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Moreover, while the object of adopting a single test is appealing, such unification can
in fact only be achieved in those procedural contexts involving assessment of the
factual merits of a claim or defence.
Summary applications in other contexts raise
different issues and proceed on different principles. For example :-
(a)
Setting aside an irregularly obtained judgment does not require the defendant to
show any merits, but occurs as of right.
This remains the case under CPR
13.2.
(b)
Similarly, where a pleading is struck out as being bad on its face under O 18 r
19, the court assumes the correctness of the facts pleaded and decides as a
matter of law that on such facts, the pleading plainly and obviously discloses no
reasonable cause of action or defence, as the case may be. This continues to be
so under CPR 3.4(2)(a).
(c)
Again, where the claim is struck out as an abuse of the process, it is the abusive
nature of the proceedings that supplies the logic for summary disposal. The
same applies under CPR 3.4(2)(b).
(d)
In respect of actions dismissed for want of prosecution, the principles require
the court to be satisfied either that there has been a contumelious failure to
comply with its peremptory order or other conduct amounting to an abuse of its
process
or that the delay is inordinate and inexcusable and such as to give rise
to serious prejudice to the defendants or to a substantial risk that a fair trial is no
longer possible.
Notes
Deciding whether to set aside a regularly obtained default judgment under O 13 r 9, deciding
defence under the inherent jurisdiction.
The Working Party notes the discussion in HKCP 2002, 13/9/3 of the suggestion in Faircharm
Investments v Citibank International plc (1998) The Times, February 20, that merits must be shown
even in this context. However, the Working Party considers that the orthodox position taken in Po
Kwong Marble Factory v Wah Yee Decoration Co Ltd [1996] 4 HKC 157 (and the other cases cited
at HKCP 2002, 13/9/4) preferable and correct in principle.
Which has effectively overridden the Faircharm Investments case: see White Book 13.2.1.
See HKCP 2002, 25/L/3.
See HKCP 2002, 25/L/4. While England and Wales no longer apply the authorities in this area,
favouring instead the more general principles of the CPR (Biguzzi v Rank Leisure plc [1999] 1 WLR
1926), these do not relate to the real prospect of success test: White Book 8
3.
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