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M. IMPLEMENTING THE REFORMS
| 693. | Assuming that the Working Party recommends a series of reforms for implementation, the question that arises is how best such reforms should be implemented. In particular, how can they best be translated into rules of civil procedure in Hong Kong Two main approaches fall to be considered. First, it may be advantageous to borrow in large measure from the CPR (and from relevant rules in place in New South Wales and other Australian jurisdictions) to implement the reforms. Alternatively, one may decide largely to retain the existing HCR, but introduce amendments to give effect to each of the recommended reforms. |
| 694. | A number of considerations arise in deciding which of these approaches may be preferable. The first of these is as to the amount of effort involved. There can be no doubt that both approaches would require a substantial investment in effort: in preparing the new rules, in educating all involved in the civil justice system and in the system adapting to the practical application of the reforms over time. |
| 695. | A huge amount of work was undoubtedly required to replace the RSC with the CPR in England and Wales. Mr Andrew Jeffries of Messrs Allen & Overy was involved at first hand. He states :- |
| "This re-write came ...... at a huge cost of re-training of lawyers and judges alike, forced to discard much of their accumulated knowledge and start again. The fact that it took three years to get just the main rules written and into force, and the weeks the writer spent co-ordinating re-training of London litigation colleagues, bear witness to this." (Note 604) | ||
| 696.. | The fact that the CPR took some 3 years to prepare indicates that a very substantial effort in terms of the potentially huge task of drafting new rules might be saved if Hong Kong were to borrow from the CPR (and from rules existing in other jurisdictions). |
| 697. | If the other option, namely, retaining the HCR and introducing reforms by amendment, were adopted, much fresh drafting would probably be required. Borrowings could no doubt also be made to some degree from the CPR (and elsewhere). However, as previously noted, the drafting styles of the HCR and the CPR are very different so that any borrowed provisions would probably require a significant amount of revision. The second option would also require the effort of trying to ensure that the amendments being prepared harmonise with the retained rules. |
| 698. | The relative amounts of training required after promulgation of either a set of new rules or of individual amendments respectively must also be considered. |
| 698.1 | Plainly, if a new set of CPR-based rules were to be adopted, such rules would have to be learned by all concerned. This would require a very considerable training effort aimed at judges, lawyers, academics, students, court staff and others concerned with the civil justice system. While the amount of work involved should not be minimised, it is fair to point out that in comparison to other jurisdictions that have undergone extensive civil justice reform, Hong Kong's system involves a relatively small number of judges and a relatively smaller legal profession, all to be found in a geographically concentrated area. |
| 698.2 | Adopting the amendment option may have the advantage of requiring fewer new rules to be learned. However, the difference in effort is one of degree. Reforms inevitably mean change, however implemented. All the legal professionals involved would still have to receive a significant degree of training to identify the changes and to understand the way the new provisions work. |
| 699. | Consideration should also be given to the efficiency likely to be achievable in the operation of reforms implemented by either means. |
| 699.1 | In this context, one concern needs to be addressed if Hong Kong retains the HCR but incorporates reforms by amendment. This approach is likely to raise issues about the boundaries between the retained rules and the amendments. To take one example, if a rule stating the overriding objective is adopted by way of reform, the question is likely to arise as to the interplay between the overriding objective and principles established by pre-existing case-law developed in relation to a retained HCR rule. In a particular case, should the parties continue to apply that case-law Or should it give way to the overriding objective This kind of debate could generate the unwelcome and costly satellite litigation and could arise with some frequency, particularly in the early years. |
| 699.2 | In contrast, if a largely new set of rules along the CPR lines is adopted, making it clear that they are intended to represent a fresh start and that accretions of pre-existing case-law are generally not applicable, such debates are likely to be much rarer. |
| 699.3 | It should perhaps be emphasised that it is not being postulated that adoption of a CPR-based set of rules would involve no potential questions requiring judicial resolution. Although pre-existing HCR-based case-law would generally not be relevant and the future accretion of case-law would be discouraged (reliance being placed instead on purposive interpretation of the rules with the aid of the overriding objective) the development of some case-law on the new rules is inevitable, particularly where the procedural question is closely related to a question of substantive law. |
| (a) | For instance, it has been found necessary in England and Wales to rule on how the overriding objective applies in the context of established principles regarding the inadvertent disclosure of privileged documents. (Note 605) | |
| (b) | To take another example, the English Court of Appeal has had to rule on the continuing applicability of the established principle that a judge who has given judgment has the power to reconsider his conclusion and in effect to reverse his own decision provided that the order recording his earlier decision has not yet been formally completed. (Note 606) |
| Nevertheless, the experience in England and Wales so far suggests that such case-law developments would be relatively sparse and that numerous case citations in the White Book could be dispensed with. | |
| 699.4 | One might add in this context that adoption of rules materially similar to the CPR would confer persuasive authority status on English decisions, allowing our system to draw on over two years of practical experience of their operation, once again narrowing the amount of debate and effort required in implementing the reforms. |
| 700. | One other consideration arises, namely as to whether unrepresented litigants are likely to benefit either way. One objective of switching to the CPR, was to adopt rules which are more simply drafted in modern and more easily understandable language with a view to making the procedural aspects of litigation more accessible to unrepresented litigants. As previously noted, this is a consideration only indirectly applicable in Hong Kong because the great majority of litigants in person would not refer to the English as opposed to the Chinese text. There is nonetheless ground for believing that simplification of the rules in English would permit a simpler Chinese translation to be adopted, arguing in favour of a migration to a new, simpler set of rules rather than adherence to the existing rules, possibly further complicated by amendment. |
| 701 | In the light of the abovementioned considerations, readers are consulted as to whether the civil justice system should, with any necessary modifications, adopt a new set of rules largely along the lines of the CPR (together with relevant rules from other jurisdictions) or whether, instead, it should continue to employ the HCR with amendments to implement recommended reforms: Proposals 74 and 75. |
Notes
| 604 | Hong Kong Lawyer, August 2001, p 84. <back> |
| 605 | See White Book 1.3.2. <back> |
| 606 | Stewart v Engel [2000] 1 WLR 2268; Charlesworth v Relay Roads Ltd [2000] 1 W.L.R. 230. <back> |
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