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It is probably unnecessary for the legislation or the rules to go much further in
providing guidance for the exercise of the court's discretion. Our courts would no
doubt have regard to the relevant English case-law and decide on the extent to which it
should be applied in Hong Kong. Thus, for instance, the English courts have held
that :-
(a)
The proper approach is to consider first whether the facts would warrant the
relief sought if the substantive proceedings were brought in England, and if so,
to ask whether, in the terms of s 25(2), the fact that the Court has no jurisdiction
apart from that given to it by the Act makes it inexpedient to grant the interim
relief sought.
(b)
The interim relief which an English court can grant is not limited to that which
would be available in the court trying the substantive dispute. It should be
willing to assist the other court by providing such interim relief as would be
available if English courts were seised of the substantive proceedings.
(c)
In exercising the discretion, the English court would pay great heed to whether
the grant of relief would obstruct or hamper the management of the case by the
court seized of the substantive proceedings or give rise to a risk of conflicting,
inconsistent or overlapping orders. It would consider whether the primary court
has itself declined to grant such relief and generally would avoid treading on the
toes of the primary court or any other court involved in the case.
(d)
Since such orders are often made effective by serving notice of the order on a
third party (such as a bank at which the defendant has an account) within the
local court's jurisdiction, such third parties should be given all reasonable
protection, for instance, by ensuring that the court's order does not require them
to breach their contractual or other legal obligations abroad.
Notes
Morritt LJ in Refco Inc v Eastern Trading Co [1999] 1 Lloyd's Rep 159 at 170-171.
Alltrans Inc v Interdom Holdings Ltd [1991] 4 All ER 458, 468, per Leggatt LJ and Crédit Suisse
Fides Trust SA v Cuoghi [1998] QB 818 at 827 per Millett LJ.
Lord Bingham CJ in Crédit Suisse Fides Trust SA v Cuoghi [1998] QB 818 at 831-2.
Bank of China v NBM LLC [2002] 1 WLR 844.
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