NICHOLAS TIMOTHY CORNFORTH HILL v. ALVAREZ & MARSAL ASIA LTD

NICHOLAS TIMOTHY CORNFORTH HILL v. ALVAREZ & MARSAL ASIA LTD

Because the solicitor was retained on a joint retainer that included the defendant A&M Asia, no legal professional privilege existed between the former partners and A&M Asia; Borrelli and Flynn failed to apply promptly to set aside the subpoena and thus the challenge to the subpoena was dismissed and costs were awarded against them.

Citation
NICHOLAS TIMOTHY CORNFORTH HILL v. ALVAREZ & MARSAL ASIA LTD
Parties
Plaintiff (hca 56/2007) and Defendant (hcmp 2461/2006): Nicholas Timothy Cornforth Hill; Defendant (hca 56/2007) and Plaintiff (hcmp 2461/2006): Ontarget Advisory Services Limited (formerly Alvarez & Marsal Asia Limited); Applicant/respondent Who Applied to Set Aside Subpoena: Cosimo Borrelli; Applicant/respondent Who Applied to Set Aside Subpoena: Kelvin Edward Flynn; Solicitor and Proposed Witness Subject to Subpoena: Martin Robertson
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
21 April 2010
Case Number
HCA56/2007
Procedural Posture
Civil (commercial) Trial With Interlocutory Application to Set Aside Subpoena and Subsequent Costs Ruling / Ruling on Costs Following Interlocutory Application and Trial (post Hearing)
Outcome
Application to set aside the subpoena dismissed; costs awarded against Cosimo Borrelli and Kelvin Edward Flynn.
Legal Topics
Subpoena, Joint Retainer, Waiver of Privilege, Setting Aside Subpoena, Gross Sum Costs, Witness Evidence
Source Language
EN
Civil Procedure Legal Professional Privilege Costs Subpoena Joint Retainer Waiver of Privilege Setting Aside Subpoena Gross Sum Costs +1 more

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Parties

Nicholas Timothy Cornforth Hill

Plaintiff (hca 56/2007) and Defendant (hcmp 2461/2006)

Ontarget Advisory Services Limited (formerly Alvarez & Marsal Asia Limited)

Defendant (hca 56/2007) and Plaintiff (hcmp 2461/2006)

Cosimo Borrelli

Applicant/respondent Who Applied to Set Aside Subpoena

Kelvin Edward Flynn

Applicant/respondent Who Applied to Set Aside Subpoena

Martin Robertson

Solicitor and Proposed Witness Subject to Subpoena

Procedural Posture

Civil (commercial) Trial With Interlocutory Application to Set Aside Subpoena and Subsequent Costs Ruling / Ruling on Costs Following Interlocutory Application and Trial (post Hearing)

Legal Issues

  1. 1 Whether legal professional privilege protected evidence of a solicitor retained under a joint retainer and thus required setting aside of subpoena
  2. 2 Whether any agreement or understanding excused delay in applying to set aside the subpoena
  3. 3 Whether costs should follow the event or be reduced and quantum of costs to award

Ratio Decidendi

Because the solicitor was retained on a joint retainer that included the defendant A&M Asia, no legal professional privilege existed between the former partners and A&M Asia; Borrelli and Flynn failed to apply promptly to set aside the subpoena and thus the challenge to the subpoena was dismissed and costs were awarded against them.

Court Disposition

Application to set aside the subpoena dismissed; costs awarded against Cosimo Borrelli and Kelvin Edward Flynn.

Orders

  • Application to set aside subpoena dismissed.
  • Gross sum costs of HKD 200000 to be paid by Cosimo Borrelli and Kelvin Edward Flynn, apportioned as HKD 125000 for counsel and HKD 75000 for solicitors.