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The Working Party favours adopting Proposal 70 subject to the following comments
:-
(a)
While O 53 r 9(1) should be amended to make it clear that the court has power
to allow persons to be heard not merely in opposition to, but also in support of,
the application for judicial review at the substantive hearing, the court should
retain an overall discretion to limit such hearings to persons who appear to the
court to be proper persons to be heard.
(b)
In exercising that discretion, the courts should not generally allow such persons
to make submissions in support which are merely repetitive of the parties'
submissions. It is noteworthy, for instance, that CPR 54.14, dealing with
persons who have acknowledged service, envisages that they will be offering
support "on additional grounds". This ought generally to be the basis upon
which supporting submissions should be entertained.
(c)
The costs of the hearing should be in the court's discretion, the guiding
principle being that generally only one set of costs should be allowed in each
interest.
(d)
In a thoughtful submission to the Legco Panel on Administration of Justice and
Legal Services dated 25 February 2002, the Bar Association examined the case
management of the 5,000 odd claims for judicial review which resulted in 27
representative claims being selected and ultimately decided in Ng Siu Tung v
Director of Immigration (2002) 5 HKCFAR 1, suggesting that a special judicial
review-oriented procedure for multiple claims might be required. The Working
Party agrees that if multi-party litigation schemes are to be studied as
recommended in Recommendation 70, such study should include consideration
of the peculiar needs of multi-party litigation in the judicial review context.
Notes
It is notable that the practice direction on judicial review provides that a defendant or interested party
who has been served and decides to attend an oral hearing (if one is held) generally cannot make the
claimant pay their costs: 54PD8.6.
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