 |  |
|
 |
 |
 |
 |
|  |
|  |
|
K14.3. Streamlining interlocutory applications
| 442. | Where an interlocutory application has to be made, considerable scope appears to exist for cost savings by a streamlining of the process. |
| (a) | Dealing with the application on paper |
| 443 | In many cases, the court will be able to deal with an application without a hearing. This is provided for by CPR 23.8 in the following terms :- |
| "The court may deal with an application without a hearing if - |
| (a) | the parties agree as to the terms of the order sought; | ||
| (b) | the parties agree that the court should dispose of the application without a hearing, or | ||
| (c) | the court does not consider that a hearing would be appropriate." |
| (b) | Skipping the hearing before the master |
| 444. | At present, leaving aside the specialist lists, the making of an interlocutory application is a cumbersome and time-consuming process. The summons is set down first in a master's "three minute list". What then follows has been described in Hong Kong Civil Procedure 2001 :- |
| "During the hearing, if it appears to the master that the application cannot be resolved within three minutes, or if the application is contested, eg objection to provide further and better particulars ...... the hearing will be adjourned to a date to be fixed. The master will ask the representatives attending the hearing the estimated time required ......, whether affidavits are to be filed, etc. The master will then give directions as to the adjourned hearing ...... The party who issued the summons will then contact the other party to arrange for a mutually convenient time to attend the Clerk of the Court to fix a date in consultation with the parties' (and their respective Counsel ...... ) ...... for the hearing." (Note 391) | ||
| 445. | At present, HCR O 58 r 1, gives an unqualified right of appeal to the judge in chambers from any judgment, order or decision of a master. This is a rehearing, with the judge not being bound by the master's decision and treating the matter as if it was before the court for the first time. Additional evidence is often admitted. (Note 392) |
| 446. | In a significant number of cases, the overwhelming likelihood is that the master's decision will be appealed. The hearing before the master then becomes effectively a dress rehearsal for the hearing before the judge. In such cases, the three minute hearing and the eventual contested hearing before the master involve delays and costs which serve no purpose in terms of progressing the action. At most, the hearing before the master may enable one or other of the parties to repair evidential deficiencies and to trim his sails before the hearing in front of the judge. Moreover, a party intent on delaying the proceedings presently has a right of appeal to the Court of Appeal even in respect of interlocutory rulings by the judge, potentially turning a single contested interlocutory question into a major source of delay and cost. |
| 447. | There is, in these circumstances, much to be said in favour of masters being relieved of contested applications and certainly of applications taking more than say, half a day. The primary role of the High Court masters should be to keep the procedural wheels turning for cases advancing across the board. They should not be bogged down dealing with individual cases. This is doubly obvious where the result of the hearing is likely to be rendered academic by one of the parties taking the matter to the judge on appeal. |
| 448. | Readers are accordingly consulted on the desirability of measures which allow the first round of hearings before the master, (Note 393) in appropriate circumstances, to be dispensed with and for the application to be listed directly before the judge. This could be done in relation to all or certain classes of contested applications. |
| (c) | Use of telephone and other means of communication |
| 449. | Although less of a consideration than in jurisdictions where travel to court may involve a significant journey, a certain amount of unproductive time and money is undoubtedly spent on requiring solicitors physically to attend minor hearings. Time spent waiting outside the master's or judge's chambers for the hearing to be called on is likely to be much less productive than time spent in the office. |
| 450. | If the matter cannot be dealt with by agreement or on paper, but requires the court's decision on what is a relatively simple question, rules could be formulated to allow applications made without leaving the office by telephone or perhaps by video conferencing, if such facilities become more widely used. The Practice Direction associated with CPR 23 (Note 394) makes such provision (where the parties consent) for an application to be dealt with by a telephone or video conference. It provides examples of the safeguards and other matters that have to be dealt with if such conferences are to work. |
Notes
| 391 | HKCP 2001, 32/6/11. <back> |
| 392 | HKCP 2001, 58/1/2. <back> |
| 393 | Readers will also be consulted on whether appeals should be subject to leave, discussed later. <back> |
| 394 | 23PD ยงยง6.1 to 7, covering telephone and video conferencing. <back> |
|
 |
|
