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 Course List |  Course Calendar
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| (Webinar via Zoom) Illegality, Equity and Trusts in Hong Kong: clean hands, ex turpi causa, reliance, locus poenitentiae, range of factors or what? |
| Date: |
19 February 2025 (Wednesday) |
| Time: |
2:30pm - 5:45pm |
| Level: |
I (Intermediate)
For delegates who have prior knowledge of the subject area |
| Language: |
English |
| Fee: |
HK$ 1,850 |
| Accreditation: |
(3 CPD Points being applied for - The Law Society of HK) |
| Ref: |
L25TP01 |
| Venue: |
Webinar Course
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Presenter's Biography:
Steven Gallagher was awarded a first class LL.B. He was called to the Bar of England and Wales in 2006. Steven teaches equity and trusts, property law, and art, antiquities, cultural heritage and the law. Steven has presented continuing professional development courses for solicitors in Hong Kong on many topics associated with property law. Steven's research interests include equity and the law of trusts, Chinese custom and law, cultural heritage law, and digital technology and law.
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Objective:
In 2016, the majority of the UK Supreme Court, in Patel v Mirza [2016] UKSC 42, adopted a new test to decide if a plaintiff's case should be barred for illegality - the Range of Factors Test. This test has been applied by the court in Hong Kong and also rejected in light of Hong Kong's own Court of Appeal guidance that our courts should follow the Reliance Principle developed by the House of Lord in Tinsley v Milligan [1994] 1 AC 340. This seminar will consider the development of the doctrine of illegality from its roots in the equitable maxim He who comes to equity must come with clean hands, and the common law maxim Ex turpi causa non oritur action. The seminar will consider the original approach of equity and the common law to plaintiffs who founded their actions on illegal acts in the seminal judgments of Lord Mansfield in Holman v Johnson (1775) 1 Cowp 341, bringing his equity to the law, and the more formalistic approach of Lord Eldon in Muckleston v Brown (1801) 6 Ves 52, arguably bringing law into equity when he opined, "Let the estate lie where it falls". The seminar then considers the developments in the doctrine in law and equity through the influential comments of Lord Denning in Tinker v Tinker [1970] 1 All ER 540, to the development of the modern approach to claims of illegality. This modern approach consists of three main trends in equity's relaxation of the harshness of the common law: The Reliance Principle, the doctrine of locus poenitentiae, and the common sense interpretation of law to categorise the maligned acts as outside any illegality identified at law and especially in statute. The seminar will also consider the use of the doctrine by defendants attempting to hide behind the attribution of their illegal acts to their principals. The seminar will conclude by considering the application of the Range of Factors test in the UK and its possible application in Hong Kong. In particular, the seminar will consider whether Hong Kong should continue to apply the Reliance Principle and its associated exceptions, adopt the Range of Factors Test, follow the guidance of other common law jurisdictions (e.g. Nelson v Nelson (1995) 184 CLR 538) or perhaps go its own way.
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Outline:
- The traditional approach of equity to issues of illegality in Gascoigne v Gascoigne [1918] 1 KB 223 and Tinker v Tinker [1970] 1 All ER 540;
- The supposed relaxation of the doctrine of illegality in the Reliance Principle as applied in Tinsley v Milligan [1994] 1 AC 340;
- The doctrine of Locus poenitentiae: Tribe v. Tribe [1996] Ch 107;
- There is no "true" illegality or the legislative prohibition is for "other mischief" Ali v Khan [2002] EWCA Civ 974;
- Common sense approaches in Hong Kong to trusts in Home Ownership Scheme flats - Cheuk Shu Yin v Yip So Wan and Lo King Fai [2012] HKEC 1554;
- The Range of Factors Test as adopted by the UK Supreme Court in Patel v Mirza [2016] UKSC 42;
- Application of the Test by the Supreme Court in Singularis Holdings Limited (in liquidation) v Daiwa Capital Markets Europe Limited [2019] UKSC 50 and Stoffel & Co v Grondona [2020] UKSC 42;
- The application of the Test in professional negligence claims against solicitors by the UK Court of Appeal in Day v Womble Bond Dickinson [2020] EWCA Civ 447;
- The application of the Test in Hong Kong: Chung Tin Pui v Li Pak Sau [2017] HKEC 2103;
- The restriction of the Range of Factors Test in Hong Kong: Arrow ECS Norway AS v M Yang Trading Ltd [2018] HKCFI 975;
- The Attribution Principle after Crown Prosecution Service v Aquila Advisory Ltd [2021] UKSC 49, and Moulin Global Eyecare Trading Limited (in liquidation) v The Commissioner of Inland Revenue [2014] HKCU 608.
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| Category: |
Trust, Succession & Probate |
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Bookings & Payments
To reserve a seat, please fax the completed booking form to us. We will send out a written Booking Confirmation either by fax or by email to confirm your booking, normally within 48 hours after receiving the booking form. Payment should be made upon we send the Booking Confirmation to you, or together with the booking form if the booking is received within seven (7) days of the course. You are advised to contact us to confirm your place if you have not received the Booking Confirmation prior to the commencement of the course.
Cancellation
In case of cancellation of a booking, you must inform us in writing at least seven (7) days before the date of the course, and a full refund will be issued (less of HK$300 administration fee). Cancellation of unpaid bookings will incur a HK$300 administration fee and the cancellation will not be deemed effective until payment of such fee is received. No refunds will be given and any outstanding amounts remain payable in full if the written notice of cancellation is made less than (7) days before the date of the course.
Transfer
If you cannot attend a booked course, you must inform us in writing at least 24 hours before the commencing time of the course. You may then:
- Transfer the booking to a replacement delegate;( Not available for Individual Discount Packages)
- Transfer your booking to another course, to be held before 31 October 2025; or
- Request a credit voucher, to be used on another LexOmnibus CPD course to be held before 31 October 2025.
No attendance
Once a booking is confirmed and no written notice of cancellation is received by us within the specified time as mentioned above, if a delegate has not settled the payment for a course and fails to attend, for whatever reason, the course fee will remain payable in full. To be awarded CPD points, full attendance of all parts of the conference is required. If you arrive later, or fail to attend a course, your course fee will not be waived, refunded or a credit voucher issued.
Weather
In the event that the No.8 typhoon signal is hoisted or the Black Rain Storm warning is raised within 2.5 hours of the course or is due to be raised during the course, the course will be cancelled. In the event of cancellation due to bad weather, the course will be rescheduled or a credit note issued. No refunds will be given.
Record of Attendance
A certificate of attendance can be provided at a cost of HK$40. Alternatively, a verification of attendance in letter format, along with the original payments receipt is available, at a cost HK$40. Please apply in writing to request either a certificate or verification letter subsequent to the course.
Conference Venue
All the conferences, except webinars, will be taken place in Central. The address of the conference venue will be notified by email, and via the website.
Other Terms
- We may reschedule, vary the details of a course at any time without liability. If we cancel or reschedule the course, except due to the weather conditions indicated, a credit note will be issued.
- Any bank charges and/or expenses incurred as a result of bounced cheques shall be borne by the delegates.
- LexOmnibus will not issue an invoice for registration of a course except under special circumstances and LexOmnibus reserves the right to charge an administration fee for providing that service.
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