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K9.4. A case management questionnaire and bilingual proceedings
| 342. | If the Hong Kong court is to exercise systematic case management, a process similar to the allocation questionnaire process is needed to provide early information about the case to enable the giving of appropriate directions and for a timetable to be established. The questionnaire should also contain sufficient information to allow the court to assess the extent to which bilingual court resources will be needed and to fashion directions for treatment of any language issues, guided by the overriding objective. |
| 343. | One might pause to note that the framework for directions on bilingual proceedings is well-established. |
| 343.1 | Article 9 of the Basic Law provides for English to be used by the judiciary and others, in addition to Chinese, as an official language. This is reflected in s 3 of the Official Languages Ordinance (Cap 5). |
| 343.2 | By s 5 of that Ordinance :- |
| "(1) | A judge, magistrate or other judicial officer may use either or both of the official languages in any proceedings or a part of any proceedings before him as he thinks fit. | |
| (2) | The decision of a judge, magistrate or other judicial officer under subsection (1) is final. | |
| (3) | Notwithstanding subsection (1), a party to or a witness in any proceedings or a part of any proceedings may- | |
| (a) | use either or both of the official languages; and | ||
| (b) | address the court or testify in any language. |
| (4) | Notwithstanding subsection (1), a legal representative in any proceedings or a part of any proceedings may use either or both of the official languages. | |
| (5) | The Chief Justice may make rules and issue practice directions to regulate the use of the official languages in the courts." |
| 343.3 | Rule 3 of the High Court Civil Procedure (Use of Language) Rules, made under s 5(5) of the Ordinance, provides :- |
| "(1) | In deciding to use either or both of the official languages in any proceedings or a part of any proceedings under section 5(1) of the Ordinance, a judge shall give paramount consideration to the just and expeditious disposal of the proceedings or the part of the proceedings, as the case may be. | |
| (2) | A decision under section 5(1) of the Ordinance may be made by a judge at any stage of- |
| (a) | the proceedings before him; or | ||
| (b) | any part of the proceedings before him, | ||
| on his own initiative or upon an application of any party to the proceedings. | ||
| (3) | A judge who has made a decision under section 5(1) of the Ordinance may give such direction in relation to the decision as may be necessary for giving effect to it." |
| 343.4 | Rule 5 deals with the translation of documents served in the course of court proceedings, giving a party who is unfamiliar with the official language in which such a document is written the prima facie right to its translation into the other official language by the party serving the document. This right is enforceable by application to the court subject to the court's view that the request is reasonable. (Note 296) |
| 343.5 | The court has a similar discretion under rule 1 of the Official Languages (Translation) Rules in relation to ordering or dispensing with translations of documents used as evidence in proceedings. |
| 343.6 | These rules are plainly aimed at giving judges maximum flexibility in deciding how far and in what manner Chinese and English should be used in any particular case. Guidelines (Note 297) issued within the Judiciary dated 28 January 1998 for the exercise of this discretion have now been published :- |
| (a) | Judges are reminded of the rights of the parties under the provisions cited above and told :- | |
| "Under no circumstance should a judge or judicial officer pressurise or encourage or be seen to pressurise or encourage any person to use a language other than the one that person chooses." | ||
| (b) | Subject to the principal objective of "the just and expeditious disposal of the cause or matter", the judge is asked to take into account a list of factors (Note 298) in deciding how to proceed. A similar list applies in relation to the use of Chinese and English in appeals in the Court of Appeal. (Note 299) | |
| 343.7 | In giving case management directions for the conduct of bilingual proceedings, a judge would plainly wish to take into account paragraph 13 of the guidelines which states :- |
| "Where at the outset of a hearing, after taking into account the relevant factors involved, the judge ...... considers that it is appropriate to conduct part of but not the entire hearing in Chinese, he can adopt a pragmatic approach and decide at the outset that part of the hearing would be conducted in Chinese (eg, the evidence or part of the evidence) and part of it in English (eg, legal submissions)." (Note 300) | ||
| 344. | Armed with information supplied by the parties through the questionnaire, the procedural judge may take various courses, depending on the adequacy of the information and his assessment of the case. This is reflected in CPR 29.2 which provides as follows :- |
| "(1) | ...... the court will - | |
| (a) | give directions for the management of the case and set a timetable for the steps to be taken between the giving of directions and the trial; or | ||
| (b) | fix - |
| (i) | a case management conference; or | |||
| (ii) | a pre-trial review, |
| or both, and give such other directions relating to the management of the case as it sees fit. |
| (2) | The court will fix the trial date or the period in which the trial is to take place as soon as practicable." |
| 345. | The case management options which the court has are worth examining in a little further since they provide a good example of flexible rules aimed at enabling the court to tailor directions to the needs of the case at hand with a view to avoiding unnecessary court events and attendant costs - one of the potential dangers of case management stressed by Professor Zander and others. They also illustrate a constant theme of the reforms, namely, that for savings of money, time and effort to result from using the new rules, they must be intelligently applied. |
| 346. | The first option arises where the parties - using the rules intelligently - have put forward agreed directions for the case. If the court approves them and considers them sufficient, it proceeds to fix the timetable and to give directions in the terms agreed without a hearing, thus effecting savings (Note 301) The associated Practice Direction expressly encourages the parties to take this course and helps by listing the types of directions that the court is likely to require them to have agreed. (Note 302) |
| 347. | If the case is simple, CPR 29.2(1) empowers the procedural judge similarly to fix the timetable and to give directions up to trial without a hearing. The Practice Direction indicates the nature of directions likely to be given in such a case. (Note 303) |
| 348 | If the trial is not so simple, or where, for instance, the views of the parties differ substantially as to the required directions, the judge may fix a case management conference before deciding on the appropriate directions. (Note 304) Where this is necessary, the rules seek to ensure that the hearing is taken seriously by the legal representatives and that issues raised can effectively be resolved. CPR 29.3(2) accordingly provides :- |
| "If a party has a legal representative, a representative - |
| (a) | familiar with the case; and | ||
| (b) | with sufficient authority to deal with any issues that are likely to arise, |
| must attend case management conferences and pre-trial reviews." | ||
| If the court should consider it desirable that the lay clients be present, power to order their attendance is contained in CPR 3.1(2)(c). | |
| 349. | In many cases, it will be possible, with or without a case management conference, to fix a date for the parties to file a "listing questionnaire" which enables the court to assess the extent to which directions previously given have been complied with and the readiness of the parties for trial . (Note 305) |
| 350. | Upon the filing of the listing questionnaire, the court will generally fix the date for trial and give any necessary directions for the conduct of the trial. (Note 306) If the listing questionnaire is deficient or further information is still required, the court may consider it necessary to fix a listing hearing to finalise trial directions.(Note 307) If the case is of a complexity that requires further consideration of the parties' readiness for trial, the court may fix a pre-trial review. (Note 308) On the other hand, the listing questionnaire may show that a previously arranged pre-trial review is unnecessary and the court is then expressly empowered to cancel that hearing. (Note 309) |
Notes
| 296 | See also HKCP 2001 C3/5/1. <back> |
| 297 | HKCP 2001 C3/3/4 to C3/3/13. <back> |
| 298 | HKCP 2001 C3/3/6, including: the language ability of the litigants, the witnesses' language, the wishes of the litigants; the lawyers' language ability; the factual and legal issues in dispute, the volume and language of the documents and the judge's own language abilities. <back> |
| 299 | HKCP 2001 C3/3/8. <back> |
| 300 | HKCP 2001 C3/3/13. <back> |
| 301 | CPR 29.4. <back> |
| 302 | 29PD §§4.6 to 4.8. <back> |
| 303 | 29PD §§4.5, 4.10. <back> |
| 304 | 29PD §4.12. <back> |
| 305 | CPR 29.2(3)(b), 29.6(2). <back> |
| 306 | CPR 29.8, 29.9. <back> |
| 307 | CPR 29.8. <back> |
| 308 | CPR 29.2(1)(b), 29.3(1)(b) and 29.7. <back> |
| 309 | CPR 29.7. <back> |
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