GIORGIO ARMANI S.P.A. v. ELAN CLOTHES CO. LTD. (formerly known as DALIAN LES COPIOUS CLOTHES CO. LTD.)

HCCT 71/2018

[2019] HKCFI 791

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS
NO 71 OF 2018

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RULING ON WORDING OF THE ORDERS
TO BE MADE FOLLOWING THE JUDGMENT
HANDED DOWN ON 27 FEBRUARY 2019

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1.  I have considered: (i) the draft orders marked A, B and C which are the orders proposed by the plaintiff following the handing down of the judgment on 27 February 2019 but with amendments sought by the defendant; (ii) the letter from Reed Smith Richards Butler (“RSRB”) dated 14 March 2019; (ii) the letters from de Bedin & Lee (“DBL”) dated 1 March 2019 and 14 March 2019.

2.  The principal issue between the parties is which of the proposedorders properly reflect the findings made in the aforesaid judgment.  I have also taken into account the need for clarity.

Annex A order

3.  I approve the amendments to the Recitals proposed by RSRB.

4.  It is agreed that paragraphs 1 and 2 of the original order shouldnot be included.  The first paragraph of the substantive order will therefore be the original para 3, renumbered 1 by DBL

5.  I approve RSRB’s proposed amendments to renumbered paras1, 2, 3, 4, 5, 6, save that the words “the Plaintiff’s Affiliates” in lines 2 and 3of renumbered para3 should not be excised but should be included in para 3.

6.  It is with reluctance that I agree that this order should not include the proposed case management directions set out in renumbered para 4.  I am constrained to take this view because I have heard no representations from the defendant on what DBL propose save that it is to be inferred that RSRB object to the directions.  If RSRB are simply taking the narrow point that directions were not canvassed at the hearing of the summons but otherwise have no substantive objection to what DBL propose, I urge the defendant to agree DBL’s proposed directions which appear to me to be eminently reasonable.  If the plaintiff is forced to issue another summons for directions and the court makes an order in similar terms to those presently proposed, I would expect the defendant to be on the end of costs order designed to mark the Court’s displeasure at the defendant’s unreasonable conduct.

Annex B order

7.  I approve RSRB’s proposed amendment to the recitals.  Save as aforesaid, this order is agreed and I approve it as amended by RSRB.

Annex C order

8.  In dealing with the application for joinder the Court consideredMs Ferrari’s 3^rd affirmation that was adverted to in the defendant’s objections to joinder.  In the opinion of the Court, this required consideration of Ms Ferrari’s 1^staffirmation to put her 3^rdaffirmation in context.  It follows in my judgment that the 1^staffirmation legitimately featured in the hearing of the summons and that paragraph 1 of this order is justified but with the excision of the words beginning “pursuant to the Plaintiff’s obligations” down to “25^thOctober 2018”.

9.  I can see no basis for paragraph 2 of this proposed order.  There should also be no order as to costs.

Costs

10.  I direct that there be no order as to costs in respect of this ruling.