ALVAREZ & MARSAL ASIA LTD v. NICHOLAS TIMOTHY CORNFORTH HILL

ALVAREZ & MARSAL ASIA LTD v. NICHOLAS TIMOTHY CORNFORTH HILL

Because the solicitor had been retained on a joint retainer, no privilege arose between the former joint clients; Borrelli and Flynn unreasonably delayed taking the proper procedural step (a prompt summons under O 38 r 19) to set aside the subpoena and therefore must pay costs; costs follow the event and no discount was justified.

Citation
ALVAREZ & MARSAL ASIA LTD v. NICHOLAS TIMOTHY CORNFORTH HILL
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 to Set Aside Subpoena; Former Joint Client: Cosimo Borrelli; Applicant to Set Aside Subpoena; Former Joint Client: Kelvin Edward Flynn
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
21 April 2010
Case Number
HCMP2461/2006
Procedural Posture
Civil (actions and Miscellaneous Proceedings Heard Together) / Ruling on Costs Following Trial and Interlocutory Applications
Outcome
Costs awarded to Nicholas Hill against Cosimo Borrelli and Kelvin Edward Flynn for the unsuccessful application to set aside the subpoena and for the costs argument.
Legal Topics
Subpoena, Joint Retainer, Waiver of Privilege, Setting Aside Subpoena, Gross Sum Costs, Wasted Costs
Source Language
EN
Civil Procedure Evidence Costs Legal Professional Privilege Subpoena Joint Retainer Waiver of Privilege Setting Aside Subpoena +2 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 to Set Aside Subpoena; Former Joint Client

Kelvin Edward Flynn

Applicant to Set Aside Subpoena; Former Joint Client

Procedural Posture

Civil (actions and Miscellaneous Proceedings Heard Together) / Ruling on Costs Following Trial and Interlocutory Applications

Legal Issues

  1. 1 Whether legal professional privilege attached to communications with solicitor where solicitor had a joint retainer
  2. 2 Whether applicants (Borrelli and Flynn) should have applied promptly to set aside the subpoena
  3. 3 Whether costs should follow the event or be reduced given alleged prior understandings

Ratio Decidendi

Because the solicitor had been retained on a joint retainer, no privilege arose between the former joint clients; Borrelli and Flynn unreasonably delayed taking the proper procedural step (a prompt summons under O 38 r 19) to set aside the subpoena and therefore must pay costs; costs follow the event and no discount was justified.

Court Disposition

Costs awarded to Nicholas Hill against Cosimo Borrelli and Kelvin Edward Flynn for the unsuccessful application to set aside the subpoena and for the costs argument.

Orders

  • Mr Borrelli and Mr Flynn to pay gross costs of HKD 200000 for the application to set aside the subpoena, apportioned HKD 125000 to counsel and HKD 75000 to solicitors.
  • Order nisi that Mr Borrelli and Mr Flynn must pay Mr Hill's solicitors costs of HKD 100000 and counsel's fee of HKD 75000 on the costs argument.