The Court of Final Appeal has handed down judgment in 

Sir Elly Kadoorie & Sons Ltd v Samantha Jane Bradley

a landmark judgment on the tort of harassment in Hong Kong and the scope of the Court’s injunctive powers which will be of interest to practitioners, academics and the wider community alike.

In a joint judgment delivered by Lam PJ and Lord Neuberger NPJ, the Court confirmed that the tort of harassment exists as a matter of Hong Kong law, holding that the recognition of such a tort was necessary to keep the law abreast with current social conditions and expectations, and was consistent with developments in other common law jurisdictions. The Court gave guidance on the elements of the tort and potential defences, and explained that since the tort was concerned with mental distress, it is not open to a company to pursue a claim on its own behalf.

In a further joint judgment by Cheung CJ and Lam PJ, the Court held that the unavailability of the tort of harassment did not preclude a company from bringing injunctive relief to restrain acts of harassment. Following the recent decisions of the Privy Council in 

, the Court explained that the power to grant injunctive relief is not dependent on the existence of a cause of action between the parties. The Court held that where a corporate employer seeks to restrain acts of harassment against its employees, its duty to provide a safe workplace could justify it pursuing such an injunction, by analogy with or extension to the 

 jurisdiction to safeguard the discharge of public duties by public authorities. Furthermore, a company could seek injunctive relief to restrain harassment of its legal representatives where those acts interfere with their right to obtain legal advice under the Basic Law.

This judgment marks the first time that the existence and scope of the tort of harassment at common law have been determined by the highest appellate court of a common law jurisdiction. It also confirms the flexibility and breadth of the Court’s powers to grant injunctions in light of developments in other common law jurisdictions, and the Court’s willingness to develop existing principles in order to provide remedies in novel factual circumstances.

, instructed by Simmons & Simmons, acted for the Plaintiff.

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Court of Final Appeal recognises the tort of harassment and clarifies scope of injunctive relief

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