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K12.1. The main approaches to multi-party litigation
| 383. | If resources were no object and cases, however numerous, could be expeditiously and economically processed, every person having a claim could simply have his proceedings tried individually. In reality, this is obviously untenable. A more cost-effective means of disposing of such groups of claims has to be found if the court is not to be swamped and if the parties are not to wait endlessly in a queue for relief. |
| 384. | The machinery in the HCR for dealing with multi-party litigation is currently confined to the representative claim rules in Order 15 r 12 which provides as follows :- |
| "(1) | Where numerous persons have the same interest in any proceedings, not being such proceedings as are mentioned in rule 13, the proceedings may be begun, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them. | |
| (2) | At any stage of proceedings under this rule the Court may, on the application of the plaintiff, and on such terms, if any, as it thinks fit, appoint any one or more of the defendants or other persons as representing whom the defendants are sued to represent all, or all except one or more, of those persons in the proceedings; and where, in exercise of the power conferred by this paragraph, the Court appoints a person not named as a defendant, it shall make an order under rule 6 adding that person as a defendant. | |
| (3) | A judgment or order given in proceedings under this rule shall be binding on all the persons as representing whom the plaintiffs sue or, as the case may be, the defendants are sued, but shall not be enforced against any person not a party to the proceedings except with the leave of the Court. ...... | |
| (5) | Notwithstanding that a judgment or order to which any such application relates is binding on the person against whom the application is made, that person may dispute liability to have the judgment or order enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from such liability. | |
| (6) | The Court hearing an application for the grant of leave under paragraph (3) may order the question whether the judgment or order is enforceable against the person against whom the application is made to be tried and determined in any manner in which any issue or question in an action may be tried and determined." |
| 385. | The limitations of these provisions are self-evident. While they are helpful and merit retention in the context of cases involving a relatively small number of parties closely concerned in the same proceedings for such cases, they are inadequate as a framework for dealing with large-scale multi-party situations. |
| 386. | In the first place, the availability of representation orders is narrowly defined and subject to considerable technicality.(Note 329) Secondly, even where a representation order has been made and the case has proceeded to judgment, finality is not necessarily achieved. Individuals affected by the representation order are still free to challenge enforcement and to re-open the proceedings on the basis that facts and matters peculiar to his case exist. Thirdly, the rule makes no specific provision for handling the special problems of multi-party litigation (discussed further below). |
| 387. | Without rules designed to deal specifically with group litigation, the courts in England and Wales and in Hong Kong have had to proceed on an ad hoc basis, giving such directions as appear appropriate and seeking, so far as possible, agreement among parties or potential parties to be bound by the outcome of test cases. Such limited expedients have met with varying degrees of success. (Note 330) |
Notes
| 329 | See the discussion of the rule's requirements in HKCP 2001, 15/12/2-4 and 15/12/7-46. <back> |
| 330 | See HKCP 2001, 15/12/6. <back> |
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