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K6.3. Should the changes be adopted in Hong Kong
| 310. | The changes discussed above may be thought to have much to recommend them provided that the new rules are construed in practice as effecting a lower standard for summary disposal and provided that lawyers and litigants use the rules intelligently. |
| 311. | It is attractive in principle to have a rule which enables the court to curtail proceedings, with their attendant financial, psychological and social costs, where they lack any real chance of success. The present regime, which preserves cases so long as a key issue can be shown to be merely triable, may be thought to approach justice between the parties on too theoretical a basis. |
| 312. | On the other hand, there is obviously some danger of injustice inherent in all summary procedures. Without the benefit of a full trial, it is possible that the court may misapprehend the merits at the interlocutory stage. The development of the law could be stultified if cases are stopped so that the law's existing limits are not tested. |
| 313. | Adoption of the new procedures would therefore require the court to recognize the dangers and the benefits and to steer an appropriate course. |
| 314. | Intelligent application of the rules by users is essential since, as previously pointed out, a poorly judged attempt at securing summary relief may lead to significant delays and wasted costs. |
| 314.1 | The figures in Appendix C Table 7 suggest a success rate at present of some 30% to 40% where summary judgment is sought in HCAs applying the HCR's "no triable issue" approach. In the 60% to 70% of failed applications, additional costs and delays have been incurred. |
| 314.2 | A less stringent test for disposing summarily of proceedings may mean that the success rate would be greater. The danger, however, is that a larger number of untenable applications may also be encouraged, with counter-productive results in terms of cost and delay. However, with continuing efforts at procedural education as well as the imposition of sanctions where unwarranted applications are made, it is probable that improper use of the procedures would soon be discouraged. |
| 315. | Two incidental points may be noted. |
| 315.1 | The new procedure provides another illustration of a situation where procedural and substantive rules intermingle such that case-law relevant under the RSC (and the HCR) is likely to continue to be relevant. This is so in relation to distinctions drawn between set-offs and counterclaims and the need to treat cheques and bills of exchange as the equivalent of cash. The learned editors of the White Book suggest that the practice may change under the CPR, but this, with respect, seems somewhat unlikely. (Note 258) |
| 315.2 | Secondly, it has been pointed out that adoption of a lower threshold for summary disposal of actions may raise issues under Article 6 of the European Convention on Human Rights, concerning the right of access to the court. (Note 259) Attempts to raise similar issues in Hong Kong under Article 35 of the Basic Law cannot be ruled out. |
| 316. | Readers are asked for their views as to whether a unified approach to summary disposal of proceedings in all procedural contexts, employing a "no reasonable prospects of success" test, should be adopted: Proposal 14. |
Notes
| 258 | White Book 24.2.6-7 <back> |
| 259 | White Book 24.2.3. <back> |
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