K14. Interlocutory applications
K14.1. The problems and countermeasures
| 426. |
Contested interlocutory hearings introduce
substantial delays and increases in costs. Such hearings are, of course, sometimes
inevitable. One party may reasonably consider itself entitled to a certain procedural
benefit to ensure fairness of the trial whereas the opposition may, with equal
reasonableness, disagree. Such applications, if proportionate to the needs of the case,
are unobjectionable and nothing should be done to deter parties from making them. |
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| 427. |
However, interlocutory applications can also
present an opportunity for abuse. One party may seek to make repeated use of such
applications as a tactical weapon, pumping up costs and inducing delays. (Note 382) In other cases, the excesses of the adversarial system may lead to furious - and
costly - interlocutory contests going from master to judge to Court of Appeal, but
bringing the parties little benefit in terms of progressing the substantive dispute. |
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| 428. |
Sometimes unnecessary interlocutory
applications result from poor organization or incompetence so that a matter which should
obviously have been dealt with by agreement from the outset has not been agreed. Often the
ill-prepared party eventually comes to realise that resistance cannot be justified, but
only at the courtroom door, after a summons has been issued, the court has set aside time
for the hearing and costs have been incurred. Mr Martin Rogers describes such experiences
and their effects as follows :- |
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"Interlocutory
applications, for example for further and better particulars, are usually listed for a
short initial hearing (in the 'three minutes list') but then adjourned for argument to a
much longer hearing before a Master, for example for an hour long hearing. Typically such
an adjourned hearing will not take place for several weeks, if not one or two months,
because of the heavy workload of the Master. Frequently, one then finds that shortly
before the adjourned hearing the opposing party agrees to the order sought, or at least a
substantial part of it. The result is then that there has been an unnecessary delay. This
only has to happen twice in the early stages of a case to cause several months'
delay." (Note 383) |
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| 429. |
Three main objectives may be pursued in
response to such problems. First, reforms may aim to reduce the number of times when
interlocutory applications are required. Secondly, where they cannot be avoided, reforms
may aim at streamlining the process for dealing with applications. Thirdly, more effective
sanctions against misuse of interlocutory applications, deliberate or otherwise, could be
introduced. These strategies are adopted in the CPR. Readers are asked whether similar
strategies, discussed in greater detail below, ought to be adopted in Hong Kong:
Proposals 30 to 32. |
Notes
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