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Section 5: Pre-action protocols
Proposal 4
Steps should be taken, in cooperation with interested business, professional, consumer and
other groups, to develop pre-action protocols suitable to Hong Kong conditions with a view
to establishing standards of reasonable pre-action conduct in relation to specific types of
dispute.
Proposal 5
Rules should be adopted allowing the court to take into account the parties' pre-action
conduct when making case management and costs orders and to penalise unreasonable non-
compliance with pre-action protocol standards.
Pre-action protocols should not be prescribed for cases across the board, whether by a
general protocol or by a general practice direction on protocols.
It should be open to the courts operating existing as well as any additional specialist lists,
subject to the approval of the Chief Judge of the High Court and after due consultation with
all relevant persons, to introduce suitable pre-action protocols to be applied to cases brought
in those lists.
Rules should be introduced enabling the court when exercising any relevant power, in its
discretion, to take into account a party's non-compliance with any applicable pre-action
protocol in accordance with the terms of the protocol in question.
In exercising its discretion, the court should bear it in mind that special allowances may have
to be made in relation to unrepresented litigants, if it is the case that, not having access to
legal advice, they were unaware of any applicable protocol obligations or, if aware of them,
that they were unable fully to comply with them without legal assistance.
A procedure should be introduced to enable parties who have settled their substantive dispute
to bring costs-only proceedings by way of originating summons and subject to practice
directions, for a party-and-party taxation of the relevant pre-settlement costs.
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