Mr Edward Chan SC and Jacky Lam acted for the appellant in Tam Yuk Ching & Ors v Hoosenally & Neo (a firm) & Anor [2022] HKCFI 3825

In Tam Yuk Ching & Ors v Hoosenally & Neo (a firm) & Anor [2022] HKCFI 3825, the Court of First Instance (on an appeal from a Master's hearing) considered inter alia whether the principles on reflective loss arising from the Supreme Court decision in Marex Financial Ltd v Sevilleja [2021] AC 39 would apply in Hong Kong, in restoring claims which were otherwise struck out by the Master, on the premise that they were only reflective losses suffered by the other plaintiffs.  

Marex, in particular, resulted in the disapproval and overruling of inter alia Lord Millet’s dicta in Johnson v Gore Wood & Co (No 1) [2002] 2 AC 1, Giles v Rhind [2003] Ch 618, Perry v Day [2005] 2 BCLC 405, and Gardner v Parker [2004] 2 BCLC 554.  Several of the principles cited were affirmed by the Court of Appeal in Landune International Ltd v Cheung Chung Leung [2006] 1 HKLRD 39, which the respondent relied on.  

The Court of First Instance determined that, whilst any decisions from the Supreme Court of the United Kingdom are to be treated with great respect, where one cannot reconcile between what the Supreme Court has decided in Marex and the ratio decidendi in the relevant decisions of the Court of Appeal and the Court of Final Appeal in Hong Kong, the Court of First Instance is bound to follow the courts in the higher judicial hierarchy.  

Nevertheless, the Court re-affirmed the well-established principle from Johnson v Gore Wood that “when the question of whether the no reflective loss principle is engaged is considered on a strike-out application, the court can only have regard to the pleadings and determine whether the loss appears to be one which would be made good if the company enforced its rights”.  

Given the way the appellant pleaded her claims, it was neither plain nor obvious that they should be barred by the no reflective loss principle; and thus, any reasonable doubt was resolved in her favour at the strike-out stage.  Her appeal on this particular ground was therefore allowed.  

Mr Edward Chan SC, leading Jacky Lam, acted for the appellant.  

Read the judgment here: Tam Yuk Ching and Others v. Hoosenally & Neo (A Firm) and Another (30/12/2022, HCA1511/2020) [2022] HKCFI 3825 (