I OVERVIEW OF RECENT PRIVATE ANTITRUST LITIGATION ACTIVITY

A cross-sector competition law regime was introduced in Hong Kong in December 2015. While there is a framework for private enforcement in ‘follow-on actions’,2 no infringement decisions have been issued at the time of writing, and therefore no follow-on actions have been brought. This chapter therefore outlines only the substantive competition law and administrative framework of follow-on competition claims in Hong Kong.

As public enforcement and awareness among the business community and the public increase, it is expected that private enforcement will also increase in the future.

i The Competition Ordinance

The Competition Ordinance (Chapter 619 of the Laws of Hong Kong) (the Ordinance) implements, for the first time, a cross-sector antitrust regime in Hong Kong.3 The Ordinance was approved by the Hong Kong Legislative Council on 14 June 2012 and was fully implemented on 14 December 2015. The framework set down under the Ordinance has many similarities to the EU and, in particular, the UK competition law regimes.

Restrictive agreements and practices (whether horizontal or vertical) are caught by the First Conduct Rule (FCR) under Section 6 of the Ordinance. The FCR prohibits agreements, concerted practices, and decisions of associations that have the object or effect of preventing, restricting or distorting competition in Hong Kong.

Unilateral behaviour by undertakings with a substantial degree of market power is caught by the Second Conduct Rule (SCR), which is set out under Section 21 of the Ordinance. The SCR prohibits undertakings with a substantial degree of market power from abusing that power by engaging in conduct that has as its object or effect the prevention, restriction or distortion of competition in Hong Kong.

While stand-alone private enforcement actions are not currently permitted under the Ordinance,4 any person who has suffered loss or damage as a result of a contravention of the FCR or the SCR is allowed to bring a follow-on action against the infringing party.5

ii The Competition Commission

The Hong Kong Competition Commission (the Commission) is an independent statutory body established under the Ordinance.6 Competition law in Hong Kong is enforced by means of a prosecutorial system, under which the Commission is responsible for investigating alleged or potential infringements of the Ordinance and, where appropriate, bringing proceedings against the alleged infringers in the Competition Tribunal (the Tribunal).

The Communications Authority (CA) and the Commission exercise concurrent jurisdiction in relation to potential competition law infringements in the telecommunications and broadcasting sectors.7 References to the Commission in the Ordinance are to be read as including the CA for these sectors.

On 27 July 2015, the Commission published six guidelines which set out how the Commission proposes to interpret the Ordinance. These guidelines cover both substantive matters (including the FCR and the SCR) and procedural matters (complaints, investigations, and applications for exemption decisions).

iii Court structure

The Tribunal is set up to hear and decide cases under the Ordinance,8 including proceedings brought by the Commission alleging an infringement of the Ordinance and follow-on damages actions brought by private parties pursuant to the Ordinance. Comprising judges of Hong Kong’s Court of First Instance, the Tribunal has wide-ranging powers to impose administrative, financial and other penalties for infringements.

Under the Ordinance, proceedings that relate purely to an infringement of a conduct rule (including follow-on actions) may only be brought in the Tribunal.9 In contrast, composite claims (i.e., claims comprising both follow-on competition claims and other non-competition claims) can be brought before either the Court of First Instance of the High Court of Hong Kong (the Court of First Instance) or the Tribunal. If proceedings are commenced in the Court of First Instance, the Court of First Instance should transfer to the Tribunal ‘so much of the proceedings that are within the jurisdiction of the Tribunal’,10 subject to limited exceptions. Any part of proceedings commenced in the Tribunal that are within the jurisdiction of the Court of First Instance (but not within the jurisdiction of the Tribunal) shall correspondingly be transferred to the Court of First Instance.11

The Judiciary has issued the Competition Tribunal Rules (CTR) and Competition Tribunal Practice Directions No. 1 and No. 2. Together, they govern the practice and procedure in the Tribunal. In addition, the Tribunal has also issued a leaflet which provides an outline of the practice and procedure of follow-on proceedings in the Tribunal.12

A decision of the Tribunal may be appealed to the Hong Kong Court of Appeal.

II GENERAL INTRODUCTION TO THE LEGISLATIVE FRAMEWORK FOR PRIVATE ANTITRUST ENFORCEMENT

i Stand-alone actions

In Hong Kong, if proceedings are based on, or partly based on, a cause of action that is ‘the defendant’s contravention, or involvement in a contravention, of a conduct rule’, then such proceedings must be brought under the Ordinance.13 The Ordinance does not provide for stand-alone private enforcement actions, and therefore such actions are not permitted in Hong Kong.

However, this does not prevent a party from arguing in a private legal action that a contravention of a conduct rule has occurred (e.g., as a defence to a contract or tort claim), insofar as the alleged contravention, or involvement in the alleged contravention, is not used as a cause of action.14 In other words, competition law may be used as a ‘shield’ but not a ‘sword’.

ii Follow-on actions

Under the Ordinance, follow-on actions are allowed. Pursuant to Section 110 of the Ordinance, any person (natural or legal) who has suffered loss or damage as a result of a contravention of a conduct rule can bring a follow-on action against the infringing party based on:

  • a a determination by the Tribunal, the Court of First Instance or the higher courts that a conduct rule has been contravened; or
  • b an admission of a contravention in a commitment.

As noted above, the effect of Section 109 of the Ordinance is that pure competition claims (i.e., currently only follow-on claims) cannot be brought before the Court of First Instance, and can only be brought before the Tribunal. In contrast, composite claims (i.e., claims comprising follow-on competition claims and other non-competition claims) can be brought before either the Court of First Instance or the Tribunal. However, to prevent forum shopping, Sections 113 to 115 of the Ordinance provide for a transfer mechanism under which the decision as to whether a claim should be heard before the Court of First Instance or the Tribunal is to be made by the courts and not by the parties to the proceedings. In most circumstances, the Court of First Instance must transfer to the Tribunal so much of the proceedings that are within the jurisdiction of the Tribunal.

At the time of writing, there have been no follow-on claims in Hong Kong: the Commission has yet to publish any infringement determinations or admissions on which any follow-on claims might be based.

iii Limitations

Proceedings for a follow-on action must be commenced within a period of three years beginning from the date on which the relevant determination of infringement (including the determination of any appeals) can no longer be appealed.15

For example, an appeal against a decision by the Tribunal must be made to the Court of Appeal within 28 days from the date of the decision.16 As such, the three-year limitation period starts to run from the 28th day after the decision is rendered by the Tribunal if the party does not lodge an appeal. If the infringing party lodges an appeal to the Court of Appeal, the date on which the limitation period will start to run will extend accordingly, to the 28th day after the decision is rendered by the Court of Appeal if the party does not lodge a further appeal to the Court of Final Appeal.17

III EXTRATERRITORIALITY

i Extraterritorial application of the Ordinance

The conduct rules contained in the Ordinance have extraterritorial application to the extent that the agreement or conduct concerned has the object or effect of preventing, restricting or distorting competition in Hong Kong. This is regardless of where the agreement or conduct takes place, and of the nationality or place of establishment of the infringer(s).

ii Service out of the jurisdiction

To commence a follow-on action in the Tribunal, the plaintiff must serve an ‘originating document’ to the intended defendant. Service out of the jurisdiction is permissible only with the leave of the Tribunal.18

In order to obtain leave to serve the originating document ‘out of the jurisdiction’ (i.e., outside Hong Kong), the plaintiff must establish the following three matters:

  • a that he or she has a good arguable case that his or her claim falls within one of the heads listed in the RHC Order 11 rule 1(1)(a) to (p).19 These heads include, for example, that the defendant is domiciled or ordinarily resident within Hong Kong;20
  • b that the plaintiff’s evidence discloses a serious issue to be tried;21 and
  • c even if the first two requirements are satisfied, that the case is a proper one for the exercise of the Tribunal’s discretion to grant leave.22 In determining this issue, the Tribunal will apply the doctrine of forum non conveniens.

IV STANDING

A person who has suffered loss or damage as a result of any act that has been determined to be a contravention of a conduct rule has a right of action under the Ordinance.23 This would clearly include potential competitors who have been prevented or restricted from competing in the market, and also direct purchasers who have purchased a product or service at a higher price than it would have been but for the infringement. It remains to be seen whether indirect purchasers (of cartelised products, for example) would be able to bring an action.24

V THE PROCESS OF DISCOVERY

i General obligation of discovery

There is no automatic discovery in proceedings before the Tribunal. Instead, a party may apply to the Tribunal for an order for discovery and production of a document relating to the proceedings for inspection.25

The application may be determined by the Tribunal with or without a hearing. In determining the application, the Tribunal will have regard to all the circumstances of the case, including:

  • a the need to secure the furtherance of the purposes of the Ordinance as a whole;
  • b whether the information contained in the document sought to be discovered or produced is confidential;
  • c the balance between the interests of the parties and other persons; and
  • d the extent to which the document sought to be discovered or produced is necessary for the fair disposal of the proceedings.

The Tribunal has suggested that it would, as part of case management, manage discovery issues proactively.26 Even where a document is relevant, the Tribunal may refuse to make an order for discovery, having regard to the factors set out above.

ii Pre-action discovery and third-party discovery

A person may apply for ‘pre-action discovery’ (i.e., before an originating document has been issued) against another person if the court is satisfied that (1) both the applicant and the other person are likely to be parties to anticipated proceedings; (2) the documents sought are directly relevant to an issue arising or likely to arise out of a claim in the anticipated proceedings; and (3) such documents are likely to be in or have been in the possession, custody, or power of the other person.27

Similarly, it also appears that a person may apply for discovery against non-parties (either pre-action or after proceedings have been commenced) provided that the documents sought are (1) likely to be in or have been in the possession, custody or power of the third party; and (2) relevant to an issue arising out of the claim.28

iii Treatment of confidential documents

Competition Tribunal Practice Direction No. 2 sets out the practice relating to confidential information in Tribunal proceedings. The Tribunal may, on the application of a party, order that documents are to be accorded confidential treatment. This will place restrictions on who may view the documents.

Confidential treatment will only be accorded to information that genuinely requires protection. In general, confidentiality cannot be claimed for the entire or whole sections of a document, as it is normally possible to protect confidential information with limited redactions.29

VI USE OF EXPERTS

Under the Ordinance, the Tribunal is not bound by the rules of evidence and may receive and take into account any relevant evidence or information, whether or not it would otherwise be admissible in a court of law.30 Under the CTR, the evidence of witnesses may be taken orally on oath or affirmation, or by affidavit, declaration or otherwise as the Tribunal thinks fit.31

Given that, at the time of writing, there have been no follow-on claims in Hong Kong, the exact direction that the Tribunal would take with respect to the use of experts in proceedings remains to be seen. However, three general observations can be made.

First, in formulating the CTR, particularly in respect of follow-on actions, the judiciary has taken into account the need to enable the Tribunal to conduct its proceedings with as much informality as is consistent with attaining justice, and the Tribunal’s need for flexibility to handle cases of varying scale, nature, or complexity. Accordingly, it is likely that expert evidence would be filed in accordance with directions of the Tribunal having regard to the needs of a particular case.32

Second, in its practice direction, the Tribunal stated that the parties should ensure that they serve ‘no more expert evidence than is necessary’, and that the Tribunal may refuse leave for a party to adduce ‘unnecessary’ expert reports.33

Third, parties should expect that, after expert reports have been served, the experts they have respectively engaged will be directed to communicate with each other and produce a joint report specifying matters agreed and matters not agreed, and the reasons for any non-agreement.34

VII CLASS ACTIONS

i Representative proceedings

At present, there is no class action regime in Hong Kong. The only avenue that is currently available for multi-party litigation is by way of a ‘representative action’ brought by a party on behalf of a group of others who have the same interest in the proceedings. There is no suggestion in the Ordinance or the Competition Tribunal Rules that the ‘representative action’ regime does not apply to follow-on actions in Hong Kong.

Under the current regime of representative proceedings, where numerous persons have the same interest in any proceedings, the proceedings may ‘be begun, and, unless the court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them’.35

This ‘same interest’ requirement means that all ‘class members’ have to show identical issues of fact and law.36 They have to prove (1) a common interest; (2) a common grievance; and (3) a remedy which is beneficial to all plaintiffs.37 This has meant that few actions could be brought under the representative actions rule.

ii A proposed class action regime

On 28 May 2012, the Law Reform Commission published a report on class actions recommending the introduction of a class action regime in Hong Kong, starting with consumer cases. In response to the recommendations, the Department of Justice has established a working group to study and consider the details of the proposed regime and make recommendations to the government. It remains to be seen whether, and if so, when a class action regime will be introduced, and if so whether this would apply to follow-on competition actions in the Tribunal.

VIII CALCULATING DAMAGES

i Availability of damages

The Tribunal may make an order requiring the infringing party to pay damages to any person who has suffered loss or damage as a result of the infringement.38 It remains to be seen how the Tribunal would quantify the damage, and what kind of damage (such as tort-based compensatory damage, restitution, or exemplary damages) the Tribunal would award.

ii Interest

The Tribunal may award simple interest on ‘all or a part of the sum for which judgment is given’.39 The power of the Tribunal to award interest is discretionary. A successful plaintiff may be entitled to both interest on the sum claimed until judgment (i.e., pre-judgment interest) and also interest on the judgment debt (i.e., post-judgment interest).40

The Ordinance also empowers the Tribunal to determine the rate of interest as it thinks fit.41 The rate of interest will likely depend on the nature of the claim and the particular circumstances of the case. In determining the appropriate rate of interest, therefore, the Tribunal is expected to have regard to the fundamental principle that interest should not be awarded as a punishment, but as compensation for a successful plaintiff for being denied his or her money.42 Interest may also be calculated at different rates for different periods.43

iii Costs

Costs are defined as including fees, charges, disbursements, expenses and remuneration.44

Costs are at the discretion of the Tribunal, but generally the Tribunal would order that ‘costs follow the event’, which means that the losing party pays the winning party’s legal costs.45

The amount payable is assessed by the Tribunal, and as a rule of thumb the winning party should not expect to recover more than 50 to 75 per cent of its actual legal expenses. If costs are awarded on a higher scale known as the ‘indemnity’ basis, then the successful party may recover above 75 per cent of its actual costs.46 Indemnity costs may be awarded where the Tribunal considers that the proceedings (1) were scandalous or vexatious; or (2) had been initiated or prosecuted maliciously, for an ulterior motive, or in an oppressive manner.

In general court proceedings, separate costs orders are often made at interlocutory stages prior to trial, to reflect success and failure at specific stages in the litigation process. In a follow-on competition claim, the Tribunal has the same power to make separate costs orders, or any other order as it sees fit.47 For example, the Tribunal may summarily assess the costs of an interlocutory application immediately after the hearing of the application, without having to wait until the conclusion of the proceedings through to trial. This is intended to deter parties from making ill-conceived interlocutory applications since the losing party will need to pay the other party’s costs immediately rather than at some distant point in the future.

IX PASS-ON DEFENCES

Given that, at the time of writing, there has been no judgment arising from a follow-on claim in Hong Kong, the availability of pass-on defences remains to be seen.48

X FOLLOW-ON LITIGATION

Please see Section II, supra for a discussion of follow-on litigation.

XI PRIVILEGES

Legal privilege is a constitutionally recognised and guaranteed right in Hong Kong.49 Therefore, privileged documents will in general not be disclosable in proceedings before the Tribunal.

Generally speaking, legal privilege covers any confidential communications between (1) a lawyer and his or her client where the purpose of the communications is the seeking or giving of legal advice (‘legal advice privilege’); and (2) a lawyer and his or her client, or a lawyer or client and a third party (such as a witness of fact, an expert witness, or a consultant) where the dominant purpose is advising on or obtaining evidence in relation to actual or contemplated litigation (‘litigation privilege’).

In June 2015, the Court of Appeal in Hong Kong broadened the scope of legal advice privilege such that it not only covers confidential communications between a lawyer and his or her client, but also covers confidential documents produced for the dominant purpose of seeking or giving legal advice (such as an internal confidential document of a client organisation that is produced for such purpose).50

Privilege will not apply where such communications are generated to further fraudulent or illegal acts, although invoking the exception of fraud or an illegal act is difficult and one that is allowed only in exceptional circumstances.

In addition, where strict confidentiality in the communications is lost or waived by such communications being provided to third parties, they will cease to be privileged.

The concept of partial waiver of legal privilege is recognised in Hong Kong.51 This means that privilege may not be lost completely if a party chooses to disclose a privileged document to a regulatory authority, provided that it is made clear that any waiver of privilege is limited to the purposes of the investigation alone. Thus, legally privileged documents provided to the Commission for the purpose of an investigation may continue to be protected from disclosure to third parties where the purpose is outside the scope of the regulatory investigation.

XII SETTLEMENT PROCEDURES

i Sanctioned offers and sanctioned payments

A party (the offeror) may, after the commencement of the action, make a sanctioned offer or sanctioned payment to the other side (the offeree).52 A sanctioned offer is treated as ‘without prejudice save as to costs’.53 This means that the offer cannot later be relied upon in the Tribunal except when the Tribunal is determining the issue as to costs. This procedure aims at encouraging the parties to take possible settlement seriously and providing an incentive for them to settle disputes at an early stage.

A plaintiff can only make a sanctioned offer.54 Depending on the circumstances, a defendant can make a sanctioned offer or a sanctioned payment or both.55 A sanctioned offer must comply with certain requirements regarding form and content, and must be served on the offeree. A sanctioned offer and sanctioned payment may not be withdrawn or diminished before the expiry of 28 days from the date when it is made unless the Tribunal grants leave to do so.56

If the offeree accepts a sanctioned offer or sanctioned payment which relates to the whole of a claim, the claim is stayed. If the offeree accepts a sanctioned offer or sanctioned payment which relates only to a part of a claim, the claim is stayed as to that part. However, if the offeree rejects a sanctioned offer or sanctioned payment, and if he or she is unable to obtain a judgment better than the offer (i.e., he or she fails to ‘do better’ after trial), then he or she may be liable for enhanced interest (up to 10 per cent above judgment rate) and the offeror’s costs assessed on an indemnity basis.57

ii Calderbank offer

A ‘Calderbank offer’ (i.e., an offer made on a ‘without prejudice save as to costs’ basis) is a traditional settlement mechanism to protect the party’s position on costs. However, given the availability of sanctioned offers and sanctioned payments, anecdotal evidence suggests that the use of Calderbank offers has generally diminished in commercial litigation in Hong Kong. In relation to follow-on actions in the Tribunal, the Tribunal may not take any Calderbank offer into account if, ‘at the time it is made, the party making it could have protected his or her position as to costs by means of a sanctioned payment or sanctioned offer’.58

Calderbank offers may still be used before the commencement of proceedings and in the appeal proceedings (to which the sanctioned offer and sanctioned payment regime will not apply59).

iii Admissions in monetary claims

Upon being served with the originating documents, a defendant may make an admission, such that the Tribunal may enter into judgment against him or her without conducting a hearing (except in limited exceptions). In a liquidated claim, a defendant may admit the whole or part of the claim. In an unliquidated claim, a defendant may make an admission of liability to pay the whole of the plaintiff’s claim (such sum to be determined by the Tribunal) or offer a liquidated amount of money in satisfaction of the plaintiff’s claim. Once an admission is made, it cannot be amended or withdrawn without permission of the Tribunal.60

This admission mechanism applies only to a monetary claim, i.e., the only remedy sought is the payment of money, whether the amount claimed is a liquidated sum or an unliquidated sum.61

XIII ARBITRATION AND MEDIATON

i Arbitration

As mentioned above, if proceedings are based on, or partly based on, a cause of action that is ‘the defendant’s contravention, or involvement in a contravention, of a conduct rule’, then such proceedings must be brought under the Ordinance.62 Further, the Ordinance provides that any follow-on actions may only be brought in the Tribunal.63 On this basis, it appears that follow-on actions are not arbitrable in Hong Kong.

However, breach of secondary contractual obligations to abide by competition law rules may, in theory, be arbitrable if such obligations are covered by an arbitration agreement. It is at least arguable that, in such a case, the cause of action would then be a breach of contract, as opposed to a breach of a conduct rule. Given the lack of case law on this issue and that such clauses are relatively unusual, whether the courts in Hong Kong would accept this argument remains to be seen.

ii Mediation

In follow-on actions, the Tribunal adopts the practice stated in Practice Direction 31 (Mediation) of the High Court.64 As such, the Tribunal has a duty to encourage the parties to a dispute to use an alternative dispute resolution procedure if the Tribunal considers that it is appropriate.

In particular, where all the parties are legally represented, solicitors acting respectively for the parties are required to file a Mediation Certificate to the Tribunal. The Mediation Certificate provides, inter alia, that:

  • a the solicitors have explained mediation to the party;
  • b the client understands what has been explained to him or her; and
  • c whether the client intends to attempt mediation or, if not, why not.

Where a party refuses to engage in mediation and that refusal is unreasonable, the Tribunal may penalise that party by making an adverse costs order.

All information exchanged and any admissions made during the mediation process are strictly confidential and covered by ‘without prejudice’ privilege, and thus may not be relied upon in court. The confidentiality of ‘mediation communications’ has also been put on a statutory footing in the Mediation Ordinance which came into force on 1 January 2013.65

XIV INDEMNIFICATION AND CONTRIBUTION

While there is no case law on point, co-infringers are likely to be jointly and severally liable for the loss caused by competition law infringements. If an action is brought against one or more co-infringers, but not all, then subject to the Tribunal’s overriding power to control the conduct of an action, the joinder of persons as additional defendants is permitted as of right, provided that all relief claimed is in respect of the same situation or series of situations (which may well be the case, for example, in relation to a breach of the FCR). In any other case, the Tribunal may, on the application of a person, permit the person or another person to be joined in the proceedings, in addition to, or in substitution of, any party to the proceedings.66

In addition, under the general law governing civil liability in Hong Kong, a defendant can commence ‘third-party proceedings’ for a claim for contribution.67 Third-party proceedings create a separate action independent of the original action. The third party, on being served of a ‘third-party notice’, becomes a party to the action as though the defendant had duly sued him or her in the ordinary way.68 The third party may accordingly counterclaim against the defendant, and the third party and the defendant may also interrogate each other.

XV FUTURE DEVELOPMENTS AND OUTLOOK

Since the Ordinance came into force on 14 December 2015, the Commission has been active in promoting and enforcing the new law. As of its most recent financial year ending 31 March 2016 the Commission has received over 1,600 complaints and enquiries. Some of these complaints have progressed to the formal investigation stage, and it has been suggested by various sources that a number of dawn raids have taken place. With this in mind, the Tribunal is expected to see its first enforcement cases in 2017, which may be followed by follow-on actions.

According to the 2011 Bills Committee report on the Competition Bill, the Hong Kong government will conduct a review of the ‘operational experience and effectiveness’ of the Ordinance within a few years of implementation. The government has also undertaken to review the scope of the exemption for certain statutory bodies three years after the coming into force of the Ordinance.

In particular, while the option of stand-alone private enforcement actions is not included in the Ordinance, the government has also remarked that a stand-alone right of action may be introduced in time as the business community acquires more experience with, and understanding of, the new competition regime.


1 Mark Jephcott is a partner and head of the competition practice in Asia and Adelaide Luke is a registered foreign lawyer at Herbert Smith Freehills, Hong Kong.

2 See Section II, infra.

3 Prior to the introduction of the Ordinance, the competition law regime in Hong Kong applied only to the telecommunications sector.

4 We note that members of the Competition Tribunal have previously made public statements as to the possibility of seeking remedies for anticompetitive acts in Hong Kong based on common law economic torts. This issue remains to be tested in Hong Kong courts.

5 The Ordinance, Section 110.

6 The Ordinance, Section 129.

7 The Ordinance, Section 159.

8 The Ordinance, Section 134.

9 The Ordinance, Sections 109 and 110(2).

10 The Ordinance, Section 113.

11 The Ordinance, Section 114.

12 Guide to Proceedings in the Competition Tribunal: Follow-on Action, December 2015.

13 The Ordinance, Section 108.

14 For example, in the summary judgment proceedings of Tang Chi Yuen v. Chan Kam Hung [2016] HKEC 1733 674/2016, the taxi driver plaintiff relied on, inter alia, the Competition Ordinance to seek a declaration that a resolution of a taxi association was null and void (although the plaintiff subsequently conceded that the Competition Ordinance was inapplicable in those circumstances).

15 The Ordinance, Section 111.

16 Rules of High Court (RHC) O.59 r.4(1)(c). Note that an appeal against an interlocutory decision of the Tribunal requires leave to appeal, and applications for leave must be made within 14 days from the date of the decision.

17 An appeal against a decision by the Court of Appeal must be made to the Court of Final Appeal within 28 days from the date of the decision: Hong Kong Court of Final Appeal Ordinance, Section 24(2).

18 CTR r.16.

19 CTR r.4 provides that, where the Ordinance and the CTR make no provision for a matter, the RHC shall apply to all proceedings.

20 RHC O.11 r.1(1)(a).

21 Seaconsar Far East Ltd v. Bank Makazi Jomhouri Islami Iran [1993] 3 WLR 756.

22 RHC O.11 r.4(2).

23 The Ordinance, Section 110(1).

24 Under English law indirect purchasers who have suffered damage have standing (see the judgment of the Competition Appeal Tribunal in Sainsbury’s Supermarkets Ltd v. MasterCard Incorporated and Others [2016] CAT 11). EU case law (now codified in Directive 2014/104/EU) provides that any person may claim compensation for harm suffered, provided there is a causal relationship between that harm and the infringement of competition law. This includes both direct purchasers and indirect purchasers. Jurisprudence in the UK and the EU is likely to be influential in the courts of Hong Kong.

25 CTR r.24(1).

26 Competition Tribunal Practice Direction No. 1, paragraph 58.

27 CTR r.24(4) states that RHC O.24 r.7A applies. RHC O.24 r.7A sets out the procedures of applying for discovery against a likely party pursuant to the High Court Ordinance s 41.

28 High Court Ordinance, Section 42.

29 Competition Tribunal Practice Direction No. 2, paragraph 5.

30 The Ordinance, Section 147.

31 CTR r.35.

32 Legislative Council Brief of June 2015 by the Judiciary Administration (SC/CR/19/1/11), paragraphs 13–14.

33 Competition Tribunal Practice Direction No 1, paragraph 62.

34 Competition Tribunal Practice Direction No 1, paragraph 63.

35 RHC O.15 r.12.

36 Markt & Co Ltd v. Knight Steamship Co Ltd [1910] 2 KB 1021 (CA).

37 CBS/Sony Hong Kong Ltd v. Television Broadcasts Ltd [1987] HKLR 306.

38 The Ordinance, Schedule 3, Section 1(i).

39 The Ordinance, Section 153A(1)(a).

40 The Ordinance, Section 153A(2).

41 The Ordinance, Section 153A(4).

42 Jefford v. Gee [1970] 2 QB 130; Tadjudin Sunny v. Bank of America [2016] HKEC 1128.

43 The Ordinance, Section 153A(6).

44 RHC O.62 r.1(1).

45 RHC O.62 r.3(2).

46 RHC O.62 r.28(4A).

47 RHC O.62 r.3(2A).

48 Again, the position in the UK (where the passing-on ‘defence’ has been recognised as available in principle in Sainsbury’s Supermarkets Ltd v. MasterCard Incorporated and Others ([2016] CAT 11)) and the EU (where the passing-on defence has been recognised, as reflected in Directive 2014/104/EU) is likely to be influential.

49 Basic Law, Article 35.

50 Citic Pacific Limited v. Secretary for Justice & Commissioner of Police [2015] CACV 7/2012.

51 Citic Pacific Limited v. Secretary for Justice & Commissioner of Police [2012] 2 HKLRD 701.

52 RHC O.22 r.2.

53 RHC O.22 r.25(1).

54 RHC O.22 r.4.

55 RHC O.22 r.3.

56 RHC O.22 r.7.

57 RHC O.22 r.23 and r.24. If the rejecting offeree is a plaintiff, he or she may also risk being disallowed part or all of the discretionary interest which would otherwise be awarded on the judgment award.

58 RHC O. 62 r.5(1)(d).

59 CEP Ltd v. Wuxi Jiacheng Solar Energy Technology Co Ltd [2016] 1 HKLRD 960.

60 RHC O.13A r.2(3).

61 RHC O.13A r.2(1).

62 The Ordinance, Section 108.

63 The Ordinance, Section 110(2).

64 Competition Tribunal Practice Direction No. 1, paragraph 108.

65 Mediation Ordinance, Section 8.

66 CTR r.22(1).

67 RHC O.16 r.1(a).

68 RHC O.16 r.1(3).