ELLIOTT INTERNATIONAL, L P AND OTHERS v. THE BANK OF EAST ASIA, LTD AND OTHERS

HCMP 1812/2016

[2018] HKCFI 2060

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1812 OF 2016

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D E C I S I O N

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1.  On 14 July 2016 I gave leave for the Petitioners to publish the Petition. The application was unopposed. I understand from Mr Yu that the Respondents took the view that opposition to the application would be inconsistent with the Rules of the High Court (“RHC”) O 63, r 4(1)(a), which provides that any person can on payment of the prescribed fee obtain a copy of any originating process.

2.  The Petitioners now seek leave under RHC O 63, r 4(1)(c) to publish the Points of Defence and the Points of Reply.  Their justification is that it is desirable in order that shareholders of the Bank who already have access to the Petition have a complete picture of the parties’ competing cases.

3.  The Respondents (other than the Bank, which is neutral) say that publication is not sought in order to provide shareholders with an opportunity to scrutinise the pleaded issues, rather it is intended to give the Petitioners another instrument which they will deploy to advance their public campaign to put pressure on the Bank to comply with the Petitioners’ demands discussed in my decision in respect of the Respondents’ strike-out application dated 13 July 2018.  Although, I accept that this suggestion is not fanciful, it is conjecture.

4.  The default position is that third parties do not have access to the pleadings except to the extent that they form part of an originating process.  However, open justice requires that most hearings are heard in public and a member of the public may apply to the court for copies of documents such as witness statements if sufficiently interested and they become part of the evidence before the court.  It is for this reason that, I understand, it is now common in England for judge’s clerks to provide journalists with copies of written submissions if they so request.

5.  Of course, in most cases only the parties are interested in the pleadings and, also in most cases, I assume, the parties have little interest in making the pleadings that detail their private dispute available to others.  The present application is unusual.

6.  I accept that as the Bank is a public company and the present dispute will be of interest to many shareholders allowing publication of the entire pleadings has utility.  It seems to me that it has a value in allowing shareholders who are interested to better understand the controversy. I can see little negative impact in allowing publication.  I will therefore make an order in the terms of para 1 of the summons and make a costs order nisi that the 2^nd to 19^th Respondents pay the Petitioners’ costs in any event with a certificate for one counsel.