Civil Procedure Jun 12

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PCLL Conversion Examination June 2012

Civil Procedure

BACKGROUND

You are a solicitor in the firm, Beacons. Beacons is acting for Hong Kong MetropolisTaxis Limited (“Metropolis Taxis”). Metropolis Taxis is in a dispute with an Englishcompany called Sol Invictus PLC (“Sol Invictus”) over solar panels that Sol Invictus soldto Metropolis Taxis. Your supervising partner has just met with the managing director ofMetropolis Taxis, Mr Jimmy Hung. Your supervising partner gives you a note of themeeting (DOCUMENT A).

PART A

Question 1 (24 Marks)

Informal negotiations break down. Metropolis Taxis instructs you to start proceedings.

Basing your answer (i) ONLY on DOCUMENT A and (ii) with detailed reference to

the relevant law and facts, advise Metropolis Taxis on the grounds to serve out of

the jurisdiction in the United Kingdom on Sol Invictus and whether you think

Metropolis Taxis’s application meets those grounds. State what further information,

if any, you need.


Assume that Metropolis Taxis successfully serves out of the jurisdiction.

Metropolis Taxis pleads breach of clause 198 of the Agreement against Sol Invictus.Sol Invictus defends the claim, relying on clause 288 of the Agreement. MetropolisTaxis also pleads defective installation in the terms set out in paragraph 8 ofDOCUMENT A. Sol Invictus defends this in the terms set out in paragraph 9 ofDOCUMENT A.

Pleadings close. The parties progress to case management and discovery. As the partiesare preparing to give each other discovery, you receive a letter (DOCUMENT B) from

Sol Invictus’s Hong Kong solicitors, Ford & Zegna. Your supervising partner asks youfor your comments on this letter.

With reference to the relevant law, comment on the contents of DOCUMENT B.

Note: Do not write a reply to DOCUMENT B.


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You are preparing a witness statement for Mr Hung. Mr Hung discusses with you severalconcerns:

(i)

He asks you whether, if he makes a witness statement but ultimately decidesnot to give evidence in court, Sol Invictus can rely on the evidence he gives inhis witness statement.

(ii) He asks you whether, if he does make a witness statement, he will berestricted to repeating the evidence in it if he gives evidence at the trial.

The parties are also preparing expert evidence. Mr Hung discusses with you severalissues.

(iii) He thinks the exercise is just a waste of time because experts are just “hired

guns” that owe allegiance only to the parties that retain them.

(iv) He is worried that the experts are not obliged to tell the truth in their reports,or that they have an unfettered discretion over what they want to say or not tosay in them.

Advise Mr Hung.


A week after parties exchange witness statements, you receive a letter from Ford &Zegna (DOCUMENT C). My Hung is excited by this letter as he thinks it indicatesweakness or lack of confidence on Sol Invictus’s part.

He asks you two questions about the letter. First, are parties allowed as a rule to show“without prejudice” letters to the Court? Second, are the terms of DOCUMENT C reallyof a “without prejudice” nature?

Advise Mr Hung, with close reference to the wording of DOCUMENT C.

Mr Hung also tells you that Metropolis Taxis is a little “battle weary” and might considersettling. Apart from without prejudice correspondence, what are the other means bywhich Metropolis Taxis could directly initiate settlement? Furthermore, how might anysettlement be recorded / concluded between the parties themselves and between theparties and the Court?

Advise Mr Hung.


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PART B


Mr Hung and a friend of his, a taxi driver for Metropolis Taxis, has come to you with a

related matter.

The taxi driver had had a defective Cymbeline panel installed on his taxi. To try to fixthings as quickly as possible, he ordered a replacement panel from a company in America,Solaris Inc, which has no corporate presence in Hong Kong. This agreement is governedby the laws of the state of Delaware, USA. Solaris Inc delivered the replacement panelthrough a Hong Kong delivery company, Speedster Limited. The taxi driver came to anagreement with Solaris Inc and Speedster Limited, whereby the taxi driver paid half ofSpeedster Limited’s delivery fee of the replacement panel and Solaris Inc paid the otherhalf. This delivery agreement is governed by Hong Kong law.

As fate would have it, when the taxi driver arrived at Speedster Limited’s warehouse tocollect the delivery, he found that the replacement panel was badly damaged. SpeedsterLimited has disclaimed responsibility for the damage. It says that its delivery systems areflawless and that the replacement panel must have been damaged before SpeedsterLimited picked it up from Solaris Inc. It claims that these systems are complex but meetobjectively verifiable international standards of courier and shipping services and that itis willing to litigate over this point if necessary. Solaris Inc also denies liability.It blames Speedster Limited for clumsy delivery, which Solaris Inc says led to thedamaging of the replacement panel.

The taxi driver is not particularly well off. He has a family to feed. He hopes to retirewithin the next five years. However, Mr Hung says that Metropolis Taxis has a reservefund for this sort of situation, and that some of this could be diverted to the driver’s claimif he should decide to commence litigation. The fund could cover up to two thirds of thetaxi driver’s legal costs. Mr Hung estimates that the taxi driver’s claim for thereplacement panel and damages resulting from late or non-delivery would exceedHK$1m. Mr Hung has just learned that Solaris Inc is in serious financial difficulty in theUnited States and could go bust within the next few months. He has also seen in themedia that Speedster Limited recently launched a “Zero Error” campaign on televisionand online, in which it claims to have had a perfect delivery record.

With specific and detailed reference only to the information given for Question 5,

advise on what factors (procedural or otherwise) the taxi driver should take into

account in deciding whether to commence proceedings in this matter and your view

on these factors in this matter.

Do not consider the merits of any potential causes of action.


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DOCUMENT A

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DOCUMENT C

28/F, International Business Centre, 5 Diplock Lane, Central, Hong Kong SAR

WITHOUT PREJUDICE

BeaconsSuite 30355 Equity Tower18 Fleet StreetCentral

15 November 2012

Dear sirs

METROPOLIS TAXIS LTD -v- SOL INVICTUS PLC (LA/MPI/16255/2012 (AM27))

We have now reviewed the witness evidence on the above matter.

Our client expresses regret over this incident.

It hopes that the parties will conclude this matter as soon as possible so that business canresume for both of them.

If it is possible for the parties to compromise their differences and to continue their business

relationship in the future, our client would be willing to consider terms favorable to your client.

Yours faithfully

Ford & Zegna

END OF DOCUMENT C

END OF EXAMINATION PAPER

Civil Procedure Jun 12

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