Executive Summary
1. |
The Working Party was
appointed by the Chief Justice in February 2000 with the following terms of reference :- |
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"To review the
civil rules and procedures of the High Court and to recommend changes thereto with a view
to ensuring and improving access to justice at reasonable cost and speed." |
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2. |
This Interim Report and
Consultative Paper ("the Paper") seeks :- |
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2.1 |
to report on reforms in
other jurisdictions relevant to Hong Kong; |
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2.2 |
to review available
evidence as to the state of civil justice in Hong Kong; and, |
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2.3 |
to formulate proposals
for possible reform for the purpose of consulting court users and all interested members
of the public. |
PART I - THE NATURE OF THE
PROBLEM
The Civil Justice System
3. |
The existence of a
civil justice system enabling individuals and corporations effectively to enforce their
legal rights underpins all investment, commercial and domestic transactions as well as the
enjoyment of basic rights and freedoms. If the system becomes inaccessible to segments of
society, whether because of expense, delay, incomprehensibility or otherwise, they are
deprived of access to justice. |
Pressures on many Civil Justice Systems
and on Hong Kong's System
4. |
Social change and
technological advances have resulted in a sharp increase in the number, rapidity and
complexity of transactions, matched by increased complexity in legislation and case-law.
These changes have put pressure on civil justice systems all over the world, generating
large numbers of civil disputes and court proceedings. Civil justice systems have been
criticised for being too slow, too expensive, too complex and too susceptible to abuse in
responding to such pressures. This has led to proposals for reform in many countries. |
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5. |
Some of the defects in
the system commonly identified by commentators include the following :- |
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litigation is too
expensive, with costs often exceeding the value of the claim; |
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litigation is too slow
in bringing a case to a conclusion; |
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there is a lack of
equality between litigants who are wealthy and those who are not; |
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litigation is too
uncertain in terms of time and cost; |
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the system is
incomprehensible to many litigants; |
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the system is too
fragmented with no one having clear overall responsibility for the administration of civil
justice; |
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litigation is too
adversarial as cases are run by the parties and not by the courts, with the rules all too
often ignored by the parties and not enforced by the courts. |
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6. |
There is general
agreement that the desired characteristics of a system include the following :- |
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The system should be
just in the results it delivers. |
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It should be fair and
be seen to be so by :- |
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ensuring that litigants
have an equal opportunity, regardless of their resources, to assert or defend their legal
rights; |
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providing every
litigant with an adequate opportunity to state his own case and answer his opponent's; |
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treating like cases
alike. |
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Procedures and cost
should be proportionate to the nature of the issues involved. |
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It should deal with
cases with reasonable speed. |
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It should be
understandable to those who use it. |
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It should be responsive
to the needs of those who use it. |
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It should provide as
much certainty as the nature of particular cases allows. |
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It should be effective,
adequately resourced and organised. |
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7. |
An influential study
was conducted by Lord Woolf who published an Interim Report in June 1995 and a Final
Report in July 1996, leading to enactment in England and Wales of the Civil Procedure
Rules ("CPR") which entered into force in April 1999. Lord Woolf, along with
many other commentators, identifies as the main cause of the ills mentioned above, the
unbridled and inappropriate application of adversarial principles in the civil justice
system. This results in a distortion of important features of the civil justice system :- |
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7.1 |
Pleadings which are
supposed to identify the issues between the parties, promoting fairness and procedural
efficiency, instead often raise superfluous questions, obscure the issues and complicate
the case, delaying or preventing settlement and increasing costs. |
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7.2 |
Discovery which is
intended to ensure fairness and to promote equality of arms between the parties can be
used as a tactic by the wealthier party to oppress the less wealthy, inflating the costs
of the action. |
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7.3 |
Experts who are
supposed to assist the court, are often used excessively and as "hired guns". |
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7.4 |
Witness statements
which are supposed to encourage early settlement, prevent surprise and save costs are
often prepared by teams of lawyers as an adversarial weapon at great expense and producing
a "massaged" case rather than reliable evidence to be placed before the court. |
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7.5 |
Passivity on the bench
often leads to trials significantly overrunning their time estimates. |
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8. |
It is a widely-held
view that Hong Kong's civil justice system suffers from similar problems. |
Pressures on the Hong Kong System:
Expense, Delay, Complexity and Unrepresented Litigants
Expense
9. |
Expense is perceived to
be a major barrier to using the system in Hong Kong. Media and other published reports
tend to be critical of what are seen to be excessively high litigation costs in Hong Kong.
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10. |
High litigation costs
have an adverse effect on Hong Kong's competitive position as a commercial and financial
centre. Evidence exists that the parties to some civil disputes have been opting to avoid
Hong Kong as a venue for resolving such disputes because litigating here is too expensive.
This has made Hong Kong a less attractive place to do business in and has also led to a
loss of work for the legal profession. |
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11. |
Hard evidence of
professional fee levels in Hong Kong is difficult to find. However, it appears from
figures provided by the Secretary for Justice that at the top end of practice at the Hong
Kong Bar, counsel charge significantly more on average than comparable counsel from
England and Wales. |
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12. |
An examination was made
of all High Court bills of costs taxed during the 12 month period between 1 July 1999 and
30 June 2000. This found that legal costs in the smaller cases, especially those involving
awards or settlements of up to $600,000, were dramatically disproportionate to the sums
claimed or recovered. Many claimants, even when successful, had to pay more by way of
legal fees and expenses than the sums they recovered. |
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13. |
However, cases
involving the greatest disproportion between costs and claim have now effectively been
transferred to the District Court, following the recent monetary increase of its civil
jurisdiction to $600,000. It is to be hoped that this will have ameliorated some of the
worst excesses in terms of disproportionate fees. |
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14. |
The finding of
disproportionate litigation cost, while less dramatic, holds good for the other bands. For
instance, cases involving claims of up to $3 million, using median values, involved legal
bills (for one side in the dispute) equal to about 16% of the amount recovered. This was
so even though many of the bills related to cases which concluded short of trial. |
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15. |
The taxed bills also
show that in many cases that there is a high level of interlocutory activity, inevitably
adding to costs and delays. It also shows that the taxation of costs is disproportionately
expensive. |
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16. |
The taxed bills also
give an insight into the order of sums involved in litigation costs overall. The study
involved only 1,113 bills submitted for taxation between 1 July 1999 and 30 June 2000, but
they gave rise to a sum of costs claimed totalling $249 million. This represents the costs
claimed by the winning side. If one assumes that the losing side was also represented and
involved only one party and therefore one set of costs, the overall lawyers' bill for both
sides in these 1,113 cases would have been of the order of $500 million. In recent years,
some 30,000 to 35,000 cases have been commenced annually although, understandably, many of
the parties were unrepresented. |
Delay
17. |
The court's records
have also been examined with a view to assessing procedural delays and to identifying the
overall pattern of litigation in Hong Kong. While delays are not of crisis proportions,
the available statistics show that significant delays are encountered in various areas,
particularly where contested interlocutory applications or interlocutory appeals occur. |
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18. |
The evidence also shows
that a high percentage of cases settle at the courtroom door or after start of the trial. |
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19. |
Unrepresented litigants
are making increasing demands on the system, particularly on its bilingual resources.
Judicial resources have meanwhile not grown significantly and are sometimes below
establishment strength. |
Complexity
20. |
Another aspect of Lord
Woolf's reforms has aimed at reducing the complexity of the civil procedure rules. This
involves replacing the Rules of the Supreme Court ("RSC"), upon which Hong
Kong's High Court Rules ("HCR") are based, with the CPR. Archaic and technical
terms are replaced using a more modern and accessible vocabulary. |
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21. |
More importantly, the
CPR are designed so that the court approaches procedural questions broadly in accordance
with an "overriding objective" (discussed below) which sets out the system's
basic principles of procedural justice and economy. The court does not look to the CPR to
provide detailed answers to the range of specific problems that may arise in practice.
Instead, the rules require the court to exercise a wide discretion, guided by the
overriding objective, when deciding procedural points. Whether such considerations are
applicable in Hong Kong is discussed later. |
Unrepresented litigants
22. |
Unrepresented litigants
pose difficult challenges in all legal systems. The assumption of such systems is that the
parties can be relied on to take the procedural steps necessary to bring the case to
trial. This does not hold good for litigants in person, resulting in difficulties
operating the system. |
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23. |
The available evidence
indicates that litigants in person are appearing in increasing numbers in Hong Kong.
During 2000, in HCAs, where (unlike personal injury cases) legal aid was generally
unavailable, 44% to 64% of hearings of the first interlocutory application involved at
least one litigant in person. Some 40% to 50% of trials involved at least one such
litigant. Various measures to assist unrepresented litigants navigate the civil justice
system are raised for consideration. |
PART II - POSSIBLE REFORMS
Need for Reform
24. |
The
available evidence indicates that the civil justice system in Hong Kong shares the defects
identified in many other systems. In varying degrees, litigation in our jurisdiction :- |
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Is too expensive, with
costs too uncertain and often disproportionately high relative to the claim and to the
resources of potential litigants. |
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Is too slow in bringing
a case to a conclusion. |
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Operates a system of
rules imposing procedural obligations that are often disproportionate to the needs of the
case. |
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Is too susceptible to
tactical manipulation of the rules enabling obstructionist parties to delay proceedings. |
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Is too adversarial,
with the running of cases left in the hands of the parties and their legal advisers rather
than the courts, and with the rules often ignored and not enforced. |
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Is incomprehensible to
many people with not enough done to facilitate use of the system by litigants in person. |
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Does not do enough to
promote equality between litigants who are wealthy and those who are not. |
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25. |
The Working Party
believes that broad-based, coordinated and properly resourced reforms are called for. |
Reforms and expense
26. |
One must however be
cautious about making claims that reforming the rules will necessarily mean reduced
litigation costs. Some changes may have that result while other reforms may tend to
produce the opposite consequence. Costs may be saved in certain classes of cases but
increased in others. It may often be difficult to tell whether overall, savings have
resulted from changes. The rules function in an institutional, professional and social
framework and in particular, in a system involving a market for legal services. The cost
of litigation may therefore be determined by market and institutional factors which may be
more potent than simply a change in the rules. |
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27. |
The debate on whether
the pre-action protocols brought in by Lord Woolf add to or reduce the cost of litigation
illustrates the difficulty of ascertaining the impact of particular reforms on costs. |
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Pre-action protocols
(and other reforms introduced by the CPR) require the parties to place a more fully
developed and accurately pleaded case before the court at an early stage. This aims at
encouraging early settlement and enabling effective case management by the court at an
early stage. |
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This means however that
costs have to be incurred at an earlier stage of the proceedings than previously. Costs
are "front-end loaded". Some argue that in many cases, the costs incurred by
having to observe the pre-action protocols are thrown away since many cases rapidly settle
after proceedings are commenced. |
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However, while
pre-action protocols (and other reforms) cause costs to be "front-end loaded",
it does not follow that such costs are wasted. More cases may settle before or shortly
after the start of proceedings because the pre-action protocols bring the parties and
their advisers to a more advanced appreciation of the issues and relative merits sooner. |
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If the case does not
settle quickly then the work funded by the front-end costs will have brought the issues
into sharper focus from the outset, making it likely that the parties will avoid the cost
of interlocutory activity generated by early inaccuracies and lack of precision. |
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28. |
Notwithstanding such
caveats about the uncertain impact of reforms on costs, it can be said with some
confidence that particular procedural reforms are naturally likely to reduce costs,
particularly if operated in the context of appropriate infrastructural changes. This
applies, for example, to reforms seeking :- |
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to give prominence to
the countering of excessive cost, delay and complexity as part of overriding procedural
justice; |
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to replace rules which
impose blanket interlocutory obligations which may often be disproportionate to the issues
in a particular case with rules catering for flexibility and proportionality; |
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to discourage wasteful
practices such as the proliferation of interlocutory applications or the overworking of
witness statements or expert reports; |
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to facilitate early
settlement by requiring greater openness between the parties and by increasing the
parties' options in making effective offers for settlement; |
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to make the parties'
potential liability to costs, both vis- -vis their own lawyers and the other side's costs, more transparent
and easier to assess; |
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to devise a system of
incentives and self-executing sanctions aimed at enforcing procedural economy; |
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to reduce the need for
the taxation of costs. |
The Woolf reforms as a useful framework
29. |
The Working Party was
able to draw upon much work on civil justice reform done in a number of jurisdictions.
Commentaries and proposals from Australia and Canada have been valuable and are reflected
in some of the specific proposals discussed below. However, the reforms having particular
relevance to Hong Kong are those promoted by Lord Woolf and implemented by the CPR, which
have now been in force in England and Wales for over 2 years. |
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30. |
After some teething
problems, the CPR have been generally well-received. The Working Party has therefore used
the Woolf reforms as a framework for considering the options for possible civil justice
system reforms in Hong Kong. |
The main concepts underlying the Woolf
reforms
31. |
Two key concepts
underlying the Woolf reforms as implemented by the CPR are :- |
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31.1 |
Adoption of an explicit
overriding objective setting out principles of procedural justice and economy to be
treated as the foundation of the system, complemented by a new set of procedural rules to
be construed and operated in accordance with the overriding objective; and, |
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31.2 |
Adoption of a
comprehensive case management approach to civil procedure. |
The overriding objective
32. |
The overriding
objective is set out in the first rule of the CPR as follows :- |
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"1.1 |
(1) |
These Rules are a new
procedural code with the overriding objective of enabling the court to deal with cases
justly. |
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(2) |
Dealing with a case
justly includes, so far as is practicable - |
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(a) |
ensuring that the
parties are on an equal footing; |
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(b) |
saving expense; |
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(c) |
dealing with the case
in ways which are proportionate - |
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(i) |
to the amount of money
involved; |
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(ii) |
to the importance of
the case; |
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(iii) |
to the complexity of
the issues; and |
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(iv) |
to the financial
position of each party; |
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(d) |
ensuring that it is
dealt with expeditiously and fairly; and |
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(e) |
allotting to it an
appropriate share of the court's resources, while taking into account the need to allot
resources to other cases. |
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1.2 |
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The court must seek to
give effect to the overriding objective when it- |
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(a) |
exercises any power
given to it by the Rules; or |
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(b) |
interprets any rule. |
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1.3 |
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The parties are
required to help the court to further the overriding objective." |
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33. |
The overriding
objective is not merely abstract or aspirational. As recent case-law shows, it is treated
by the courts as laying down a set of principles to be projected into all procedural
rules, guiding their interpretation in a dynamic and purposive way. Readers are asked
whether Hong Kong should adopt an overriding objective and the accompanying methodology. [Proposal
1] |
Case management
34. |
Before
enactment of the CPR, the need for more proactive case management by the court was
recognized in case-law developed by judges in many jurisdictions, including Hong Kong. The
CPR now put case management on an express statutory basis, spelling out the court's case
management powers. |
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35. |
Active case
management is part of the overriding objective of the CPR :- |
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"1.4 |
(1) |
The court must further
the overriding objective by actively managing cases. |
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(2) |
Active case management
includes - |
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(a) |
encouraging the parties
to co-operate with each other in the conduct of the proceedings; |
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(b) |
identifying the issues
at an early stage; |
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(c) |
deciding promptly which
issues need full investigation and trial and accordingly disposing summarily of the
others; |
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(d) |
deciding the order in
which issues are to be resolved; |
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(e) |
encouraging the parties
to use an alternative dispute resolution procedure if the court considers that appropriate
and facilitating the use of such procedure; |
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(f) |
helping the parties to
settle the whole or part of the case; |
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(g) |
fixing timetables or
otherwise controlling the progress of the case; |
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(h) |
considering whether the
likely benefits of taking a particular step justify the cost of taking it; |
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(i) |
dealing with as many
aspects of the case as it can on the same occasion; |
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(j) |
dealing with the case
without the parties needing to attend at court; |
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(k) |
making use of
technology; and |
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(l) |
giving directions to
ensure that the trial of a case proceeds quickly and efficiently." |
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36. |
Specific and general
case management powers are spelt out in Part 3 of the CPR, all being powers that the court
can exercise of its own initiative. |
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37. |
Some commentators have
objected on the grounds (i) that it gives excessive discretion to judges, resulting in
inconsistency and unfairness and (ii) that it increases the expense of litigation. |
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38. |
These are legitimate
concerns. However, judicial discretion is an inescapable part of all procedural systems.
Inconsistency and unfairness can be minimised by experience and by training to familiarise
judges with the substance of the reforms and the guidance afforded by the overriding
objective. |
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39. |
The minimising of case
management hearings to contain costs is a conscious objective of the rules themselves and
would be a necessary aspect of judicial training. As a general approach, the parties are
not to be put to the expense of a case management exercise unless it is reasonable to
believe that such expense can be justified by the benefits it will produce. Many rules
(discussed further below) are designed :- |
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To keep case management
conferences to a minimum and to have them only where they are truly necessary. |
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To provide for
self-executing sanctions in orders made by the court so that hearings to enforce
directions or compliance with the rules are made unnecessary. |
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To encourage the
parties to reach agreements on procedural matters without the need for court approval. |
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To provide for
effective sanctions where a court hearing has been made unavoidable because of
unreasonableness or incompetence on the part of one party or his advisers. |
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40. |
Readers' views are
sought as to whether provisions making case management part of the overriding objective
and setting out the court 's case management powers should be adopted. [Proposals
2 and 3] |
Possible reforms in specific areas
41. |
Readers are invited to
consider specific possible reforms which may be adopted either as part of a new set of
rules or as amendments to the existing HCR. |
Pre-action protocols
42. |
One of the innovations
of the Woolf reforms has been to establish pre-action protocols which are codes of
practice on how disputes should reasonably be handled before instituting proceedings. The
rules prescribe ex post facto costs penalties for non-compliance with an applicable
pre-action protocol if proceedings are subsequently commenced. This innovation involves
the court assuming a degree of control over the parties' conduct before the court's
jurisdiction was invoked. |
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43. |
The stated object of
pre-action protocols is :- |
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(a) |
to focus the attention
of litigants on the desirability of resolving disputes without litigation; |
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(b) |
to enable them to
obtain the information they reasonably need in order to enter into an appropriate
settlement; or |
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(c) |
to make an appropriate
offer (of a kind which can have costs consequences if litigation ensues); and |
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(d) |
if a pre-action
settlement is not achievable, to lay the ground for expeditious conduct of
proceedings." |
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44. |
Under the CPR, a
Practice Direction on pre-action protocols and five protocols in the respective fields of
personal injury, clinical negligence, construction and engineering, defamation and
professional negligence have been adopted after close consultation with bodies and groups
interested in litigation in each of those areas. Further protocols are at the stage of
consultation and development. Even where a dispute does not fall within a specific
pre-action protocol, the parties are expected to act reasonably and in accordance with the
spirit of such protocols, non-compliance being potentially subject to costs sanctions. |
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45. |
As indicated
previously, pre-action protocols were opposed in some quarters on the ground that they
cause the costs of an action to be "front-end loaded" and wasted if the case
settles quickly. Nonetheless, the protocols have been credited with many early, often
pre-action, settlements and to a reduction in the ethos of non-cooperation bred of an
unbridled adversarial approach. Readers are asked whether Hong Kong should adopt
pre-action protocols. [Proposals 4 and 5] |
Mode of commencing proceedings and
challenging jurisdiction
46. |
The CPR have simplified
procedures for starting proceedings by reducing the forms to two: one for cases with
factual disputes and an alternative for those without. Should Hong Kong follow suit [Proposal
6] |
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47. |
The CPR have also
summarised the rules (mostly judge-made) relating to applications to dispute jurisdiction
or to seek a discretionary stay. Should these be adopted [Proposal 7] |
Default judgments and admissions
48. |
Rules giving
flexibility in the making of admissions and proposals for the defendant making payment by
instalments have been introduced to eliminate certain court hearings and to streamline the
procedure for default judgments. Readers are asked whether such procedures should be
emulated. [Proposal 8] |
Pleadings and statements of truth
49. |
Current practice
often leads to unsatisfactory pleadings which :- |
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Fail to set out the
facts clearly so that the issues are not properly identified; |
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Raise numerous
alternatives according to causes of action and defences, rather than focussing on the
facts; |
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Set up "stone
walling" defences which do not reveal the true issues; |
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Suffer from prolixity; |
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Suffer from an initial
lack of instructions or imprecision leading to numerous amendments and requests for
further and better particulars. |
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50. |
Readers are consulted
on the possible adoption of measures aimed at curing some of these defects, discussed
below. |
|
|
51. |
Reforms have sought to
bring the focus of pleadings back to the key facts of the dispute and to require
substantive defences exposing the true issues between the parties. The CPR, for instance,
require the defendant to state his reasons for denying an allegation and if he intends to
put forward his own version, to state what it is. Points of law may be included. [Proposals
9 and 10] |
|
|
52. |
A key change has been
the introduction of a requirement that all pleadings (called "statements of
case" in the CPR) be verified by "a statement of truth". Making a false
statement without an honest belief in its truth is a contempt. [Proposal 11] |
|
|
53. |
Where clarification of
a pleading is necessary, further and better particulars (called "further
information") can be requested. However, one ground for resisting such a request is
that the request is disproportionate to the needs of the case. The court is also given
powers to require a pleading to be particularised of its own motion. [Proposal 12] |
|
|
54. |
Amendments are less
readily approved under the CPR. This is in support of the court's general insistence on
greater accuracy and precision at the early stages, and therefore its desire to discourage
parties from filing casual, imprecise pleadings on the footing that they can later be
tidied up. [Proposal 13] |
Summary disposal of cases or issues
55. |
The CPR have made
changes along two broad lines. |
|
|
|
|
* |
They introduce the test
of "no real prospect of success" as the test for the summary disposal of
proceedings. |
|
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|
|
* |
They apply the same
test in all contexts in which proceedings may be summarily disposed of: whether in respect
of a plaintiff's or a defendant's case; whether setting aside a default judgment, applying
for summary judgment, determining a point of law or striking out pleadings. |
|
|
56. |
On its face the new
test should make it easier to dispose of proceedings. But a question has arisen by virtue
of an English Court of Appeal decision as to whether the "no real prospect of
success" test is in practice any different from the current "no triable
issue" test. It is likely that the rule is intended to, and in fact does, import a
lower threshold for summary orders. Should such changes be introduced [Proposal
14] |
Offers of settlement and payment into
court
57. |
"Part
36 offers" under the CPR have been generally well-received. They develop the present
machinery for making payments into court and offers of settlement by :- |
|
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|
* |
Allowing a plaintiff
to make an offer of settlement which puts a defendant who unreasonably rejects it at risk
as to costs and further financial penalty. |
|
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|
* |
Allowing such offers to
be made even before commencement of proceedings, which, if rejected, can be taken into
account by the court in relation to pre-action costs. |
|
|
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|
* |
Limiting the
requirement of an actual payment into court to cases where the defendant seeks to settle a
money claim, and allowing appropriate offers of settlement to play a Part 36 role in
respect of non-money claims. |
|
|
58. |
The court retains a
discretion as to costs since the fairness of penalising rejection of a Part 36 offer may,
for example, depend on the information available at the time when the offer or payment was
made, and the conduct of either or both of the parties with regard to the giving or
withholding of such information. |
|
|
59. |
Readers are asked
whether rules providing for such offers and their consequences should be introduced. [Proposal
15] |
Interim remedies and security for
costs
60. |
Part 25 of the CPR
conveniently draws together the threads of various interim remedies developed largely by
judicial decision over the years (particularly in the Mareva and Anton Piller
jurisdictions). It also deals with interim payments and security for costs. As part of the
CPR, all such applications are dealt with in accordance with the overriding objective. |
|
|
61. |
One aspect of CPR 25,
ie, permitting Mareva relief to be granted where the remedy is "sought in
relation to proceedings which are taking place, or will take place, outside the
jurisdiction," would, if adopted, involve extending the jurisdiction presently
enjoyed by the Hong Kong court. |
|
|
62. |
Readers are asked
whether a similar provision should be adopted and also whether the abovementioned
extension to the court's jurisdiction should be made. [Proposals 16 and 17] |
Case management - timetabling and
milestones
63. |
At present, the
progress of actions is left in the hands of the parties and a date for trial is not fixed
by the court until all interlocutory issues have been resolved and the parties are seen to
have completed their preparations for trial. This enables parties to rely on their own
lack of readiness, whether deliberate or otherwise, as the basis for putting off the
trial, possibly causing serious delay to conclusion of the proceedings. This is one of the
unsatisfactory features of the adversarial design of our civil justice system. |
|
|
64. |
A central feature of
efforts to counteract such misuse of the adversarial process involves the court, at an
early stage of the proceedings, laying down a timetable, with appropriate case management
directions marking out largely immovable milestones, including the trial date (as a fixed
date or fixed window period) in that timetable. In consequence, the court, rather than the
parties, determines the pace of the litigation and lack of readiness does not lead to the
trial date or other milestones being put back. Instead, the party in default has to endure
the consequences of his own lack of readiness in some fitting manner (eg, by doing without
certain evidence or having part of his case - or in extreme instances, the whole of his
case - struck out), save in the most exceptional circumstances. |
|
|
65. |
To lay down an
effective timetable with appropriate directions, the court must have adequate information
as to the nature, scope and particular needs of the case. Possible reforms therefore
provide for such information to be given to the court at an early stage, generally by the
parties filing written information about the case and setting out the directions (agreed
if possible) that they consider required. This information, often in a questionnaire
prescribed as a court form, enables the court to give the directions and to set the
timetable without a hearing. |
|
|
66. |
Where the case is
simple, the immediate directions and timetable may extend all the way to trial. If it is
more complex, they may extend to a case management conference where further directions are
envisaged in the light of progress made at that stage. |
|
|
67. |
Readers are consulted
as to the desirability of introducing this form of comprehensive, timetable and
milestone-based case management. [Proposals 18 and 19] |
A docket system
68. |
A docket system is
discussed as a possible alternative approach to case management and timetabling. It is a
system which involves (i) the same judge handling the case from beginning to end; (ii) the
early fixing of a near-immutable trial date; (iii) case management by the judge himself
fixing the timetable and giving relevant directions in the pre-trial period in the light
of the fixed trial date; and (iv) the judge trying the case if it goes as far as trial. |
|
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69. |
Docket systems have met
with success in some jurisdictions particularly in the United States and in the Australian
Federal Court. Many advantages are claimed for such a system. However, it was not
considered appropriate by Lord Woolf on the grounds that it would require more judges and
sacrifice flexibility. Readers are asked for their views as to the adoption of such a
system either generally or in relation to particular types of cases. [Proposal 20] |
Specialist lists
70. |
In Hong Kong, four
specialist lists have been established: the Commercial, Construction and Arbitration,
Administrative and Constitutional and Personal Injuries Lists. Admiralty proceedings are
also subject to special regulation under Order 75. Contentious Probate Proceedings, which
are rare, are dealt with in accordance with Order 76. Companies Winding-up, Bankruptcy and
Matrimonial Causes cases proceed according to Rules made under relevant Ordinances. |
|
|
71. |
Such specialist lists
or specialist courts also exist in other jurisdictions. They often have practices and
needs not shared by general High Court actions. The CPR's approach has been to preserve
their autonomy, allowing the courts dealing with such specialist business to publish
procedural guides which modify the application of the CPR in such courts. Should a similar
approach be adopted in Hong Kong [Proposal 21] |
|
|
72. |
It has also been
suggested that consideration be given to establishing further specialist lists, for
instance, a list for complex and heavyweight cases (which could, for instance, be run on a
docket system); a list for unrepresented litigants and a list for group litigation
(discussed below). Readers are asked whether they see a need for further specialist lists.
[Proposal 22] |
Multi-party litigation
73. |
Special case management
is needed for cases with numerous parties or potential litigants. Two situations need
consideration. |
|
|
74. |
The first, involving
cases which in the United States may be dealt with by "class actions", is not
catered for by our system. Consumer and other groups advocate their introduction. Such
actions would allow a large number of small claims to be grouped together and pursued in a
single set of proceedings, assisted by special case management measures. If this can be
done, small claimants would acquire legal access previously denied and large corporate
wrongdoers would be faced with proceedings in say, the product liability or environmental
pollution fields, to be taken seriously. This would not only be fairer, it would, so the
argument runs, lead to long-term social benefits such as better consumer safety and higher
environmental standards. |
|
|
75. |
The other principal
multi-party situation does not involve problems of legal access. It arises where, for some
reason or other, a large number of similar or related claims are instituted at about the
same time, placing heavy pressures on the court's resources. Machinery presently exists
for ordering parties to act as representative parties, however, there are clear
limitations on using these procedures. |
|
|
76. |
Multi-party litigation
procedures applicable to both situations, while desirable in principle, raise complex
issues. Such procedures require compromises and adjustments in relation to the rights of
plaintiffs and defendants. Mechanisms for moulding members of a class of potential
plaintiffs into a workable group are needed, with the court possibly having to take
decisions on certain issues where agreement cannot be reached within the class. Many
issues involving resolution of various conflicts within the group may need to be dealt
with. |
|
|
77. |
The CPR have made a
start by providing for "Group Litigation Orders" and special case management
powers where such orders are made. However, provisions have yet to be developed to deal
with certain important questions. Readers are therefore asked whether a group litigation
scheme should in principle be adopted, but subject to further investigation of appropriate
models in other jurisdictions. [Proposal 23] |
|
|
78. |
As a separate matter,
the CPR have re-enacted a provision previously in the RSC concerning derivative actions
launched by individual members on behalf of their company. The HCR do not contain such
rules. Should they [Proposal 24] |
Discovery
79. |
While discovery is in
principle a valuable procedure which promotes fairness between the parties, the practice
of discovery, particularly in larger, more complex cases, has given rise to serious
complaint. It is said to be a major source of litigation expense. It lengthens trials and
can be used as an oppressive weapon to delay, harass and exhaust the financial resources
of less wealthy opponents. |
|
|
80. |
To counter these
tendencies, possible reforms have focussed on cutting down the width of the obligation to
disclose. In Hong Kong, parties are presently required to disclose all relevant documents
to their opponents applying the long-established Peruvian Guano test of
relevance. That test is extremely wide, encompassing four classes of document, namely :- |
|
|
|
|
* |
The parties' own
documents, relied on in support of his own case. |
|
|
|
|
* |
Adverse documents which
a party is aware of and which adversely affect his own case or support another party's
case. |
|
|
|
|
* |
Documents relevant to
the issues in the proceedings, but not within either of the above categories since they do
not obviously support or undermine either side's case, being merely background documents
not necessary for the fair disposal of the case. |
|
|
|
|
* |
Train of inquiry
documents: these being documents which do not themselves damage a party's case or advance
that of the other side but which "may fairly lead him to a train of inquiry which may
have either of these two consequences". |
|
|
81. |
In many jurisdictions,
the Peruvian Guano test has been abandoned in favour of a narrower definition of
relevance. The CPR have essentially limited the obligation to the first two of the four
categories mentioned above, subject to the court widening the disclosure by order in a
particular case. |
|
|
82. |
The routine obligation
is to give "standard disclosure", ie, to disclose only the documents which are
or have been in his control being :- |
|
|
|
|
|
|
"(a) |
the documents on which
he relies; and |
|
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|
(b) |
the documents which - |
|
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|
|
|
(i) |
adversely affect his
own case; |
|
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|
(ii) |
adversely affect
another party's case; or |
|
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|
(iii) |
support another party's
case; and |
|
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|
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|
(c) |
the documents which he
is required to disclose by a relevant practice direction." |
|
|
83. |
A party is only
required to make "a reasonable search" for such documents, the reasonableness of
the search being judged by the number of documents involved, how complex the proceedings
are, how expensive retrieving the documents is and how significant any document is. In
other words, the obligation is intended to be proportionate to the issues. |
|
|
84. |
Discovery is to be
approached flexibly, with the parties or the court making appropriate arrangements to
minimise costs, eg, by ordering discovery by issue or in stages in the hope that vital
points can be disposed of first, leading to conclusion of the proceedings without the
expense of full discovery. |
|
|
85. |
The court also has wide
powers to order pre-action disclosure in order to dispose fairly of the anticipated
proceedings or to help settle the case without the institution of proceedings or to save
costs. Disclosure by non-parties can also be ordered where it is likely to be of direct
relevance to the issues and where disclosure is necessary in order to dispose fairly of
the claim or to save costs. |
|
|
86. |
An alternative approach
to that described above is that adopted in Part 23 of the Supreme Court Rules 1970 of New
South Wales. This allows parties access to the documents mentioned in the pleadings,
affidavits, etc and also to request up to a total of 50 non-privileged documents which are
relevant to facts in issue. To get more documents requires a court order. |
|
|
87. |
Readers are consulted
as to the desirability of adopting the abovementioned discovery reforms.
[Proposals 25 to 29] |
Interlocutory applications
88. |
Contested interlocutory
hearings introduce substantial delays and additional costs. Possible reforms seek to
reduce the number of times when interlocutory applications are required. Where they cannot
be avoided, they seek to streamline the process for dealing with applications. More
effective sanctions to discourage unnecessary applications and the misuse of such
applications, deliberate or otherwise, are also envisaged. |
|
|
89. |
The need for
interlocutory applications may be sought to be reduced by :- |
|
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|
* |
Enabling certain
matters to be dealt with by the parties by agreement without involvement of the court. |
|
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|
* |
The court dealing with
a matter on its own initiative and without the necessity of first hearing the parties, but
allowing any party who objects subsequently to apply for the order to be set aside, varied
or stayed. |
|
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|
|
* |
Making orders
self-executing so as to eliminate the need for the applications to enforce orders
previously made. The burden is placed on the party in default to seek relief from the
prescribed sanction, which relief is by no means automatically granted. |
|
|
|
Readers are consulted
as to the desirability of adopting similar rules. [Proposal 30] |
|
|
90. |
Where the interlocutory
application is heard, possible streamlining measures include :- |
|
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|
* |
Dealing with
applications on the papers and without a hearing. |
|
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|
* |
Eliminating the hearing
before the master where the matter is likely to be contested and may be likely to proceed
on appeal to the judge in any event. |
|
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|
* |
Allowing applications
to proceed by telephone conference calls and other means of communication subject to
necessary safeguards where this may be cost effective. |
|
|
|
Should such measures be
adopted [Proposal 31] |
|
|
91. |
Unnecessary
applications are deterred by the more frequent use of summary assessments of costs made
payable forthwith and notified to the client. Possible reforms tend to shift the emphasis
away from the traditional rule that costs follow the event, ie, that costs are paid by the
loser of the case to the winner, but only paid at the end of the proceedings and on a
final reckoning of outstanding costs. Increasingly, costs are assessed and paid forthwith
as a procedural discipline. An unnecessary or wasteful interlocutory application is likely
to attract such an order even if the person against whom it is made ultimately wins the
case. |
|
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92. |
In England and Wales
the reaction to summary assessments of costs was mixed, some believing that the judge is
not in a proper position to conduct such an assessment and fearing inconsistent
assessments. On the other hand, the efficacy of summary assessments in deterring wasteful
applications has been generally acknowledged with the procedure receiving support in many
quarters. Inconsistency can be minimised with experience and training. Readers are asked
for their views on adopting summary assessments of costs as a deterrent to wasteful
interlocutories. [Proposal 32] |
|
|
93. |
Bad interlocutory
applications are sometimes entirely the brainchild of the lawyers. At present, a
misconceived step taken by a solicitor may have to be paid for by him personally if the
costs were incurred "improperly or without reasonable cause or [were] wasted by undue
delay or by any other misconduct or default" on his part. The test arguably requires
the solicitor to be guilty of something akin to professional misconduct. This may be
thought too high a threshold. Under the CPR, a wasted costs order may be made where the
costs are incurred "as a result of any improper, unreasonable or negligent act or
omission" of the solicitor or his employee. Should this test be adopted in place of
the existing test [Proposal 33] |
|
|
94. |
Barristers are
presently subject to very restricted liability for wasted costs orders, limited to
criminal proceedings. Should they be made subject to such orders on terms equivalent to
those applicable to solicitors [Proposal 34] |
Witness statements
95. |
While in principle the
exchange of witness statements is a valuable procedure, in practice, they have often
become over-worked and excessively expensive documents reflecting the advocacy of lawyers
more than the witness's evidence. |
|
|
96. |
Possible reforms
involve :- |
|
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|
* |
Giving the court
greater powers to regulate and limit the evidence to be adduced by the parties, with
supporting amendments to primary legislation if required. [Proposals 35 and 36] |
|
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|
* |
Introducing greater
flexibility in the treatment of witness statements, allowing them to be reasonably
supplemented by the witness's oral evidence or in a supplemental statement, so reducing
the temptation to cram every conceivable detail into a statement for fear of the witness
not being allowed to elaborate at trial. [Proposal 37] |
|
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|
* |
Deterring
over-elaboration by appropriate costs orders. |
|
|
|
Readers are consulted
as to whether such an approach should be adopted . |
Expert evidence
97. |
Expert evidence is an
indispensable aid to the court determining many factual issues. However, adversarial
pressures have again distorted the practice so that :- |
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|
* |
Experts are often
inappropriately or excessively used. Experts are called where expert evidence is either
not needed or should be limited to a few issues instead of wide ranging matters covered in
the expert report. |
|
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|
* |
Experts are often
partisan and lacking in independence, giving the court no objective assistance but
deployed as part of the adversarial armoury. |
|
|
|
These are practices
which increase costs as well as the duration and complexity of proceedings. |
|
|
98. |
To counter these
problems, possible reforms aim :- |
|
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|
* |
to give the court
control over the introduction and scope of any expert evidence sought to be adduced; |
|
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|
* |
to emphasise the
expert's primary duty to the court which overrides his duty to his client by requiring the
expert to acknowledge that duty and to agree to adhere to a specified code of conduct
which promotes independence and impartiality; |
|
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|
* |
to allow the expert to
approach the court for guidance as to his function in his own capacity without giving
notice to the parties; and |
|
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|
* |
to allow the court to
require the parties to appoint a single joint expert. |
|
|
99. |
Such reforms have been
well-received. An increasing use of single joint experts has been reported. Readers are
asked whether reforms should be adopted to address the problems of inappropriate,
excessive and partisan expert evidence discussed above, and as to whether single joint
expert directions should be introduced in Hong Kong. [Proposals 38 to 40] |
Trials and case management
100. |
Trials are
unpredictable in their duration and sometimes suffer from the prolixity of those
appearing. The response has again been to embrace more proactive case management, with the
judge setting time limits on the adducing of evidence, cross-examination and submissions
pursuant to express powers allowing him to do so. Should such express powers be adopted [Proposal
41] |
Appeals
101. |
Procedural reforms
adopted by the CPR in the context of appeals have focussed on :- |
|
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|
|
* |
A
requirement for a party to obtain the court's leave before being allowed to lodge an
interlocutory appeal from the Court of First Instance to the Court of Appeal. [Proposal
42] |
|
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|
* |
Requiring
leave to bring a final appeal from the Court of First Instance to the Court of Appeal.
[Proposal 43] |
|
|
|
|
* |
Adoption of
the requirement that a proposed appeal should have a "real prospect of success"
or that "some other compelling reason why the appeal should be heard" exists
before leave to appeal is granted. [Proposal 44] |
|
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|
* |
A principle
that leave to appeal should not be granted against case management decisions unless the
case raises a point of principle of sufficient significance to justify the procedural and
costs consequences of permitting the appeal to proceed. [Proposal 45] |
|
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|
|
* |
Additionally,
the principle has been adopted that leave to appeal from a decision itself given on appeal
should generally not be granted unless the case raises an important point of principle or
practice or some other compelling reason exists for the grant of leave. [Proposal
46] |
|
|
|
|
* |
If leave to
appeal to the Court of Appeal should be introduced as a requirement, enabling the Court of
Appeal to refuse leave without an oral hearing where the application is tantamount to an
abuse of the appeal process, subject to permitting the applicant a final opportunity to
make representations in writing as to why the application should not be summarily
rejected. [Proposal 47] |
|
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|
|
* |
Where a
substantive appeal is to take place, case management by the Court of Appeal to improve
efficiency in the hearing of the appeal. [Proposal 48] |
|
|
|
|
* |
Limiting
the role of the Court of Appeal to a review of the lower court's decision, subject to a
discretion to allow a re-hearing. [Proposal 49] |
|
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|
* |
Applying
the rule limiting the appellate court's role to a review to the Court of First Instance
acting in an appellate jurisdiction. [Proposal 50] |
|
|
|
Readers are consulted
as to the desirability of the abovementioned reforms. |
Costs
102. |
As indicated above,
reforms have shifted the emphasis from the principle of costs "following the
event" (ie, being paid by the loser to the winner of the case) and costs "in any
event" (ie, being paid only at the end of the case) to costs awards being used
flexibly throughout the proceedings as an incentive for reasonable litigant behaviour,
whoever may ultimately win the case. The court now generally decides on costs orders
taking into account the reasonableness or otherwise of the parties' conduct before and
during the proceedings judged in accordance with the overriding objective. Should a like
approach be adopted [Proposal 51] |
|
|
103. |
Three factors -
complexity, number of case events and level of fees - have been identified as important
factors for determining how much litigation will cost. Reforms aiming to reduce complexity
and the number of case events have already been discussed. In relation to the level of
fees, initiatives differ in relation to the fees charged by a party's own lawyers and
those which the other side may have to pay to the party in question. |
|
|
104. |
In relation to
solicitor and own client costs, reforms in other jurisdictions inter alia :- |
|
|
|
|
* |
Seek to promote costs
transparency and predictability by requiring lawyers to provide their clients with
specified information as to costs, both as to the basis on which charges are levied and as
to the estimated overall cost of the litigation. [Proposal 52] |
|
|
|
|
* |
Seek to improve the
availability of information as to how much lawyers may charge. [Proposal 53] |
|
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|
* |
Empower the client to
challenge his own lawyer's fees on an assessment of the necessity for the work done, the
manner in which it was done and the fairness and reasonableness of the amount of the costs
charged in relation to that work. [Proposal 54] |
|
|
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|
* |
Seek to establish
benchmark costs against which fees charged by one's own lawyers or payable to the other
side can be measured. [Proposal 55] |
|
|
105. |
Reforms in relation to
party and party costs aim to :- |
|
|
|
|
* |
Reduce uncertainty as
to exposure to costs by requiring the parties to disclose to each other the level of costs
incurred and estimated to be required. [Proposal 56] |
|
|
|
|
* |
In Hong Kong, to
eliminate an anomalous treatment of counsel's fees in party and party taxation whereby
such fees are taxed under a rule adopting in effect a solicitor and own client approach. [Proposal
57] |
|
|
|
|
* |
Encourage agreement as
to the cost of taxation by permitting "Part 36" type offers to be made as to
costs payable. [Proposal 58] |
|
|
106. |
The often
disproportionate cost of the taxation process is also addressed by proposed reforms which
:- |
|
|
|
|
* |
Encourage avoidance of
taxation hearings by encouraging parties to adopt benchmark costs as the presumptive
amounts allowable in taxation, insofar as benchmark costs have been established.
[Proposal 59] |
|
|
|
|
* |
At the court's
discretion, extend the scope of provisional taxations on the papers, subject to a
dissatisfied party being entitled to require an oral hearing, but subject to possible
costs sanctions if he fails to do better at the hearing. [Proposal 60] |
|
|
|
|
* |
Providing costs
sanctions for unreasonable insistence on full taxations or failing to provide sufficient
information to allow taxations to take place on the papers and without a hearing. [Proposal
61] |
The CPR schedules of provisions from
the RSC
107. |
Certain rules from the
RSC have not been replaced by the CPR in England and Wales and remain applicable pursuant
to Schedule 1. These include rules relating to the enforcement of judgments and orders,
rules dealing with special procedural cases, special jurisdictional cases and particular
proceedings under specific statutes. As no proposals have been formulated for their
replacement, the reader is asked for agreement that the HCR equivalents should remain in
force whatever reforms may be adopted. [Proposal 62] |
Possible reforms and ADR
108. |
Increasingly, ADR
("Alternative Dispute Resolution") has been seen as potentially a useful process
in appropriate cases as an alternative or adjunct to civil proceedings. It is often said
that ADR can be simpler, cheaper and quicker and can be more flexible and custom-designed
for the dispute in question. It can be less antagonistic and less stressful than a court
case and so less damaging to a possible on-going relationship between the parties. It is
however accepted generally that some cases will not be suitable for ADR. |
|
|
109. |
While no one suggests
that a court should permanently turn a litigant away by directing him to ADR, it is
increasingly envisaged that a court may make an attempt at ADR a condition of allowing the
case to proceed. Several degrees of compulsion or encouragement to use ADR can be
discerned in schemes of court-annexed ADR (usually mediation) adopted in various
jurisdictions. ADR may be :- |
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made
mandatory by a statutory or court rule for all cases in a defined class; [Proposal
63] |
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made
mandatory by an order issued at the court's discretion in cases thought likely to benefit;
[Proposal 64] |
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made
mandatory by one party electing for ADR; [Proposal 65] |
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made a
condition of getting legal aid in relation to certain types of cases; [Proposal
66] |
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voluntary
but encouraged by the court, with unreasonable refusal or lack of cooperation running the
risk of a costs sanction; [Proposal 67] or |
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entirely
voluntary, with the court limiting its role to encouragement and the provision of
information and facilities. [Proposal 68] |
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Readers are consulted
as to which, if any, of the above regimes for court-annexed ADR should be pursued in Hong
Kong. |
Judicial review
110. |
The basic requirements
of obtaining the court's leave to bring judicial review proceedings and of acting promptly
remain in place. However, there have been efforts in the CPR at procedural reform of
judicial review claims seeking :- |
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To simplify the
definition of the scope and the nomenclature of the remedies. [Proposal 69] |
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To provide for and
facilitate participation of persons, other than the parties, who may be interested in
judicial review proceedings. [Proposal 70] |
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To require claims to be
served on defendants and other persons known to be interested. [Proposal 71] |
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To require defendants
who wish to contest the proceedings to acknowledge service and to summarise the grounds
relied on. [Proposal 72] |
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To spell out the
court's powers on the quashing of a decision, including, more controversially, power,
subject to statutory limitations, to take the decision itself. [Proposal 73] |
Implementing the reforms
111. |
Assuming that the
Working Party recommends a series of reforms, how can they best be implemented and
translated into rules of civil procedure 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 elsewhere). Alternatively, one may largely retain
the HCR, but amend them to introduce each reform. |
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112. |
Both approaches would
require substantial effort. New rules would have to be prepared and all persons involved
in the civil justice system would have to learn about the new system. |
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113. |
Switching from the RSC
to the CPR in England and Wales took a great deal of effort. It took some 3 years just to
draw up the CPR. Accordingly, much effort might be saved if Hong Kong were to borrow from
the CPR (and from rules in other jurisdictions). If, instead, we retain and amend the HCR,
much fresh drafting would probably be required. It would also be necessary to ensure that
the amendments are in harmony with the retained rules. |
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114. |
Effort in relation to
training must also be considered. Much effort would be required whichever approach was
adopted. While the amendment option may require fewer new rules to be learned, it would
still be necessary to learn what the changes are and how the new provisions work. |
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115. |
Consideration should
also be given to the efficiency with which either approach may be operated in practice. |
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115.1 |
One possible difficulty
which arises if one retains and amends the HCR concerns interaction between the amendments
and the retained rules (with their attached case-law). Costly satellite litigation is
likely to ensue over whether the parties should continue to apply the pre-existing
case-law or whether it should give way to the amendments (including any amendment to
introduce the overriding objective). |
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115.2 |
In contrast, if a set
of rules along the CPR lines is adopted as a fresh start, accretions of pre-existing
case-law would generally not be applicable and such debates are likely to be much rarer. |
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115.3 |
That is not to say that
adopting a CPR-based set of rules would involve no potential questions requiring judicial
resolution. Development of some case-law is inevitable, particularly for questions closely
related to issues of substantive law. Nevertheless, the experience in England and Wales so
far suggests that such case-law developments would be relatively sparse and that many of
the citations in the White Book would be dispensed with. |
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115.4 |
Adoption of rules
materially similar to the CPR would also confer persuasive authority status on English
decisions and allow such practical experience to be drawn upon. |
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116. |
Would unrepresented
litigants benefit either way One reason for switching to the CPR was to bring in simpler
and more easily understandable language with a view to making litigation more accessible
to unrepresented litigants. As previously noted, this is a consideration only indirectly
applicable in Hong Kong because most litigants in person would only refer to the Chinese
text. Nonetheless, simplification of the rules in English may well permit a simpler
Chinese translation to be used, favouring adoption of a new and simpler set of rules. |
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117. |
In the light of these
considerations, readers are asked whether, in order to implement recommended reforms, the
civil justice system should, adopt a new set of rules largely along the lines of the CPR
(and rules drawn from other jurisdictions) or whether, instead, it should continue to
employ the HCR with amendments to effect the reforms. [Proposals 74 and 75]. |
Resources
118. |
If it is decided in
principle that reforms should be instituted, resources will be needed to draft and
promulgate the necessary new rules (whether as amendments to the HCR or a new set of rules
based largely on the CPR) and to work with all interested parties towards drafting any
necessary practice directions and pre-action protocols. |
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119. |
Thereafter, adequately
funded and organized resources, likely to include additional judicial and court resources,
will be needed to implement such reforms, for instance, to enable provision of
comprehensive case management by the court and to accommodate trials in accordance with
prescribed case timetables. [Proposal 76] |
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120. |
It must be determined
how existing resources can most efficiently be deployed to meet the needs of the reforms.
Traditional roles and case-loads may alter, requiring re-deployment of judges, masters and
administrative staff. [Proposal 77] |
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121. |
Training programmes
must be set up for judges, masters and court administrative staff to acquire an
understanding of the reforms and to hone the skills needed to administer them. Such
training should be sensitive to and directed at the needs of any reforms adopted.
[Proposal 78] |
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122. |
Available information
technology resources should be harnessed and adapted to support proactive case management
by the judges and to improve management statistics. In the longer term, the court should
consider commissioning electronic filing and electronic document-sharing in technology
courts. [Proposal 79] |
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123. |
Research should be
started now with a view to establishing base-lines by which the success or failure of any
reforms adopted may subsequently be judged. Research should refine the reforms and
continuously assess the deployment of resources for their implementation. To the extent
that reforms may prove unsuccessful or counter-productive, such reforms should be
jettisoned. [Proposal 80] |
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