19/09/2019
HCMP2801/2015 THE UNIVERSITY
59.
OF HONG KONG v. HONG
KONG
COMMERCIAL
BROADCASTING
CO LTD AND ANOTHER
The approach hitherto adopted by the courts in Hong Kong based on
American Cyanmid mandates that the court should strive to adopt a course
which appears to carry the lower risk of injustice if it should turn out to be
wrong: Music Advance Ltd v Incorporated Owners of Argyle Centre Phase I
[2010] 2 HKLRD
1041, §12(d), per Ma J (as he then was); adopting what
Hoffmann J said in Films Rover International Ltd vy Cannon Film Sales Ltd
[1987] 1 WLR 670, 680.
Revisiting that topic in 2009, Lord Hoffmann said
in National Commercial Bank Jamaica v Olint Corp |2009| 1 WLR
1405 at
§$16-17, that the purpose of an interlocutory injunction is to “improve the
chances of the court being able to do justice after a determination of the
merits at the trial’, and that the basic principle is that “the court should take
whichever course seems likely to cause the least irremediable prejudice to
one party or the other”.
This approach was also applied by Chow J in Sima
Sai Er v Next Magazine Publishing Ltd (HCA 1500/2014; 8 August 2014).
60.
The
established
appropriate
case,
approach
of the
merits
allows
for a closer
of the
examination,
plaintiff's
claim
even
in an
at the
interlocutory stage, for example where the grant of interlocutory relief would
be finally dispositive of the dispute in the plaintiffs favour: LansingLinde
Ltd v Kerr [1991]
1 WLR
251; NWL
Ltd v Woods
[1979]
1 WLR
1294,
1306F-G; Lawrence David Ltd v Ashton |1989] ICR 123. But even there the
deeper
inquiry
into
the
merits
of the
case
is but
one
factor
in the
consideration of the balancing exercise: Lai Hoi Ping v Persons occupying
portions
of Nathan
Road (HCMP
2975/2014;
15 November
2014),
§10
per Cheung CJHC.
61.
Even before the (UK) Human Rights Act 1998, that approach had been
adopted in cases concerning disclosure of information, where the crucial
issues between the parties did not depend on a trial, but solely or mainly on
the grant or refusal of interlocutory relief. The relative strength or weakness
of the parties’
cases was recognised as a consideration to be taken into
account: Cambridge Nutrition Ltd v British Broadcasting Corp [1990] 3 All
ER 523, 534-535.
See, in Hong Kong, Sim Kon Fah v JBPB & Co [2011] 4
HKLRD 45 at §47.
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