CJR Interim Report, Section K. Possible Reforms In Specific Areas, K9. Case management

K9. Case management - timetabling and milestones

K9.1. The current position in Hong Kong

332.	The HCR contain a timetable for litigation, specifying the periods by which sequences of litigation events ought to occur. The timetable is, however, not observed in practice.

332.1	The rules say that discovery is to take place automatically and without order of the court within 14 days after the pleadings in the action are deemed to be closed, ^{(Note 288)} but if the parties do not take the necessary steps, nothing happens unless and until the matter is brought before the court for an order that such steps be taken.

332.2	The same is true of the rule ^{(Note 289)} stipulating that within a month after close of pleadings a summons for directions be taken out "with a view to providing ...... an occasion for the consideration by the Court of the preparation for the trial of the action, so that (a) all matters which must or can be dealt with on interlocutory applications ...... may so far as possible be dealt with, and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just, expeditious and economical disposal thereof." However, unless and until one or other of the parties takes out this summons, the court does not get to give the case any such consideration.

332.3	When eventually the summons for directions is heard (at a 3 minute hearing), the practice is generally for the various orders sought to be made except for the direction setting down the case for trial. The court adjourns the case to a further "listing hearing" at which the court checks to see that the outstanding preparations have in fact been attended to. If not, the setting of a date for trial is again deferred.

332.4	When preparations are finally thought to be complete, the listing master gives the parties permission to set the case down for trial. It is only then that the case is listed, on attendance before the Clerk of the Court, either in the fixture list (which, unless particular cause is shown, is reserved for trials estimated to run for 6 days or more) or in the running list (for trials estimated to last less than 6 days).

333.	The present system obviously allows delays to result from the parties' own lack of readiness for trial. While many parties and their lawyers conscientiously press cases ahead without delay, the party or lawyer who wants to drag his feet can easily bring about substantial delays. In any event, it is clear that the timetables prescribed by the HCR are generally ignored and that the periods prescribed by the rules for particular steps in the action far exceeded. Several factors contribute to this.

333.1	First, the timetable involves standards set in the rules and not tailor-made to take into account the needs of particular cases. There is therefore, perhaps understandably, a tendency to regard the time limits as optimal standards appropriate to simple cases and an assumption that longer limits in reality apply.

333.2	Secondly, as indicated above, where a time limit set by the rules is ignored, nothing happens unless and until the other party decides to compel compliance. This involves effort and expense. In practice, quite reasonably with a view to avoiding the costs of a hearing, the party who wants the case to progress will write, often more than once, requiring the other party to take the necessary step and threatening an application to the court if this is not done. During such correspondence, the case usually makes no progress.

333.3	Thirdly, where it proves necessary to take out an interlocutory application, a certain waiting period for a hearing is inevitable. Not infrequently, a recalcitrant party will consent to the order sought only at the door of the judge's or master's chambers and after several weeks of delay have been incurred.

333.4	Fourthly, whatever their clients may wish about the speedy disposal of a case, lawyers may often be prepared to accommodate each other with agreed extensions of time. This often suits both sets of legal representatives, particularly where they are heavily engaged on other matters. These are extensions agreed without any incentive or requirement to "catch up" on the progress of a case by speeding up events thereafter.

333.5	Fifthly, the court has tended to be lenient and, certainly at the first hearing, has tended to grant an extension of time on slender justification for the failure to comply with the rules. Sometimes the leniency is plainly excessive, with repeated extensions being granted.

333.6	Sixthly, the court has tended to give very great (and often excessive) weight to ensuring that the parties are completely ready for the trial, refusing to set down a case for trial or vacating the trial date where, for instance, one party is not ready with an expert report or has not obtained an advice on evidence from counsel, notwithstanding that such deficiency was of that party's or his lawyers' own making.

334.	Underlying this unsatisfactory state of affairs is the adversarial design of the civil justice system which leaves it entirely up to the parties to progress the case without any time tables set or enforced by the court. Moreover, viewing itself as the impartial umpire, the court has adopted the policy of putting off the trial until it is sure that the parties are both quite ready to do battle.

335.	The desire to ensure that the parties are ready is laudable. It makes for procedural fairness and avoids adjournments after the start of the trial. However, the approach described above unfortunately allows a defendant who is playing for time ample latitude to put off his trial by months or even years. In such cases, it also runs up costs since enforcing each procedural obligation requires action by lawyers, by correspondence and/or applications to the court. Although the dilatory defendant may have interlocutory costs orders made against him, these are usually made "in any event", meaning that they do not need to be paid until after completion of the trial and so provide little deterrence.

Notes

288	HCR O 24 r 2. <back>

289	HCR O 25 r 1. <back>