Hong Kong: Significant Development in Litigation Funding under Hong Kong Law

Last Updated: 21 April 2011
Article by Ludwig Ng

In the recent case of Geoffrey L. Berman v SPF CDO I, Ltd. and Others HCMP 1321/2010 (judgment delivered on 14th March 2011), Mr. Justice Harris pronounced a judgment that significantly developed the law regarding litigation funding in Hong Kong.


 A Delaware corporation Syntax-Brillion Corporation (the "Company") entered into a Chapter 11 liquidation under the U.S. Bankruptcy Code. As part of its restructuring plan, part of the assets of the Company, including an indebtedness due to the Company by two debtors located in Hong Kong (the "Indebtedness"), was assigned to a trust in favour of the Company's creditors. Mr. Berman was the trustee of the trust (the "Trustee"). In order to have sufficient funding to pursue the Indebtedness against the two Hong Kong debtors, he assigned the Indebtedness (the "Assignment") to a litigation funder in Hong Kong (the "Funder"). The Assignment presumably provided for the splitting of net recovery between the Trustee and the Funder.

 The Prohibition against Maintenance and Champerty

 The Trustee already obtained approval of the U.S. Bankruptcy Court on the assignment. However, such approval was made conditional upon the Hong Kong court also approving the assignment. The Trustee took out an application under O.85 of the Rules of High Court to ask the court for a determination that the Assignment was lawful, or more specifically, that it is not against the Hong Kong law of maintenance and champerty.

 It is clear that the prohibition against maintenance and champerty is still part of the law of Hong Kong. As recent as December 2010, the Court of Appeal confirmed the conviction of a solicitor who was charged with the offence of maintenance because of her role in a personal injury action. In that action she assisted a "recovery agent" who purportedly acted for a personal injury victim to claim compensation on a "no win no fee" basis. (See HKSAR v Lo Wai Yan CACC 254/2009, judgment delivered on 3rd December 2010.)

 Exceptions to the Prohibition

 However, in recent years, the law about maintenance and champerty has been more refined and certain arrangements which could be regarded as maintenance or champerty have been held to be lawful so long as such arrangements are shown to be promoting the access to justice and otherwise not objectionable on public policy grounds.

The assignment of causes of action by liquidators under s. 199(2)(a) of the Companies Ordinance is a well-recognised exception to prohibition against maintenance and champerty. A judgment of Mr. Justice Harris has confirmed that last year (See Re Cyberworks Audio Video Technology Limited HCCW 1113/2002, Judgment delivered on 4th May 2010). In the present case, although it arose from a liquidation, the assignment was not pursuant to s.199 as the Trustee is not a Hong Kong liquidator but rather a trustee under a liquidation plan in Chapter 11 proceedings in the U.S. The Trustee made the application to the Court under Order 85 of the Rules of High Court, which gives jurisdiction to the Court to give directions to trustees on questions arising from administration of trusts. Mr. Justice Harris held that he had jurisdiction under O.85 to answer the Trustee's question. He then reviewed various Hong Kong and English authorities on the modern law of maintenance and champerty and come to the view that:-

 "In my view the central question to be answered by the court when assessing the assignment of a chose in action [to see if it infringes the prohibition of maintenance and champerty] is whether or not there is a proper commercial purpose to the transaction, which gives rise to no risk of the corruption of the judicial and litigation process." (para 27 of the Judgment)

 He came to the view that the assignment in question did not infringe the prohibition. An important consideration that he took into account is that the assignment promoted the access to justice. That is, a good claim may fail to be pursued for lack of funding if the Indebtedness could not be assigned to the Funder. He also considered it important that the U.S. bankruptcy court has already sanctioned the assignment.


This is a welcome development in the law concerning maintenance and champerty. As the decision is not based on a statutory exception (e.g., as under s. 199 of the Companies Ordinance), its application is much more far reaching than the Cyberworks decision.

The funding arrangement in this case could be clearly distinguished from those typically found in personal injury litigation where the funders provide little added value as most personal injury victims are entitled to legal aid, and where the funders simply prey on the ignorance of their clients who are mostly grass root laborers, as illustrated by the Lo Wai Yan case.

It is hoped that this decision would become a positive step in the healthy development of the litigation funding business in Hong Kong, which serves to promote the access to justice without unjustifiably impinging on the due administration of justice and the integrity of the judicial process. 


The law and procedure on this subject are very specialized and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.