Private action for contempt of court?

In March, the UK Supreme Court handed down a landmark judgment, in which it held that:

  1. contempt of court constitutes unlawful means for the purposes of the tort of unlawful means conspiracy, giving rise to a private cause of action; and 
  2. where a conspiracy is hatched in England, the English courts have jurisdiction under the Lugano Convention to hear a claim founded in that conspiracy (even if all other elements of the tort take place abroad).

Given the similarity of the law on the economic tort of conspiracy in Hong Kong and England, this decision may provide a new weapon for judgment creditors to bring a civil claim where a defendant fraudulently conspires with a third party to breach a court order in an attempt to avoid enforcement in the Hong Kong courts.

Moreover, the UK Supreme Court expressly left open the possibility that a plaintiff may be able to bring a claim for damages based on contempt alone, ie without having to rely on any other cause of action. It therefore remains to be seen whether this will be relied upon by future plaintiffs to found a damages claim for contempt of court.

The judgment also provides helpful guidance on how to determine the place where a conspiracy occurred for the purposes of establishing jurisdiction. The Lugano Convention rules on jurisdiction in tort claims are similar to the Hong Kong rules on granting permission to serve a tort claim out of the jurisdiction, though plaintiffs in Hong Kong will also need to show that Hong Kong is the forum conveniens and that their claim is also actionable under the laws of the foreign country where the tort was in substance committed.

Nevertheless, the decision could potentially encourage Hong Kong courts to assert jurisdiction over conspiracy claims where the conspiratorial agreement was made here.

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