Civil procedure Cliffnotes

Transcription

1 A compilation of notes by. All rights expressly reserved, including copyright. All pecuniary loss disclaimed. Follows the Syllabus The notes are created from syllabus notes, cases and Court rules, so they are almost guaranteed to follow exam guidelines! Checked for Accuracy Compiled in a period of three months, these notes have been checked for accuracy amongst primary, secondary and tertiary sources! Tried and Tested Cliff has taken these notes into the examination hall, used them and walked out of the examination hall in one piece. Surely these notes are tried and tested! 2007 PCLL Civil procedure Cliffnotes

2 Civil Litigation Service of Writ Cliffnotes! Civil Litigation Preliminary Issues Cliffnotes A. Describing the Parties: O Plaintiffs Plaintiffs may be joined if there is a common question of law or fact or where the claim arises from the same series of transactions: O.15 r.4(1). Plaintiffs must be joined with any people jointly entitled to the claim unless the court grants leave. 2. Defendants Joint claims include joint bank accounts, property holders. If the other person does not wish to be joined, he must be joined as a defendant. This is so he is bound by the results of the litigation: O.15 r.4(2). Partners, however, can be compelled to be joined as plaintiffs without their consent, but will be entitled to seek indemnity from the other partners as to costs!kao, Lee & Yip Plaintiff entitle to issue proceedings against only some of all defendants jointly liable for a claim: O.15 r.4(3). Where the claim is in contract, however, the defendant may apply to the court for the case to be stayed pending joinder of those jointly liable: O.15 r. 4(3). That is a discretionary power and might not be exercised where the other partner can not be found etc. B. Legal Aid 1. Ordinary Legal Aid Scheme Criteria $162,300 Reasonable grounds for taking or defending proceedings. Scope traffic accident claims breach of contract professional negligence landlord and tenant disputes (v) industrial accidents (vi) matrimonial cases (vii) immigration matters (viii) Seamen s / employees wages and severance pay Page 1 of 3

3 Civil Litigation Service of Writ Cliffnotes! (ix) (x) (xi) employees compensation Mental Health Review Tribunal cases Coroners inquests involving interests of public justice Fees and Contributions Actual contribution to be paid depends on probable cost of proceedings. Full amount is paid if estimated costs exceed contribution payable. Finances Rate Contribution 0-20, ,001-40, ,001-60, ,001-80,000 5% 3,000-4,000 80, ,000 10% 8,000-10, , ,000 15% 15,000-18, , ,000 20% 24,000-28, , ,300 25% 36,000-40, Supplementary Scheme Criteria $162,301!$450,800 Scope Reasonable grounds for taking or defending proceedings. Claims likely to exceed $60,000. Any amount if claimed under Employee s Compensation Ordinance. Personal injury, death Medical / dental negligence Professional negligence Fees and Contributions $1,000 non-refundable application fee. Upon acceptance of legal aid, applicants are required to pay an interim contribution of $40,575. If the proceedings are unsuccessful, the interim contribution paid will be used towards the payment of legal costs incurred for his claim and will not be refunded unless there is a surplus after payment of such costs. Page 2 of 3

4 Civil Litigation Service of Writ Cliffnotes! (v) If the proceedings are successful, 10% of the damages recovered will be deducted and paid into the Supplementary Legal Aid Fund. If the case is settled before a barrister is instructed for the trial, 6% of the damages recovered will instead be deducted. In addition, the applicant will also be required to pay all legal costs expended on his behalf (including costs which cannot be recovered from the opposite party) out of the damages recovered. However, the total sum deducted will be reduced by the application fee and interim contribution already paid. 3. Application Procedure (d) (e) (f) (g) Apply at Hong Kong or Kowloon office. On the day of interview, the applicant should bring along all documents relating to his case and his means (for example, bank books, salary slips, rent receipts, mortgage repayment schedule, salaries tax assessment, proof of Comprehensive Social Security Assistance (CSSA), etc.). During the interview, the applicant will be means tested. He will also be asked to give a statement concerning his case so that the Department can determine its merits (the merits test). In most cases both the statement taking and means assessment can be done on the same day. In some cases, it may be necessary to obtain additional information from third parties such as other government departments or public bodies for the purpose of determining the merits of his case. Once all the information has been collected, the lawyer in charge of his case will decide whether legal aid should be granted. When the applicant is granted legal aid, he should read all the terms of the offer very carefully, especially the part concerning the amount of his contribution and the Director of Legal Aid s First Charge. If the terms are acceptable, he must sign and date the form and return it to the Legal Aid Department within 14 days. If he accepts the offer of legal aid, he will be issued with a Legal Aid Certificate which confirms that he has been granted legal aid. Once he has been granted legal aid, he must not talk to the opposite party or their representative about the case or accept money in settlement of his claim without first consulting the lawyer assigned to represent him and notifying the Director of Legal Aid. ~ ~ ~ Page 3 of 3

5 Civil Litigation Service, Default Judgment Cliffnotes! Civil Litigation Service of Writ Cliffnotes A. Service of Writ 1. General methods of service: O.10 Personal service, service by registered post and service by letterbox insertion Personal Service: O.65 r.2 and Goggs v Lord Huntingtower Satisfied that he has found the right man; Hand or leave copy of writ with him, or throw it down in his presence. If he does not take it, he should tell him what it contains and leave it within his control as possible. Registered post / letterbox insertion: O.10 r.1(2), (3) (v) (vi) D must be physically within the jurisdiction at the time the writ was posted / inserted and must have been within the jurisdiction when he knew of the writ!barclays Bank v Hahn 1989 HL. Service by either of these still requires notice by D to be effective!forward v West Sussex County Council 1995 CA. Registered post to: usual address or address last known by P. Either is OK. No best-endeavour checks need to be made!law Kwok Hung Insertion of sealed writ through letterbox of such address. Deemed date of service is the 7th day after the sending of the writ by registered post or insertion through the letterbox. That is unless the contrary can be shown. The contrary may be shown by P, e.g. Where P shows D knew of the writ on some other date, or if D shows that he never knew of the writ. Proving such a method of service requires the deponent to state on affidavit that it is his opinion that the writ will have come to the knowledge of D within 7 days of posting the writ; and that the writ has not been returned to the plaintiff: O.10 r.3. Other Modes of Service Solicitor s indorsement and acceptance on behalf of his client: O.10 r.1(4). Acknowledgement of service by D is deemed good service on date of acknowledgement unless the contrary is shown: O.10 r.1(5). Agent of overseas principal: O.10 r.2 Ex parte application, contract within jurisdiction; Individual or corporation s registered office within jurisdiction; Agent s authority not determined or he is still in business relations with principal; Court may authorise service of writ on agent instead of its principal. Page 1 of 6

6 Civil Litigation Service, Default Judgment Cliffnotes! Writ must limit time within which PD must acknowledge service. Copy must be sent by post to actual defendant outside jurisdiction. Service of Writ pursuant to Contract: O.10 r.3 (v) (vi) Contract may specify how process may be served on a defendant whether within or out of jurisdiction. All you have to do is follow the provisions of the contract. Writ served out of jurisdiction not deemed served on D unless O.11 is complied with. Service on Limited Company: s.356, Companies Ordinance Writ may be serve by leaving it or sending it by post to the registered office of the company. Deemed effected at the time in which the writ would have been delivered in the ordinary course of post: s.8 Interpretation and General Clauses Ordinance. No knowledge is necessary and service on vacant premises is valid Ho Kwok Wah v Group Jewellery Arts (vii) Service on Partnership: O.81 r.3 Modes - Personally on any one of the partners; - Personally on person having control or management of the partnership business, at principal place of business within jurisdiction; Not agent because partnership business cannot be carried out on agent s premises!baillie v Goodwin Registered post (O.10 r.1(2)) to firm at principal place of business within the jurisdiction. - Any other method agreed between the parties: Kenneth Allison v AE Limehouse & Co HL. In that case, service of the plaintiffs writ on the partner's personal assistant with the partner's express authorisation constituted valid service. Lord Goff said it was more like estoppel by convention. Whether or not any member is out of the jurisdiction. Service shall be deemed 7 days after writ is sent to the firm unless the contrary is shown. Affidavit proving due service must state: - In the plaintiff s opinion, the writ would have come to the knowledge of one of the persons mentioned above within 7 days and the writ has not been returned as undelivered. If the plaintiff knows that the partnership has dissolved, he must serve on every person within jurisdiction sought to be made liable. Page 2 of 6

7 Civil Litigation Service, Default Judgment Cliffnotes! Notice must state whether the recipient is a partner or person with management and control, otherwise the recipient is deemed to be a partner. Note that for enforcement on personal assets of a partner, personal service on him is necessary: O.81 r.5 but if no service was effected, P can apply to the court for leave to do so O.81 r.5(4). (d) Substituted Service: O.65 r.4 Court an make an order for substituted service if you can show that it is impracticable to serve a person personally. Such service usually involves newspaper advertisement, but must be a way that will probably bring the writ to the attention of the intended recipient. Affidavit must contain: Steps taken to locate and serve in the usual way; Inquiries; Proposed method of substituted service. (e) Service outside jurisdiction: Order 11 Leave required both for issuing writ under O.6 and for service under O.11. Three steps, supported by affidavit!seaconsar v Bank Markazi 1994: Jurisdiction :: Whether P has a good arguable case that his case falls within one of the heads listed under O.11 r.1(1)-(p) (facts showing that case somehow relates to HK). Merits :: Whether P s evidence discloses a serious issue to be tried, no need for strong prima facie case. Discretion :: Whether court should exercise discretion (esp. forum conveniens) to grant leave. Application by affidavit stating above. B. Default Judgment 1. Judgment for Default of Notice of Intention to Defend: Order 13 Sought only for non-equitable relief. Where relief is sought against more than 1 defendant, default judgment against one may, render the claim against the other nugatory, if the basis for the two actions are inconsistent. In Bonus Garment v Karl Rieker 1997 PC, The plaintiff sued the 1 st defendant for breach of contract as principal and, in the alternative, the 2 nd defendant in damages for breach of warranty of authority as agent. Majority in the Court of Appeal held following Morel Bros Co Ltd v Earl of Westmoreland 1903, that the entry of default judgment by the plaintiff against the 2 nd defendant barred the plaintiff from proceeding against the 1 st defendant, the causes of action being in the alternative and inconsistent Page 3 of 6

8 Civil Litigation Service, Default Judgment Cliffnotes! with each other. The Privy Council reversed this on the facts only, finding that there was no inconsistent case between the two. Liquidated Demand: O.13 r.1 Where claim is for liquidated demand and D fails to notify P of intention to defend, P may, after [14 days after service of writ, including day of service, being the set time for acknowledging writs] enter final judgment for the amount claimed and proceed against any other defendant: O.13 r.1. For more on prescribed time, see O.12 r.5. Note that writ is not deemed served until 7 days after posting for mailed writs: O.10 r.1 above. Costs are as per Part I, Schedule 2, O.62, being fixed and very low ~$505. Unliquidated Damages Claim: O.13 r.2 The difference for unliquidated claims is that no final judgment may be entered. Only interlocutory judgment may be entered for damages to be assessed as well as costs. Reserves right to proceed against other defendants. After getting interlocutory judgment, O.37 is followed (open court, service of notice 7 days before hearing, discovery, expert reports ) before a Master. Where default judgment is only obtained against some of the defendants, damages will be assessed at trial: O.37 r.3. Claim for detention of goods: O.13 r.3 Plaintiff may, after D does not give notice to defend after time: get interlocutory judgment for delivery of the goods or their value to be assessed and costs; by affidavit, apply by summons for judgment against D for delivery without option to pay equivalent value. (d) Claim for possession of land: O.13 r.4 Plaintiff may, after D does not give notice to defend after time and on producing an affidavit / certificate by his solicitor saying that he is not claiming under O.88 r.1, enter judgment for possession and costs. (e) Mixed claims of any of the above: O.13 r.6 As per above (f) Other claims, including equitable claims: O.13 r.6 Plaintiff may, after prescribed time and upon filing statement of claim and affidavit proving due service of writ on D: Proceed with action as if defendant had given notice to defend. If something happens such that P does not have to proceed anymore, P may enter judgment against D for costs. E.g. where D paid money into court after being served. Page 4 of 6

9 Civil Litigation Service, Default Judgment Cliffnotes! 2. Entering of Judgment Proof of service of writ: O.13 r.7 Judgment cannot be entered against D unless: D has acknowledged service; Affidavit is filed by P proving due service on D; or P produces writ indorsed by D s solicitors with statement that they accept service on D s behalf. Writ returned after Judgment: O.13 r.7 If the writ is returned undelivered after judgment, the plaintiff should immediately request for the judgment to be set aside; or apply to the court for directions!see also Fok Chun-hung v Lo Yuk-shi 1995 CA where judgment, regularly obtained was treated as irregularly obtained after the plaintiff did nothing after receiving an undelivered writ after judgment. Application is by affidavit and shall take place ex parte, stating facts on which the application is founded and any directions sought. Court may: Set aside judgment (maybe with payment into court); Treat writ as duly served, if e.g., alleged irregularity is unsupported by evidence or trivial; or any other thing. 3. Judgment in default of Pleadings Default of Defence: O.19 r.2 Defence is due 14 days after service of statement of claim: O.18 r.2. Additional requirements: O.19 r.8a To get default judgment under O.19, you have to give notice that you are going to do so to a defendant who has given notice of intention to defend or defend on counterclaim. The time limit is 2 days before entering judgment. It does not have to be given after default, however!ho Yuen Tsan v Hop Wing Transportation Service on his solicitor. These requirements are dispensed with if the court had made an order to extend the time for service of the defence; or if the defendant is not legally represented and did not state an address at which he can be served. Page 5 of 6

10 Civil Litigation Service, Default Judgment Cliffnotes! C. Setting Aside Default Judgment: O.13 r.9 and O.19 r.9! Court may set aside any judgment on terms as it thinks just 1. Regular Judgment Setting aside regular judgment usually occurs on some compassionate ground and is discretionary. Practice requires an affidavit stating that the defendant has a real likelihood that he would succeed on the facts if the judgment is set aside Park Kit Investment v Cheung Wan Ping 1999 CA. Costs: setting aside regular judgment» D pay costs in any event. If the court considers that P should not have resisted the application, it might order costs to D in the cause. 2. Irregular Judgment Court has no discretion and must set it aside, save with respect to terms "Po Kwong Marble Factory 1996 CA. Factors include prospects of success and conduct of the parties. Condition might be that money is to be paid into court. Costs: setting aside irregular judgment»"p pay costs in any event. D. Timeline of proceedings (d) (e) (f) (g) P issues writ (may be served within 12 months) P serves writ D files acknowledgment of service within 14 days of being served writ. Including day of service. P must file statement of claim within 14 days D has acknowledged service. D files defence within 14 days of the time limited for giving notice of intention to defend (as above), or when the full statement of claim is served, whichever is the later. Usually, the statement of claim is served later. P must reply within 14 days of receiving the defence and can submit his defence to any counterclaim within 14 days of receiving the same. Pleadings close 14 days ~ ~ ~ Page 6 of 6

11 Civil Litigation Summary Judgment and Interim Payment Cliffnotes! Civil Litigation Summary Judgment and Interim Payment Cliffnotes A. Order 14 Summary Judgment A useful procedure to save time and costs if defendant has no arguable defence. Usually used for bills of exchange (treated as cash so set off and counterclaims are not matters to prevent SJ!Yuen Chak Construction v Tak Son Contractors However, sufficiency of consideration and misrepresentation/fraud might be a case for cheques!tong Nai Kan v Cheung King Fung. Dishonoured guarantees are also eminently suitable for summary judgment where primary facts are not in doubt!bank of Credit and Commerce HK v Quadrutec Hotel Management Application Procedure: O.14 r.1 (d) (e) (f) (g) Possible for counterclaims: O.14 r.5. Statement of claim already served on defendant, who has replied with A/S: r.1. Plaintiff may apply for judgment on grounds that defendant has no defence to part or whole of the claim sought. See Macmillan Publishers v Thomas Reed Publishers 1993 where court upheld that part of a claim can still use summary judgment if clearly stated in the summons. Applies to any action except: Libel, slander, malicious prosecution, false imprisonment, admiralty. Any fraud allegation. Fraud means that in the narrow Derry v Peek sense!<case name>. False statement knowingly given. Excludes fraud on the minority. False accounting might be pursued under breach of resulting and constructive trust instead of fraud per se to bypass the rule!pacific Electric Wire & Cable v Texan Management This is because the above claims are subjective and necessitate the use of witnesses. Any specific performance dealing with property and mortgage actions with under O.86 and O.88. Rare for negligence actions and only invoked where liability is absolutely not in issue or no defence for liability!wong Tai v Tang Wing Keung Even conviction is a matter of weight unsuitable for determination in summary judgment. Summary judgment possible for declarations and specific performance if clear case!leco Instruments (UK) v Land Pyrometers 1982; Verrall v Great Yarmouth BC No SJ, if there remains a triable issue as to whether the defendant s own conduct relates to the plaintiff s sought relief!baillieu v FCC HK Default judgment against one defendant not a bar against summary judgment against another where there is joint and several liability (s.5, Civil Liability (Contribution) Ordinance, Cap. 377). Page 1 of 7

12 Civil Litigation Summary Judgment and Interim Payment Cliffnotes! (h) Joint and several liability can be established vs. multiple defendants it there are supporting contemporaneous documents despite no signing of an actual agreement!asia Television v Mak Chi Kin Summary judgment for certain relief must be pleaded or claim will be dismissed!chang Man v Ma Shou Yung 2002 where plaintiff wanted to remove the defendant as administrator of an estate but pleadings only stated that he wanted to revoke the grant of letters of administration. Court held pleadings had to be amended. Plaintiff cannot argue by another way to side-step defective pleadings. 2. Manner in which application under r.1 must be made: O.14 r.2 Supporting Affidavit Requirements: (v) Verify facts pleaded and relied on in claim. thus the defendant is justly and truly indebted to the plaintiff in the sum of $[ ] for goods supplied on [ ] and were so indebted at the commencement of this action as particularised and appearing in the statement of claim in this action. " State belief that there is no defence, save that which relates to quantum. I verily believe that there is no defence to this action. " If the plaintiff knows that there might be a defence but states that there is none, that is an abuse of the court and the SJ may be struck out!m. Pocock v A.D.A.C Belief ought state sources or grounds thereof. Service on D #10 clear days before return date. Made by plaintiff or authorised persons with personal knowledge. Solicitors should not make affidavit because the matters affirmed should be within the plaintiff s own personal knowledge!mutual Luck Investment v Chiu Yim Man 1999 where the court held that the plaintiff should not escape the sanctions of criminal law (perjury) by having someone else make the affirmation for them. Multiple affirmations can make up for gaps in the facts. Summons and interim payment Delay Alternative relief e.g. under O.14A or interim payment under O.29 may be granted. Interim payment may be granted for actions in damages, debt or other sum. Interim payment generally granted if conditional leave to defend results!british Commonwealth Holdings v Quadrex Holdings Interim payment inconsistent with unconditional leave. Delay between filing of statement of claim and summons not necessarily fatal, but requires explanation Resona Bank v Lam Sie 2004 Plaintiff explained delay, referring to actions brought by the plaintiff against other customers. Page 2 of 7

13 Civil Litigation Summary Judgment and Interim Payment Cliffnotes! Court allowed SJ despite delay to save trial time. Delay will not bar otherwise meritorious application!morrison, Son & Jones v Yui Wing Construction Manner of Defence D may object to SJ by affirmation: O.14 r.4. The affirmation requires: (v) (vi) (vii) Personal knowledge of the particulars of the defence. General denials do not suffice!murjani v Bank of India Onus is on the defendant Bank of India. Hearsay admissible if sources are stated. Should not be inconsistent with documentary exhibits. Triable issue can be the identity of the defendant. Defence not pleaded but supported by contemporaneous documents is allowed!oldham, Li & Nie v Wong Lun Chooi Service 3 days before callover hearing. Reyes Framework: What are the material facts relied on by D? (v) Arguable Defence If those facts are proved at trial,, could they support a defence as a matter of law and logic? If those facts are capable of constituting a defence at trial, are any incapable of belief because of physical impossibility? If the facts are incomplete, is it because of the defendant s failure to give particulars or are they outside the defendant s control? Does the plaintiff s claim make sense as a matter of law and fact? On an SJ application, the defendant has the burden to show that there is a triable issue or an arguable defence. Very low threshold: defendant s case has to be almost incredible or practically moonshine by reason of its implausibility or inconsistency with the documents!murjani v Bank of India O.14 applications are only for clear cases. If the defendant cannot point to a specific issue which ought to be tried but shows that there are circumstances that ought to be investigated, that is enough. The defendant s assertions must be believable against so much of the background of the case that is beyond reasonable dispute!re Safe Rich Industries Shadowy defence: the court should order payment into court as condition with the leave to defend. Page 3 of 7

14 Civil Litigation Summary Judgment and Interim Payment Cliffnotes! Impecuniosity can be argued, but the defendant must provide frank and full disclosure that payment is absolutely impossible (not merely difficult). - Borrowing from relatives, etc. will be considered Unic v Entus Developments. Court will not impose condition that a defendant is unable to comply with as that would be the same as reusing him leave to defend altogether Wu Cho Mei t/a Mui Far Chung Restaurant v Wang Siau Yu Results of Summary Judgment Judgment for plaintiff: O.14 r.3 Judgment for the plaintiff unless court dismisses action or defendant satisfied the court: O.14 r.3(1). Court may stay execution of any judgment until after trial of any counterclaim: O.14 r.3(2). Leave to defend: O.14 r.4 Defendant may show cause against SJ by affidavit. Unconditional leave or conditional leave by giving of security. Court may order defendant or officer showing cause to produce any document or be examined on oath. Even if defence is shadowy, court should give leave to defend, albeit with interim payment. 5. Timeline (d) (e) P serves writ and statement of claim: O.14 r.1 above; D acknowledges service and gives notice of intention to defend (else just get default judgment) (O.14 r.1 above); Defence served out of time does not preclude SJ, but there is no further indulgence after a successful application for a speedy trial. Summons before a Master (unless judge is necessary, e.g. for injunctions) or where it is likely that there will be an appeal against the Master s decision in any event and it would be more expedient to have the matter heard by a judge: O.32 r.12. Summons must be supported by affidavit: O.14 r.2, see above. Summons should be returnable before the Master. First hearing is 15 minute callover. If contested, Master will give directions for filing of evidence and will give estimate of amount of time required for adjourned hearing. Page 4 of 7

15 Civil Litigation Summary Judgment and Interim Payment Cliffnotes! (f) (g) (h) (j) If not contested, Master can give judgment unless there is a defect in the plaintiff s case. Plaintiff should prove due service of the summons and supporting affidavit in case defendant does not appear. If foregoing is not satisfied by plaintiff, summons for summary judgment will be dismissed although defects and omissions might be cured by a subsequent affirmation. The court will then look at the overall merits of the claim. Judgment APPEAL: If order is not granted, plaintiff can adduce new evidence!asia Television. Plaintiff reserves right to proceed with residue of action: O.14 r.8. If claim is for delivery up of a specific chattel and SJ is for the plaintiff, the court has power to order the defendant to deliver up the chattel without the option to pay the equivalent value thereof: O.14 r Costs Common Scenarios Judgment for plaintiff: costs of application to plaintiff. Conditional leave to defend: costs in the cause. If D does not comply with conditions, costs to the plaintiff. Unconditional leave to defend: costs in the cause. If case is not within order or if plaintiff knew defendant had a proper defence, court may dismiss application with costs to defendant forthwith: O.14 r.7. Successful plaintiff entitled only to fixed costs in accordance with Part II of the Second Schedule of Order 62 unless order for taxation of costs is expressly made!cobalt Industrial v Kin Sun Electronics The costs recoverable are very low ~$650. In a High Court action where P accepts D s payment into court under O.22 pursuant to a statutory construction of O.62 r.10(2), 9(1), the plaintiff is entitled to be taxed on the High Court scale even if the accepted payment was within the District Court monetary jurisdiction!wellegant Development v Fine Telecom That will obiter still be the case where the claim and damages sought was trivial, etc. B. Order 14A Summary Judgment 1. Applicable Law: O.14A r.1 (1) Court may, upon the application of any party or of its own motion, determine any question of law or construction of any document at any time where the matter is suitable for termination without a full trial; and such determination will finally determine the entire matter therein. Page 5 of 7

16 Civil Litigation Summary Judgment and Interim Payment Cliffnotes! (2) Court may then dismiss the cause or make any order. (3) Court will not do this unless the parties either;! Have had an opportunity to be heard on the issue; or! Had consented to an order or judgment on such determination. (4) Executable by a Master. 2. Manner in which application should be made under Rule 1 Application may be made by summons, motion or orally in the course of any interlocutory application. Requirements D has given notice of intention to defend. The determination of the question of law will determine the entire cause or matter Shell Hong Kong v Yeung Wai Man Kiu Yip Questions of law can be determined without a full trial since the court is not in any worse position than a trial judge. Parties have been heard as to their position on the question of law or they consent to such a determination. Question of law to be stated clearly and precisely. No ambiguity is allowed. Facts used must be proven or admitted and cannot be hypothetical. All relevant facts must be before the court. Especially in a case where implied terms are involved. The circumstances and background need to be determined by trial!ng Chun Kwong v First Star Development C. Interim Payment: O.29 rr Generally (d) Interim payment means a payment on account of any damages, debt or other sum, excluding costs, which the defendant may be held liable to pay to the plaintiff. It is to help the plaintiff who is suffering from financial difficulties from the time of application until trial!yeung Sek Sung v Cheung For Ming Whilst an issue of fact might debar an SJ application, interim payment may still be granted. That is why where SJ fails, resulting in conditional leave to defend, the condition is usually interim payment. Where unconditional leave results, no interim payment should be ordered. Best suited for debt or damages cases. Page 6 of 7

17 Civil Litigation Summary Judgment and Interim Payment Cliffnotes! 2. Procedure Application under O.29 r.10 (v) P may apply any time after service of writ on D, after time for acknowledgement of service has expired. Application may be made by summons for O.14 (Summary Judgment) or Order 86 (Specific Performance SJ), or by summons. Supporting affidavit: Order under O.29 r.11 Verify amount of relevant damages, debt or other sum. Exhibit documentary evidence relied on. Serve summons, affidavit and supporting documents!10 clear days before return day. Second application possible without leave. Court needs to be satisfied that: Defendant has admitted liability; or Plaintiff has obtained judgement for damages to be assessed; or If action proceeded to trial, plaintiff would obtain judgment for substantial damages against the defendant in order to order D to make a reasonable interim payment not exceeding the claimed sum the court thinks will likely be rewarded after taking contributory negligence and any set off and counterclaim which the defendant is entitled to rely. Other scenarios, under O.29 r.12: Obtained order for account and for any amount certified due; D liable for use and occupation for land in such an action; In any event D would have to pay a substantial sum related to anything to P. Where personal injury action, no order is to be made unless (O.29 r.11): Driver is insured; Public authority; Person with ability to pay. ~ ~ ~ Page 7 of 7

18 Civil Litigation Security for Costs, Prohibition Orders Cliffnotes! Civil Litigation Security for Costs and Prohibition Orders Cliffnotes A. Security for Costs: O.23 For the benefit of the defendant, security of costs discourages frivolous claims and promotes settlement. Despite the requirements, it is a fully discretionary exercise. 1. Law: O.23 r.1 Court will exercise discretion. Requirements (v) Plaintiff ordinarily out of the jurisdiction; or Persons not habitually living within the jurisdiction. Company ordinarily out of jurisdiction if its central management and control is outside HK!Charter View Holdings v Corona Investments Provisions of objects clause; place of incorporation; where real trade takes place; where books are kept; where administration is carried out; where directors meet; where chief office / company secretary is; where most significant assets are. Usually no security for costs where fixed assets in HK (AG v Vianini Lavori SPA 1991) or where co-plaintiff is in HK!D Hormusgee v Gray Plaintiff is actually a nominal plaintiff suing for the benefit of some other person AND there is reason to believe that the nominal plaintiff will be unable to pay the defendant s costs; or Person who has assigned the fruits of the action may be a nominal plaintiff!semler v Murphy The plaintiff s address is not or is incorrectly stated in the writ or other originating process. Plaintiff to show innocent omission; or Plaintiff has changed address with view to evade consequences of litigation. Plaintiff s claim is not to be stifled by order for security!lauria v Le Salon Orient In that case, the plaintiff, ordinarily resident outside HK, was injured on the premises of the defendant. P sued on occupier s liability and the judge held that P had a good chance of success. D asked for security and P argued that his claim would be stifled as he was impecunious. Factors that P has to show: - Whether P has other financial resources with which to continue the claim e.g. friends relatives How P manages to pay his current legal costs is relevant. - P s prospects of success. - Whether P s impecuniosity was caused by D. Page 1 of 6

19 Civil Litigation Security for Costs, Prohibition Orders Cliffnotes! - Legal aid: money usable upon when certificate is granted. Since money of legal aid is within the jurisdiction, it would be wrong to order security for costs incurred after the date the certificate was granted. Further criteria under s.357, Companies Ordinance: Plaintiff is limited company. Note that overseas companies are not companies for the purpose of the Companies Ordinance; Credible testimony that plaintiff will be unable to pay defendant his costs if successful in defence. Matters considered: Wing Hing Provision v Hanjin Shipping Plaintiff to satisfy court that an order for security would stifle its claim and result in injustice. - Court will conduct balancing exercise to see who would be more inconvenienced prospects of success will be weighed prima facie. If the plaintiff has a genuine claim, the courts will not want to stifle it. - Injustice to the plaintiff will be decided against the full factual matrix. Esp. whether he can borrow from third parties. If he can, then he won t be stifled. - Oppressive application? - Whether plaintiff s impecuniosity due to plaintiff s acts? - Delay. 2. Application Procedure (d) (e) (f) Demand for security by letter and which is refused. Any person in the position of defendant to apply only (or plaintiff being counterclaimed against) in the Court of First Instance: O.23 r.1(3). At any time (but delay will be taken into account!henrik Andersen v Huang Kuang 1997, since costs spent after the point when security should have been ordered will have been wasted.). Summons supported by affidavit stating the above requirements and draft bill of costs. Master will then fix the amount and give directions on the mode and time for security to be given. The proceedings are also usually stayed until security is given!lam Fei Hong v Wong Kam Fong D can re-apply many times but there must be a material change in circumstance between each!henrik Andersen. There, the material changes were: a significant prolonging of the case; defence witness exceptionally good. 3. Amount of Security Extend to costs already incurred and future costs!henrik Andersen v Huang Kuang Calculated usually on a party-and-party basis, not indemnity basis!cal-trade v Mindo Community Trading Lawyer s costs should not be unreasonable. Page 2 of 6

20 Civil Litigation Security for Costs, Prohibition Orders Cliffnotes! (d) Any amount may be ordered between substantial and nominal as the court things just. A draft bill of costs will usually be filed with he affidavit. 4. Manner of Undertaking Payment into court (common), solicitor s undertaking, bank guarantee. 5. Default / Dismissal / Appeal of action If P defaults in payment, there may be an Unless Order to give security within a limited time else the action may be dismissed. Inherent jurisdiction to dismiss where: Action not being pursued with diligence; No reasonable prospect that security will be paid; Time limit has been disregarded. If an application is made and refused, it should be appealed. A second application will only be valid where there is a material change in the facts, which is for the applicant to establish!skytruck International v Lau Nai Keung B. Prohibition Orders: Order 44 and s.21b, HCO See more about post-judgment prohibition orders in Enforcement. According to O.44A r.2, a prohibition order is applied for ex parte to prohibit a debtor from leaving Hong Kong. 1. Procedure Pre-action Application: O.44A r.1 Judge may order prohibition even if the plaintiff has not commenced his action. Application requires: Draft writ; Undertaking to judge to issue writ on the next day; Draft affidavit; Draft order in form: Appendix A, Form 106. Judge will approve draft order as he thinks fit. That signed order, together with solicitor s undertaking that the sealed order will be produced the next day, should be served to the Immigration Department; police and 4 copies to the Bailiff.. The Immigration Department will require the details of the debtor s travel document to place him on the stop list. Pre-judgment Application: s.21b(1), High Court Ordinance Court can make an order stopping a person from leaving HK to help enforce or secure a civil claim for: Page 3 of 6

21 Civil Litigation Security for Costs, Prohibition Orders Cliffnotes! Payment of money / damages; or Delivery of any property; or Any other act. A civil claim shall be given the widest meaning!bunker Holdings v Asia Pacific Seafood Management 2005 in which any other act was held to include committals for contempt. Required documents: Writ; Affidavit in support; Draft order in form: Appendix A, Form 106. Necessary Considerations: s.21b(3), HCO!"#$%& Good cause of action; and Nexus (person against whom the order is sought) - Person incurred liability in HK while in HK; or - Carries on business in HK; or Means his own, personal business!chase Bank International v Carlos Shalon Sultan Abadi Is ordinarily resident in HK. Person is about to leave HK and will therefore obstruct or delay the obtaining or enforcement of judgment (supplemented by Bank of India v Murjani Industries 1989 CA). Post-judgment Application: s.21b(1), Court can prohibit D from leaving HK to enforce / secure a judgment for The payment of a specified sum; or The payment of an mount to be assessed; or Requiring D to deliver any property; or Any other act. Considerations: s.21b(2), HCO Person is about to leave Hong Kong and will therefore obstruct or delay the satisfaction of judgment. Required documents: Writ; Affidavit in support; Draft order in form: Appendix A, Form 106. Page 4 of 6

22 Civil Litigation Security for Costs, Prohibition Orders Cliffnotes! 2. Ex parte nature Continuing obligation of full and frank disclosure. Court may discharge PO if it was made without such full disclosure!auto Treasure v Pyramid International Making and Serving Prohibition Order: O.44A Court will make an order in Form No.106, Appendix A: O.44A r.3. Order needs to be served on Director of Immigration, Commissioner of Police, and, if possible, the judgment debtor. If JD cannot be found, court should be notified at time of application or whenever the fact arises. JC should not keep the order up their sleeve and use it to threaten the JD in pending negotiations!auto-treasure v Pyramid International JCs must serve JD personally immediately if he can be found. 4. Duration and Cancellation: s.21b(5), HCO Order lasts 1 month, renewable twice for a maximum period of 3 months. After 3 months, P needs to re-apply. The renewals can go on until P has exhausted all remedies against D. (d) P may serve the Director of Immigration and file with the Registrar a notice to cancel the order and must do so if the order is no longer required. 5. Contravention: s.21b(7), (8), HCO Under (7), arrest by the immigration, police or bailiff is possible. Under (8), the person shall be brought to court on the day after the arrest and the court may: Examine or imprison him; Discharge him with or without conditions. D contravenes the order when he even attempts to leave the jurisdiction, though catching him may be difficult!sino Wood Investment v Wong Kam Ying 2006 CFA. 6. Discharge under O.44A r.4 (d) Apply with 2 clear days notice to judgment creditor. Judgment debtor himself needs to be present. If the judgment one for money, the court will assess the amount due to the judgment creditor and may discharge the order or examine the judgment debtor as under O.49B. Where a debtor for money, not a judgment debtor Consents to judgment being entered against him; or Satisfied the court that he has a substantial defence to the claim; or Consents both in respect of different parts of the claim Page 5 of 6

23 Civil Litigation Security for Costs, Prohibition Orders Cliffnotes! (e) The court will discharge the order and give judgment accordingly and order examination for the remaining parts of the claim as under O.49B. The court may otherwise discharge the Prohibition Order according to such conditions as it thinks fit. 7. Compensation to Debtor if Wrongful Order: O.44A r.5 If the court thinks the order was applied for on insufficient grounds; Was not caused to lapse by the plaintiff as soon as reasonably possible after it was no longer required It may award the debtor reasonable compensation for his loss according to its jurisdiction. That will bar the debtor from proceedings against the plaintiff for extra damages. ~ ~ ~ Page 6 of 6

24 Civil Litigation Discovery Cliffnotes! Civil Litigation Discovery Cliffnotes A. The Law of Discovery 1. How do Discovery Obligations Arise? Automatic Discovery (O.24 r.1, 2): Parties to actions begun by writ must give discovery of any relevant matters within 14 days pleadings close: O.24 r.2. Pleadings close 14 days after the reply or defence to counterclaim: O.18 r.20. Total realistic time is 28 days after last pleading is served. Relevant matters do not include admitted matters. There is generally no automatic discovery of documents arising out of accidents on land, unless the court otherwise orders: O.24 r.2(2). Automatic discovery will engage upon documents relating to special damages only as well as police reports / sketches, etc.: O.25 r.8(1). Court Order for (O.24 r.3): Further and better particulars: O.24 r.3; Specific discovery: O.24 r.7. Request from other side to produce for inspection copies of documents referred to in served documents: O.24 r.10. (d) Continuing obligation when new documents come into light!vernon v Bosley (e) These are set out in a Supplemental List of Documents. District Court: O.23A, 24 RDC. " * Documents mean any written matter and includes records, tapes and Making Discovery Parties prepare and exchange list of documents: O.24 r.5. Defendants entitled to co-defendants lists: O.24 r.6. List of Documents in Form 26, Appendix A: Page 1 of 8

25 Civil Litigation Discovery Cliffnotes! 1. The Plaintiff has in his possession, custody or power documents relating to the matter in question in PART 1 of SCHEDULE The Plaintiff objects to producing the documents in PART 2 of SCHEDULE 1 because: [ legal advice or litigation privilege ]. 3. The Plaintiff had, but not now, in his possession, custody or power documents enumerated in SCHEDULE Of those documents in Schedule 2, those numbered [ ] in that schedule were last in the Plaintiff s possession, custody or power on [ ] and the remainder on [ ]. They have been [ ] and are now in the possession of [ ]. 5. No one has or ever had, in his possession, custody or power, any document relating to the matter in question other than those enumerated in the above Schedules. (d) (e) (f) Sets of documents having the same nature may be bundled together. Kind of privilege must be stated. Where discovery is made pursuant to a court order, the disclosing party might be asked to verify its list of documents by affidavit (e.g. previous default). Affidavit must be as per Form 27, Appendix A: O.24 r.5(3). 3. Inspecting Documents (d) List of Documents may contain a Notice to Inspect, stating a time and place where the other party can inspect the documents: O.24 r.9. Person inspecting is entitled to copies if he pays reasonable charges: O.24 r.11a. If a party fails to produce documents for inspection or provide copies, the counterparty may request inspection under O.24 r.11. Onus on requested party to show that the documents are not: relevant; within his possession, custody or power; or Onus will be on requesting party to show that the order is necessary for disposing fairly of the matter or for saving costs: O.24 r.13. A party is also entitled to request copies of documents referred to in the counterparty s documents: O.24 r Threshold for discovering documents Relevance, within possession, custody or power, and privilege. Relevance: O.24 r.1 Relevant matters do not include matters already admitted. Peruvian Guano test is very wide: Documents that tend to prove or disprove a matter in issue; Documents that might enable the other party to advance his own case or damage the counterparty s case; and Page 2 of 8

26 Civil Litigation Discovery Cliffnotes! (v) Documents which would lead to a train of enquiry which might have either of those two consequences. Issue must be one determined by pleadings!paul s Model Art GMBH & Co. KG v U.T Party cannot make something relevant merely by putting it in the pleadings. It has to be actually relevant to the substance of the case!paul s Model Art, referring to Allington Investments v First Pacific Bancshares Holdings Discovery is not required of documents which relate to irrelevant allegations in pleadings which even if substantiated cannot affect the result of the action. A party can redact (censor) irrelevant portions of an otherwise irrelevant document, but must state the reason for each redaction!guess v Lee Seckmon 1989 CA. Possession, custody or power: Privilege: Applies to previous or current possession, custody or power. Physical control and right to take possession of Legal right to call for the document or control over the entity or individual holding it!sun Yuet Tai v British American Tobacco 1999 CA. These are questions of fact. Excludes any rights under the Privacy Data Protection Ordinance Lonhro v Shell Petroleum 1980 because those are only rights to see and correct. Privileged documents have to be disclosed as to existence only, but not as to contents in Part 2 of Schedule 1. Can be waived. Where counterparty inspects privileged documents: Grounds - Normally, where a party sees a particular document referred to in the other side s list without privilege being claimed, and is later allowed inspection of that document, he is allowed to assume that privilege has been waived. - That is the case unless the other party had obtained inspection of a privileged document by fraud!guinness Peat Properties 1987 CA. Legal advice privilege - Confidential communications between solicitor and client in professional capacity that came into being for the purpose of giving or obtaining legal advice. - Litigation need not be contemplated. - Includes advice as to course of action in the relevant legal context!three Rivers District Council v Bank of England 2004 HL. In that case, the HL differentiated between employees responsible for communicating with the legal advisors and those who were not. Page 3 of 8

27 Civil Litigation Discovery Cliffnotes! (v) Litigation privilege - Communication between client and third party - When litigation was reasonably in prospect and - Dominant purpose (intention of author or person under whose direction, whether particular or general it was brought into existence) was to obtain legal advice / assist in litigation! Waugh v British Railways 1980 HL. Guinness Peat: where intention was derived from the person asking for the document. Test: reasons of equal importance»!dominance. Protection from self / spousal incrimination: s.65(1) Evidence Ordinance. - Risk apparent to court and appreciated by himself. - Must be claimed on affidavit by person himself. - Excepted offence: IP infringement: s.44a HCO. Public interest immunity: O.24 r.15. Confidentiality not a bar. Controlled discovery to lawyers, experts, etc. Confidentiality undertakings for e.g. trade secrets!atari v Philips 1988.! Without prejudice documents inadmissible as evidence in trial. Must still be disclosed in Part 2 of Schedule 1!Gross Fortune v Set Win 1999 CA. Usually not an issue because both sides will have had seen it. 5. Inadequate List of Documents! Get more discovery, apply for specific discovery or strike out! Further and better discovery: O.24 r.3: Used where: no list; list clearly inadequate, where order will be for service of a further and better list of documents by some specified date. Where discovery is not automatic, e.g. originating summons. Order may require defaulting party to verify the better list by affidavit. Usually combined with order under O.24 r.7 as below. Specific Discovery: O.24 r.7: Failure to produce a particular document or class of documents. Applicant files affidavit in support and must believe that the documents in question: Exist; Page 4 of 8