COSIMO BORRELLI AND OTHERS v. LINKLATERS (A FIRM)

HCMP 410/2025

[2026] HKCFI 1910

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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REASONS FOR DECISION

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1.  On 5 November 2025 I handed down judgment (“Judgment”) in respect of the 3^rd Plaintiff’s (“SIL”) application by Originating Summons filed on 17 March 2025 for an order that the Defendant (“Linklaters”) to produce certain documents described in detail in the Judgment. I ordered that Linklaters (who did not oppose the application) produce the documents described in [60(1)], which I shall refer to as the “Documents”. The Intervenor (“CNG”) has appealed the Judgment and has sought a stay of my order dated 5 November 2025.

2.  The principles by references to which the court determines an application for a stay pending appeal are not controversial. The court must be satisfied that there is a good reason to grant a stay[1]. In relation to an application of the present sought this will require the applicant to demonstrate on a preliminary basis that it has an arguable appeal[2]. 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. To do so an applicant will need to demonstrate either that (1) there is no evidence to support the finding of primary fact; or that (2) it is contrary to documentary or other incontrovertible evidence which the judge overlooked[3]. This applies not only to findings of primary fact after trial and hearing oral evidence. It also applies to findings based on affidavit evidence and contemporaneous documents. As the Court of Appeal explain in Shaun Winston Justin Bowers v Marbury Ridge Limited[4]the appellate process is not designed to give a litigant a platform to repeat submissions made in the court below on the evidence and factual matters in the hope of persuading the Court of Appeal to reach a different conclusion to that reached by the first instance judge.

3.  It is also necessary for the applicant to demonstrate that unless the order is stayed the appeal will be rendered nugatory[5]. I accept that if the Documents are handed over it will probably render the appeal pointless. I did not understand SIL to dispute this.

4.  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 sought by the Originating Summons attracted. However, my decision turned on the finding in [53] of the Judgment in which I find that the Documents belonged to SIL and CNG. As I went on to explain in the following paragraph it follows that SIL is seeking from Linklaters copies of Documents, which belong to SIL and which on the face of the matter they are entitled to Linklaters. This is a finding of primary fact. Linklaters did not dispute this or contest the application.

5.  It seems to me that the finding of fact made in [53] was one that it was open to me to reach on the totality of the evidence before me. I note that I was not simply accepting Linklaters’ opinion, it was a finding of fact reached after a consideration of Ms Tian’s evidence and looking at samples of the Documents. This is clear from the paragraphs preceding [53]. There was evidence to support this conclusion, and no countervailing evidence has been adduced by CNG of such force as to demonstrate that my conclusion was clearly wrong.

6.  As I explained earlier the Court of Appeal is slow to interfere in a finding of fact and I am not satisfied that it has been demonstrated that the Judgement contains the kind of rare error, which would justify the Court of Appeal doing so. The matter does not end there.

7.  CNG argues as follows. Even if I am correct in this finding, I was wrong to order production of the Documents, because they were obtained by SIL’s agent (Linklaters) for a limited purpose, namely, the preparation of CNG’s claim in the Arbitration referred to in [9]–[15] of the Judgment. SIL wants the Documents for a different purpose (advancing its case in its dispute with CNG) and CNG is entitled to assert privilege and prevent the Documents being passed to SIL. In [41] of the Judgment I say this:

“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.”

8.  Common interest privilege in the altenuated form of a partial waiver[6] is relevant to disclosure and production of documents to third parties. No case has been cited to me nor, in my view, 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. As I note in the Judgment it may be that a party to the common interest relationship can restrict disclosure of such documents to a third party, but that is a different issue.

9.  So far as the assertion that SIL’s application was an abuse of process is concerned in my view the position is as follows. Abuse of process is only relevant if the court is satisfied both that the Documents in Linklaters’ control are properly treated as SIL’s documents and that Linklaters is not prevented from providing copies to SIL by virtue of CNG’s assertion of privilege. It seems to me that if SIL is on the face of the matter entitled to the Documents the suggestion that it is an abuse of process for SIL to insist on obtaining copies is unsustainable. CNG would appear to have taken control of the Documents that SIL would normally have within its own records some of which might contain information that would be useful to SIL in advancing its case in its dispute with CNG. This gives CNG a litigation advantage it wishes to maintain. SIL’s efforts to obtain the Documents does not involve an abuse of process; it is an attempt to level the playing field; something that CNG is trying hard to avoid.

10.  I, therefore, dismiss the application for a stay save to the extent explained in the next paragraph and order that the costs of the application be paid forthwith by CNG to the Plaintiffs such costs to be taxed if not agreed with a certificate for counsel.

11.  If CNG issues an application before the Court of Appeal for a stay by 5:00pm on 16 April 2026 (“Intended Application”), I will grant an interim stay that the order of 5 November 2025 is stayed pending Court of Appeal’s determination of the Intended Application.