Foreword
From 2 April 2009, civil litigation practitioners and their clients in Hong Kong are to litigate under a reformed civil justice system. The new legislation puts Hong Kong, in the words of the Chief Justice, “in a position to rve the public better in terms of accessibility, cost-effectiveness and efficiency.”
While taking reference from reforms introduced by Lord Woolf in England and Wales in 1999, Hong Kong’s reformed civil justice system is custom-designed to suit the specific needs and circumstances of the jurisdiction. Unlike the Woolf Reforms, there is no introduction of an entirely new procedural code. Instead reforms will be implemented by way of amendment to the current court rules.
The underlying objectives outlined in a new Order 1A pervade throughout the new system and this ‘cultural’change is potentially the most important reform to the Rules of the High Court. The objective
s require the courts actively to manage cas at an earlier stage and the parties are under a duty to help the court to do so. Thus the control of litigation is intended to be more driven by judges rather than by litigants and their advirs.
The Civil Justice Reform prents us with a challenge. Both we and our clients must be ready to embrace the changes, develop new tactics and take advantage of opportunities which the new rules prent. The purpo of this booklet is to provide you with a summary of the new rules in a digestible form. Each ction of the booklet ts out the key points and some thoughts on issues that may ari. We hope you find it uful. If you would like further information, plea do not hesitate to contact us.
Gareth Thomas
Partner
Head of Commercial Litigation, Hong Kong
1 March 2009
Contents
The Civil Justice Reform in Hong Kong: Litigating in the new era
Page
1.Overview1
2.Underlying objectives and ca management powers3
3.Non-compliance5
4.Starting a claim7
5.Defending a claim10
6.Timetabling Questionnaire (preliminary ca management)12
7.Timetabling and milestone dates14
8.Discovery18
9.Interim measures20
10.Evidence24
11.Payments in and offers to ttle27
12.Trial32
13.Costs34
14.ADR and ttlement38
15.Appeals42 Appendix 1Flow-chart of the new Civil Justice Reform procedure for a Writ action45 Appendix 2Sanctioned offers and sanctioned payments – acceptance46 Profiles47
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The information provided in this publication is general and may not apply to any specific situation. Legal advice should always be sought (where appropriate, from local advirs) before taking any action bad on the information provided. The publisher and authors bear no responsibility for any acts or omissions contained herein. Information provided is accurate as at 1 March 2009.
© Herbert Smith LLP 2009
1
The new rules, Practice Directions and Pre-action Protocols
History
The Civil Justice Reform is the result of an all embracing enquiry into the civil justice regime in Hong Kong which commenced nearly a decade ago. In February 2000 the Chief Justice appointed a Working Party to review the court rules and procedures in civil proceedings and to recommend changes with a view to improving access to justice at reasonable cost and speed. The Working Party submitted its findings to the Chief Justice in its Final Report in March 2004, making a total of 150 recommendations.
In March 2004, the Chief Justice accepted the Working Party’s Final Report and established a Steering Committee to overe implementation. Further consultations on the legislative proposals have since taken place which culminated in the passage of the amending legislation in 2008. The Civil Justice Reform will have effect from 2 April 2009.The new rules were published in the Gazette in June 2008. The can now be found on the Judiciary’s Civil Justice Reform website at v.hk.
Sources
The Civil Justice Reform is found in four sources:•
The Rules themlves – The reforms to the rules will take effect in two main ways:
(i)
Textual amendments to the existing Rules of the High Court: some are logical extensions or minor amendments to tidy up the existing rules; others introduce new provisions.
(ii)The more radical reforms introduce completely new concepts: for example, the introduction of the “underlying
objectives” in Order 1A.•
Practice Directions – The are intended to flesh out further detail, and often contain the procedural “nuts and
bolts”. The Reform introduces 24 new Practice Directions which will have effect from 2 April 2009 (sa
ve for Practice Direction 31 on Mediation which is delayed until 1 January 2010 to allow practitioners more time to familiari themlves with the process).
•
Pre-action protocols – Unlike in England and Wales, pre-action protocols will not be prescribed for cas across the board for fears of excessive “front-loading” of costs before proceedings are issued. However, it remains open for such protocols to be adopted by courts operating specialist lists, subject to consultation and judicial approval;for example, Practice Direction 18.1 incorporates a pre-action protocol for personal injury cas.
•
Forms – The are the court forms which are to be ud after 2 April 2009. On occasion, the can also require information not specifically sought by the Rules or Practice Directions.
References
Throughout this booklet, a reference to rule 1(1) of Order 25 will read O.25, r.1(1). Practice Directions are referred to by part and paragraph number, so that paragraph 1 of the Practice Directio
n for ca management will read PD 5.2 para.1. As to legislation, a reference to the High Court Ordinance (Cap. 4) will read HCO and a reference to the Arbitration Ordinance (Cap. 341) will read AO, so a reference to ction 4 will read s.4 HCO or s.4 AO as the ca may be.
1.Overview
1
2
3
4
Transitional provisions
There is no universal transitional provision for the Rules of the High Court. Instead, individual orders will contain order specific transitional provisions where applicable.
The Civil Justice Reform in Hong Kong: Litigating in the new era
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