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17.4
Applications dealt with on the papers
There was general support
for more interlocutory matters to be dealt with on the
papers and without a hearing.
Two qualifications were mentioned. First, it was questioned whether this proposal
might fall foul of Article 10 of the Bill of Rights. Secondly, it was suggested by one
individual that this proposal might place unrepresented litigants in difficulty.
The Working Party is confident that this aspect of Proposal 31 involves no
inconsistency with the right to "a fair and public hearing" protected by Article 10 of
the Bill of Rights. As previously discussed, the European jurisprudence relating to a
similar right protected by Article 6(1) of the ECHR is likely to be adopted in
construing BOR 10. It is clear from that jurisprudence that the right to a public
hearing concerns proceedings which are decisive of a person's substantive rights.
That right is not engaged in relation to a determination of purely procedural or case
management issues such as those under discussion.
There is support for that
conclusion in a Determination of the Appeal Committee of the Court of Final
Appeal.
Significant savings in time and costs may be achievable in many cases by having
applications dealt with on paper by the master or sent by the master directly to the
judge (canvassed as the second aspect of Proposal 31). It should be noted that the
applications being discussed here are applications for fresh interlocutory orders and
exclude applications for relief from automatic sanctions previously ordered.
Notes
Including from the Bar Association, the BSCPI, the Law Society, the HKMLA, the High Court
masters, the District Court judges, the BCC, two sets of barristers' chambers, two firms of solicitors
and an individual respondent.
See Section 3.
Chow Shun Yung v Wei Pih Stella & Anr (Unreported) FAMV No 2 of 2003, 14 May 2003, §37.
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