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K8. Interim remedies and security for costs
| 324. | Part 25 of the CPR is primarily a streamlining provision. Over the years, various interim remedies have been developed piecemeal by the courts. This has notably occurred in relation to use of interlocutory injunctions to secure evidence or assets targeted by the plaintiff in proceedings (in the Mareva and Anton Piller jurisdictions (Note 281)). Part 25 helpfully lists together the main types of such interim relief (while preserving the court's inherent jurisdiction to regulate its own procedure (Note 282)). In the accompanying Practice Direction on interim injunctions, forms setting out Mareva and Anton Piller orders, exceptions, undertakings, etc, reflecting many years of development in the case-law, are conveniently set out. |
| 325. | Like the rest of the rules in the CPR, the grant of such relief is subject to the overriding objective. Again, some of the pre-existing case-law, in relation to such issues as the position of third parties, self-incrimination and so forth, will inevitably have to be referred to. (Note 283) |
| 326. | CPR 25.4 would represent an extension of the court's jurisdiction in Hong Kong. It permits interim remedies, including Mareva relief, to be granted where the remedy is "sought in relation to proceedings which are taking place, or will take place, outside the jurisdiction." As the Privy Council held in Mercedes Benz AG v Leiduck [1996] 1 AC 284, such relief is presently unavailable. This may be thought to be a desirable power given the fact that transactions and assets increasingly span several jurisdictions. |
| 327. | Orders for security for costs are covered by CPR 25.13 which restricts such orders to familiar classes of case (Note 284) and where such orders would be just in the circumstances. |
| 328. | CPR 25.14 is new and enables a defendant to seek an order for security against someone other than the claimant if that person has assigned the right to the claim to the plaintiff with a view to avoiding the possibility of a costs order being made against him; or has contributed or agreed to contribute to the claimant's costs in return for a share of any money or property which the claimant may recover in the proceedings. This was a power thought useful where the circumstances did not support the making of an award directly against the plaintiff. (Note 285) |
| 329. | It is however doubtful whether that extension could be applied to Hong Kong without legislative amendment to section 52A(2) of the High Court Ordinance (Cap 4) which excludes an award of costs against non-parties. That subsection qualifies section 52A(1) in manner that does not apparently exist in relation to the relevant UK legislation. (Note 286) |
| 330. | Part 25 also covers the power to order interim payments, identifying the conditions to be satisfied for such payments and limiting their quantum to a reasonable proportion of the likely amount of the final judgment. (Note 287) |
| 331. | Readers are asked for their views on the desirability of adopting a streamlining provision on interim relief and interim payments along the lines of Part 25, including a rule extending interim relief in aid of foreign proceedings: Proposals 16 and 17. |
Notes
| 281 | Referred to in the CPR as the power to grant a "freezing injunction" and a "search order" respectively. <back> |
| 282 | CPR 25.1(3). <back> |
| 283 | See eg, White Book 25.1.23-25. <back> |
| 284 | Eg, where the plaintiff is an individual ordinarily resident abroad; or a foreign company; or a local company which may be unable to pay the defendant's costs, and so forth. <back> |
| 285 | See, eg, Abraham v Thompson [1997] 4 All ER 362 <back> |
| 286 | Section 51 of the Supreme Court Act 1981, as substituted by s 4(1) of the Courts and Legal Services Act 1990. See Aiden Shipping Co Ltd v Interbulk Ltd [1986] 1 AC 965. <back> |
| 287 | CPR 25.7. <back> |
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