document is disclosed for a limited purpose[15].  Although Keith JA suggested in Rockefeller & Co Inc v Secretary for Justice[16] that it would be conceptually unsound to hold other than that once privilege is waived in favour of one party it is waived in favour of all, the Hong Kong Court of Appeal in the later case of Citic Pacific Ltd v Secretary for Justice[17] was satisfied that Hong Kong law incorporates the concept of partial waiver of privilege.  In Citic the dispute concerned the impact of Citic surrendering privileged documents to the Security and Futures Commission (“SFC”) subject to the reservation that privilege was only waived to the extent necessary to enable the SFC to carry out its investigations.  Citic maintained that it was entitled to invoke privilege against all third parties who sought access to the documents.  Subsequently, the SFC passed documents, which Citic contended that they were privileged, to the Department of Justice for the purposes of obtaining advice.  In addition, Citic became aware that the police wished to look at the documents.  Citic sought orders the effect of which was to establish that the documents were, as Citic contended, privileged and privilege had only been waived to the limited extent of allowing the SFC to carry out its investigations.  The application was dismissed at first instance by Wright J, whose decision was reversed by the Court of Appeal.

33.  The Court of Appeal reasoned that once a document had been disclosed to another party the provider of the document has no right to refuse disclosure to that other party[18]. However, it does not follow that disclosure to one party naturally or automatically has the consequence of ending a right that otherwise existed to refuse disclosure to other parties of a document, which is otherwise privileged.  It might be thought surprising and undesirable that an expressly limited waiver of privilege did not have its clearly intended effect.  This point was explained by Lord Millett in B v Auckland District Law Society[19], by reference to his approval of a passage in the judgment of Neill LJ in British Coal Corp v Dennis Rye Ltd (No 2)[20]:

“33. In my judgment the action of the plaintiffs in making documents available for the purpose of the criminal trial did not constitute a waiver of the privilege to which they were entitled in the present civil proceedings. Their action in regard to [the documents] was in accordance with their duty to assist in the conduct of the criminal proceedings, and could not properly be construed as an express or implied waiver of their rights in their own civil litigation. Indeed, it would in my view be contrary to public policy if the plaintiffs’ action in making the documents available in the criminal proceedings had the effect of automatically removing the cloak of privilege which would otherwise be available to them in the civil litigation for which the cloak was designed.”

34.  Lord Millett says this at page 761:

“It does not follow that privilege is waived generally because a privileged document has been disclosed for a limited purpose only: see British Coal Corporation v Dennis Rye Ltd (No 2) [1988] 1 WLR 1113 and Bourns Inc v Raychem Corporation [1999] 3 All ER 154. The question is not whether privilege has been waived, but whether it has been lost. It would be unfortunate if it were. It must often be in the interests of the administration of justice that a partial or limited waiver of privilege should be made by a party who would not contemplate anything which might cause privilege to be lost, and it would be most undesirable if the law could not accommodate it.”

35.  This dictum of Lord Millett was said by the English Court of Appeal in Berezovsky v Hine[21] to set out the current principle.  In [38] of the judgment in Citic the Hong Kong Court of Appeal held that the concept of partial waiver of privilege is part of Hong Kong law.

36.  I note that in B v Auckland District Law Society, Lord Millett says that the question properly understood is not whether privilege has been waived, but whether it has been lost.  A distinction, which brings into finer focus the issue that must be investigated, which in the first instance is whether disclosure of a document by Party A to Party B results in party A losing the right to assert common interest privilege against third parties.  The position is explained as follows in The Law of Privilege[22] [6.20]:

“In short, common interest privilege arises where one party (party A) voluntarily discloses a document which is privileged in its hands[23] to another party (party B) who has a common interest in the subject matter of the communication or in litigation in connection with which the document was brought into being.[24] In such circumstances, provided disclosure is given in recognition that the parties share a common interest,[25] the document will also be privileged in the hands of party B.[26] The privilege can arise even where the common interest is subject to terms as to party B’s use of the document.[27] Although the point has not been considered extensively, the better view is that in order for the privilege to be invoked the common interest must arise at the time of disclosure by party A to party B;[28] unlike with joint interest privilege, it is not necessary for it to arise at the time the document was created. If the position were otherwise, the application of the common interest privilege doctrine would be severely curtailed.[29]

37.  It seems to me clear that when CNG disclosed documents to Linklaters or SIL as part of the conduct of its defence in the Existing Arbitration it did not lose LPP against third parties.  I did not understand SIL to suggest otherwise.  The controversial legal issue is whether CNG lost its right to assert LPP against SIL in respect of the documents, which SIL or Linklaters acting on SIL’s behalf, had had disclosed to them by CNG during the conduct of the defence of both SIL and CNG.  SIL’s arguments in relation to this issue proceeded on the basis that there was a joint retainer, which as I have found in my view plainly there was not.  Mr Wood referred me to the judgment of Morgan J in Love v Fawcett[30], which at [14] contains a discussion concerning how LPP arises differently in cases where there is a joint retainer and in cases where there is not, but a common interest is demonstrated.  It will be recalled that joint interest and common interest are different.  In the light of my decision that the retainers were separate I am concerned with a case of common interest not a case of joint interest, however, there is a further argument that I will address relevant to joint retainers.

38.  Mr Wood is correct that there are English authorities[31], which suggest that in the case of a joint retainer once a document is disclosed by one party to another as between those parties the privilege is lost, and lost permanently. There is Australian authority, which has taken a more nuanced view.  FAI General Insurance Company Limited v ACN 010 087 573 Pty Ltd and Anor[32] was an appeal to the Supreme Court of Queensland by the insurer, FAI, against a decision in favour of the insured that the solicitors’ firm, Clayton Utz, which had represented the defendants (the insured) in proceedings brought against them by Interchase could produce the relevant documents for their insepection.  Clayton Utz had been appointed because the insurer would not commit itself to provide an indemnity to the insured.  However, the insurer was prepared to undertake the defence, whilst reserving the right ultimately to refuse indemnity.  This conflict made it untenable to agree that either the insurer’s, or the insured’s solicitors should conduct the defence, and hence an independent firm, Clayton Utz was appointed.  Subsequently, before trial the insurer finally rejected the insured’s claim for an indemnity and discontinued its retention of Clayton Utz, who then ceased to act in the matter.  The insured subsequently settled the claims against them.  The terms of settlement involved an assignment to Interchase of the insured’s rights against the insurer.  Interchase sought to subpoena notes or correspondence which Clayton Utz had with an expert retained by the defendants.  The insured also independently sought an order that Clayton Utz produce documents for their inspection.  The insurer opposed this since the insured had common solicitors with Interchase and in the absence of any other apparent reason, the circumstances strongly suggested that the insured’s only interest in the documents was to make them available to Interchase.  The trial judge found in the insured’s favour.

39.  The disputed documents were generated by solicitors with the experts and were not in the nature of material confidential to the insured.  In [18] of the judgment of the Court of Appeal Derrington J says this:

“It is understandable that privilege as to material generated by the joint endeavour of the parties against a common opponent, but which might be adverse to one of them in a separate dispute inter se, should be treated in this way. Generally, each party is entitled to access to all material acquired by their joint solicitor, as to which they had common interest and joint privilege against others.[33] However, their joint retainer cannot be used by one of them to penetrate or defeat the privilege of the other as to confidential material which could otherwise be invoked against the latter. Under the arrangement between them, the quality of confidentiality prevents such use for any ulterior purpose.”

He goes on in [19] and [20] to explain that the reason for treating documents in this way is the confidential nature of the documents supplied by the insured to their joint solicitors.  It is implicit in this reasoning that the confidentiality has been waived for the purpose of conducting the proceedings brought against the insured.  Derrington J goes on in [24] to state that “Where the documents that are the subject of joint privilege have been generated for a specific purpose in circumstances where there is an understanding that they are to remain privileged except for that purpose, then the court will restrain the improper use of the material, which in such circumstances has the same character as confidential information.”

40.  Byrne J in his judgment is to similar effect.  In [40] he says this: “Material received or created by Clayton Utz was brought into existence, as both insurer and insured appreciated, for the limited purpose of conducting the insured’s defence; and, except in proceedings in the Interchase litigation, that information was not to be disseminated beyond insurer and insured. No disclosure of the retained material has occurred yet. Accordingly, that information retains the quality of confidence necessary to attract equitable protection”.  Byrne J considered that the principle underpinning this analysis was the confidential character of the information. In [45] he refers to Lord Millett’s article “Equity’s Place in the Law of Commerce”, (1988) 114 LQR 214, in which he says “Confidential information shares this characteristic with trust property, that the person who is entrusted with it is bound to use it, if he uses it at all, only for the purpose for which he received it” and not “for an ulterior purpose of his own”.  This analysis is consistent with the statement of Lord Millett I referred to in [36] that in such situations the issue should be viewed as whether privilege has been lost rather than waived.  It is also consistent with the view expressed in the Court of Appeal’s decision in Citic that the waiver of privilege for a particular purpose does not necessarily result in the loss of privilege in respect of other matters.

41.  In my view the general principle that exists in the case of a joint retainer, namely, that neither party can claim privilege as against the other in respect of documents created pursuant to the joint retainer, is modified in the case of separate retainers of solicitors by parties to proceedings to conduct those proceedings in which the parties have a common interest in the outcome and as a consequence common interest privilege (as I have explained it in [31]) arises as between them and third parties. In such a case LPP will not be lost between the parties in respect of matters other than the proceedings in which they had a common interest, if the court is satisfied that the documents were confidential when disclosed.

42.  In the present case I accept that LPP was only waived by CNG to the extent of permitting SIL to use the documents for the purposes of the Existing Arbitration and probably other closely associated matters.  But it does not seem to me that this helps CNG in respect of this application.  To understand why, it will be helpful to explain more about the documents, or to be more accurate, what the court has been told about them as I have seen very few of what is a voluminous quantity of documents, as demonstrated by the fact that Linklaters’ List of Documents runs to about 1,700 pages.

43.  The List of Documents produced by Linklaters divides the Category 2 documents said by Linklaters to belong to SIL and CNG into the following sections.  There are no documents for items (a) and (e) of Annexure A. There are three appendices for each of item (b) of Annexure A (Appendix 1), item (c) (Appendix 2) and item (d) (Appendix 3).

44.  As I understand CNG’s evidence and submissions it opposes disclosure of a large number of the documents that fall within Category 2 on two grounds.  First, that they were CNG Exclusive Documents[34].  In other words, they did not concern the conduct of any part of SIL’s defence.  The simplest example of this category are documents relating to advice and preparation done in relation to the Existing Arbitration before SIL was retained, i.e., the period 5 August 2020 to 11 December 2020.  These documents are subject to LPP against third parties.  Mr Wood told me at the outset of the hearing that documents before 11 December 2020 were not being pursued.  The second ground of opposition is that the documents by CNG are subject to LPP.

45.  I have seen a limited number of the documents referred to in the List of Documents.  Some have been exhibited to the evidence of Tian Na. In [134] of CNG’s skeleton submissions the following objection is made to Linklaters producing to SIL documents in Appendices 1 and 2 on the grounds that “they are likely to contain CNG Exclusive Documents and/or are subject to LPP”.  By CNG Exclusive Documents, the skeleton submissions mean:

“90.2 Advice on the strategies for negotiations with the Gerald Parties and the Existing Arbitration, which fall within the scope of the CNG EL (Clause 1.2) only, and outside that of the SIL EL.

90.3 Documents in relation to the advice and/or preparation of CNG’s Answer to Notice of Arbitration.

90.4 Documents in relation to the advice and/or preparation of CNG’s defences and responses in the Defence and Rejoinder.

90.5 Documents in relation to the advice and/or preparation of the expert reports of RPM and BRG which were engaged solely by CNG.

90.6 Any advice, documents or reports prepared by Conyers engaged solely by CNG.

90.7 Linklaters’ emails and other communications exchanged exclusively with CNG’s representatives without copying SIL’s representatives.”

46.  In relation to Appendices 1 and 2, CNG identifies examples of documents that it suggests are CNG Exclusive Documents:

“134.1 Email communications between Linklaters and CNG and/or Soremi SA representatives where Linklaters enquired with CNG and/or Soremi SA representatives about various factual issues in order to prepare pleadings and witness statements to address the Claims Exclusively Against CNG.

134.2 Email communications between Linklaters and CNG and/or Soremi SA representatives where Linklaters enquired with CNG and/or Soremi SA representatives about various factual issues in order to provide instructions to CNG’s geological experts (RPM). In the Existing Arbitration, RPM provided their expert opinion on the Extensive Exploration Claim, the SXEW Plant Claim and Phase II Development Claim (which are Claims Exclusively Against CNG).

134.3 Email communications between Linklaters and CNG and/or Soremi SA representatives where Linklaters enquired with CNG and/or Soremi SA representatives about various factual issues in order to provide instructions to CNG’s quantum experts (BRG).  In the Existing Arbitration, BRG provided their expert opinion mainly on the Performance Payment Claim (which are Claims Exclusively Against CNG).”

47.  As required by the order of 17 July 2025, an Annex 1 was prepared setting out why in relation to several of the exhibits to the anticipated 2^nd affirmation of Tian Na, LPP or exclusivity was asserted.  Ms Tian was between September 2018 and February 2021, the deputy legal manager of China National Gold Group Hong Kong Limited and since February 2021, he has held the position of vice general manager within the audit and legal compliance department of China National Gold Group Co., Ltd, the parent of CNG.

48.  The import of Ms Tian’s evidence in his 1^st affirmation is that various evidence was prepared to address claims made only against CNG.  Ms Tian does not dispute that the documents described in the List of Documents were provided to SIL.  He does not suggest that CNG objected to this.  He says in his 1^st affirmation ([43]) in some cases this was because SIL’s staff representatives and employees had relevant first-hand knowledge of matters relevant to claims brought only against CNG and Linklaters were communicating with them for this reason.  Given the number of the documents and the item descriptions there is no reason to think that this is the case for a large proportion of them.  I would note several further points.  First, that Ms Tian does not explain his involvement in the Existing Arbitration and how he knows the matters he deposes to in his three affirmations.  A word search of the List of Documents and the three Appendices shows that he was copied into many of the emails.  However, he was not the author or the principal recipient.  Secondly, that Ms Tian does not in his 1^st affirmation identify items in the List of Documents by number that he suggests fall into the CNG Exclusive Documents category as it was prepared before the List of Documents.  Thirdly, that he suggests in [44] that he believed it is extremely important that each document be considered on a case-by-case basis.  This is not the way the matter was argued before me as demonstrated by the fact that the matter was listed for one day. It would have taken weeks to have completed the exercise Ms Tian seems to have envisaged in his 1^st affirmation.

49.  In his 2^nd affirmation [38] changes his evidence and suggests that when Linklaters approached SIL’s representatives and employees for assistance they were being approached in their capacity as “CNG’s legal representatives in the Existing Arbitration and the ‘SIL representatives and employees’ responded in their capacity as Soremi SA and/or CNG’s representatives and/or employees.”  This is, however, his interpretation of what was taking place.  He makes no reference to any discussions or documents, which record the basis on which SIL representatives or employees participated in the preparation of either SIL or CNG’s defence.

50.  Ms Tian in his 2^nd affirmation suggests that some of the documents, for example emails, although copied to SIL relate to claims brought exclusively against SIL.  Even assuming this is correct, it does not follow that they are not documents belonging to SIL or that they were not documents providing information that although perhaps only peripherally relevant to SIL’s defence had relevance because of the interplay between issues.

51.  The same is asserted in respect of the documents contained in tabs 3 and 4 of Appendix 3[35], namely, that “they contain mostly, if not exclusively” documents belonging to CNG.  In relation to draft experts’ reports prepared by RPM and BRG, CNG contends that their services were performed under the scope of Linklaters’ engagement by CNG and, as a result, they are exclusively CNG’s documents.  I was not taken to where in Appendix 3 these documents are referred to.  However, Appendix 3 appears to contain a list of documents, which were all provided to both SIL and CNG.  SIL had the documents it seeks at one time.  Presumably, this was because Linklaters understood that this is what was intended.  There is no evidence of CNG objecting at the time to SIL receiving the documents that they now object to Linklaters providing to SIL.

52.  Ms Tian’s 3^rd affirmation adds nothing of substance relevant to the determination of whether or not the CNG Exclusive Documents belong, as Linklaters say, to both SIL and CNG.

53.  The factual position is that documents were exchanged between Linklaters and SIL’s representatives and employees and Linklaters are of the view that these documents (the Category 2 documents) belong to SIL and CNG.  Ms Tian’s evidence is not persuasive in contending that Linklaters are wrong.  I, therefore, find that the Category (2) documents belong to SIL as well as CNG.  To the extent that CNG contends that some of the documents are properly characterised as belonging to Linklaters rather than either SIL or CNG this seems to me an entirely arid point as Linklaters are prepared to provide copies to SIL.

54.  If the Category (2) documents belong to SIL what I am faced with is an application by SIL for copies of the Category (2) documents which belong to it from Linklaters, who have copies and are prepared to provide them.  LPP is irrelevant to the determination of the application.  It may be relevant to how the documents can be deployed, but that is not an issue which is relevant to the application advanced by the Originating Summons.  It simply cannot be an abuse of process for SIL to seek to obtain copies of its documents to reconstruct its knowledge of matters, which if the documents were available to it, as in the normal course of events they would be, SIL would be able to do as a matter of course.

55.  The Category (1) documents consist of invoices issued to SIL by Linklaters.  In its skeleton submissions CNG identifies in [45] 4 grounds for objecting to Linklaters producing copies of these documents to SIL:

(1)  The invoices are fully paid by CNG to cover work done for CNG by Linklaters and they contain descriptions of such work, which would reveal the content of the advice or the advice which is protected by LPP.

(2)  It is unfair to compel disclosure of such privileged information of CNG to SIL where the Gerald Parties are in control of SIL and are adverse parties against CNG in the Existing Arbitration.

(3)  It is unclear how the invoices are related to SIL’s purported investigation of the alleged dissipation of SIL’s assets.

(4)  The discovery summons was issued with an ulterior/improper purpose of obtaining privileged documents of CNG through SIL to advance the interest of the Gerald Parties and constitutes an abuse of the court’s process.

56.  It is not asserted that the invoices are CNG’s documents.  It is not asserted that the invoices are subject to CNG’s LPP.  CNG is objecting to Linklaters producing to SIL, copies of SIL’s documents.  As the production of the documents will simply put SIL in the position it normally would be, there is nothing unfair about the request.  The third objection is irrelevant.  SIL does not need to prove why it wants copies of its documents from its previous solicitors.  As no person other than SIL has LPP in the Category (1) documents the first objection is a non sequitur.  CNG has identified no substantive reason why the Category (1) documents should not be disclosed.

Receivers’ Applications

57.  There are three Plaintiffs named in the Originating Summons.  The first two are the Receivers of SIL.  The Receivers did not pursue an order in their favour before me.  They took this position to avoid the application being made more complicated, because it had become apparent that the Receivers’ application would be opposed on additional grounds, namely:

(1)  There is an outstanding application by CNG (which it has not fixed for hearing) to discharge the Receivers.

(2)  The Receivers’ appointment has not yet been recognised in Hong Kong. There is an application for recognition listed for 10 November 2025.

(3)  The Board of SIL has been reconstituted to remove CNG representative directors and Global is now the registered shareholder of all the issued shares in SIL rather the 1^st Plaintiff.

58.  The Receivers asked for their application to be adjourned sine die.  Their reason is that they wished to await the outcome of SIL’s application before making a final decision whether to withdraw their own application.  This is opposed by CNG, who wishes the application dismissed with costs to CNG.

59.  I will adjourn the Receivers’ application.  If it is not pursued costs will need to be determined and this may require further extensive argument.

Disposition

60.  I will make an order that:

(1)  Other than for the documents in Linklaters’ possession, custody or power in respect of the period when it only acted for CNG, i.e., up to 10 December 2020 inclusive, or documents already produced to the 3^rd Plaintiff, Linklaters shall produce to the 3^rd Plaintiff within 28 days or such other period as the Parties agree or the court directs the documents listed in the List of Documents served and filed by the Defendant pursuant to the order of DHCJ Gary Lam dated 24 April 2025.

(2)  The 1^st and 2^nd Plaintiffs’ application be adjourned sine die with liberty to restore with costs reserved.

(3)  Leave be given to China National Gold Group Hong Kong Limited (“Intervenor”) to be joined as Intervenor to the Originating Summons.

(4)  Leave be given to the 1^st to 3^rd Plaintiffs to amend the Originating Summons to add the Intervenor as an Interested Party.

(5)  There be a costs order nisi that the Intervenor pays the 3^rd Plaintiff the costs of and occasioned by the summons dated 16 April 2025.

(6)  There be a costs order nisi that the 1^st to 3^rd Plaintiffs pay the Defendant’s costs of and occasioned by the Originating Summons other than those attributable to the Intervenor’s intervention and opposition to the Originating Summons.

(7)  There be a costs order nisi that the 3^rd Plaintiff pays the Defendant’s reasonable costs of compliance with the order of DHCJ Gary Lam dated 24 April 2025 and this Order.

(8)  There be a costs order nisi that the Intervenor pays the 3^rd Plaintiff and the Defendant’s costs of and occasioned by the Intervenor’s opposition to the Originating Summons.

(9)  There be general liberty to apply.