XU YANPING v. HIBBERD, ROBIN SIDNEY AND OTHERS

HCA 869/2026

[2026] HKCFI 5574

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 869 OF 2026

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BETWEEN

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REASONS FOR DECISION AND
DECISION ON COSTS

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A. THE APPLICATIONS

1.  This was the hearing concerning the Plaintiff’s application (i) by summons against the 1^st Defendant (“Mr Hibberd”) for the discharge of an implied undertaking as to confidentiality over documents in Family Court Proceedings and for specific discovery (“the Summons”); and (ii) by notice to ONC (“ONC”) objecting to their acting for Mr Hibberd due to “severe conflict of interest and active misrepresentation” (“the Objection to Representation Application”). These applications concerned the Plaintiff, Mr Hibberd and ONC (collectively, “the Parties”). The other Defendants were excused from attendance.

2.  At this hearing, the Parties have agreed to seek, by consent, an order from the Family Court to uplift the implied undertaking and seek specific discovery. I thus ordered that §§1 and 2 of the Summons be adjourned for that purpose, with liberty to apply. The Parties are to inform this Court of the decision of the Family Court in due course. Costs were reserved.

3.  After hearing submissions on the Objection to Representation Application, I ordered that that Application be dismissed with reasons to follow.

4.  Here are my reasons for decision.

B. BACKGROUND

5.  Madam Xu and Mr Hibberd were ex-wife and ex-husband currently undergoing proceedings for ancillary relief at the Family Court under FCMC 6583/2024 (the “FCMC Proceedings”). The 2^nd to 4^th and 6^th to 12^th Defendants were the 1^st Defendant’s former or current legal representatives in the FCMC Proceedings. The 13^th Defendant was an unidentified “John Does”.

6.  In this case, Madam Xu claims against the Defendants for, inter alia, damages for fraud, unlawful means conspiracy, harassment and/or breach of professional duties.

7.  In gist, the Statement of Claim alleges that the Defendants fabricated facts and misled the Court in the FCMC Proceedings such that Mr Hibberd was granted a Mareva injunction against Madam Xu’s assets.

8.  By the Summons, filed on 17 July 2026, Madam Xu sought leave for:

(1) Discharging her implied undertaking as to the confidentiality of all documents, transcripts, audio recordings and court materials of the FCMC Proceedings; and

(2) Specific discovery against Mr Hibberd and ONC of the court files of the FCMC Proceedings.

9.  According to Madam Xu’s Affirmation filed on 17 July 2026, the two applications were intended to support her in adducing definitive proof in this case of the Defendants’ fraudulent acts in the FCMC Proceedings.

10.  Separately, by an email dated 6 August 2026 to ONC, Madam Xu objected to ONC’s representation of Mr Hibberd on the bases of conflict of interests and misrepresentation. On the next day, Madam Xu wrote to the Court on this matter and provided largely the same reasons for her objection.

11.  ONC objected to the Objection and Representation application on the grounds that there was no conflict of interest and there was informed consent.

C. THE SUMMONS

12.  The application to lift the implied undertaking and for specific discovery actually concerned documents in the FCMC Proceedings. The proper Court to grant an uplift of the undertaking and leave to use the documents disclosed in the FCMC Proceedings was the Family Court and not the Court of First Instance. The Parties have agreed the terms, in principle, and agreed to apply to the Family Court by way of a consent summons.

13.  Mr Thomas Lam has, on behalf of Mr Hibberd, sought costs of this hearing. He informed this Court that Mr Hibberd and ONC had invited Madam Xu to dispose of the matter by consent, but Madam Xu did not respond to it. Further, Madam Xu had twice sought leave from the Family Court for discharging her implied undertaking and for disclosure of documents of the FCMC Proceedings, both of which were rejected with an order for indemnity costs. The Summons simply had no legal bases and was merely part of Madam Xu’s scheme to abuse the Court’s process and to have the FCMC Proceedings adjourned.

14.  Notwithstanding Mr Lam’s persuasion, I do not consider it appropriate to order costs forthwith. As there could be arguments over the terms of the consent summons which may require this Court to hear and determine §§1 and 2 of the Summons, it is best to defer the question of costs until after the Family Court has made its decision on the consent summons to be submitted by the parties.

D. OBJECTION TO REPRESENTATION APPLICATION

15.  Article 35 of the Basic Law provides that Hong Kong residents shall have the right to, amongst others, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts.

16.  On conflict of interest in a solicitor acting for 2 parties, the principles have been laid down in Nishimatsu-Costain-China Harbour Joint Venture v Ip Kwan & Co [2001] 1 HKLRD 84 (CA), per Rogers JA (as he then was):

(1) The Court should intervene at the instance of a party objecting to a solicitor acting on the ground of conflict of interests, provided the objection is not frivolous (at p102C-D).

(2) A potential conflict may be overcome by informed consent. Informed consent means consent given in the knowledge that there is a conflict between the parties and that as a result the solicitor may be disabled from disclosing to each party the full knowledge which he possesses as to the transaction or may be disabled from giving advice to one party which conflicts with the interests of the other: (at p94C-F, 105B-E).

17.  The Court cannot debar a lawyer from appearing unless there are clear grounds for considering that the interests of justice will be prejudiced: George YC Mok & Co v Trade Advisers Co Ltd & Anor [2003] 4 HKC 96 (CA), §13, per Rogers VP.

18.  Madam Xu alleges, in respect of ONC, 5 limbs of serious conflict of interest and active misrepresentation in her email to ONC dated 6 August 2026. It is not necessary to set them out in detail here, as many of the allegations should form the subject matter of her claim in the present case and should not be resolved here. I have, however, taken into account the following matters.

19.  First, Madam Xu failed to identify any conflict of interests between Mr Hibberd and ONC. Her allegations as to conflict stem from ONC acting as Mr Hibberd’s legal representative in the FCMC Proceedings and that both of them have been named as defendants in the present action.

20.  ONC has been handling the FCMC Proceedings on behalf of Mr Hibberd for a few years already and is continuing to do so. And yet neither Mr Hibberd nor ONC has accused the other of any wrongdoing, or sought any indemnity/contribution from the other. Their interests are aligned and they intend to advance a common position.

21.  The fact that both Mr Hibberd and ONC are named as defendants in the same action would not carry Madam Xu’s case any further. If her argument could stand, any litigant could deprive an opponent of his chosen legal representative simply by naming that legal representative as defendant and assert the existence of conflict.

22.  The threshold basis of showing conflict of interest was not established and the Objection Application must fail.

23.  Second, even if there were any conflict as alleged, Mr Hibberd has informed consent. Madam Xu’s Statement of Claim alleges that Mr Hibberd and ONC were involved in the same alleged wrongdoing, which both of them deny. Mr Hibberd would have knowledge of those allegations when he engaged ONC to act for him in this action.

24.  Third, to the extent that Madam Xu relied on breach of the Solicitors’ Guide to Professional Conduct, ONC was precluded from being an advocate for Mr Hibberd if it was expected that ONC’s members would be called as a witness. However, there was no proof that ONC (as opposed to counsel) will be briefed as advocate for Mr Hibberd or ONC in this case.

25.  Fourth, in her supplementary submission, Madam Xu raised further matters unsupported by evidence and should not be considered. In particular, she alleged that the so called “unresolved bill-and-funding arrangement” together with ONC’s multi-party correspondence on 25 and 26 August 2026 create an inherent professional conflict of interest”. There was “no transparent, on-the-record confirmation identifying who is settling ONC’s legal bills for this cross-party procedural work”. Quite apart from this being a new allegation unsupported by evidence, the question of who was funding ONC’s legal bills in this case was privileged and Madam Xu has not shown exceptions that would disapply this privilege.

26.  There was no reason to restrain ONC from acting for Mr Hibberd. The Objection to Representation Application was dismissed.

27.  I do not see any reason that makes it appropriate to order costs on indemnity basis. Madam Xu should pay costs including half of the costs of this hearing to Mr Hibberd and ONC. I summarily assess the amount at $19,212, payable within 14 days.