RE A

RE A

The court refused the applicant's ex parte application for pre‑clearance declarations. It held that the 1st/2nd declarations as framed necessarily involved declarations of non‑criminality and that civil courts should make such declarations only in very or truly exceptional circumstances after a fact‑sensitive inquiry into the totality of the facts and a balancing of competing public policies (access to justice vs. risk of corrupting public justice). Qualified civil‑only declarations would be impractical and meaningless in Hong Kong where maintenance and champerty remain crimes and torts. The appropriate response to systemic issues raised by third party funding lies with legislative or...

Citation
[2020] HKCFI 493
Parties
Applicant (husband): A; Intervener: Secretary for Justice; Amici Curiae: Amici Curiae (Wong Yan Lung SC and Mike Lui); Opposing Party (underlying Matrimonial Proceedings): Wife; Opposing Party (1st Intervener in Underlying Proceedings): Brother
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 March 2020
Case Number
HCMP2728/2017
Procedural Posture
Miscellaneous Proceedings (hcmp) Concerning Pre Clearance Declaratory Relief for Third Party Litigation Funding / Substantive Hearing (originating Summons/summons Heard 25 26 June 2019; Judgment 19 March 2020)
Outcome
Applicant's application dismissed.
Legal Topics
Declaratory Relief, Declaration of Non Criminality, Maintenance and Champerty, Access to Justice Exception, Common Interest Exception, Jurisdiction to Grant Declarations, Ex Parte Procedure, Amicus Curiae, Anonymisation and Publication, Disclosure and Privilege, Adverse Costs Against Funder, Security for Costs, Regulation of Litigation Funders
Source Language
EN
Civil Procedure Family Law Third Party Litigation Funding Criminal Law Public Policy Arbitration Law Evidence and Privilege Costs and Security for Costs +13 more

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Parties

A

Applicant (husband)

Secretary for Justice

Intervener

Amici Curiae (Wong Yan Lung SC and Mike Lui)

Amici Curiae

Wife

Opposing Party (underlying Matrimonial Proceedings)

Brother

Opposing Party (1st Intervener in Underlying Proceedings)

Procedural Posture

Miscellaneous Proceedings (hcmp) Concerning Pre Clearance Declaratory Relief for Third Party Litigation Funding / Substantive Hearing (originating Summons/summons Heard 25 26 June 2019; Judgment 19 March 2020)

Legal Issues

  1. 1 Whether the court has jurisdiction to grant pre-clearance declarations that proposed third party funding would not breach maintenance and champerty including a declaration of non-criminality
  2. 2 Whether the 1st/2nd declarations sought in HCMP2728/2017 inherently involve declarations of non-criminality and whether such declarations are meaningful
  3. 3 Whether the access to justice exception to maintenance and champerty applies and whether very or truly exceptional circumstances exist to justify pre-clearance declaratory relief

Ratio Decidendi

The court refused the applicant's ex parte application for pre‑clearance declarations. It held that the 1st/2nd declarations as framed necessarily involved declarations of non‑criminality and that civil courts should make such declarations only in very or truly exceptional circumstances after a fact‑sensitive inquiry into the totality of the facts and a balancing of competing public policies (access to justice vs. risk of corrupting public justice). Qualified civil‑only declarations would be impractical and meaningless in Hong Kong where maintenance and champerty remain crimes and torts. The appropriate response to systemic issues raised by third party funding lies with legislative or...

Court Disposition

Applicant's application dismissed.

Orders

  • Application to amend the Amended Originating Summons in the alternative civil‑only manner refused (application to amend per para 28(a) dismissed).
  • The SCG 2nd Affirmation and the Husband Affidavit shall be retained on the court file in a sealed envelope and not released other than to the Husband due to privilege.