COSIMO BORRELLI AND OTHERS v. LINKLATERS (A FIRM)

CACV 1122/2025, [2026] HKCA 1731

On Appeal from [2025] HKCFI 5293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1122 OF 2025

(ON APPEAL FROM HCMP NO 410 OF 2025)

________________________

________________________

__________________

D E C I S I O N

__________________

Hon Coleman JA (giving the Judgment of the Court):

A. Introduction

1.  This is an application (“Stay Summons”) for a stay of execution in respect of parts of the Order dated 5 November 2025 made by Harris J (or “Judge”) reflecting his Judgment, [2025] HKCFI 5293, pending the determination of the appeal brought by the Intervener (“CNG”) against the Judgment.

2.  It arises in the following circumstances.  (We shall adopt for present purposes the definitions and abbreviations used by the Judge in the Judgment.)

3.  The 3^rd Plaintiff (“SIL”) and CNG were both former clients of the Defendant (“Linklaters”) in HKIAC arbitration proceedings brought against them both (“Existing Arbitration”).  Linklaters was engaged separately by CNG and SIL on 5 August 2020 and 11 December 2020 respectively to act for them in the Existing Arbitration.  Linklaters was subsequently replaced as legal representative for both SIL and CNG in August 2023.

4.  By Originating Summons dated 17 March 2025 (“Delivery-Up Summons”), SIL – together with the 1^st and 2^nd Plaintiffs (“Receivers”) – sought an order for Linklaters to produce the documents set out in Annexure A to the summons.

5.  Linklaters did not object to delivering up to SIL, as its former client, the documents that form part of SIL’s client file.  Linklaters provided a List of Documents based on Annexure A, consisting 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”).

6.  However, CNG applied to intervene (“Joinder Summons”), and to oppose the Delivery-Up Summons in respect of (1) various invoices issued by Linklaters to SIL (“Invoices”) listed under Category 1, and (2) documents in Appendices 1, 2 and 3 (Tabs 3 and 4) of Category 2.  CNG had no objection to delivery up of the remaining documents in the List of Documents.

7.  The matter came before Harris J on 2 September 2025, leading to his Judgment.  In the Judgment and Order, Harris J:

(1)  permitted CNG to intervene;

(2)  insofar as it was brought by the Receivers, adjourned the Delivery-Up Summons sine die;

(3)  ordered that

(a)  other than for the documents (“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 SIL, Linklaters shall produce to SIL 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 Linklaters pursuant to the order of DHCJ Gary CC Lam dated 24 April 2025 (“§1 of the Order”);

(b)  there be a costs order nisi that CNG pays SIL the costs of and occasioned by the Joinder Summons (“§5 of the Order”);

(c)  there be a costs order nisi that the Receivers and SIL pay Linklater’s costs of and occasioned by the Delivery-Up Summons other than those attributable to CNG’s intervention and opposition to it (“§6 of the Order”)

(d)  there be a costs order nisi that CNG pays SIL’s and Linklaters’ costs of and occasioned by CNG’s opposition to the Delivery-Up Summons (“§8 of the Order”).

8.  On 20 November 2025, CNG applied for a stay of execution of the Order pending its intended appeal, which it subsequently issued by Notice of Appeal dated 1 December 2025.  The application for stay was dismissed by Harris J on 26 March 2026, for reasons which he gave in his Reasons for Decision dated 31 March 2026, [2026] HKCFI 1910.  However, he granted an interim stayed pending the Court of Appeal’s determination of an application to it for a stay, if the application (“Stay Summons”) was issued by 16 April 2026, which it was.

9.  The Stay Summons seeks a stay of execution in respect of §§1, 5, 6 and 8 of the Order, pending the determination of CNG’s appeal against the Judgment.

10.  Written skeleton submissions were provided by CNG on 21 May 2026, by SIL and Linklaters on 4 June 2026, and by CNG in reply on 11 June 2026.

11.  Having considered the submissions, this is our Decision.

B.  The Judgment

12.  As to the order for delivery up found in §1 of the Order, the Judgment set out the following matters and conclusions, with references to paragraph numbers of the Judgment as shown:

(1)  The Existing Arbitration was commenced against both CNG and SIL: §9.

(2)  On 5 August 2020, CNG retained Linklaters to represent it in the Existing Arbitration, on terms of a letter of engagement: §§10 and 18.

(3)  Five months later, on 11 December 2020, SIL retained Linklaters to represent it in the Existing Arbitration, on terms of a similar letter of engagement: §§10 and 18.

(4)  The retainer terms recorded that Linklaters would be representing both SIL and CNG in the Existing Arbitration, and that they had a common interest in the Existing Arbitration: §18.

(5)  Linklaters billed SIL and CNG separately, although the Invoices (as defined above) were paid by CNG: §18.

(6)  Legal Professional Privilege (“LPP”) is underpinned by the principle that a client must be able to consult his lawyer in confidence, so that the client is sure that what he tells his lawyer in confidence will never be released without his consent: §26.

(7)  It is not controversial that the privilege is that of the client, and only he can waive it: §27.

(8)  The dispute in the case is whether, by virtue of Linklaters acting for both CNG and SIL, LLP applies as between them: §27.

(9)  Because CNG and SIL retained Linklaters separately (and not jointly), each party is able to maintain privilege against the other unless common interest privilege arises between them: §30.

(10)  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: §31.

(11)  As this is the position, both SIL and CNG may assert LPP against third parties, in respect of the documents that passed between either of them and/or Linklaters: §31.

(12)  Common interest privilege enables a document protected by LPP to be provided to a party without privilege being lost, and a litigant with the benefit of privilege can continue to withhold the document from his opponent, and the receiving party can also assert privilege.  Subject to waiver, parties to common interest privilege are entitled and bound to withhold disclosure from other parties: §36 at fn26.

(13)  Hong Kong law incorporates the concept of partial waiver of privilege: §§32 and 35.

(14)  It does not follow that privilege is waived generally because a privileged document has been disclosed for a limited purpose only: §34.

(15)  Properly understood, the question to be asked by the Court is not whether privilege has been waived, but whether it has been lost: §36.

(16)  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, and SIL does not suggest otherwise: §37.

(17)  The controversial issue is whether CNG lost its right to assert LPP against SIL in respect of documents which had been disclosed by CNG to SIL or Linklaters on SIL’s behalf during the conduct of the defence of both SIL and CNG: §37.

(18)  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, common interest privilege arises between them and third parties: §41.

(19)  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: §41.

(20)  LPP was only waived by CNG to the extent of permitting SIL to use the documents for the purposes of the Existing Arbitration: §42.

(21)  The import of the evidence in the 1^st affirmation of Ms Tian Na – deputy legal manager then vice general manager of audit and legal compliance in the parent company of CNG – was that various evidence was prepared to address claims made only against CNG.  But she did not dispute that the documents described in the List of Documents were provided to SIL, nor suggest that CNG objected to that, for reasons which were explained: §§47 and 48.

(22)  In her 2^nd affirmation, Ms Tian changed her evidence as to why SIL’s representatives and employees were approached by Linklaters for assistance in claims brought only against CNG: §49.

(23)  But, even assuming that some documents copied to SIL relate to claims brought exclusively against CNG (apparently mis-typed in the Judgment as SIL), it does not follow that they are not documents belonging to SIL or that they were not documents providing information at least peripherally relevant to SIL’s defence because of the interplay between issues: §50.

(24)  Appendix 3 appears to contain a list of documents which were all provided to both SIL and CNG, meaning that at one time SIL had the documents that it seeks: §51.

(25)  Ms Tian’s evidence overall is not persuasive that Linklaters’ position on the facts is wrong, namely that the documents were exchanged between Linklaters and SIL’s representatives and employees, and the Category 2 documents belong to SIL and CNG: §53.

(26)  The Category 2 documents in fact belong to SIL as well as CNG: §53.

(27)  If the Category 2 documents belong to SIL, then SIL was making an application to obtain from Linklaters copies of documents which belong to it, and which Linklaters are prepared to provide: §54.

(28)  LPP is irrelevant to the determination of the Delivery-Up Summons, though it may be relevant to how the documents can be deployed: §54.

(29)  It cannot be an abuse of process for SIL to seek to obtain copies of documents to reconstruct its knowledge of matters, which documents would have been available to it in the normal course of events: §54.

(30)  It is not asserted that the Invoices are CNG’s documents or subject to CNG’s LPP: §56.

(31)  There is nothing unfair about SIL receiving from Linklaters copies of SIL’s documents, and it does not need to prove why it wants them from its previous solicitors: §56.

13.  The Judgment also led to §§5, 6 and 8 of the Order, dealing with costs, all made on a nisi basis.

14.  A variation application made by the Plaintiffs was dismissed by the Judge in his Decision dated 19 May 2026, [2026] HKCFI 2820, for the reasons he gave in that Decision.  Hence, the costs orders became absolute.

C.  The Notice of Appeal

15.  In its Notice of Appeal, CNG raises no less than 10 grounds of appeal, as follows:

(1)  Ground 1: The Judge erred in law and in fact in finding that Category 2 documents belonged to SIL and that LPP is relevant to the determination of the application.

(2)  Ground 2: The Judge erred in law and/or in fact in failing to take into account that the existence of any common interest as between CNG and SIL against third parties at the time of the Existing Arbitration per se would not by itself confer a free-standing right for SIL to obtain disclosure of Category 2 documents.

(3)  Ground 3: The Judge erred in law and fact in failing to find that SIL is not entitled to documents (“Clause 8.3 Documents”) that fall within Clause 8.3 of Linklaters’ International Terms of Business (2020 Edition) enclosed with the SIL engagement letter.

(4)  Ground 4: The Judge erred in fact in finding that Tian Na’s evidence for CNG has changed in respect of the capacity under which SIL’s representatives and employees had been approached in the Existing Arbitration with documents, and in rejecting Tian Na’s evidence in that regard.

(5)  Ground 5: The Judge erred in law and fact in drawing adverse inferences against CNG for having seen very few of what is a voluminous quantity of documents and finding that Tian Na failed to identify items in the List of Documents that was suggested to fall into the CNG Exclusive Documents category, and that it would take weeks to consider each document case-by-case.

(6)  Ground 6: The Judge erred in fact and failed to have reviewed, considered and/or provided adequate reasons in rejecting that the Category 2 documents amounted to CNG’s exclusive documents and/or subject to CNG’s LPP.

(7)  Ground 7: As a result, the Judge erred in law and fact in failing to find that SIL is not entitled to Category 2 documents on the ground that CNG has retained and is entitled to assert LPP against SIL in respect of Category 2 documents, and any prior disclosure constituted a partial waiver of LPP for the limited purpose of advancing CNG’s defence in the Existing Arbitration.

(8)  Ground 8: The Judge erred in law and failed to have cited, considered and/or applied the law in relation to the approach in prohibiting a disclosure of documents that would otherwise amount to an abuse of court process with ulterior motive, as was submitted by CNG.

(9)  Ground 9: The Judge erred in law and in fact and failed to have considered and evaluated CNG’s arguments and evidence is set out in its skeleton as to why the disclosure of the Opposed Documents would in any event be an abuse of process with ulterior motive.

(10)  Ground 10: By reason of the matters in Grounds 8 and 9, the Judge erred in law and fact in failing to exercise the inherent jurisdiction in any event to prevent the disclosure of the Opposed Documents to SIL for reason of abuse of court process with ulterior motive.

D.  Harris J’s Refusal of Stay

16.  In his Reasons for Decision dismissing CNG’s application for a stay pending appeal, Harris J identified the relevant principles as including that the Court must be satisfied that there is a good reason to grant a stay pending appeal, and it requires the applicant to demonstrate on a preliminary basis that it has at least an arguable appeal. However, where what is challenged is a finding of primary fact, the Court of Appeal will be reluctant to interfere and demonstrating an arguable appeal requires an applicant to surmount a high hurdle.

17.  He then made the following points and conclusions:

(1)  If the Documents are handed over, it would probably render the appeal pointless, which SIL apparently does not dispute.

(2)  Much of the Judgment reflects the way in which SIL and CNG argued their respective cases which focused on what if any form of privilege the Documents attracted.

(3)  However, the decision turned on the finding in §53 of the Judgment, which was that the Documents belonged to SIL and CNG.

(4)  As was explained in §54 of the Judgment, it follows that SIL is seeking from Linklaters copies of Documents which belong to it – a finding of primary fact.

(5)  That finding of fact was one open on the totality of evidence, and the Court did not simply accept Linklaters’ opinion.

(6)  Where the Court of Appeal is slow to interfere in a finding of fact, it had not been demonstrated that the Judgment contains the kind of rare error which would justify the Court of Appeal doing so.

(7)  CNG argued that, in any event, it would be wrong to order production of the Documents, because they were obtained by SIL’s agent (Linklaters) for the limited purpose of preparing CNG’s claim in the arbitration, whereas SIL wants the Documents for the different purpose of advancing its case in its dispute with CNG, and CNG is entitled to assert privilege and prevent the Documents being passed to SIL.

(8)  Common interest privilege in the attenuated form of a partial waiver is relevant to disclosure and production of documents to third parties.  But no case was cited, nor any reason advanced, for extending common interest privilege to a case where one of the parties to the common interest relationship wants to obtain from its solicitors its documents.

(9)  That a party to the common interest relationship might want to restrict disclosure of documents to a third party is a different issue.

(10)  SIL’s effort to obtain the Documents does not involve an abuse of process, but is rather an attempt to level the playing field, which is something that CNG is trying hard to avoid.

18.  In essence, the Judge held that – though delivery up of the Documents would render the appeal nugatory – there was insufficient merit in the grounds of appeal to identify any good reason to grant a stay.

E.   Applicable Principles

19.  The legal principles applicable on an application for a stay of execution pending appeal are well settled, and do not require reference to authority.  They can be summarised as follows:

(1)  The applicant is required to demonstrate a “good reason” for a stay of execution.

(2)  The existence of an arguable appeal, namely one with reasonable prospects of success, is the minimum requirement that must be met before the Court will even consider granting a stay.

(3)  But the existence of an arguable appeal, though necessary, will usually not be sufficient for the grant of a stay, and the applicant must provide the Court with additional reasons as to why a stay is justified.

(4)  This is commonly done by demonstrating that the appeal would be rendered nugatory, if no stay is granted.

(5)  The existence of a strong appeal or a strong likelihood that the appeal would succeed would usually by itself enable a stay to be granted, because this would constitute a good reason for a stay.

(6)  In considering the application, it would be impractical and even undesirable for the Court to go deeply into the merits or strengths of the appeal, although the Court must still form a preliminary view of the merits.

20.  As to the circumstances in which an appellate court will interfere with findings of fact made at first instance, the following well-settled principles apply:

(1)  The threshold for successfully challenging a finding of fact made by a trial judge is high.

(2)  The reluctance to interfere with findings of fact includes not just those made on oral evidence but also those made on affidavit evidence and contemporaneous documents.

(3)  The Court of Appeal may overturn a trial judge’s finding of fact only if the finding is plainly wrong.

(4)  This is because the appellate process is not designed to give a litigant a platform for repeating his submissions on the evidence and factual aspects, with the hope that the appeal court might be persuaded to come to a different view.

(5)  The appellate process focuses on the identification of palpable errors sufficiently material to undermine the conclusion of the primary judge on his evaluation of the evidence.

(6)  The kinds of mistake or palpable error which could engage appellate intervention are where the conclusion on primary facts is one which there was no evidence to support, or is based on a misunderstanding of the evidence, or one which no reasonable judge could have reached.

21.  We apply those principles.

F.  Whether Appeal would be Rendered Nugatory

22.  On behalf of CNG, Mr Norman Nip SC, leading Mr Leon Guo, submitted that there are clearly good reasons for ordering a stay of execution, for otherwise CNG’s appeal will be rendered nugatory.  This is, he said, because if the Documents are disclosed to and seen by SIL they cannot be “undisclosed” or “unseen” even in the event of a successful appeal.

23.  On behalf of SIL, Mr James Wood submitted that the issue of SIL not being able to “unsee” the Documents is a ‘red herring’, where the relevant documents were in SIL’s possession and still would be in the normal course, and it cannot be correct for CNG to keep SIL out of what is essentially replacement documentation.  However, that submission presupposes that the appeal would fail, and (like Harris J) we are prepared to proceed on the basis that the refusal of a stay of execution might render the appeal nugatory.

24.  Nevertheless, we think it relevant to note that if there is little merit in the main ground of appeal, Ground 1, then the risk of the appeal being rendered nugatory is significantly reduced.  Indeed, on the facts, and the finding made by the Judge which is the subject of the main challenge in the appeal, SIL has already seen the relevant documents.  We keep this in mind as to the appropriate way to exercise our discretion.

25.  The focus, therefore, is on the apparent merits of the appeal.

G.  Argument and Analysis

G.1  Introduction

26.  Mr Nip submitted that all 10 grounds of appeal are strong and meritorious, and that by themselves they are sufficient to warrant a stay.  Alternatively, he argued that the grounds are at least arguable.  He sought to emphasise that the grounds of appeal do not concern only any factual finding of the Judge, but in fact concern the Judge’s errors of law, including on the principles of LPP and partial waiver of it.  The legal errors and erroneous findings on critical facts resulted, Mr Nip said, in the erroneous decision in the Judgment.

G.2  Ground 1

27.  We think it fair to say that Ground 1 is likely the main focus of the appeal.  It concerns the finding that the Category 2 documents belong to SIL, and hence LPP is an irrelevant consideration.  As already identified above, that finding was made on the basis that, since Category 2 documents were exchanged between Linklaters and SIL’s representatives and employees, and Linklaters were of the view that the documents belonged to both SIL and CNG, so that they are at least co-owned by SIL, and hence LPP is irrelevant.

28.  Mr Nip submitted that it is at least arguable that the Judge made an error of law, in wrongly conflating the mere disclosure of documents to SIL (for a limited purpose) with CNG having passed or transferred ownership to or shared title of such documents with SIL.  He submitted (with references to authority cited omitted) that:

(1)  Common interest privilege arises where one party voluntarily shares privileged material with another who has common interest in the subject matter of the privileged material or communication or litigation to which it relates.

(2)  But it has nothing to do with “ownership” of documents, where the determination of ownership requires the application of different principles.

(3)  Yet the Judge plainly made findings that the documents “belong to SIL” and are “its” documents.

(4)  Further, the Judge’s view is inconsistent with the principle of partial waiver of LPP in respect of privileged documents disclosed for a limited purpose only.

(5)  The permission to use such documents as were provided to SIL for the limited purpose of using them to defend the Existing Arbitration did not turn them into documents “belonging to SIL”.

(6)  The disclosed documents under partial waiver of LPP for a common interest still belong to the primary privilege holder, namely CNG.

(7)  The Judge also failed to give sufficient weight to material facts militating against the finding of SIL having ownership of the Category 2 documents, including that (a) there was a separate retainer between Linklaters and SIL, of a significantly narrower scope than the retainer between Linklaters and CNG, and (b) most of the work, documents and correspondence related to claims made exclusively against CNG.

(8)  Conversely, the Judge was wrong to attach any weight to (a) Linklaters’ views or its willingness to provide copies of the documents to SIL, and (b) CNG’s not objecting to the provision of those documents at the time of the Existing Arbitration.

29.  Mr Wood again makes the submission, with which the Judge agreed, that the relevant finding was one of fact, and one which the Judge was plainly entitled to arrive at on the evidence, including but not limited to the evidence and submissions of Linklaters.  Mr Wood submitted that it is a misuse of the appellate process for the Court of Appeal to be invited to take over the role of the trial judge as the primary assessor of the evidence in the manner in which CNG invites it to do, running the same arguments as were unsuccessfully advanced before the Judge.

30.  Mr Wood further submitted that:

(1)  The Judge did not wrongly conflate the mere disclosure of documents to SIL (for a limited purpose) with CNG having passed or transferred ownership to or shared title of such documents with SIL.

(2)  Whilst the phrase “belong to” may mean “owned by”, in this context the phrase simply means that the documents were created or exchanged for the collective benefit of both SIL and CNG without any meaningful differentiation of the work performed for them by Linklaters – as was Linklaters’ evidence – so that both were entitled to copies of the relevant documents.

(3)  The attempt by CNG on appeal is to introduce the concepts of “ownership” and “title” which were not argued before the Judge either in writing or orally, and those words are also not used in the Judgment.

(4)  The allegation of errors of law cannot be used to challenge the finding of fact.

(5)  None of the authorities cited by CNG regarding LPP (except for Citic Pacific) were before the Judge at the hearing of the Delivery-Up Summons, and all are new on appeal.

(6)  CNG controlled SIL before the Receivers were appointed and made directors, and the Receivers have not recovered any of SIL’s books and records or meaningful assistance from CNG.

(7)  It is therefore repeated that the documents that SIL seeks from Linklaters will simply put SIL in the same position that it would be in the normal course of events, as held by the Judge.

31.  This Ground 1, it seems to us, may turn essentially on what was meant by the Judge when he said in §§53 and 54 that the Category 2 documents “belong to SIL” as well as CNG.  We think it perhaps unlikely the Judge was using the phrase in the sense of strict “ownership” or “title”.  The Judge was perhaps simply identifying documents properly in the hands of a person, properly received by that person, and to which the person was therefore entitled (as it happens, in this case, together with another person).  As Mr Wood put it, on Linklaters’ evidence, the documents were created or exchanged for the collective benefit of both SIL and CNG without any meaningful differentiation of the work performed for them by Linklaters.

32.  We see the argument that the Judge’s finding that the Category 2 documents “belong to” SIL – in the sense that it was properly entitled to receive them and hold them – was a finding of fact.  But we note the point also perhaps followed the application of a legal principle relating to common interest privilege, and in circumstances where the limited purpose of any waiver appears to have ended.

33.  We also note that the Judge specifically identified that how the documents can be deployed by SIL may be governed by matters relating to LPP (in accordance with the principles he had previously rehearsed).  As stated by the Judge again in his Reasons for Decision refusing the stay, common interest privilege in the attenuated form of a partial waiver (as argued by CNG) is relevant to disclosure and production of documents to third parties.  But he said no reason had been advanced for extending common interest privilege to a case where one of the parties to the common interest relationship wants to obtain its documents from its solicitors.

34.  We can see the force in that analysis.  In short, we see the argument that when one of the parties to a common interest privilege obtains documents for the identified limited purpose, it has those documents, it is entitled to have those documents, and it is entitled to use those documents (albeit for the limited purpose only).  Hence, it might be argued that there would be no impropriety if SIL continued to hold the relevant documents (so long as there was no improper disclosure and production of them to third parties).  But the issue has arisen in this case because SIL has lost possession of the documents, and it is able to regain possession of that to which it was previously entitled because copies of the documents are held by and can be provided by its former solicitors, Linklaters.

35.  CNG’s challenge might, in those circumstances, be regarded as “premature” – where SIL is simply reconstituting its books and records from copies available from (here) its former solicitors.  What it does or does not do with those documents may be another matter, and it may be that any questions of abuse have at least not yet arisen.

36.  However, on balance on the materials, we think the merit of Ground 1 just meets meet the reasonable prospects of success threshold.  Together with the point about the appeal being rendered nugatory (see above), we think this just meets the test of good reason for a stay.

G.3  Ground 2

37.  Mr Nip submitted that Ground 2 concerns the error in law in failing to consider that mere existence of common interest between CNG and SIL is insufficient to confer a free-standing right for SIL to obtain disclosure of documents.  He argued that:

(1)  In the absence of a joint retainer – which the Judge held was not present – it was wrong in principle for the Judge to conclude that SIL is nevertheless entitled to access the privileged documents.

(2)  A claim to common interest privilege would fail where, taking into account the dominant purpose for which those documents were brought into existence, the documents would fall outside the scope of that common interest in the first place.  Here, the dominant purpose was for advancing CNG’s defence in the Existing Arbitration.

(3)  By being willing to exchange, provide or copy Category 2 documents to SIL during the Existing Arbitration by reason of the common interest privilege and for the limited purpose only, CNG did not ipso facto confer on or share title of these documents with SIL.

38.  But Mr Wood submitted that Ground 2 is baseless and confusing.  He said the Judge did not decide that SIL was entitled to obtain disclosure of Category 2 documents by reason of any common interest privilege between CNG and SIL.  Rather, the Judge found that SIL was entitled to those documents because on the evidence the Category 2 documents belong to both SIL and CNG.  That was another finding of fact justified on the evidence, and not liable to be set aside.  Further, the Order was not made on the basis that there was any “conferring” or “sharing” of title to the documents with SIL.

39.  We tend to agree with Mr Wood, and that Ground 2 may be setting up a ‘strawman’ argument, or one based upon an incorrect premise.  Our initial view is that this ground is not very strong, but it remains linked to Ground 1.

G.4  Ground 3

40.  Mr Nip submitted that the Judge erred in not finding that SIL is not entitled to the Clause 8.3 Documents, because those documents falling within the scope of Clause 8.3 would not form part of SIL’s client file but would remain as Linklaters’ property.  But, neither the inherent jurisdiction nor section 65 of the Legal Practitioners Ordinance confer a power on the Court to order delivery up of documents belonging to solicitors.

41.  That may be correct, but it seems Mr Wood is likely correct to see this point – as did the Judge – as entirely arid.  Indeed, as Mr Wood also identifies, it is unclear on what basis CNG might think that it has standing to interfere in the solicitor-client relationship between Linklaters and SIL so as to prevent Linklaters from volunteering to deliver up documents that it might regard as its own.

42.  Our initial view is that Ground 3 does not have reasonable prospects of success.

G.5  Ground 4

43.  Mr Nip submitted that Ground 4 involves the Judge’s error of finding that Tian Na’s evidence had changed, when the Judge’s criticism is clearly misplaced, for the reasons identified in the Notice of Appeal.

44.  However, we tend to agree with Mr Wood that it was plainly open to the Judge to come to the view he did on the evaluation of the evidence.  As Mr Wood has pointed out, Ms Tian’s affirmations did not refer to any document or discussion that recorded the alleged basis on which SIL representatives and employees were approached by Linklaters in the context of the Existing Arbitration, and what purportedly transpired was only her interpretation of what was taking place.

45.  Our initial view is that Ground 4 does not have reasonable prospects of success.

G.6  Ground 5

46.  This ground is said to concern the Judge’s error of drawing an inference against CNG, for having shown the Judge very few of the voluminous documents, and the finding that CNG failed to identify items in the List of Documents as falling within what it called the CNG Exclusive Documents category.  This was an error, Mr Nip submitted, because the practice is that claims to privilege are invariably made in lists of documents in generic terms, and the Court has power to require a more detailed listing or supporting particulars.  So, this was not a ground for rejecting a claim to LPP.  In any event, Mr Nip submitted, the Judge also failed to give due weight to the reasons why few documents from the List of Documents were presented.

47.  However, we tend again to agree with Mr Wood that the Judge did not in fact draw any material inference against CNG in the Judgment.  We note it was also agreed at the hearing of the Delivery-Up Summons by leading Counsel for CNG that the Court did not need to consider the documents on an individual case by case basis.  Indeed, as the Judge himself recorded, the argument was listed for one day, obviously on the basis that the documents would not all be able to be reviewed individually within that time set aside.

48.  Ground 5 does not seem to us to have reasonable prospects of success.

G.7  Grounds 6 and 7

49.  In his submissions, Mr Nip dealt with these two grounds together.  He said that they concern the Judge’s failure to review, consider and/or provide adequate reasons in rejecting Category 2 documents (in particular tabs 3 and 4 of Appendix 3) as CNG’s Exclusive Documents or subject to CNG’s LPP.  The submission is based upon the matters set out in the Notice of Appeal which seeks to identify the materials provided as an annex to CNG’s skeleton submissions (provided separately only to the Court pursuant to an order) which contained references to exhibits of draft witness statements and email chains, which it is said the Judge ought to have considered and evaluated, and which should have led to the conclusion that SIL is not entitled to Category 2 documents because CNG has retained and is entitled to assert LPP against SIL in respect of them.

50.  Mr Wood submitted that Ground 6 seeks to appeal the finding of fact that the Category 2 documents belong to both SIL and CNG.  He submitted that the Judge’s decision in that regard was explained and justified on the evidence, and was not plainly wrong.

51.  We tend to agree.  In other words, the criticism identified in Grounds 6 and 7 does not seem to lead anywhere, unless there is any reasonable basis to think that the finding that the Category 2 documents belong to both SIL and CNG would be set aside.  We do not think that these grounds provide any particularly strong reason for the grant of a stay.

G.8  Grounds 8 to 10

52.  In his submissions, Mr Nip also dealt with these Grounds 8, 9 and 10 together.  He submitted that they all point to the Judge’s failure to consider a distinct or independent ground that it is an abuse of the Court’s process to seek disclosure of documents with ulterior motive.  The criticism is that the Judge failed to address the authority submitted by CNG supporting the principal relied on (which Mr Nip says must be right as a matter of law), and failed to consider or evaluate CNG’s six points of analysis as to why the requested disclosure would amount to an abuse of process, or engage the application of the legal proposition/principle in the analysis or evaluation.

53.  Mr Nip further submitted that the absence of analysis on the question of abuse stems from the Judge’s erroneous finding that the documents belong to SIL, and hence LPP is irrelevant (which Mr Nip recognised hinged on Ground 1).

54.  We tend to agree with Mr Wood that the Judge did specifically refer to the issue of abuse of process in the Judgment.  There was no obligation on the Judge to refer to all of the authorities cited to him, and he proceeded on the basis that it cannot be an abuse of process for SIL to seek to obtain copies of its own documents as would have been available to it in the normal course of events.  Mr Wood pointed to the fact that it is not disputed by CNG that the documents were previously in SIL’s possession, and obtained without objection from CNG at the time.

55.  We do not think Grounds 8 to 10 on their own reach the minimum standard for the grant of a stay.  But they depend on Ground 1, which we have conclude is just reasonably arguable.

G.9  Conclusion on Stay of §§1 and 5 of the Order

56.  In the circumstances, we grant the stay pending appeal sought in respect of §1 of the Order and the consequential costs order in §5.  But, on our view as to the merits, and against the time already taken, we grant the stay on a condition that the appeal be immediately set down and that it will be argued on a date which we now fix for 10am on 8 January 2027.

H.  Possible Stay of §§6 and 8 of the Order

57.  Whilst neutral on the other aspects of the application for a stay, Linklaters opposes the Stay Summons in so far as it concerns §§6 and 8 of the Order.  Mr Justin Tang of Linklaters submitted that it does so for three reasons:

(1)  Execution of the costs orders made in Linklaters’ favour would not render CNG’s appeal nugatory in any way.

(2)  Costs were awarded to Linklaters in part because the Judge considered it was unnecessary even to issue the Delivery-Up Summons.  Further, as a matter of fairness, a neutral party which has been forced to participate in proceedings and incur costs in doing so should not be left out of pocket for any extended period of time.

(3)  A stay of execution of the costs orders would result in a materially increased risk of non-recovery for Linklaters as a neutral party.

58.  Mr Nip submitted that Linklaters’ opposition to a stay of the costs order should be rejected because (1) Linklaters was not truly neutral, because the finding in §53 of the Judgment proceeded expressly from Linklaters’s own view, which is subject to the challenge on appeal, (2) CNG faces the same risks of non-recovery due to SIL having no known assets in Hong Kong, and (3) the LPP is enjoyed by CNG, not Linklaters, and the criticisms of CNG do not take away that right so as to place it somehow in a better position than CNG on costs.

59.  However, we see no real merit in those points in the context of an application for a stay, and instead accept the submissions made by Linklaters.

60.  In the circumstances, we refuse to grant the stay pending appeal sought in respect of §§6 and 8 of the Order.

I.  Result

61.  We grant the stay on §§1 and 5 of the Order, on the condition that the appeal is immediately set down and for the hearing fixed at 10am on 8 January 2027.  We refuse the application made by the Stay Summons for a stay pending appeal of §§6 and 8 of the Order.

62.  As to costs, the costs as between CNG and SIL will be reserved to the appeal.  Further, we make an order nisi that costs follow the event as between CNG and Linklaters, such that CNG pay the costs of Linklaters, to be taxed if not agreed.  The order will become absolute after 14 days if no party seeks a variation.  Any variation application will be dealt with on paper.