Service out of the jurisdiction is an issue that comes up frequently in commercial litigation. It is thus important to ascertain the proper approach in this regard. Conventionally, the applicant in an application for service out has to satisfy three requirements: (i) there is a serious issue to be tried; (ii) the claim(s) falls within one or more of the gateways; and (iii) the case is a proper one for service out of the jurisdiction (in the case of England, the third requirement is whether England and Wales is the proper place in which to bring the claim). Insofar as England and Hong Kong are concerned, the third requirement has traditionally been understood to be concerned with the principle of forum conveniens.

Following two recent UK Supreme Court decisions in the Brownlie litigation, which clarified the scope of the “tort gateway”, the Hong Kong Court of Final Appeal had an opportunity to address the same issue. Whilst endorsing the approach of the majority of the UK Supreme Court to the tort gateway, Lord Collins, in discussing the minority approach, reintroduced the old “letter and spirit rule”, i.e. the case must be clearly within both the letter and spirit of the relevant head of jurisdiction. How does this rule fit into the modern 3-stage framework? Is it too late to revive this rule and bring it back into the game?

This seminar entails a discussion on the modern approach to service out, the tort gateway, and whether the letter and spirit rule ought to be revived and incorporated into the modern approach.

About the Speakers:

Kelvin Tse graduated from the Chinese University of Hong Kong with a JD, ranking first in his cohort. He later obtained his BCL from the University of Oxford. He is the co-author of the note “The Tort Gateway: The Missing Jigsaw Piece?” [2023] LMCLQ 211, which involves discussions and comments on the recent decision of the Hong Kong Court of Final Appeal in Fong Chak Kwan v Ascentic Ltd (2022) 25 HKCFAR 135. He also previously authored an article published in the Conveyancer and Property Lawyer on proprietary estoppel and statutory formalities ((2021) 85 Conv. 365). Kelvin is currently a pupil barrister in Hong Kong.

Alex Chan graduated from the University of Hong Kong with a first-class LLB, having received a string of academic prizes including the Betty Ho Prize for best performance, and the subject prizes for Equity & Trusts and Guided Research (later published [2021] T & T 725). He went on to obtain a distinction in the BCL from the University of Oxford, winning another subject prize in Dissertation. He is the co-author of the note “The Tort Gateway: The Missing Jigsaw Piece?” [2023] LMCLQ 211. Alex is due to commence pupillage in 2024 at Temple Chambers, Hong Kong.

The Law Society of Hong Kong has awarded this seminar 1.5 Continuing Professional Development (CPD) points.