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29.4
The five broad objections
(a)
The constitutional argument
If a rule prohibits a person from proceeding with an action without first going through
a mediation procedure, the right of access to the courts under BL 35 is prima facie
engaged. It is arguable that a rule which visits adverse costs consequences on a party
who unreasonably rejects a mediation attempt, does not engage BL 35 at all since he is
nonetheless able to press ahead with the litigation, albeit running the costs risk.
Nevertheless, for present purposes, let it be assumed that BL 35 is
also engaged in
such a case.
In the Working Party's view, applying the principles discussed in Section 3
above,
neither form of rule (nor any intermediate form) would be inconsistent with the
requirements of BL 35. As the E Ct HR decided, inter alia, in Ashingdane v UK
(1985) 7 EHRR 528,
the right of access to a court is not absolute. As has repeatedly
been held, a limitation on the access rights may be valid provided that :-
the restriction pursues a legitimate aim;
there is a reasonable proportionality between the means employed and the aim
sought to be achieved; and,
the restriction is not such as to impair the very essence of the right.
In the Interim Report we emphasised that :-
"It is of course not being suggested that the parties should ever be ordered to resort to ADR in
lieu of having their case decided as proceedings in court. Such an approach would not only be
unacceptable since the courts must in principle be open to all, it would most likely fall foul of
Article 35 of the Basic Law which confers on Hong Kong residents, among other things, the
right of access to the courts. Accordingly, even in its most stringent form, a requirement that
the parties must attempt ADR is a requirement that they make such an attempt before being
allowed (if ADR should fail) to proceed in court."
Notes
Applied domestically in England and Wales in Ebert v Official Receiver [2002] 1 WLR 320.
Interim Report §638.
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