Element + Material Facts to Establish + Available Evidence + Other Evidence to Obtain

Element: Cause of Action + Existence of Contract + Terms of Contract + Performance (consideration) + Breach + Damage/Loss (Causation/remoteness/litigation)

Week 1 Introduction

1. Introduction
Ø Three aspects of all civil proceedings
n (1) Liability: whose fault
n (2) Quantum: money that flows from liability; liability and quantum could be subject to split trials
n (3) Costs: money of court procedures; possibility of costs-only proceedings
Ø Different steps of civil proceedings
n (1) What’s your story: cause of action; (2) Telling your story: pleadings; (3) Proving your story: evidence; (4) Getting a decision: trial; (5) Enforcement

2. Sources of Civil Procedure

Ø Sources of civil procedure
n Ordinances; Rules; Practice Directions (issued by Chief Justice for the conduct of civil proceedings); Case law; Court’s inherent jurisdiction
Ø Civil Justice Reform (CJR)
n Came into effect on 2 April 2009. Amended substantially previous civil procedure regime
n Main changes:
u (i) Underlying objectives (O.1A): expeditiousness, proportionality, facilitation of settlement, efficient use of court resources
u (ii) Case management powers (O.1B): judges now have the authority to manage and supervise cases
u (iii) Costs: judges can enforce punishment by imposing costs, even on the winning party
n O.1A, r.3: The parties to any proceedings and their legal representatives shall assist the Court to further the underlying objectives of these rules.

3. Pre-action Considerations
1) Preliminary issues
Ø Ethical considerations (conflict of interest / confidentiality / competence).
Ø How must / ought parties deal with a dispute? Binding arbitration / jurisdiction clause? Appropriate alternatives e.g., settlement / mediation?
Ø Litigation? But see underlying objectives and position of ADR.
2) The client’s case
Ø Identify the client’s problem: What does your client actually want? What are your client’s causes of action? Do the facts establish a CoA? What further info
do you need? Any potential defences/counterclaims? What evidence does your client have to prove her claim? What does the client need to preserve, e.g. docs,
machinery, photos? What further evidence must the client get? Does the client need an immediate remedy, e.g. an injunction? When might this occur?
Ø Breach of contract/Negligence

3) Who (parties)
Ø Identify the right parties. Is the P a foreign P / limited co.? If so, advise the client that D may apply for security for costs. Are any foreign Ds involved? If so,
will leave to serve those Ds outside the jurisdiction be required? Is the debtor worth suing: Is the debtor solvent? Does the debtor have personal means, or is
there an insurance co. involved? Use Enquiry Agents? Can judgment be easily enforced against the debtor? (Are there, say, issues of corporate veil?)
4) Where (forum)
Ø Is Hong Kong the appropriate forum to resolve the dispute? Consider: Where was the agreement made? What law governs the relevant transaction? Where
do witnesses reside / carry on business? Where / how is other evidence, e.g. documents, held?
5) When (limitation)
Ø What is the limitation period of your client’s cause of action? See the Limitation Ordinance. There are different limitation periods for different types of
claims: Actions founded on contract and tort: 6 years (from the cause of action first arise). Personal injury actions: 3 years (from the cause of action first
arise). There are statutory extensions / exclusions in certain circumstances (e.g. fraud). There are special provisions for minors and persons under disability.
6) How much litigation will cost? Litigation Costs (RHC Order 62):
Ø Costs are awarded in the court’s discretion. General rule: losing party pays winning party’s costs. But rarely full costs. Winning party will still incur
unrecoverable costs. Taxation process. Discuss costs with your client at the outset and at key stages throughout proceedings. Explain:
n The likely costs of proceedings / settlement: ability of client to fund – legal aid, insurance, etc. How you will bill your client.
n Who will handle the case and their charging rates? The client’s potential liability for the other party’s costs if the client is unsuccessful.
n That the client is unlikely to recover all costs, even if successful. The taxation process and different types of costs orders.
7) Others
Ø Settlement: Consider from the outset whether the parties have any realistic prospect of settling, or going to ADR. If not, periodically reconsider throughout
proceedings; cf PD 31. Consider Sanctioned Offer / Sanctioned Payment (O.22).
Ø Other procedural considerations: Jurisdiction of the Courts. Discovery obligations (O.24). Interlocutory applications.

Week 2 Jurisdiction of the courts, commencement of proceedings & service of proceedings

1. Jurisdiction of the Courts

1) Introduction
Ø CFA: HKCFAO Cap.484. High Court (CFI, CA): HCO, Cap.4; Rules of the High Court, Cap.4A. DC: DCO, Cap.336; Rules of DC, Cap.336H.
Ø Small Claims Tribunal: (Small Claims Tribunal Ordinance, Cap.338). Other special Courts: e.g. Lands Tribunal, Labor Tribunal, Coroner’s Court
2) The High Court
Ø CFI/CA – superior courts of record. Has inherent jurisdiction to control its own procedure/prevent abuse of process. Unlimited civil (and criminal) jurisdiction.
Ø HC can hear cases within its jurisdiction (transfer to CFI – DCO s.42; transfer from CFI – s.43).
Ø Supervisory jurisdiction of CFI: e.g., judicial review of administrative decisions, inferior courts, tribunals – HCO s.12.
Ø Jurisdiction of CA: determines appeals from CFI, DC, other jurisdictions (where legislation says so) – HCO s.13. E.g. Appeal from SDT direct to CA (rare).
3) The District Court
Ø Court of record: civil / criminal jurisdiction conferred by DCO. Common civil cases: claims in tort, contract, possession of land/premises, arrears of rent.
Ø Monetary jurisdiction limit: HK$ 3M in most tort, contract cases (see DCO, s.33).
n Claims exceeding DCO limit may be started in DC but claimant relinquishes excess – DCO, s.34.
n Advantages over CFI of doing so – lower costs exposure, solicitors’ rights of audience.
Ø CANNOT hear matters falling within jurisdiction of Small Claims Tribunal ($75,000 – Schedule to SCTO), DCO, s.40.
Ø Solicitors and barristers may appear (DCO, s.15). Formal rules of evidence apply.
Ø Proceedings commenced in DCO but outside jurisdiction may be transferred to HC – s.41. See also s.42. Procedure on transfer to CFI – RHC O.78.

2. Commencing Proceedings
1) Who can commence proceedings?
Ø High Court: any person may begin and carry on proceedings in the HC by a HK solicitor or in person. Two exceptions:
n i) O.5, r.6(2) a body corp. (general rule: has to use a solicitor).
n ii) O.80, r.2(1): a person under a disability must sue by his next friend, who must act by a solicitor (r.2(3)).
Ø DC: as for HC, save that RDC O.5A r.2 provides that a body corporate may commence / carry on proceedings through a duly authorized director.
2) How do you commence proceedings? Modes of Originating Process
Ø HC (RHC O.5, r.1): Civil proceedings begun by writ or originating summons save for proceedings required by law otherwise. DC the same (RDC O.5)
3) Originating Summons
Ø What is originating summons: no proving stories. Shorter proceedings. Dispensed with a huge process of pleadings, discovery, expert evidence, witness
statement, cross-examinations, etc.
Ø RHC O.5 r.4(1): Some proceedings may be begun either by writ or originating summons “as the plaintiff considers appropriate”.
Ø Originating summons appropriate where (O.5 r.4(2)):
n (1) principal Q is construction of any written law or instrument made under any written law or any deed, will, contract or other document, or some
other Q of law; or (2) there is unlikely to be any substantial dispute of fact.
Ø Failure to comply is not fatal; a proceeding will not be set aside because of wrong process used (RHC O.2, r.1(3))
n The Court has the power to shift tracks if it thinks an OR application should have been begun by writ: O.28, r.8(1);
Case: IO of Foo Hoo Centre
Fact: D opened a museum in his residential building. Their dispute was over a management agreement (about what can be done in a residential
block). P commenced by an originating summons, but D wanted a writ.
Held:
Ø (1) No dispute of fact. Qs of fact alleged were not relevant to the central Q: the interpretation of the DMC.
Ø (2) P made clear that even if all these factual matters were relevant, it would accept, but not challenge, all these facts. So no Q of fact here.
Ø (3) “O.28 r.8 confers a flexible case management power on the court…a discretionary power that can be exercised where the Court takes
the view that the proceedings should…be continued as if begun by writ. Rule 8 does not specify or limit the possible reasons, but the usual
ground is that there are substantial disputes of fact. The originating summons procedure is in general appropriate for Qs of construction.”
4) Issuing Proceedings
Ø Writ: RHC O.6, RDC O.6; Form No 1 Appendix A, Amended Rules. In a minority of cases, leave may be required, e.g.:
n i) Intended D out of jurisdiction. ii) Intended P a vexatious litigant. iii) Winding up order/provisional liquidator appointed in respect of intended D.
n iv) Receiving order already made against intended D in bankruptcy
Ø Originating summons: RHC O.7, RDC O.7. Form 8, 10 and 11 of Appendix A (O.7, r.2).

3. Service
1) Service within the jurisdiction
a) Service of Proceedings: On an INDIVIDUAL
Ø General: writ must be served personally (RHC/RDC O.10 r.1)
n ‘Personal service’ is effected by leaving a copy of the writ with person to be served. (O.65 r.2) – meaning of “leaving” referred to case law
Ø Procedure: Every copy of writ to be served must be sealed by the court and accompanied by an Acknowledgment of Service (O.10, r.1(6))
n D must acknowledge within 14 days including day of service (O.12 r.5); otherwise, P can apply for default judgement
n An order granting leave to serve a writ out of the jurisdiction must limit a time within which D to be served must acknowledge service O.11, r.4(4)
Ø Person must be told what the document is – if refuses to accept it, leave it with or near him/her.
Case: Dynasty Line Ltd
Fact: While D1 was leaving HK airport, he refused to take a package containing the writ from a process server who had told him that he wanted to
give him "court documents". The process server placed the package on D1's trolley suitcase. As D1 walked away, the package fell off.
Held (2 limbs)
Ø 1) D’s knowledge: Sufficient that D was informed that he was being served with court docs or documents of legal nature; no need to be told it
was a writ. So that D couldn’t say that he ignored the document on the grounds that he thought it was simply junk mail or anything doesn’t require attention
Ø 2) Leaving with D: If D refused to accept, then leave the document with him or near him, so he has a sufficient degree of possession enabling
him to exercise dominion over it for any period of time however brief, the docs had been "left" with D in the sense intended by O.65 r.2.
Ø Time: Process may be served on any day except Sunday (unless urgent – if so, leave of Court required) – O.65 r.10.
Ø 2 alternatives to personal service (only effective when D is physically in the jurisdiction)
n (1) O.10 r.1(2)(a): by registered post to usual or last known address.
n (2) O.10 r.1(2)(b): by inserting through D’s letterbox at the above address(es).
n Deemed Service (O.10, r.1(3)(a)): Unless the contrary is shown, the 7th day after when the copy was sent to/inserted through letter box of address in
question. Elaboration on “unless the contrary is shown”:
Case: Christow Corp Trust
Fact: P sent a copy of the writ by registered post to D's usual and last known address on 1 Apr 2009. D2, having left HK on 6 Mar, returned on
17 Apr 2009. He then travelled overseas and returned to HK several times before leaving for good on 5 Jun 2009. As the copy writ was not returned
and no acknowledgement of service, default judgment was entered. More than 5 years later, D applied to set aside the default judgment.
Held: r.1(2)(a) and 1(3)(a) must mean that if P chooses to send a copy of the writ by registered post to D at his usual or last known address in HK:
Ø If D is within the jurisdiction at the time of service, then the date of service is deemed to be the 7th day after posting. Alternatively:
Ø If D was not in the jurisdiction at the time of service, then P need to show that D indeed come back to the jurisdiction at some later point
of time (before the writ has expired), and on the balance of probability, he should (ought to/might) have come to the “knowledge” of the writ.
If so, that “point of time” will be accepted by the court as the date of service.
b) Service on a company
 Ø First way: under the O.65 r.3(1), personal service effected by serving it in accordance with r.2 (“leave it with” “inform of nature”) on the chairman
or president of the body, or the clerk, secretary, treasurer or other similar officer thereof
Ø Second way: O.65 r.3(2) makes it clear that O.10 applies as well
n Instead of personal service, can also serve by sending a registered mail/ inserting through the letter box “to the registered or principal office of
the body corporate”; D’s knowledge: knowledge of the officers mentioned above.
Ø Third way:
n S.827 of the new Companies Ordinance: “A doc may be served on a co. by leaving it at, or sending it by post to, the co.’s registered office.”
Ø Originally confusion over which method for service on company should apply – RHC or CO? Now Per Stevenson Wong & Co. either will do.
c) Service on others
Ø Persons under a disability (usually on guardian): O.80 r.16.
Ø Partnership or firm: O.81 r.1 may sue or be sued in name of the firm. O.81 r.3 – can: serve any one/more partners, or serve at [principal place of business]
any person having control or management, or send copy of writ by registered post [in accordance with O.10, r1(2)] to firm’s “[]”.
d) Substituted service
Ø If impracticable to serve process as required by O.10 r.1, apply for order for substituted service – O.65 r.4.
Ø Procedure: i) Ex parte application, ii) Supported by affidavit, stating: i) P’s belief D is in jurisdiction and reasons; ii) Details of attempts to find & serve
D; iii) Proposed method of substituted service (usually by newspaper advertisement).
Ø Rule: The Court must be satisfied that service is impracticable and substituted service will bring process to D’s attention
Case: Chan Yeuk Mui
Fact: P brought an action by writ and obtained an order for substituted service, which specified that service be effected by advertising a notice in a
HK widely circulated newspaper. Though it was likely that D was in HK, it had been impossible to locate him thus impracticable to serve the writ
personally
Held: generally, the court must exercise its discretion to consider whether the form of substituted service proposed would be effective
Ø 1) First consideration: where the person is likely to be found (if likely to be found abroad, different considerations).
Ø 2) Then, consider what practical steps can be taken to bring the documents to be served to the attention of the relevant party (general means:
advertisements)
Ø A key difference between ordinary service and substituted service
Case: Melco Crown Gaming
Fact: P issued a writ against D but was unable to serve it on him at the address provided by D. P effected substituted service with leave on D by posting
the writ at his last known address and placing a notice of the proceedings in a local newspaper. P then obtained judgment in default against D.
Held: distinction between ordinary service and substituted service – different tests applied to the two modes of service
Ø For ordinary service, the test was whether the writ had been brought to the notice of the defendant
Ø The order for substituted service, it does not matter there’s actual notice or not: as long as all the procedures of substituted services are
satisfied, the service is valid
Ø “Substituted service is invoked where…ordinary service is ineffective and impracticable. Usually,…brought about by D providing an
incorrect address inadvertently or deliberately with a view to avoid service or is caused by some conduct of D which prevented effective
service...Substituted service is to provide a practical solution…to enable the proceedings to progress and to do justice between the parties…A
party seeking…substituted service has to apply…for leave. The court decides its propriety and the adequacy of the mode of service. Leave
is only granted if…it can do no more than its best…to bring the proceedings to the notice of D by the mode of service prescribed in the order.”
2) Service outside the jurisdiction
a) Service out: grounds
Ø Leave of the Court is required (NOT always) to serve D who is out of the jurisdiction (O.6 r.7(1)).
Ø Approach of Court: as cross-border litigation now is “a routine incident of modern life”, the Court “ought not have any predilection or presumption against
granting leave to serve out”: Haitong International
Ø Apply ex parte, supported by affidavit (O.11 r.4) + draft order.
Ø Three-limb test: Grounds derived from (i) O.11 and (ii) case law (three steps – N.B. step one and two should be treated separately):
n (i) Question of jurisdiction: Good arguable case fall into one or more of categories in O.11 r.1(1)
u O.11 r.1(1) (refer to Rules attached, (d) contract, (f) tort); Shown to the standard of a good arguable case: Magenta
n (ii) that the P has a serious issue to be tried.
u Test of merits, go through elements in cause of action
u Breach of contract: (1) Existence of contract; (2) Terms of contract; (3) Performance; (4) Breach (5) Loss/damage
u Tort: (1) duty of care; (2) breach; (3) damage; (4) causation
n (iii) HK is the most convenient forum (forum conveniens) for the trial of the case (DP World Djibouti Fzco)
u Key question: Where a party claimed that the alternative forum was not available or appropriate due to problems with the quality of justice in
the jurisdiction, the test was whether there was a risk, that substantial justice would not be obtained in the foreign forum.
l Location of the parties
l Place of commission of the breach
l Where the agreement was made, law applicable (e.g., governing law clause), location of subject matter if inspection needed
l Language of evidence/documents given; Hong Kong more complete discovery possible
l Witnesses: Where are the witnesses, the language they speak (c.f. the physical location of the witnesses and the documentary evidence are
not significant considerations in this modern, global marketplace, particularly in the context of the cross-border transactions and
cooperation, the size of the ventures and the significant amounts of the investments involved in the present case)
l If already another related action begun & its status
l If P’s legit personal/juridical advantage will be deprived e.g., P’s personal safety, time-barred already in foreign jurisdiction
l Foreign judgment unenforceable in Hong Kong.
b) Acknowledging Service: O.12
Ø Within Jurisdiction: D must acknowledge service (of writ or OS served within the jurisdiction) 14 days after service including day of service (O.12 r.5)
Ø Acknowledgment must state whether D intends to defend action (failure to do so – risk of P entering default judgment).
Ø Outside Jurisdiction: an order granting leave to serve a writ out of the jurisdiction must limit a time within which D to be served must acknowledge service
O.11, r.4(4)
c) Validity of writ and renewal
Ø A writ is valid for 12 mths (must be served within 12 mths of issue: O.6 r.8(1)).
n Sometimes holding on the writ but not serve it to (1) prepare for settlements, and (2) stope the limitation clock
Ø Court may extend validity for up to 12 months on P’s app (O.6 r.8(2)). However:
n (i) P must have a “good reason” (the test for good reasons is an objective one China Medical Technologies Inc (2019)
n (ii) If it does, Court considers balance of hardship.
n (iii) Then consider whether to exercise its discretion.
 Case: Chow Ching Man
Fact: Writ was issued 3 days before the expiry of the limitation period. Two days before the writ was due to expire but had still not been served.
Ps' writ could have been served within its normal validity period but chose to wait to serve the writ endorsed with a statement of claim and accompanied
by a statement of special damages. Issue: whether there was any good reason for an extension?
Held: O.6, r.8(2) the discretion to extend the validity of a writ does not arise unless P first establishes…good reason…; and (ii) matters such as the
balance of hardship only…Instead of serving a generally endorsed writ first and following it up with a statement of claim and a statement of special
damages afterwards, they chose to seek an extension of the writ – a deliberate decision not to comply with time limit – NO good reasons.

Week 3 Pleadings

1. Introduction to Pleadings (formal docs parties to litigation exchange, in which the parties state all the material facts supporting their claims and defences)
1) Purposes of pleadings
Ø i) To inform other side of nature of case to meet; ii) To prevent surprise at trial; iii) To enable other side to know what evidence they need; iv) To limit the
generality of pleadings, the claim and evidence; iv) To limit and define the issues to be tried.
Case: ADS v Wheelock
Facts: Borrowers defaulted on the loans with their parent co. becoming insolvent and liquidated, guarantees not honoured. P the creditor started two actions
which had been consolidated. D argued that P’s plea of conspiracy was defective and liable to be struck out on the basis, inter alia, that no overt act had
been pleaded as the act of all the alleged conspirators
Held:
Ø Pleadings must do
n To inform the other side of nature in case to meet.
n To prevent surprise at trial (preventing ambushment)
n To enable the other side to know what evidence they need.
n Negative requirement 1: To limit the generality of pleadings, the claim, and evidence.
n Negative requirement 2: To limit and define the issues to be tried.
Ø Fraud must be pleaded distinctly: allegations of fraud must be pleaded distinctly and with the utmost particularity
Ø Plea of conspiracy: For claiming tort of conspiracy, must plead at least one overt act of all the alleged conspirators or, failing that, a number of
overt acts which include at least one act on the part of each conspirator and show: (i) that the conspiratorial agreement had been entered into by each
and every one of them; (ii) that the agreement was implemented; and (iii) that such implementation caused the damage
Ø To achieve these objectives, pleadings must be accurate and complete: they must set out your client’s story and cover all the elements that comprise the
cause of action you must prove. Consequences of inaccurate or incomplete pleadings: ADS v Wheelock
Ø Same from the D’s point of view:
Case: Wang Ruiyun
Fact: D breached a share agreement. P get summary judgement. D amended defence but decided not to take part in the proceedings. Later, P re-amend
its SoC to increase the claim of damages. D failed to file any re-amended defence. The court assessed and awarded damages. D appealed.
Held: O. 18 r.12(1)(c) provides that the burden is cast on the D to plead and prove the facts it relies on to support any positive case to contest the
amount of the damages claimed. à Court: By the actions before, D had taken a considered position not to take part in the assessment of damages.
It had chosen not to put forward a positive case to contest the measure or the amount of damages. It is therefore not entitled to it at this stage.
Ø The requirements for pleadings apply to defenses as well (Hui Ying Sang)
2) Order of Pleadings: Statement of Claim à Defence (and Counterclaim) à (not a must) Reply (and Defence to Counterclaim).
3) Which court documents count as pleadings?
Ø Statement of Claim; Defence; Counterclaim; Reply; Defence to Counterclaim; Third Party Notice; Further and Better Particulars of pleadings.
4) Which court docs do NOT count as pleadings? Generally endorsed writs; Originating Summons; Affidavits or Affirmations; Interlocutory Summons; Court orders.
5) Which part of the HCR govern pleadings? Primarily O.18 (but there are relevant provisions scattered throughout the HCR). Structure of O.18:
Ø Service and filing (r.1-5A); Formal requirements of pleading (r.6–11); Particulars of pleading, admissions, denials, non-admissions (r.12–16); Set-off,
counterclaim, strike-out, close (r.17–20A); Miscellaneous (r.21–23)

2. Form of Pleadings
Ø O.18 r.6(1) pleading include: year of issue of writ; no. of the action (assigned by the issuing Ct); title of the action; description of the pleading; date of service.
Ø Every pleading must be verified by a statement of truth (O.18, r.20A) (O.41A, r.2(1)(a): unless for a very narrow exception).
n False statements punishable as contempt (O.41A, r.9) (Tong Kin Hing).
n The Court may by order strike out a pleading that is not verified by a statement of truth. (O.41A, r.6)
n O.41A r.2 docs must be verified by a statement of truth: (a) a pleading; (b) a W statement; (c) an expert report; and (d) any other doc required by law
Ø O.18 r.6(2): Every pleading must:
n be divided into consecutively numbered paragraphs;
n set out each allegation in a separate paragraph so far as convenient.
Ø O.18 r.6(3): For dates, sums and other numbers, use figures, NOT words.
n Exam Note (potential mistakes): wrong date, wrong parties’ names, lack of background info about parties, immaterial facts, subjective descriptions,
P’s viewpoints, evidence pleaded, terms of contract missed, performance missed, should use figures, should show causation, if FRAUD, plead law.
Ø O.18 r.6(5): Every pleading must be signed by counsel, the party’s solicitor or the party suing in person.
Ø O.18 r.15(3): Statement of Claim must include date of issue of writ.
Ø Particulars of pleading:
n O.18 r.12: Every pleading must contain the necessary particulars of any claim, defence or other matter pleaded.
n O.18 r.12(1A): In personal injury actions, P must serve with the statement of claim a medical report and a statement of special damages
n Inconsistent pleadings: Inconsistent pleadings must be honest claims reasonably advanced on the basis of incomplete information which points to
alternative sets of facts O.18 r.10
Case: Herostar
Facts: P applied for leave to amend their SoC. Amendments were related to P’s corp docs; P claim: (a) the corp docs were not signed by P’s directors;
and (b) alternatively, even if they signed, they were invalid. Issue: whether the amendments met the conditions under O.18 r.12A
Held: The purpose or objective of O.18 r.12A is to exclude dishonest/opportunistic and speculative claims, not intended to exclude honest
claims reasonably advanced on the basis of incomplete info which points to alternative sets of fact, each of which would be legally viable.

3. General Rules and Principles of Pleadings

Summary of rules on pleadings
Ø (1) Plead facts; (2) Plead material facts; (3) Do not plead evidence; (4) Do not plead law
1) Plead facts and all material facts, NOT evidence
Ø O.18, r.7(1): Every pleading must contain, and contain only: i) A brief statement in summary form; ii) Of all material facts (material to the cause of action)
n Consequences of failure to adduce all material facts: ADS v Wheelock – strike out (O.18 r.19)
Ø NO evidence, except: O.18 r.7(2) effect of doc/purport of conversation, if material, briefly stated; O.18 r.7A (convictions) (and s.62 Evidence Ordinance).
2) Material facts, not law
Ø Pleading conclusions of law
n Old practice: Before, parties don’t need to state a legal conclusion. Even if it does, it’s not bound by it. So long as the facts pleaded support a specifical
legal conclusion, it can be claimed though not pleaded
Case: Drane v Evangelou [1978]
Facts: The tenant was granted an interim injunction restraining L from refusing admission into the maisonette. L's appeal to the CA was dismissed.
After two apps to the county court, T was eventually able to return to the maisonette to find the premises dirty and in disorder. T claimed damages
limited to £1,000 and alleged that L had interfered with his right to quiet enjoyment of the premises NOT plead trespass.
Held: Sufficient for the pleader to state material facts. He need not state the legal result. He can present, in argument, any legal consequence of
which the facts permit. Trespass recognized and exemplary damage awarded.
n Modern practice: But in modern practice, it requires specific legal consequences to be pleaded for clarity and the avoidance of ambush (Mui So Bing)
n Push-back: It’s not mandatory to plead legal consequences, but if the party does, the party cannot change it and is bound by it (Lo Yuk Sui)
Ø However, a party by his pleading may raise any point of law O.18 r.11: A party by his pleading may raise any point of law. Distinction between raising
a point of law (allowed) and pleading law (not allowed). What is a point of law?
n Thus, one may raise/plead but not argue law. So, a party may plead the doctrine of res ipsa loquitur; or in a claim for breach of contract for sale of
goods, refer to provisions of SOGO on which you rely. It is also very common in PI workplace cases to plead breaches of safety and health legislation.
n Parties plead and prove the facts. Judge, presumed to know the law, draws legal conclusions (assisted by the parties’ advocacy).
Ø Fraud must be specifically pleaded (Korean Exchange Bank [2015])
3) Bad pleading: Further and Better Particulars
Ø Apply for Further & Better Particulars: O.18, r.12(3). Court may order of its own motion or on application: O.18, r.12(3A).
Ø Timing: Not usually before defence: O.18, r.12(5) unless the order is necessary or desirable to enable D to plead or for some other special reason.
Ø Test: order must be necessary either (a) for disposing fairly of the cause or matter OR (b) for saving costs (O.18, r.12(3B)).
Ø Form: by letter first (O.18, r.12(6)), then if no answer or answer unsatisfactory, by summons.
4) Bad pleading: strike out
Ø O.18, r.19: a drastic and potentially draconian measure; often combined with summary judgment
Ø Grounds (if the pleading) O.18, r.19(1):
n a) Discloses no reasonable cause of action or defence, or
u So, strike out focuses on the pleadings – not on the facts – generally no affidavit evidence is admissible on application for strike-out under
ground r.19(1)(a) because it should be clear on the face of the pleadings whether the test for strike-out is met (e.g. element(s) missing).
n b) is scandalous, frivolous or vexatious, or
n c) may prejudice, embarrass or delay the fair trial of the action, or
n d) is otherwise an abuse of the process of the court.
Ø Timing of application: The court allows strike-out application before the close of pleadings and during the exchange of witness statements; but the later the
application, the stronger the reason for application must be otherwise may be deemed as an abuse of process
Case: Tang Wai Cho
Facts: In the middle of the trial, D sought to strike out P's claim
Held: An app. for striking-out made shortly before or at trial should only be entertained in the clearest of cases. If grounds for striking-out existed,
they should normally be apparent at the close of pleadings, and at the latest after exchange of W statements. Here there was nothing exceptional
about this case to warrant D's app. at such a late stage
Ø Strike-out may be refused
n (1) where the law is developing:
u Tadjudin (case related to the performance bonus premised on a breach of implied terms) Held: the implied anti-avoidance term was a developing
area of the law à too sweeping a statement at this interlocutory stage to say that the implied terms was inconsistent with our legislative policies.
n (2) May also be refused where decision to strike out did not take into account relevant matters
Case: Elijah Saatori
Facts: P alleged the tinnitus was “directly caused” by the “violent ear wash procedure”. P's medical expert stated that “there was no standard of care
concerning the [ear washing] procedure”. P's action was then struck out. On appeal by P, CA accepted D's concession that causation had arguably been
shown, but still ordered that unless P served “an expert report supporting his allegations of negligence”, his appeal would be dismissed
Held:
Ø The action should not have been struck out as it failed to take into account: that D's own expert accepted that P was suffering from tinnitus;
D's concession in the CA that the ear washing procedure caused tinnitus; and that the CA had focused on the issue of liability not causation.
Ø A judge's decision whether to strike out an action is an exercise of discretion and an appellate court should not interfere unless it is shown
that the judge had made an error of law, or misapprehended material facts, or had failed to take relevant matters into account, or had
been “plainly wrong”.
5) Bad pleading: other consequences
Ø Need to apply for amendment (O.20).
Ø Possible consequences of applying for amendment: i) disallowed; ii) Cost consequences (applicants of amendments generally don’t receive costs)

4. Rules on Specific Pleadings

1) Statement of Claims
Ø Specific claims for damages required: Must make specific claim for exemplary or provisional damages – not just in prayer for relief (O.18, r.8(3))
Ø One must specifically plead interest (O.18, r.8(4)). Must state specifically relief or remedy claimed (O.18, r.15(1)).
Ø No need to specifically claim costs (O.18, r.15(1)) (but common practice to do so). SoC must be consistent with general endorsement (r.15(2)).
2) Pleadings subsequent to SoC
Ø O.18 r.8(1): One must specifically plead the following in any pleading subsequent to SoC:
n (a) any matter which makes any claim or defence not maintainable, or
n (b) any matter which might take the other party by surprise if not specifically pleaded, or
n (c) any matter which raises issues of fact not arising out of preceding pleadings.
3) Defence
Ø Time limits – Defence must be served within 28 days of:
n i) Acknowledgment of service of the writ, or ii) Service of the SoC (whichever is later) – O.18 r.2.
 n Time for acknowledging service and giving notice of intention to defend is 14 days from service of the writ (including the day of service O.12 r.5(a)).
Ø Service of a defence to a counterclaim: 28 days after service of counterclaim – O.18 r.3.
4) Admissions and Denials (O.18 r.13)
Ø i) Admit; ii) Not admit (burden reverses to the person making it); iii) Deny. Bare denials no longer permitted-CJR.
Ø No general denials – New O18 r.13(5) Where an allegation made in a statement of claim or counterclaim is traversed by a denial, the party who denies the
allegation shall in his defence or defence to counterclaim:
n (a) state his reasons for doing so; and (b) if he intends to put forward a different version of events, state his own version.
Ø General traverse: not a replacement for careful thorough pleading (O.18, r.13(1))
n Any allegation that is not specifically traversed (i.e. denied or not admitted) is deemed to be admitted
5) Set-off (a monetary cross claim, a defence) (O.18 r.17)
Ø Set-off is a defence and is pleaded in the defence. Set-off is a demand for money
Ø Set-off is made in response to the P’s claim. If successful, it will reduce or extinguish the P’s claim.
6) Counter Claims (O.15 r.2)
Ø Counterclaim is a separate claim that D has against P. D who counterclaims is treated as a P (becomes a P by counterclaim).
Ø Counterclaim pleaded for convenience: often it arises out of same or similar facts, common evidence, witnesses etc. as P’s claim, though not a requirement:
O.15, r.2. N.B.: Court will not deal with counterclaim in main action if cannot conveniently be disposed of; separate trials may be ordered O.15 r.5.
Ø Compared with set-off: D who pleads set-off cannot recover money from P because set-off is only a defence; cf. a CC is a separate action.
Ø D may add additional parties to counterclaim (whether or not they are already parties to the main action: O.15 r.3
n Note: only use O.15 r.3 if D has a counterclaim against P in main action. Otherwise, use O.16.
7) Replies
Ø A Reply: P’s response to the defence. Reply must be served within 28 days of service of defence: O.18 r.3.
n Reply not always needed: If there is no reply to a defence, there is an implied joinder of issue on that defence. O.18 r.14(1)
n O.18 r.14(4): A joinder of issue operates as a non-admission of every/part of material allegation of fact made in the pleading
Ø Note: no express or implied joinder on a counterclaim, so P must file a reply and defence to counterclaim – O.18 r.14(3).
8) Close of Pleadings
Ø Deemed date of closing of pleadings after 14 days of service of reply or defence to counterclaim: O.18 r.20.
Ø Must get LEAVE of the court to file further pleadings subsequent to a reply, which is extremely rare (rejoinder, surrejoinder, etc.): O.18, r.4
Ø The usual practice is to amend the writ/existing pleadings or to seek further and better particulars.

Week 4 Joinder of Parties / Interpleader

1. Joinder of Parties
1) Overriding Principle
Ø All necessary and proper parties should be before the court at the same time so that disputes between them can be determined. Rules are subject to the
Court’s power to order separate trials where it considers that joinder of parties may embarrass or delay the trial or is otherwise inconvenient (O.15, r.5).
2) Joinder of Plaintiffs and/or Defendants
a) Joinder of Plaintiffs/Defendants – optional: RHC O.15, r.4(1)
Ø Two or more persons can be joined together in one action as plaintiffs or defendants where:
n 1) with the Court’s leave, OR,
n 2A) there is some common Q of law or fact AND
n 2B) all rights to relief claimed arise out of the same transaction (i.e. events) or series of transactions.
Case: Behrens
Facts: The housing developer promised 17 house owners that some gardens would be exclusive and private for their own uses, but it turned out that the
gardens are common area.
Held: a common Q of fact does not mean a common finding of fact…So long as the Q of fact to be determined is common among the Ps, the fact that
the eventual outcome may be resolved differently among Ps does not mean that the Q of fact is not a common one. Factors that takes into account: all
of the properties were purchased from the same developers; similar doc of similar nature; misrepresentation made in similar circumstances; the contents
of the misrepresentation could be a bit different, but not the end of the Q.
[Mathew’s critiques]: Probably not a good case (a C-/D application of the law); CA didn’t specify where each of the points developed falls below; CA
didn’t even spell out clearly what’s the common question of law or fact
b) Joinder of Plaintiffs – mandatory (e.g. joint tenants)
Ø Where two or more persons are jointly entitled to the relief claimed, they must sue in one action unless court gives leave to the contrary (RHC O.15, r.4(2))
Ø If one of those persons refuses to be joined as a P, he must be joined as a D in the action (RHC O.15, r.4(2)).
c) Joinder of Defendants – always optional
Ø RHC O.15, r.4(1): Joinder of defendants is optional; on D’s application
Ø RHC O.15, r.4(3) – depending on whether the liability is separate
n Where D and some other person are jointly and severally liable to P, that other person need not be made a party to the action and P can choose to
proceed against one of them only.
n Where Ds are jointly (but not severally) liable to the P under a contract, the Court may, on the D’s application, stay the proceedings until the other
jointly liable person is added to the proceedings.
3) Other aspects of Joinder
a) Joinder of parties – consequences of misjoinder / non-joinder
Ø RHC O.15, r.6: No cause or matter shall be defeated by reason of misjoinder or non-joinder of any party and the Court may determine the issues or questions
in dispute so far as they affect the rights and interests of the persons who parties to the matter are.
b) Parties added / removed / substituted by Court
Ø O.15, r.6(2) Subject to the provisions of O.15, r.6(1), at any stage in the proceedings, the Court may, of its own motion or on application, order any person:
n who has been improperly joined, to cease to be a party (2)(a); or who ought to have been joined as a party, to be added as a party (2)(b).
Ø Parties can also be substituted by the court, e.g. where party was added by mistake. Restrictions on adding/substituting parties:
n A person can only be added as a plaintiff if he consents (O.15, r.6(4)). A person who does not consent may be added as a defendant.
n Parties may only be added/substituted after the limitation period has expired if certain conditions are satisfied (O.15, r.6(5)). (Refer to rules if necessary)
u E.g., Could argue that there are good reasons that the counsel didn’t know that the first defendant has a co-conspirator until the discovery stage

2. Joinder of Causes of Action: Counterclaim, Third Party Proceedings, Contribution Notices

1) Joinder of Causes of Action (“CoA”) – Overriding Principle
Ø All matters between all necessary & proper parties should be finally determined at the same time in the same action to prevent multiplicity of proceedings.
Subject to Court’s power to order separate trials if it considers that joinder of CoA may embarrass or delay the trial/otherwise inconvenient (O.15 r.5).
Ø E.g. Plaintiff would issue one action, pleading more than one causes of action.
2) Joinder of Causes of Action – Raising a counterclaim against Plaintiff (O.15, r.2)
Ø D can bring a claim against the P: in a separate action against the P; or as a counterclaim in the same action (O.15, r.2(1)).
n If the latter, D must add the counterclaim to his defense (O.15, r.2(1)).
Ø In theory, subject matter of counterclaim need not arise from the same transaction or events in the main action.
Ø Court has discretion to order that claims be brought separately if not convenient for them to be dealt with in the same action (O.15, r.5).
3) Joinder of Causes of Action – Counterclaim against additional parties (O.15, r.3)
Ø (Prerequisite) Where D has counterclaimed against P in the main action and:
n Alleges that any other person, whether or not a party to the main action, is liable with P in respect of the same counterclaim, or
n Claims against such other person any relief to or connected with the original subject matter of the action,
D may join that other person as a party to the counterclaim. Person so joined becomes a defendant by counterclaim.
4) Joinder of Causes of Action – Third Party Proceedings (O.16, r.1) – No counterclaim involved
Ø (Prerequisite) Where a D who has given notice of intention to defend, he may issue a Third Party Notice where he
n Claims against a person NOT already a party to the proceedings for indemnity, contribution (r.1(1)(a)), OR
n Claims relief/remedy relating to/connected with the original subject-matter of the action and substantially the same as some relief/remedy claimed
by P (r.1(1)(b)), OR
n Requires that any question or issue relating to or connected with the original subject matter of the action should be determined not only as between P
and D but also as between either or both of them and a person not already a party to the action (r.1(1)(c))
Ø One does not have to intend to issue proceedings against a 3rd party to issue a notice to it. The purpose of issuing it may be simply to get info
Case: KP Financial Services
Facts: P a money lender sued defaulted D, who argued the relevant loan docs were forged. P commenced 3rd party proceedings against its solicitors in
the transaction, seeking the determination of Qs on the authenticity or validity of the loan docs.
Held: D could issue a 3rd party notice under O.16 r.1(1) even though it was not making any claim against the 3rd party, but merely for the purpose of
having some Q or issue to be determined not only as between P and D but also as between either or both of them and the 3rd party. This was to ensure
that the relevant Q or issue would be determined once and for all between P, D and the 3rd party, thereby avoiding multiplicity of proceedings.
Ø N.B. RHC O.16, r.1 could overlap with RHC O.15, r.4(1)
5) Joinder of Causes of Action – Contribution Notices RHC O.16, r.8
Ø (Prerequisite) Where in any action a defendant who has given notice of intention to defend, a Defendant who wants to claim against a person who is
ALREADY a party to the action (e.g., a co-defendant) can issue contribution notice for:
n an indemnity, a contribution, OR any relief or remedy relating to or connected with the original subject-matter of the action and substantially the same
relief in respect of same subject matter that P claims from him, or
n requires that any question or issue relating to or connected with the original subject-matter of the action should be determined not only as between the
plaintiff and himself but also as between either or both of them and some other person who is already a party to the action

3. Interpleader (O.17, r.1)

1) Interpleader Proceedings
Ø O.17, r.1: Where person comes into possession of property or money in which he has no interest, he can bring interpleader proceedings where
n i) the interests is subject to competing claims by two or more other persons; or ii) he is or expects to be sued in respect of that money or goods
Ø Types: i) Stakeholder Interpleader: RHC O.17, r.1(a); ii) Bailiff's Interpleader: RHC O.17, r.1(b).
2) Stakeholder Interpleader
Ø If a person is liable for a debt/holds property and is sued or expects to be sued by ≥2 persons making competing claims to the property or money (O.17, r.1(a)).
Ø Affidavit in support must state that person claiming interpleader relief (O.17 r.3(4)):
n a) claims no interest in the property,
n b) does not collude with any of the competing claimants, AND
n c) is willing to pay or transfer the subject matter to court or dispose of the property/money as the court orders
Ø Stakeholder’s expectation of being sued must be reasonably held with some real foundation for the expectation of a rival claim
n NYK (Hong Kong): Liu JA dissented that there are ample justifications that NYK should be awarded the costs because (1) NYK has a justifiable fear
of the threat of legal actions by both claimants unless the two parties involved could reach an amicable settlement and (2) Months passed, and the threat
hanging over NYK, during which there was no settlement reached
3) Bailiff Interpleader (bailiff seizes/intends to seize property in execution of a judgment à a person other than the judgment debtor claims to be entitled to goods)
Ø Bailiff takes out interpleader proceedings to determine who is entitled to the goods. Form: no need for affidavit (O.17, r.3(5)) unless Court orders such.
4) Interpleader Proceedings: Mode of Commencement By summons. Interpleader drops out of proceedings and proceedings continue between competing parties.

Week 5 Summary & Default Judgment

1. Summary Judgment applied by PLAINTIFF only (O.14)

1) Purpose of Summary Judgment Procedure – per Mortimer J.A. in Manciple Ltd case
Ø “Order 14 proceedings for summary judgment when there is no defence to a claim are an important feature of the legal process. It enables Ps in cases
where there is no defence to obtain expeditious summary judgment to avoid unnecessary delay. When applied for, it is for D to show that there is a triable
issue or an arguable defence if he is to allowed his day in court. To deny him his day in court, if he shows a triable issue or an arguable defence, is indeed
a fearful injustice. On the other hand, if he has no defence and he obtains leave to defend, equally, there is an injustice to P.”
2) When is an O.14 application appropriate – 4 conditions
Ø Four conditions
n i) In an action begun by writ: O.14, r.1(2).
n ii) Where the statement of claim has been served on D: O.14, r.1(1).
n iii) D has given notice to defend: O.14, r.1(1).
n iv) D has no defence (i.e. no good defence) to a claim or part of a claim: O.14, r.1(1).
Ø The meaning of “no defense” (Man Earn Ltd)
n “Unless it is obvious that the defence put forward by D is frivolous and practically moonshine, Order 14 ought not to be applied”
u (i) entirely inappropriate where P’s entitlement to recover any sum is the subject of any serious dispute, whether of law or fact;
u ii) Court will not hold a “mini trial”.
Ø The onus of proof
n Initially on P to show he has a valid claim à D shows a “fair or reasonable probability of Ds’ having a real or bona fide defence”. (Ng Shou Chun)
 u Test of credibility: The issue is, not whether D’s assertions are to be believed; it is whether those assertions are believable.
3) When is an O.14 application NOT appropriate?
Ø Libel, slander, malicious prosecution, false imprisonment or seduction; actions based on allegation of fraud(!); admiralty action in rem: O.14, r.1(2).
Ø What is the ambit of the fraud exception? Zimmer Sweden AB – liberal meaning adopted:
n Whole circumstances: Not restricted to a consideration of the statement of claim, but should examine all relevant materials, including subsequent
pleadings and the affidavits. The Q is “does this action include a claim for which an allegation of fraud would have to be made by P to establish
or maintain that claim?” If the answer is affirmative, “the fraud exception” is engaged and the court has no jurisdiction to hear the summary judgment
application.
n Question of substance not form: In considering such a Q, one must look at the substance, and not the mere form, of P’s case. If all the factual
constituents of fraud are alleged and relied upon, it does not matter whether the actual word “fraud” has or has not been used.
n Nature of the claim: Even if you don’t originally allege fraud, that doesn’t mean that the fraud is not triggered, if the nature of the claim requires
allegation of fraud, that engages the fraud exception. Thus your claim can apply to all kinds of contexts: constructive trust, resulting trust, money hadn’t
received, where fraud is often triggered. Apply to fraud-based claims, false accounting, active concealment of beneficial ownership of assets; Maybe
originally a claim (e.g., breach of fiduciary duty) is established without P having to make an allegation of fraud, but the nature of the defence (whether
disclosed in a pleading/affidavit) may be such that in rebuttal (whether in reply or in affidavit in reply), P would have to allege fraud; The court must
consider whether those factual constituents of fraud are relied upon in order to establish or maintain a claim.
n Multiple claims: If you have multiple claims, even one claim of fraud precludes the entire claims from summary judgement.
4) Application – timing and procedure (O.14, r.2):
Ø Time: available as soon as the statement of claim has been served and D has given notice to defend.
Ø How: By summons supported by Affidavit (must verify the facts of the claim and state that in the deponent’s belief there is no defence_
Ø Time frame for P: Summons and affidavit must be served on D at least 10 clear days before the return day.
Ø Time frame for D: No time limit for D to file affidavit in reply but the practice is that it will be filed before the hearing.
Ø N.B. Should P file an affidavit in reply? Suggest no – as it may show D has an arguable defence
5) Possible outcomes of a summary judgment application:
Ø NOTE: Two aspects to each outcome: (i) who succeeds, and (ii) costs of the application (costs are very much a matter of discretion: Greater China Capital)
Ø 1) Judgment for the plaintiff i.e. summary judgment. When there is clearly no defence to the claim.
n Costs: Plaintiff will most likely be awarded costs (N.B. Plaintiff may apply for interim payment in joint)
Ø 2) Conditional leave to defend (i.e., Summary judgement denied)
n The court thinks there is possibly a defence but has some concern as to whether it is a bona fide defence – “shadowy defence”.
n Tong Nai Kan, per Stock J
u Where the defence is less than probable but more than shadowy à unconditional leave;
u Where shadowy à conditional leave.
n A common condition is for D to pay into court some or the entire amount of P’s claim. The usual cost order is costs in the cause.
u Costs in the cause: wait until the final outcome of the case, with the winner getting the costs
u N.B. Plaintiff may apply for interim payment in joint
Ø 3) Unconditional leave to defend: D has a credible defence, i.e. there is an arguable issue that could only be resolved at trial. Costs usually in the cause.
Ø 4) Dismissal of the plaintiff’s application: the court thinks the app. should never have been made at all. Should have been obvious to P that there was a
credible defence. Usual order: D gets costs. A bizarre case where a judge ordered dismissal but also unconditional leave to defend: Greater China Capital
6) Judgment for only part of the claim is possible:
Ø If P makes concessions as to part of the claim, i.e. agrees that there is a triable issue, then D is entitled to claim unconditionally on that part of the claim, even
if P gets summary judgment for all other parts of the claim. The Court, however, does not generally encourage “fragmenting” cases (Skillsoft Asia Pacific)
7) Appeals of summary judgment applications (NOT operate as a stay of execution of the judgment)
Ø From a master to a judge in chambers. Complete rehearing of the summary judgment application.
Ø Will not prevent the original summary judgment from being enforced. Therefore, it cannot be used as a delaying tactic.
n N.B. A stay of execution must be applied separately (Need valid reasons, e.g., financial hardship so that enforcement of judgment will prevent him
from pursuing the appeal)

2. Other Summary Judgment (O.86 and O.14A)

1) Order 86, RHC (applied by PLAINTIFF only) – Sale and purchase of Property
Ø Deals with applications for summary judgment in actions about agreements for the sale and purchase of property, e.g.: Specific performance of an
agreement. Rescission of an agreement. Return of a deposit.
Ø Much like O.14, but P does not need to serve statement of claim, and D doesn’t need to acknowledge service. Also notice period shorter.
2) Order 14A, RHC – Disposal on a Point of Law
Ø Purpose: “To accelerate the final judicial disposal of an action at the interlocutory stage and…save the expense and delay which would arise…if the action
were to proceed to a full trial…” (Supreme Court Practice 1993 p.175 quoted in Shell HK Ltd)
Ø Who: Either party can apply or can be invoked by the court. Only appropriate if it will result in a final determination of the Q raised in the application.
Ø How: by summon or may be orally in the course of any interlocutory application
Ø Requirements: The application must be based on admitted or incontrovertible facts, not disputed facts (No O.14A summary judgement even with unclear
background circumstance/hypothetical facts since the only matter in issue is a Q of law): Law Pak Fun

3. Default Judgment
1) Default judgment: plaintiff’s default, defendant’s default, third party default and general rules
a) General
Ø P’s default: If P fails to file SoC, D may (after period for service to serve SoC expires) apply to the court for an order to dismiss the action (O.19, r.1)
n Here, court’s order/leave is needed, whereas there is no need for such in D’s default
n Rule: P must serve SoC on D either with the writ or before the expiration of 14 days after that D has given notice to defend (O.18 r.1)
n The court has in such situation the power to dismiss the action “for want of prosecution” or make such other order on such terms as it thinks just
Ø D’s default: A P (or D by counterclaim) may without a court order or leave of the court enter judgment against a D who has failed to either: i) give notice
of intention to defend (O.13), or ii) serve a defence (O.19)
b) D’s failure to give notice of intention to defend – O.13
Ø D must serve the acknowledgment of service with notice to defend within 14 days (including the day of service) after service of the writ (O.12, r.5(a)).
Otherwise he is at risk of having judgment entered against him under O.13.
Ø If claim is for liquidated amount judgment will be final (O.13, r.1). What does “liquidated” mean? See Tian Yao (Xiamen)
n Liquidated amount: a specific, ascertained sum (not only the ascertained, but also the sum capable of being ascertained by formulas in the contract
without further agreements by the parties or assessment by the court by reference to generally legal principles)
Ø If claim is for unliquidated damages (i.e. a claim the sum of which requires assessment by the court) , interlocutory judgment will be entered in favour of
 P and damages will be assessed (O.13, r.2)
c) D’s failure to serve defense – O.19
Ø D (given notice of defence) must serve a defence 28 days after the service of the acknowledgement of service OR SoC, whichever the later (O.18, r.2).
Ø Final judgment if liquidated damages (O.19, r.2), interlocutory judgment if unliquidated damages (O.19, r.3).
Ø Notice before entering Default Judgment: O.19, r.8A
n A second chance: If D has given notice of intention to defend but has failed to serve a defence, no party can enter default judgment against that
D unless they first give that D notice in writing that they intend to enter default judgment at least 2 clear days before they do so and file affidavit
evidence that they have given this notice. Notice can be given before D has actually defaulted (Ho Yuen Tsan)
n Exceptions (O.19, r.8A(2)): i) Court prescribes or extends the time for service of defence or defence to counterclaim; ii) the counterparty does not
have a solicitor of record and failed to state an address within the jurisdiction.
d) Claims for which Default Judgment can be entered without the court’s leave:
Ø Default in giving notice of intention to defend O.13, r.1-5; Default in serving defence: O.19, r.2-6.
Ø Liquidated demand only. Unliquidated demand only. Claims for wrongful detention of goods (O.13 r.3). Claims for possession of land (O.13 r.4).
Ø Mixed claims (foregoing without other types): Separate according to relevant rule (O.13 r.5).
e) Third Party Default O.16 r.5, r.7:
Ø If a Third Party does not file a notice of intention to defend or fails to file a defence when ordered to do so, the court may give leave for D to enter judgment
in default (O.16, r.5). At any time in the third party proceedings, the court may give judgment for either party (O.16, r.7).
2) Default judgment: regular -vs- irregular default judgments
Ø Setting aside – general power of court to set aside judgment (on such terms as it thinks just): O.19, r.9; O.13, r.9.
Ø The test for whether to set aside default judgment is set out in case law
a) Setting aside Default Judgment – Regular Judgment (where no irregularities have occurred/no fault on D):
Ø Courts have very wide discretion.
Ø Test: Reason for default not as important as to whether the defence has any “reasonable prospect of success”.
Ø Affidavit in support should:
n i) Show a real (or reasonable) prospect of success; and ii) Explain the reason for the default (not essential but best practice)
Ø N.B. Court will determine by common sense, and will not go into a mini-trial
Ø Default judgment and unless orders Value Capital Ltd
Ø To prevent the court from enforcing the unless order, the party must satisfy the court that the non-compliance was not intentional or contumelious;
the court should not too fast to find the excuse for such a default
Ø How to get away? Two limbs: 1) no contumelious behaviors; 2) in an extraneous circumstance (e.g. bad luck/incompetence/anything outside control)
b) Setting aside the Default Judgment – Irregular Judgment
i) Traditional approach
Ø As of right: If there’s procedural irregularity, D entitled to have the judgment set aside automatically, i.e. merits of the defence will not be considered.
Ø What is an irregular judgment? Examples:
n i) Where D has had no notice of the proceedings before the judgment is entered (e.g. ineffective service).
n ii) Judgments entered in default before the time stated in the rules for D to file an acknowledgment of service or a defence has expired.
n iii) The judgment is entered while there is a summary judgment application pending. iv) Judgments entered for more than the amount due.
ii) Approach to traditional view is changing
Ø Judges have said that even though the judgment was an “irregular” judgment, they still have a discretion to enquire as to the merits of the defence. Faircharm
Ø Hong Kong position
n The usual approach should be as of right (no inquiry on merits). However, the court also retains residual discretion with regard to the conduct of the
parties (Po Kwong Marble (Here, it’s the D’s fault that led to the default judgement as D virtually disguised its registered address for service)

Week 6 Dismissal of an action; Interim Payments; Case management

1. Case management (following the closing of pleadings)

1) Introduction: Case management deals with conduct of the case from close of pleadings. Purpose: effective case management. Mechanism set out in O.25.
2) At the case management stage:
Ø Court has a duty to consider all matters (O.25, r.2) (e.g. summary judgment application)
Ø Duties also on parties and their advisers to give all information (O.25, r.6). Duty to make all interlocutory applications at CMC (O.25, r.7).
3) Case management: Questionnaire and CM summons
Ø Within 28 days after pleadings are deemed close, parties complete questionnaire (O.25, r.1(1)), where they try to reach agreement on directions and
timetable (O.25, r.1(1A)). If no agreement, parties make proposals in questionnaire, and Plaintiff takes out case management summons (O.25, r.1(1B)).
Ø Consequences of these things not happening (O.25, r.1(4)) – D can take out CM summons or apply to dismiss the action. Court can dismiss or deal with the
application as a CM summons (O.25, r.1(5)).
4) Case Management Conference (CMC)
Ø After questionnaire filed, Ct can give directions or order a CMC to give directions (including on dates for pre-trial review and trial date / period) (O.25, r.1A).
Ø Variation of CM timetable is not easy (O.25, r.1B)
n Particularly of milestone dates (O.25, r.1B(8)) – need exceptional circumstances (O.25, r.1B(3)).
n Non milestone dates
u Vary by procuring an order to that effect by way of a consent (O.25, r.1B(4)).
u Apply to court to vary without consent from the other parties (O.25, r.1B(5) - Needs to prove sufficient ground (O.25, r.1B(6)).
u No variation of non-milestone dates if it would make necessary a change of trial date / period (O.25, r.1B(7)).
5) Unless Order (A useful and increasingly common case management tool)
Ø Beyond intentional and countemileous conduct, court may also refuse an extension of time if failure to comply with one or a number of orders was through
negligence, incompetence or sheer indolence Top One International
n The relevant question is whether such failure is intentional and contumelious. The court should not be astute to find excuses for such failure.”
n But if a party can demonstrate that there was no intention to ignore/flout the order and that the failure to obey was due to extraneous circumstances,
such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed.”
Ø Unless Orders are not to be used indiscriminately: see KM Cheung – Unless order is an order of last resort, should apply if
n (1) there is previous records/history showing that D had failed to comply with a number of orders
n (2) that the non-compliance was intentional and contumelious

2. Two interlocutory mechanisms: “dismissal for want of prosecution” + “interim payments”

1) Dismissal for want of prosecution (application by D only)
 a) General
Ø The Court’s power to dismiss a Plaintiff’s claim for want of prosecution derives from:
n The RHC e.g. a P’s failure to serve the Statement of Claim (O.19, r.1) AND the Court’s inherent jurisdiction.
Ø Why to have this power? Litigation should be conducted quickly & efficiently. Delay is bad for the parties, and the administration of justice. N.B. Underlying
Objectives, e.g. cost effectiveness (O.1A, r.1(a)), expeditiousness (O.1A, r.1(b)), reasonable proportion and procedural economy (O.1A, r.1(c)), etc.
b) Old approach (pre-2011) approach – formerly, there were 3 grounds for a D to strike out a P’s claim for want of prosecution:
Ø First ground Birkett v James: intentional delay/other abuse of process.
n A defendant had to show that the delay was intentional (contumelious) – e.g. failing to comply with a peremptory order or an unless order.
Ø Second ground (continue after CJR): Birkett v James
n i) Inordinate delay by the plaintiff (delay materially longer than the time usually regarded by the profession and the courts as an acceptable time)
n ii) which is inexcusable (e.g., P unable to give instructions; illness; waiting for response to application for legal aid)
n iii) which causes prejudice to the defendant, and
n iv) (now irrelevant) the time limitation has expired
Ø Third ground: Abuse of process (Grovit v Doctor)
n if “abuse of process” show, don’t need to bother the time limitation sometimes, even the prejudice no need to show
Ø Note: Hong Kong’s position before CJR
Ø In Hong Kong, the courts tended to be lenient and will not dismiss the case for violation of one of these orders if: i) the defaulting party can point
“extraneous circumstances” as the cause of the failure to comply, or ii) the mistake was the fault of the lawyer, not the party.
Ø The courts were also reluctant to strike out if the limitation period had not expired (can start the case again)
c) Post-CJR Appraoch in Hong Kong
Ø The Liquidator of Wing Fai – “Abuse of process” as the foundation for a dismissal for want of prosecution
n (1) The three-fold Birkett v James second limb will continue, where it is proved, to be a form of abuse so that inordinate and inexcusable delay
causing real prejudice would be an abuse. It is still important when looking at the aspect of delay that it should be both inordinate and inexcusable
u Delay alone not sufficient: the delay by itself will not be sufficient in warranting a dismissal, need also an element of abuse of process of the
Court (Here: by showing serious prejudice the delay has caused on D
n (2) Warehousing of claims (may, but not necessarily, give rise to abuse)
u P starting an action with no intention to bring it to conclusion (another way to establish abuse of process)
u Factors considered by court: size of the claim, strength of the case P has
n (3) Prejudice:
u Abuse without prejudice is possible
l Where abuse is clearly demonstrated, proceedings can be struck out even where prejudice to D cannot be shown. For example, where
there is contumelious conduct on the part of P, no prejudice to D need necessarily be shown. However, in the majority of applications to
strike out for delay, the aspect of prejudice to D will often be extremely relevant.
u Must show delay caused prejudice:
l “A causal link must be proved between the delay and the inability to have a fair trial or other prejudice” (Kuan Tao Sheng)
u Eligibility of a fair trial: in most cases, the prejudice caused to D as a result of P’s delay is the risk that a fair trial is no longer possible
l The death or disappearance of a witness. Impaired memory of an important witness due to stroke/other illness.
l Inadvertent destruction of important documents/evidence.
u No more letting sleeping dogs lie – prejudice caused by D itself
l The court may disregard the above prejudice allegations where it is of the opinion that the prejudice is caused by the applicant itself (e.g.
failure to keep in contract with its own witnesses)
u Other prejudice such as anxiety or damage to professional reputation have been held sufficient to meet the prejudice criterion, but exceptional.
l Litigation anxiety (Biss)
l “A good example is a case in which fraud, or professional negligence, is alleged against a professional man.” (Can-Asia Capital)
n N.B. no prejudice if the fraud allegation is dropped
l The change in insurance arrangements due to delay could also satisfy the prejudice requirement (Antcliffe)
l D had lost the right to seek indemnity from a third party as a result of the delay in prosecution. The delay is inordinate in that the
inactivity subsequent to the filing of the defences goes beyond what is generally considered acceptable in commercial litigation of this
nature (Vaswani).
u Further notes on limitation period
l The factor of the non-expiry of the limitation period…should no longer be a factor which will militate against an order for striking out.
If P’s case was struck out within the limitation period, P may institute fresh proceedings. Once P does so, he may well be met by an
application to strike out or stay on the basis that the fresh proceedings, in view of the history, constitute an abuse and should not be
permitted to continue. The burden will be very much on P to justify why he should be permitted to continue with the second action
2) Interim payments (application by P)
a) General: made by a D to a P on account of damages likely to be awarded to P on final judgment.
Ø Purpose: to reduce the monetary hardship or prejudice that the applicant may suffer in the period up to the trial
Ø Relevant provisions: O.29, r.9 – 18; Section 56 High Court Ordinance, Cap.4.
Ø Application: O.29, r.10
n P may apply at any time after the writ has been served and the time for AoS has expired. Can apply more than once (O.29, r.10(5)).
n By summons, supported by affidavit (O.29, r.10(2)). Service on D not less than 10 days before return date (O.29, r.10(4)).
b) When will interim payments be granted – Two situations
Ø Most commonly made if D has already admitted liability or judgment against him for liability has been entered (see O.29, r.11).
Ø If NO such admission or judgment, the court must be virtually certain that P will win at trial before ordering an interim payment (see O.29, r.11)
n Test in Hollywood Palace: The standard of proof for granting an interim payment was a high one on the balance of probabilities. The court must
be satisfied that P “would”, not “would be likely to”, obtain judgment for substantial damages against D, in that D either had no arguable defence,
or its defence was so shadowy that only conditional leave to defend would be granted on an application for summary judgment
c) Factors considered by the court in exercising discretion
Ø (1) Time remaining until trial: if trial is to take place shortly, less likely to be granted (Reason: Purpose of interim payment)
Ø (2) Hardship of P can be relevant, but it’s not essential (Tse Tsz Chong): After an estimate is made, the court should take account of
n (i) the financial ability of the plaintiff to repay any overpayment
n (ii) the hardship that the defendant may suffer if overpayment could not be recovered and
n (iii) other matters relevant to the just exercise of the discretion in assessing the reasonable proportion of the likely damages as the amount for the IP
Ø (3) P’s intended use of interim payment (Poon Catherine)
n Where it is known that P intends to use the money received by way of interim payment in a way which might prejudice the fair conduct of the trial
– a relevant factor for the court to exercise its discretion.
 d) Residual issues
Ø Amount: Such amount: (i) as the court thinks just; (ii) not exceeding a reasonable proportion of the damages which in the opinion of the court are likely to
be recovered by P; (iii) after taking into account any relevant contributory negligence and any set off/cross-claim/counterclaim
Ø Payment
n Payment is to P unless court orders payment into court (O.29, r.13(1)). Can be in one sum or instalments (O.29, r.13(3))
Ø Non-disclosure
n The amount and the fact that IP was ordered shall not be disclosed to trial judge until liability and amount have been determined (O.29, r.15)
Ø Interim Payments on summary judgment: P often combine applications for summary judgement with applications for interim payment.
Ø If interlocutory judgment is obtained in a summary judgment application with damages to be assessed, the Master can immediately order that D
make an interim payment to P.

Week 7 Discovery I
[Link]
1) What is Discovery: Parties’ exchange of all docs and evidence that are relevant to matters in Q in the action. Provides info about opponent’s case.
Ø Purpose: assist in the admin of justice by getting to the truth; reduce expense of litigation (note criticisms of discovery process); avoid ambush at trial;
enable parties to know the case they have to meet; encourage settlement; if settlement is not possible, discovery facilitates efficient trial preparation.
2) Methods of Discovery
Ø Main method: Discovery by exchange of relevant and non-privileged documents (O.24)
Ø Various categories of discovery, e.g. standard discovery, pre-action discovery; discovery against non-parties, etc.
3) Process of discovery – General
Ø 2 Stages: Listing and exchange of lists; Inspection / copying of documents.
Ø When/Initiation: automatic, after close of pleadings, in actions begun by writ (O.24, r.1) and subject to court order in other proceedings (O.24, r.3).
Ø Timing: O.24, r.2 – within 14 days of close of pleadings, parties must exchange “lists” of docs.
n “Close of pleadings” defined in O.18, r.20. (1) (a) at the expiration of 14 days after service of the reply or, if there is no reply but only a defense to
counterclaim, after service of the defense to counterclaim, or (b) if neither a reply nor a defense to counterclaim is served, at the expiration of 28 days
after service of the defense, (2) notwithstanding that any request or order for particulars has been made but has not been complied with at that time.
Ø Flexibility:O.24, r.1(2): parties may agree to limit/dispense with discovery obligations (uncommon if in an adversarial context).
Ø Continuing nature of obligation: if new information/document is discovered, should be added to the supplementary list
Ø Complaints for late discovery or incomplete discovery Hong Lok School
n If the delay does not cause specific prejudice to D, delay of discovery may still be acceptable. E.g., even if it had been disclosed at an earlier stage, it
probably would not make much difference to the D’s preparation of their case. But the Court may ask the party to give info of at least the following:
n 1) Why didn’t disclose earlier? 2) The provenance and the makers of the docs; 3) The relevance of the docs to the issues before the court; 4)
Availability or non-availability of the doc makers to attend trial for cross-examination (to prevent parties from playing the trick of avoiding putting
their witness on trial)

2. How to approach discovery

1) “Documents” / possession, custody and power of documents
(a) “Documents” broadly defined
Ø NOT restricted to physical docs; anything on which evidence or info is recorded in an intelligible manner, e.g. tape recordings, computer databases; s.3
Interpretation and General Clauses Ordinance: “any publication and any matter written, expressed or described upon any substance by means of letters,
characters, figures or marks, or by more than one of these means.”
(b) Possession, custody or power
Ø O.24 relates to docs “which are or have been in [the parties’] possession, custody or POWER”. See O.24, r.1(1); r.2(1); r.3(1); r.7(1) & (3). Question of fact.
n Power “mean[s]a presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the
consent of anyone else.” (per Lord Diplock in Lonrho). E.g. parent company holding the majority shareholding of the subsidiaries
Ø Application of O.24 to documents in a party’s ‘power’ broadens the scope of parties’ discovery obligations.
2) (Stage ONE) Is a document disclosable? The key test: relevance
(a) What is disclosed under O.24 – relevant documents
Ø O.24, r.1: all documents “relating to matters in question in the action”. “Relevancy” decided according to the Peruvian Guano test:
n (1) Docs which would be evidence on any issue in the case.
n (2) Docs which it is reasonable to suppose would contain info which may directly or indirectly enable the party seeking discovery either to:
u i) Advance his own case; or ii) Damage the case of his opponent; or
u iii) May fairly lead to a train of inquiry which may have either of the above consequences.
Ø Comments on the Peruvian Guano test
n Still good law in Hong Kong: Chan Hung (c.f. in U.K. O Company (try to narrow the test to “a real probability of evidential materiality”))
n “Relevant” documents includes documents that are damaging to one’s own case.
Ø Very broad test: necessary to assist discovery, see Lord Brett in Peruvian Guano. Criticisms due to cost of discovery in UK, but not in HK
(b) Restrictions on discovery
Ø Relevance based on substance but not mere presence in pleadings:
n Parties should refer to pleadings to assist in determining relevance of issues – but note CA in Allington
n The relevance of an issue depended on its substance in the context of the case, NOT on its mere presence in the pleadings
n (#past exam Q: in a K claim, plead DoC. Should not have discovery on DoC because it is not relevant to the K claim at all (just improperly pleaded))
Ø Redaction: A party can cover up (“redact”) irrelevant or privileged portions of otherwise relevant privileged docs. Wong Kar Gee Mimi
n Disallowed to cover up anything that would destroy the sense of the doc or make it misleading.
n Test for challenging redaction: Whether it is not unreasonable to suppose that the redacted parts do contain relevant information (i.e., which might
enable P to advance his own case and do damage to D’s case)
u N.B. the burden on the complaining party is a heavy one
Ø Discovery is not a ‘fishing expedition’. Discovery must not be oppressive (Wellcome): “it would involve a massive expenditure of resources in terms of
manpower. To be compelled to conduct such an exercise would be to jeopardize some of the Department’s many other functions”
3) (Stage TWO) If a document is disclosable, is it inspectable?
(a) Restrictions on inspection – privilege
Ø Requirement: A party claiming privilege for any doc must O.24, r.5(2).
n (1) make the claim in the list of docs; and (2) provide a sufficient statement of the grounds of the privilege
n Qualification: cannot be those which are made for the purpose of or as part of the process of crime/fraud/abuse of statutory powers/defeating or
frustrating the admin of justice by the courts
Ø Effect: Privileged documents need to be ‘listed’ but CANNOT be ‘inspected’.
Ø 2 main forms of privilege: (1) Legal Advice Privilege and (2) Litigation Privilege
(b) Privilege One: Legal Advice Privilege (“LAP”)
Ø Three requirements
n i) Must involve confidential communications between lawyer and client;
n ii) Communications in lawyer’s professional capacity; and
n (iii) Lawyer-client communications for the purposes of obtaining or giving legal advice,
Ø Rule: Purposes have been construed broadly but should be kept within reasonable bounds; anything relevant to the exercise of legal skills in the
management of client’s matters would suffice
n Three Rivers: LAP covered advice and assistance in relation to public law rights, liabilities and obligations as well as private law rights.
Communications between clients and lawyers, whereby the clients are hoping for the assistance of the lawyers' legal skills in the management of their
(the clients') affairs, legal advice is not confined to telling the client the law; it also includes advice as to what should prudently and sensibly be
done in the relevant legal context.)
n Note: (1) No need for pending / contemplated litigation; (2) Process of obtaining Legal Advice: privilege protects not just the advice but also the process
of disclosing the facts that leads to the advice; (3) privilege is absolute, not to be overridden by public interest
Ø But who counts as the “client”? Finally HK has decided on a broader approach: Citic Pacific Limited
n In the context of a corporation, where the necessary info may have to be acquired by the management from employees in different departments or at
various levels of the corporate structure, there was a need to protect the process of gathering such info for the purpose of getting legal advice.
n Additionally, it was unlikely that a small group of employees within the legal department of a corporation would be likely to have all the technical
knowledge or skills that may be required to obtain info for, and put together, suitable instructions to the corporation’s lawyers
n Dominant purpose test: when you are looking at the internal correspondence within the corporation, you have to show the dominant purpose of
such correspondence was giving and getting legal advice. No protection if the dominant purpose is not such.
(c) Privilege Two: Litigation Privilege (“LP”)
Ø Litigation Privilege: Communications between lawyer/client, lawyer/3rd party OR client/3rd party (e.g. co-defendants), where:
n (a) Litigation was existing, contemplated or pending, AND (b) the communication was made with the dominant purpose (of the person at whose
request the doc is prepared) of obtaining advice or evidence in respect of the case. (Waugh)
Ø Case: Guinness Peat
n Dominant purpose among mixed purposes: the test of dominant purpose refers to the dominant purpose (a) of its author OR (b) (#the person who
is requesting the letter) of the person or authority under whose direction, whether particular or general, it has produced or brought into existence.
n Also, when is litigation in contemplation? See sufficient if litigation was “reasonably in prospect”.
u "the requirement is not satisfied unless the party seeking to claim privilege can show that he was aware of circumstances which rendered litigation
b/w himself and a particular person ... a real likelihood rather than a mere possibility" Citic
Ø Notes
n (i) In determining dominant purpose, the court will take an objective view and look in particular at reason why the doc is procured to be made (NOT
only the purpose why the doc was composed) Guinness Peat
n (ii) Courts look at the reason for production at the time of its production Ventouris
(d) Other categories of privilege
Ø Other categories of privileged documents
n (1) Self-incriminating docs (privilege only invoked where there is a parallel criminal proceeding)
u Note: the party may lose this privilege if the prosecuting body makes an undertaking not to use the doc so discovered against the party
n (2) Public interest (O.24, r.15; e.g. internal police docs)
n (3) Common interest (Co-Ds or Co-Ps in the same action) legal privilege.
Ø Confidential communications/technical/trade secrets? No bar, but there are ways to control confidentiality: Diagcor/Taching Petroleum
n Where confidential info or trade secrets were involved, the court had to balance the rights of the parties and the due administration of justice1.
n Starting point: should be full disclosure. The onus was on the party seeking to restrict disclosure to justify it
n The mode of discovery could take the form of: i) Inspection by an independent solicitor. ii) Inspection by experts; iii) Disclosure/inspection of the
process by the alleged infringer’s counsel, patent agent, solicitor and a named expert; iv) Disclosure of P’s confidential info to the author of the
alleged infringing work who was an expert likely to give evidence for D.
n A confidentiality club may be formed so that only specified persons had access to the confidential info (e.g. nominated barristers (not pupils) and
qualified solicitors (not trainees or non-legally-qualified persons) and the parties’ respective representative)
(e) Duration of privilege: forever (privilege lasts for the benefit of the client + client’s successors in title while the interests the privilege protects continue to exist)
Ø Case: Citic Pacific
n (1) However, privilege can be voluntarily waived (once waived, cannot be regained): If the holder of privilege in docs voluntarily disclosed that docs
to a specific party, then in respect of that specific party, privilege in the doc must be lost (using those docs to seek legal advice and conduct
investigation allowed). In respect of all other persons, Citic retained privilege in the docs.
n (2) Partial waiver: If documents were only provided for one purpose (e.g., regulatory), it cannot be used for other purposes (e.g., criminal investigation)
n (3) “The Fraud Exception”: Privilege did not attach to communications between a lawyer and a client if the purpose of the client in seeking legal
advice was to facilitate criminal or fraudulent conduct
(f) Another restriction on inspection: “Without prejudice” correspondence; Such documents are, as a rule, non-admissible (court not allowed to see it)
Ø Policy behind the rule, and exceptions (Thomas): “The purpose of without prejudice rule is to encourage parties to speak frankly to one another in aid of
reaching a settlement: and the public interest in that rule is very great and not to be sacrificed save in truly exceptional and needy circumstances. E.g. the
exclusion of the evidence would act as a cloak for perjury, blackmail or other ‘unambiguous impropriety.”
Ø Substance over form: Applies to communications which are a genuine attempt to compromise with a view to settlement. A Q of substance whether a
communication is a genuine attempt to compromise and NOT a Q of form (though it is common practice to mark documents “without prejudice”).
Ø Less problematic where there are only two parties to proceedings, but problematic where there are multiple parties. They are contained in Schedule 1 Part 1;
but those docs are allowed to withheld from 3rd parties (confidentiality, but not privileged). BUT the court can protect it.

3. The Mechanics of Discovery

1) Stage 1: Listing of documents
Ø Parties first exchange a list of documents in a prescribed form (Form 26, Appendix A; O.24 r.5(1)). Docs must be sufficiently identified.
Ø Timeframe for exchange of lists: within 14 days of close of pleadings (O.24, r.2); No documents are attached to the list of documents.
Ø Documents to be exchanged
n Form 26, Appendix A

1
If D was in fact infringing, it should not be permitted to shelter behind a plea of secrecy. If, however, he was not infringing, he was entitled to have the secrets
associated with its process maintained intact.
 n Supporting affidavit required (Form 27, Appendix, RHC; O.24, r.5(3)).
n Notice of Inspection: O.24, r.9 (docs can be inspected, copied and inspected within 7 days after service docs at a place specified in the notice)
Ø Lists are broken into 3 parts:
n Schedule 1, Part 1 – list of (a) relevant and (b) non-privileged documents.
n Schedule 1, Part 2 – list of (a) relevant and (b) privileged documents with a “sufficient statement of the grounds of the privilege” (O.24, r.5(2)).
n Schedule 2 – documents that are no longer in the power, possession or custody of the party.
2) Stage 2: Inspection & Copying of Documents
Ø After exchange of lists, parties inspect docs listed on the list of documents according to notice of inspection specified on the list of documents (O.24, r.9).
Ø Parties entitled to copies of documents after inspection (O.24, r.11A(1)).
3) Lawyers’ obligation to client and to court
Ø Solicitors must explain to their clients: “What discovery is and the scope of discovery. Discovery extends to adverse docs. Client must preserve docs.
Obligation is a continuing one. Avoid creating new discoverable docs (e.g. advice taken in formal meeting where a litigation is pending). How to create new
docs if the client needs to (i.e. labelling of docs, addressees of docs etc.)”
4) Electronic Discovery (not exam contents)
Ø Principles that the Court will apply when e-discovery sought Chinacast Education: Discovery must not be oppressive (by making an order for voluminous
docs). The docs sought should be relevant and necessary. Following the CJR, court will limit discovery as part of its active case management duties. The
court would seek to make an order tailored to achieving a just outcome, including limiting the costs incurred. A staged approach could be adopted where
appropriate. The court could set up a special committee to handle issues of sorting out privilege.
5) Key Features of Discovery Obligation – Use of Information from Discovery
Ø Implied undertaking not to use a doc for any purposes other than those of the proceedings in which it is disclosed. This encourages discovery by protecting
confidentiality of info disclosed by disclosing party. The implied undertaking is to court and disclosing party SJ v Florence Tsang Chiu Wing
n Note: Cannot use doc discovered in main claim in counterclaim
Ø Situations where the undertaking loses effect
n (1) consent by other party, (2) leave from court to be released from undertaking or (3) docs read / referred to in open court.

4. Further applications for discovery / Court-assisted discovery under O.24

Ø General principle O.24 r.8/13
n The applicant must show the production is necessary for (i) disposing fairly of the cause or matter, or (ii) for saving costs
Ø Further applications in initial stage of discovery of documents (before inspection):
n (1) Further and better discovery on court’s order – O.24, r.3.
n (2) Specific discovery – O.24, r.7.
u Use: make opposing party state, on court's order, in an affidavit whether certain specific doc/class of doc is/has ever been in his possession,
custody or power
u Requirement: application of this order must be supported by an affidavit stating the belief of the deponent that (i) the other party has it, prima
facie; (ii) that the docs sought is relevant to the action (i.e. same 2 part test above)
u O.24, r.8 necessary for disposing fairly of the cause or matter or for saving costs. (See Re Estate of Lim Por Yen)
n (3) Limiting discovery by summons within the 14-day limit (to limit cost) r.2(5) & (6) or
u by court on its own motion for CM and furthering underlying objectives r.15A
Ø Assistance with production and inspection of documents (Refer to the Rules if necessary):
n O.24, r.10 – order for inspection of docs referred to in pleadings and affidavits. (within 4 days, serve notice à within 7 days of the notice…)
n O.24, r.11 and r.11A – application to court if a party refuses to allow inspection (O.24, r.11(1)) or refuses to provide copies (O.24, r.11A(3)).
u 11(1): make an order for production of the documents in question for inspection at such time and place, and in such manner, as it thinks fit.
u 11A(3): the Court may, on the application of either party, make such order as to the supply of that document as it thinks fit.
n O.24, r.12 – ongoing power of the court to order production to court of documents.
Ø Additional powers of the court (except for Inherent Jurisdiction):
n Striking out claim or defence for failure to comply with discovery obligations – O.24, r.16: purpose of the rule is to ensure compliance with the
rules of the court and not to punish for non-compliance, so a court will only exercise this power in rare and exceptional circumstances.

Week 8 Discovery II
(can review the tutorial again and mock exam)

1. Pre-action Discovery
1) General
Ø Pre-action discovery against party who will be made a D to the proceedings. Applicable sections: s. 41, HCO & O.24, r.7A, RHC.
Ø Mode of application of O.24, r.7A application: summons, supported by affidavit.
Ø Possible uses and benefits: i) helps parties decide whether to sue at all in the first place, and if so, who to sue; ii) encourage early settlement if possible. iii)
facilitates proper case preparation where settlement is not possible.
Ø Four elements of Application:
n i) Applicant and Respondent are likely parties to subsequent proceedings (state ground in affidavit with summons) (O.24, r.7A(3)(a)).
n ii) Describe the docs sought (O.24, r.7A(3)(b)).
n iii) Show that the docs are directly relevant (O.24, r.7A(3)(b), O.24, r.7A(3A)).
u “Directly Relevant” Test: See s.41(2) amended HCO: “…a doc is only to be regarded as directly relevant to an issue arising or likely to arise
out of a claim in the anticipated proceedings if: (a) the doc would be likely to be relied on in evidence by any party in the proceedings; or (b)
the doc supports or adversely affects any party’s case.” This is reflected in the O.24, r.7A(3A), RHC
n iv) Show the person from whom you are seeking the docs is likely to have or have had the docs in his possession, custody or power (O.24, r.7A(3)(b)).
2) Additional qualification – Overriding principle
Ø O.24, r.8(2): The Court will not make an order for the disclosure of documents under section 41 or 42 of the Ordinance unless the Court is of opinion that the
order is necessary either for fairly disposing of the cause or matter or for saving costs.”

2. Non-Party Discovery (s. 42, HCO)

1) Discovery against Non-Parties
Ø Discovery against a party who is not a party to the proceedings after proceedings have begun (O.24, r.7A(2)): no requirement that the party shall be
made a party (unlike pre-action discovery). Possible uses and benefits: i) Obtain records from a hospitals, banks, employers, insurance companies, etc. ii)
Facilitate availability of info where consent is not forthcoming.
Ø Applicable sections: Section 42, HCO amended & O.24, r.7A, RHC amended.
Ø Mode of application: summons (O.24, r.7A(2)), supported by affidavit (O.24, r.7A(3)).
2) Elements of application:
Ø (1) Describe the documents sought (O.24, r.7A(3)(b)).
Ø (2) Show that the docs are relevant to an issue arising or likely to be arising in the proceedings (Not “directly relevant” test) (O.24, r.7A(3)(b)(2)).
Ø (3) Show that the person from whom you are seeking the docs is likely to have or have had the docs in his possession, custody or power (O.24, r.7A(3)(b)).
3) Additional qualification – Overriding principle
Ø O.24, r.8(2): The Court will not make an order for the disclosure of documents under section 41 or 42 of the Ordinance unless the Court is of opinion that the
order is necessary either for fairly disposing of the cause or matter or for saving costs.”

3. Non-discovery orders by which parties can collect information / evidence

1) Norwich Pharmacal orders
(a) General
Ø Independent action against a party who is NOT a party to the proceedings: "innocent wrongdoer" whose only involvement was to get mixed up in the wrongful
activities of other wrongdoers State Bank of India
Ø Timing of application: As non-party discovery can only be applied after the proceedings commence; but Norwich Pharmacal Orders can be applied both
before or after the proceedings even begin. Though purpose is the same, criteria slightly different.
Ø Mode of application: summons; Nature: case-created order, the court has wide(non-restricted) jurisdiction over this extraordinary relief
Ø Possible uses and benefits: i) Can be used to obtain ID of a wrongdoer (e.g. asking a bank for details of a client who is a wrongdoer); ii) But can be used
for wider purposes to obtain other information (e.g. tracing the passage of funds or other assets to aid restitution in whole or in part) State Bank of India
n Fact: (fraud involved) Tracing assets to a HK Co. Proceeds of sale were transferred to A and B. P then wanted a NP order against A and B.
n Held: no evidence showed that A and B were doing something wrong. Still, the balance swung in favor of the applicant.
(b) Typical characteristics of cases that involve a Norwich Pharmacal order:
Ø (1) It is made against an innocent party whose only involvement is to become mixed up in the tortious or wrongful activities of others. There is, at that
stage, no evidence of any wrongdoing on the part of the innocent party.
Ø (2) Instead, whatever wrongdoing there is, exists only on the part of a person or persons against whom no relief may be sought at that stage and indeed
against whom there is probably insufficient evidence to found an action. In other words, this person or these persons will most probably not be before the
court and would not be able to answer what are often very serious allegations made against them.
Ø (3) Usually, there will, moreover, exist a legal relationship between the innocent person against whom a discovery order is sought and the alleged wrongdoer
and this relationship may involve strict duties to be observed on the innocent party’s part.
(c) Four Requirements for Norwich Pharmacal order applications
Ø (1) Evidence:
n There must be cogent and compelling evidence to demonstrate that serious tortious or wrongful activities have taken place. (if fraud, the bar is high)
Ø (2) Gain: It must also be clearly demonstrated that the order will or will very likely reap substantial and worthwhile benefits for P.
n Test: where a tracing claim is concerned: "serious possibility" that the discovery sought must either allow P to preserve what may well be his assets or
realistically lead to the discovery of such assets (Arab Monteary Fund)
Ø (3) Scope: The discovery sought must not be unduly wide.
n It must be restricted to parties and classes of docs that would be necessary for P to preserve or recover assets
Ø (4) The court must balance the competing interests of the victim of the alleged wrongdoing and an innocent party caught up in the wrongdoing2.
Ø Qualification/Exceptions
n A Norwich Pharmacal order will not be made in cases involving considerable administrative inconvenience: Wellcome
n Court will only exercise the jurisdiction if the innocent 3rd parties are the only practicable source of info. Norwich Pharmacal
(d) Information / evidence obtained in application for an injunction
Ø Anton Piller orders (a form of mandatory injunction):
n Discovery where there is a threat of defendant destroying evidence (and thus disobeying or circumventing rules of discovery).
n Applicable sections: Section 21L(1), HCO; O.29, r.2, RHC.
n Effect: Order permits search and seizure of evidence. The order may also order the defendant to disclose names and address of suppliers of infringing
goods that are seized.
Ø Mareva injunctions (also a form of mandatory injunction):
n An order freezing defendants’ assets. This may include an order requiring defendants to disclose the existence and whereabouts of all their assets.
n Indirectly get evidence from D as you need to know how many assets that D possessed. Applicable sections: Section 21L(3), HCO & O.29, r.1, RHC.
(e) Other orders to disclose information / evidence
Ø O.29, r.2 (Detention, preservation), r.3 (take samples), 7A (inspection of property); ss.42 and 44(1), HCO –inspection of property.
Ø O.18, r.12(1A) – medical reports in personal injury cases as referred to in the statement of claim. s.21, Evidence Ordinance: bank records.
Ø Examination under O.48 (Examination of judgment debtor, etc.) and 49B (Execution of judgment for money by imprisonment), RHC.
2) Interrogatories
Ø Questions posed to opponents pursuant to O.26, r.1 (Interrogatories). Questions aim to clarify questions on matters in issue and to obtain admissions. They
can be served on parties only, not witnesses or other 3rd parties (e.g. agents): Re Estate of Au Kong Tim.
Ø Interrogatories may be served twice without an order of the court but require leave thereafter – O.26, r.3(1).
Ø Questions require: Formal service. Answers should be on affidavit.
Ø Timing of interrogatories: generally, at the end of discovery and before witness statements.
n Reasons behind timing: best time for framing questions (after discovery) and to assist preparation of witness statements.
Ø Use of answers to interrogatories at trial (O.26, r.7): can put in only some or part of the answers, though Court can order other parts to be put in for use at trial.
Ø Requirements for Interrogatories:
n (1) Purpose: necessary to fairly dispose of the matter or to save costs – O.26, r.1(1)
u Interrogatories will not be allowed where admission could be proved by a witness to be called at trial; where no admission could be obtained;
admission relates to opinion and not fact
n (2) Relevance: Must relate to facts directly in issue or facts the existence/non-existence of which is relevant to the existence/non-existence of facts
directly in issues.
n (3) Not a fishing expedition (should be directed at precise points) (4) Not oppressive.
Ø Grounds for refusing interrogatories:
n i) Risk of self-incrimination (only applicable where there is a parallel criminal proceeding)
n ii) Privilege (O.26, r.5(1)); iii) Public interest arguments;
n iv) Practice for making objections to interrogatories in answers to interrogatories must be taken seriously and be objectively sustainable:
Case: Tan Soon Gin George

2
Like in Wellcome: no order should be made if it requires the non-party to go through a large no. of docs and spend a lot of time and costs in the process
 Facts: (fraud involved) D transferred money from fraud to 2 Coms owned by him and the balance to a swiss bank. P demanded from D interrogatories
on the identity of the money holder and record of bank transactions. D claimed the right against self-incrimination.
Held: D can make an objection on self-incrimination, but he must take the objection on oath and show that he has a genuine fear on reasonable grounds.
Here there is a remoteness between the criminal conspiracy charge and the info that the interrogatories sought in the civil proceedings.

3) Witness Statement (witness statements of fact (as opposed to expert witnesses and expert reports))
(a) O.38, r.2A – all parties are required to exchange witness statements for witnesses who will be called at trial.
Ø Purposes for exchange of witness statements: Encourage admissions; Promote early settlement; Identify issues to focus on; Eliminate ambush. Improve pre-
trial preparation; Improve the process of cross-examination; Achieve fair and expeditious disposal of proceedings and savings of costs.
(b) General
Ø Procedure for exchange:
n Dealt with at stage of Case Management Conference (O.38, r.2A(2)). Exchange takes place simultaneously (O.38, r.2A(4)(c))
n Leave for supplemental statements may be granted in practice. But such evidence must be “admissible, relevant, and probative.” Ho Wai Tung
n Good cause must be shown before Court will grant leave to call a witness at trial for whom no witness statement was exchanged or for evidence
from a witness that was not included in that witness’s statement (O.38, r.2A(7)).
u E.g., didn’t know a person’s existence but suddenly found
u Timing: the later the application, the more reluctant the court is to give leave
Ø Use of witness statements at trial:
n (1) If the serving party calls the witness to give oral evidence, witness statements become evidence-in-chief of parties (O.38, r.2A(7)(a))
u Note, however, that a witness may, with leave, amplify evidence at trial (O.38. r.2A(7)(b)).
u Judicial comment on “deemed put” practice: a practice whereby all matters raised in a witness statement which impact upon the evidence to
be given by other witnesses are to be deemed to have been put to such other witnesses; Aspiel Investment may give rise to potential difficulties
(particularly where witness statements are not coherent and responsive to each other)
n (2) No obligation to call a witness at trial after serving witness statement.
u If witness not called, no other party can introduce evidence from witness statement (O.38, r.2A(6)).
u Note use of subpoena duces tecum (requiring production of doc) and subpoena ad testificandum (requiring testimony at trial) and court’s desire
to avoid use of subpoenas as a general discovery exercise against non-parties outside of the methods discussed above. Court will require evidence
that a party has tried to get a witness statement.
n (3) Witness Statements: hearsay evidence
u Generally, witness statements must contain only such material facts as the witness is able to prove of his own knowledge.
u Hearsay evidence: Out of court oral or written statements relied on to prove the truth of the matters stated.
u Hearsay is generally admissible unless the other party objects + the court is 'satisfied, having regard to the circumstances of the case, that the
exclusion of the evidence is not prejudicial to the interests of justice' s. 47, Evidence Ordinance (Cap.8).
l NB although admissible, possible consequences on weight of evidence (likely lower credibility)
(c) Witness Statements: Form – Preparation of statements:
Ø Drafted in the first person. Includes basic details about witness e.g. name, capacity, occupation etc. Should be drafted in a user-friendly manner (headings;
sub-headings; numbering etc.). Need for comprehensive statements (speaking to the cause of action). Must include statement about truth of statement –
O.38, r.2A(4)(a). Danger of excessive input from legal advisers on content.
4) Expert Evidence
(a) General: Not factual evidence but opinion. Usual for cases involving issues of technical complexity, or of foreign law. Exchanged after witness statements.
(b) Expert Evidence: some mechanics
Ø General principles on adducing of expert evidence: Man King Chuen (i) recognised expertise and (ii) evidence must be helpful to the Court.
n (1) Recognized expertise: There exists a recognised expertise governed by recognised standards and rules of conduct capable of influencing the
court's decision and the W to be called satisfies the court that he has a sufficient familiarity with, and knowledge of, the expertise in question.
n (2) Evidence must be helpful to the Court: evidence meeting this test can still be excluded by the court if the court takes the view that calling it will
not be helpful to the court in resolving any issue in the case justly. Such evidence will not be helpful where the issue to be decided is one of law or is
otherwise one on which the court is able to come to a fully informed decision without hearing such evidence.
Ø Form: Evidence usually takes the form of a written report (O.38, r.37). Expert may need to give oral evidence if parties agree or court orders.
Ø Number of experts: O.38, r.4: court can restrict the number of experts. Often now court will allow appointment of a single joint expert (c.f. O.38, r.4A).
Where they cannot agree on one, the court may appoint for them.
n Tang Tak Ping: Can appoint your own extra expert (i.e. shadow expert), but get leave of court or consent of parties, or risk costs or refusal of leave to
adduce, or lose privilege if he’s appointed as the joint expert
Case: Ho Yat Wah
Facts: Dispute over the authenticity of a signature, want a second expert
Held: Adjourning P’s application, ordered single joint expert – 1st expert provided with additional medical record of the deceased and discuss with the 2nd expert.
Then provide a report about the extent to which they disagree. The fundamental principle is the underlying objectives and fair access to proper expert to all
parties; Factors court will consider:
Ø (1) The nature of the dispute/number of disputes on which the expert evidence is relevant
n The issue about the signature is at the heart of the case
Ø (2) Reason for requiring a 2nd expert
n Reasons here are far from fanciful. Although 1st expert says he considers the change of medical situation, but nothing about it is reflected in his
report & he was not provided with thorough materials on this matter before.
Ø (3) Effect of permitting a 2nd expert on the conduct of the trial/proceedings
n If the time spent would not be significantly prolonged and costs incurred would not be significantly increased.
Ø (4) Delay in making the application
Ø (5) Other special features/ overall justice to the parties. (the resources enjoyed by both parties; whether the parties have already engaged own-party experts.)
Ø Can only be adduced at the trial if O.38, r.36(1):
n i) Parties agree; ii) By leave; or iii) Party wanting adduce the evidence has complied with O.38, r.36(1)(a).
Ø Note: The Ikarianon dangers for excessive use of expert evidence (Juries could be very affected by experts’ extravagant testimony)
Ø Key CJR principles:
n Expert’s overriding duty to the Court (O.38, r.35A): although hired by the parties
n Experts’ reports must be verified by statement of truth (O.38, r.37A).
n Experts are bound by a Code of Conduct (Appendix D) (experts (c.f. O.38, r.37B and C(1)): experts must state qualifications, assumptions, blind points.
5) Admissions
Ø Admissions in pleading or otherwise in writing, of truth of whole or any part of other party’s case (O.27, r.1).
Ø Purpose and use of admissions: Encourage parties to stop contesting the incontestable during the pre-trial process. Reduce costs and delay.
Ø Three methods: (1) Self-admission by pleading or in writing (O.27, r.1). (2) Serve Notice to admit facts on other party (O.27, r.2). (3) Serve Notice to Admit
authenticity of doc on other party (O.27, r.5).
Ø Binding effects/Judgment by admissions
n Admissions are binding but only against party making it (i.e. does not count as admission by other parties implicated in the admission) and for that
action (including appeal / new trial).
n Judgment by admissions possible – O.27, r.3. (without waiting for the determination of any other question between the parties; made by summons)
n Summary judgment v. judgment by admissions Re Chung Wong Kit,
u Summary judgement: the court may draw logical inferences from primary facts.
u Judgment on admissions: the court must consider the actual admissions (clear and unambiguous), albeit in some cases those made by implication.”
Ø Consequences of failing to respond to a notice to admit facts:
n Costs consequences for not admitting facts in Notice to Admit (O.62, r.3(5)).
n Does not amount to deemed admission; facts must still be proved.
Ø Admissions can be withdrawn only with leave and subject to a balancing exercise (Re Ng Wai Jing):
n (a) reasons and justification; (b) the balance of prejudice; (c) whether any party had been the author of any prejudice they may suffer;
n (d) the prospects of success of any issue arising from the withdrawal of an admission; (e) the public interest.

Week 9 ADR / O.22 / Settlement (Review the Tutorial)

1. Introduction
Ø The courts and legal system encourages settlement. It eases court burdens and encourages ongoing relations between parties.
Ø Examples of procedural situations where the Court encourages cooperation and compromise: Discovery; Without prejudice communications.

2. Alternative Dispute Resolution (focus on Mediation)

1) General
Ø An increasingly popular limb of dispute resolution. Informal negotiations; cf. without prejudice negotiations in sessions 7 & 8.
Ø Categories:
n (1) Facilitative dispute resolution (facilitated by a mutual third party);
n (2) Advisory dispute resolution (3rd party has merits to the case apart from facilitating resolving disputes; 3rd party will predict the results if litigate);
n (3) Determinative dispute resolution (3rd party determine the result of the dispute – a bit similar to arbitration)
2) Advantage and Disadvantage
Ø Advantage: Better chance of preserving business relationships (confidentiality). Possibly better-qualified judges (equipped with professional skills in
particular industries). Better-tailored remedies (flexible arrangement, e.g. instalment, discount for certain services). Potentially cheaper. Potentially faster.
Ø Disadvantage: Not binding (if not “determinative” dispute resolution; but can form a contract for the outcome enforceable by court if you want it to be
binding). Less rigorous fact-finding processes (litigation: has discovery process; but ADR no, even no witnesses). Less rigorous application of law / legal
procedures (no summary judgement, no default judgment, etc.). Not suitable in all cases (If the party is seeking settlement badly just before discovery, they
might be hiding something!)
3) Consequences of unreasonably refusing it
Ø A party that unreasonably refuses to mediate may be penalized in costs even if it wins at trial; the burden is on the unsuccessful party to prove that the
successful party indeed unreasonably refuses to mediate, and the court will consider: Halsey
n a) the nature of the dispute (ADR unsuitable for cases: (i) started by originating summons, i.e. cases where the court needs to decide on an issue of
law; (ii) where fraud is alleged; Other than that: "most cases are not by their very nature unsuitable for ADR")
n b) merits of the case (whether the parties reasonably believe that it has a such strong case to justify the refusal of mediation);
n c) any other settlement methods that have been attempted;
n d) whether the costs of mediation would be disproportionately high;
n e) delay of the mediation attempt (the later the mediation is proposed, the more the court will see it as unreasonable/insincere because of litigation
costs incurred to the other party);
n f) Whether the mediation had a reasonable prospect of success (the burden is on the unsuccessful party to show that the mediation have a reasonable
prospect of success)
4) ADR: PD31
(a) General: PD31
Ø Refers to Underlying Objectives (para.1). Refers to lawyers’ obligations to discharge the duty to help settle cases (para.1, 4).
Ø Risk of adverse costs order if party unreasonably fails to engage in mediation (para.4, and para.5 for when the court will not make such an order).
(b) Where parties are represented:
Ø Parties must file a Mediation Certificate at same time as timetabling questionnaire (O.25, r.1), stating whether they are willing to enter into mediation, and
if not, why not. (as in Halsey – if don’t give reasons, punish you by sanctioning costs against you!)
Ø A party applying for mediation files a Mediation Notice (para.10), and the receiving party / parties a Mediation Response (para.11).
Ø Parties to resolve differences, and so can the court to a limited extent (para.13). Format of these docs in Appendices to PD31 (Schedules A – D).
5) Mediation Ordinance 2012: Application of Ordinance (s5). Meaning of mediation (s.4). Key provision: confidentiality (s.8).

3. Settlement through Sanctioned Offers / Sanctioned Payments into court (O.22)

1) General Points: Purpose is to encourage settlement. Relevant provisions: RHC (amended version) O.22, O.62 r.5 & 10.
Ø Do not confuse Sanctioned Payments with:
n i) Payments into court in the context of conditional leave to defend in summary judgment situations.
n ii) Interim Payments. (has own particular grounds). iii) Payments into court in the form of security for costs against a plaintiff.
Ø Key point – no prejudice to parties: under O.22, r.25(2). Sanctioned Offer/Payment not disclosed to trial judge except to support submissions on costs.
2) Defendants – Sanctioned Payment and Sanctioned Offer
Ø A defendant can make sanctioned payment (for monetary claims) OR sanctioned offers (non-monetary claims) – O.22, r.3.
Ø Complete and file Form 23 Appendix A (O.22, r.8(2)). Serve sanctioned payment notice on P/director of legal aid, file cert. of service with Court (O.22, r.9).
3) Plaintiffs – Sanctioned Offer Only
Ø A Plaintiff can ONLY make sanctioned offer (monetary or non-monetary claims) – O.22, r.4.
Ø Form and content – must be in writing (O.22, r.5(1)). Serve notice on offeree / Director of legal aid – O.22, r.6.
4) Amount/Content Requirements
Ø No restriction as to amount: Plaintiff and Defendant can choose amount of sanctioned payments / sanctioned offer – no restrictions but there may be
practical considerations (e.g., whether it’s a reasonable amount to encourage settlement)
Ø In a sanctioned offer, the party making it must specify (O.22, r.5(3)): i) whether the amount relates to whole or part of claim; ii) Whether the amount takes
 into account any counterclaim / set-off; iii) Details of interest (if expressed not to be inclusive of interest).
Ø Notice of sanctioned payment must state (O.22, r.8): i) Amount of payment; ii) Whether the amount relates to whole or part of claim; iii) Whether it takes
into account counterclaim or set-off; iv) Whether any interim payment has been taken into account; v) Details of interest; vi) Any payment made into court.
5) Timing
(a) General
Ø Sanctioned offers: Any time after commencement of proceedings but not before (O.22, r.5(6))
n Considerations on timing: i) Best time to apply pressure on P to settle? ii) Before costs escalate? The earlier the better (more incentive to settle, less
costly to settle). BUT there exists tactical considerations: just before discovery (Showing some of the relevant documents to other side during the
discovery might not be desirable)
Ø Withdrawing a sanctioned offer – whether need court’s permission (O.22, r.7) (Refer to the Rules)
n SO if made not less than 28 days before the commencement of trial, CANNOT be withdrawn or diminished before the expiry of 28 days from the
date of the sanctioned offered was made, unless with LEAVE
n SO if made less than 28 days, can be withdrawn or diminished if the court grant LEAVE
n If subsisting an application to withdraw or diminish it, the sanctioned offer cannot be accepted unless LEAVE granted
n If the court dismiss the app OR grant leave to withdraw or diminish the sanctioned offer, the court may specified a deadline to accept that offer
n If a sanctioned offer is withdrawn, it does not have the consequences specified in this Order.
Ø Time when sanctioned offer or sanctioned payment is made and accepted (O.22, r.12) – whenever it is served.
(b) P’s acceptance of D’s sanctioned offer or sanctioned payment – O.22, r.15.
Ø P may accept D’s sanctioned offer or payment made not less than 28 days before trial without court’s leave if P files and serves written notice of acceptance
not later than 28 days after offer or payment made (O.22, r.15(1)).
Ø If D’s sanctioned offer or sanctioned payment made less than 28 days before trial, OR P doesn’t accept it within timeframe set out in O.22, r.15(1), P may
accept offer or payment without leave (if parties agree on liability for costs) or with leave (if parties do not agree on liability for costs) (O.22, r.15(2)).
(c) D’s acceptance of P’s sanctioned offer – O.22, r.16.
Ø D may accept a sanctioned offer made not less than 28 days before trial starts without court’s leave if he files and serves on P a written notice of acceptance
not later than 28 days after offer made (O 22, r.16(1)).
Ø If P’s sanctioned offer made less than 28 days before trial commences, OR if D does not accept it within timeframe set out in in O.22, r.16(1), D may
accept without leave (if parties agree on liability for costs) or with leave (if parties do not agree on liability for costs): O.22, 16(2).
(d) Effect of acceptance: Plaintiff’s entitlement to the costs of proceedings
Ø P is entitled to his costs of the proceedings up to the date of serving its notice of acceptance
n If P accepts D’s sanctioned payment / sanctioned offer without court’s leave (O.22, r.20(1)).
n If D accepts P’s sanctioned offer without court’s leave (O.22, r.21(1)).
Ø Acceptance of sanctioned offer or sanctioned payment stays proceedings (O.22, r.22(1)).
6) Costs consequences
Ø (1) If P fails to do better at judgment than sanctioned offer or sanctioned payment (O.22, r.23), Court may:
n Disallow P some or all interest on sum awarded to P after latest possible date of acceptance without court’s leave.
n Order P to pay D’s costs after latest date P could have accepted without needing court’s leave.
n Award D indemnity costs after latest date P could have accepted without needing court’s leave.
n Award D interest on these costs at a rate not over 10% above judgment rate.
Ø (2) If P does better than he proposed in his sanctioned offer (O.22, r.24). Court may order:
n Interest on sum awarded to P at a rate≤10% above judgment rate for period after latest date on which D could have accepted the offer without leave.
n P to get costs on indemnity costs for period after latest date on which D could have accepted the offer without court’s leave.
n Interest on those costs at rate not exceeding 10% above judgment rate.
Ø No cost consequences if unjust: In considering situations in cost consequences (1) and (2), the court will not order the above cost consequences if it considers
it unjust to do so, having considered (O.22, r.23(6) and r.24(5)) (refer to Rules):
n (1) Terms (e.g. amounts) of sanctioned offer / payments; (2) Stage of proceedings (timing) at which they were made (e.g. courts prefer earlier
settlements); (3) Information available to parties when they were made; (4) Conduct of parties with regard to giving or refusing to give information
(e.g., breakdown of the damage) for the purposes of enabling the payment (or offer) to be made or evaluated.

4. Formalization of a settlement
1) Comparison with pre-O22 methods of settlement
Ø (1) Open offers (expressly stated NOT without prejudice, i.e. party can tell Court).
Ø (2) Calderbank offers3. (earlier form of O.22)
Ø Curiously, post-O22, Calderbanks still seem to be a valid form of settlement: Montrio
n A valid Calderbank offer must be expressed to be ‘without prejudice save as to costs’.
n But O.22 should be the principal procedure for settlement. Should only use Calderbank if the party couldn’t have protected his cost position under
O.22. (e.g. before proceedings.): The new O.22 was a self-contained statutory procedure for settlement. The need to resort to a Calderbank offer had
been largely obviated. However, the new O.22 did not prevent a party from making a Calderbank offer. If he did, it was only just and reasonable for
the court to take that offer into account in the exercise of its jurisdiction as to costs. Accordingly, it was necessary to retain the discretion in the old
O.62 r.5(d) with the necessary modification to enable the court to take the Calderbank offer into account in exercising its jurisdiction as to costs
2) Formal Termination of Action
(a) General Points
Ø Actions that are settled must be formally terminated. Three main means of formal termination:
n By Court order (O.42 r.5A): i) consent orders; ii) Tomlin orders (a form of consent order); iii) by withdrawal / discontinuance.
Ø Parties should still create memorandum of settlement (as a contract) as record.
(b) Court Order 1: Consent Orders
Ø Most common form of settlement: by consent order. O.42 r.5A: parties consent to order for judgment. Usually no court appearance is required.
Ø Cases where consent order is permissible:
n Applicable categories of cases listed in O.42, r.5A(2). (refer to Rules)
n Litigants with a disability or Litigant in Person not applicable – O.42, r.5A(5) & O.80 r.10 and 11: (if disability) settlements must be scrutinised.
n Not applicable to cases in the Commercial List or Admiralty proceedings: parties take out consent summons and must appear before judge.
Ø Formal requirements: “By consent” must be written on order. Both parties must sign / “endorse”.
Ø In simple actions order provides for: i) Any sums to be paid by one party to another; ii) Any provision agreed on costs; iii) Action to be stayed but with liberty
to apply to carry terms of order into effect;

3
Not an open offer; written offer of settlement made by one party to another party. To be valid it needs to be headed without prejudice; it could not be disclosed
to the court until judgment being given. The party who receives Calderbank offer would not be entitled to recover its costs from offeror from the date of the
Calderbank letter sent if he is done less favourably than the terms of the Calderbank letter.
 n The effect of this “liberty to apply/un-stay” clause is that it is not necessary to commence fresh proceedings to enforce the order.
(c) Court Order 2: Tomlin Orders
Ø Used for more complex settlements. Order simply deals with payments of money and costs – O.42, r.5A(2)(b)(iii).
Ø Full terms of settlement are appended to order as separate schedule, or contained in a document referred to in the Order confidentially.
Ø Order directs that proceedings stayed until settlement terms have been completed. Liberty to apply to carry terms of order into effect
Ø Schedule as a binding contract and Tomlin as a court order: To what extent may parties vary the terms of an agreement contained in a Tomlin, as opposed
to the terms of the Tomlin? Not much at all: Re Estate of Shum Kwok Hang: The schedule in Tomlin order is the agreement for settlement made by parties
(sometimes contains matters beyond the original scope of dispute). The schedule is not a court order, but mere a binding contract (therefore, court can
interpret or rectify but not vary or revoke). However, different from the schedule, order term is court order.
Ø Used where: i) Parties wish to keep terms of settlement confidential; ii) Multi-party litigation4, where, e.g., D settles with one P but not the other.
Ø Note: Court file open to inspection.
(d) Formal Termination of Action: Withdrawal or Discontinuance
Ø O.21: Applies to all or part of a claim or a defence.
Ø Leave required in some situations.
n Without leave: For P: can discontinue actions commenced by writ (or by OS) without leave provided that P does so within 14 days upon the service
of defence on P r.2(1) & r.2(3A) ; For D: can (i) withdraw defence at any time; or (ii) discontinue a CC/withdraw part of CC within 14 days after service
of the defence to that CC on D r.2(2)
n BUT if interim payment ordered in favour of the party seeking to withdraw/discontinue, leave is required r.2(2A)
Ø Effects of withdrawal / discontinuance by P:
n Where a P discontinues action/withdraws part of claim, D is entitled to costs of the action up to date of receipt of P’s written notic
u BUT Hachette: P discontinue as a result of the D’s amendment of defence => D not entitled to costs
n Problem: P may bring fresh proceedings (O.21, r.4) even if he discontinued earlier; but P has to pay D’s costs of last proceedings first (O.21 r.5).
(e) Formal Termination of Action Other Methods
Ø Deed of Settlement without court order: but will need to enforce by fresh proceedings.
Ø Entry of judgment and stay of execution: D allows P to enter judgment for the P. BUT P agrees not to enforce judgment if D complies with negotiated
terms / undertakings on the P’s claims.

Week 10 Injunctions

1. Interlocutory Injunctions
1) Principles
Ø Purpose: preserve position before trial. Powers of the court: Section 21L HCO and O.29, r.1, RHC.
Ø Problem for court: affects rights of the respondent without a full investigation of issues.
Ø Traditional approach:
n (1) Question of merits: P must show a prima facie case. (mini-trial, assessment of merit);
n (2) Balance of convenience: Prove P would suffer more if injunction not granted than D would suffer if it were. (still effective today)
n N.B. Problem with traditional approach: court would predict eventual outcome – really an assessment of merits.
Ø Modern approach (Four factors) American Cyanamid
n 1. P shall establish that there is a serious issue to be tried. No need for P to show prima facie case. P’s claim should not be frivolous or expeditious
u Need to go through elements of cause of action; Breach of contract (1) existence of contract, (2) terms of contract, (3) performance, (4) breach,
(5) loss/damage; Tort (1) duty of care, (2) breach, (3) damage, (4) causation
n 2. If satisfied the first test, consider whether P would be adequately compensated by damages. If yes, then no interlocutory injunctions granted.
u A loss that is quantifiable at common law does NOT necessarily mean that the loss can be adequately compensated
u Wong Chung Ming (the damage is not adequate even if it is monetarily quantifiable – loss of business opportunities)
n 3. If no, consider whether, if D successfully defends P’s action, could D be adequately compensated by P’s undertaking the damages?
u If so, there is no reasons to refuse interlocutory injunctions.
n 4. (Balance of convenience) If there is still some doubt in respect of the adequacy of the remedies to either or both parties, the court would consider
the balance of convenience, i.e. would it hurt P more if he does not get the injunctions than D suffers if P did?
u The court would preserve the status quo if evenly balanced.
u If the balance is so fine, strength of each party’s case would be considered.
Ø Respondents to injunctions no longer need to be personally identified provided that there is a clear and certain description
n Billion Star Development: court consider the following factors (1) the changing nature of the activities; (2) potentially large number of people involved,
(3) these people wear mask and other accessories to hide their identities
2) Special Cases
Ø American Cyanamid principles do NOT apply or apply in special ways in cases involving, for instance:
n (1) Defamation / breach of confidence actions; (2) Contracts for personal services; (3) Where the facts and law are clear.
Ø Mandatory injunctions (rare) (Music Advance):
n (1) Generally, the court would not grant an interlocutory mandatory injunction unless it felt a high degree of assurance that at trial, it would be
shown that the injunction was rightly granted.
n (2) Applicant has to demonstrate more than a serious issue to be tried, or would have to show the balance of convenience tilts so much in applicant’s
favor that justice required injunction to be granted.
3) Procedure
Ø Inter parte application: O.32 r.1 by summons; O.32, r.11(1): by judge rather than master.
Ø Ex parte application (one side only; applicable where can’t find the other party, don’t want the other party to know, and in time of urgency):
n If granted, undertake to serve it on the other side. à The return date: the date when parties come back when the injunction is granted, to decide whether
to continue the injunction or discharge it.
n Practice Direction 11.1 (ex parte, interim and interlocutory applications for relief (including injunctive relief) – sets out procedure)
n Ex parte ‘with notice’ (e.g. Scano (HK)).
n Ex parte application is an exception and an order should generally not be made unless the other side has been heard see Emperor International
u The only exception is where only two conditions are made:
l i) giving him such an opportunity to be heard would likely cause injustice to the applicant, either by reason of delay, or where it appears
that the respondents or others would take action before the order can be made;

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If there exist Co-d or Co-P, confidentiality would become an issue: original parties (P&D) may not want the 3rd party (e.g. Co-P/D) to know the exact terms of
the settlements, otherwise they would ask for the similar or better terms.
 l ii) any damages that the respondent would be suffered is compensatable under the cross undertaking or if the risk of uncompensatable
loss is clearly outweighed by the risks of injustice to the applicant if the order is not made.
l Cannot consider the result of the second condition unless the first condition is satisfied. Other case laws suggest that the ex parte app.
can only be made where the situation is (1) such an urgency that there is literally no time to warn D of what it is proposed or (2) where
the purpose of the injunction will or may be frustrated if D is informed of what is proposed or (3) where D simply cannot be found.
Ø Procedure in Practice Direction 5.3 (Listing and hearing of Summonses for interlocutory orders and injunctions) must be followed.
Ø Documentation: Writ. Affidavit. Skeleton submissions. Draft Order.
n Specific points on content of documentation: (1) Undertaking in damages. (2) Duty of full and frank disclosure of all material facts in affidavit
4) Defendant’s Options
Ø (1) Offer undertakings in lieu of injunction.
Ø (2) Apply for variation / discharge of injunction (on the return day): Chinachem Charitable (amount subject to the claim, etc. BUT subject to the amount
allowed for the reasonable living and legal expenses; factors: credibility, financial position, prior conduct, delaying tactics, etc.)
Ø (3) Appeal injunctions: Injunctions – discretionary equitable relief. Circumstances in which appeal will be considered: where a lower court has
misapprehended the evidence or has plainly gone wrong in balancing the relevant factors which he had to consider (Centalic Technology)

2. Mareva Injunctions (nuclear weapon of civil litigation)

1) Introduction
Ø Freezes assets of the D until judgment or further order (called “freezing orders” in post-reform UK).
Ø Only granted where there is danger of dissipation. Timing: can even be pre-writ, or post-trial. Powers of the court: Section 21L(3) HCO & O.29 RHC.
2) Mareva injunctions – principles
Ø 1) P has a good arguable case (higher than serious issues to try but lower than prima facie case).
n Serious issues to be tried: need to go through elements of cause of action, etc.
Ø 2) D has assets within jurisdiction
Ø 3) Real risk of dissipation – holistic and objective test
n Convoy : the real risk of dissipation is to be judged objectively. Requires solid evidence, mere inference and judgements are not enough
u Delay: delay after D gained knowledge of a P’s claim could D militate against the risk of dissipation, delay itself is not enough and must be
considered in circumstances. Also, assets remain notwithstanding D has knowledge of the claim for a long period of time à can be evidence
negating an inference such risk.
n Chinachem: Factors: (i) D's conduct (e.g. selling of properties, resignation from key posts, negotiation of mass sale of assets); (ii) by D's expressed
intention; (iii) Evidence of dishonest/fraudulent act on the part of D; (iv) Loose connection to HK (domicile outside HK, ease for D to pack up and
leave HK; (v) complex and obscure foreign corporate structure for hiding assets?; (vi) low standard of commercial morality on the part of D; (vii) D's
use of nominees and its ability to & experience in hiding assets; (viii) financial position of D (ix) nature of assets (whether easily moved)
3) Effects of order
Ø (1) Disclosure order: D to provide affidavit with assets and whereabouts. The Mareva is often accompanied by a disclosure order. See China Metal Recycling
n Held: Disclosure of assets was a necessary adjunct of a freezing order to make it effective. The power should be sparingly exercised as it could easily
become an oppressive procedure. However, where D determined not to disclose all of his assets, to lie about his ownership of assets and to deal
with his assets in breach of the order, it was appropriate to order him to swear a further affidavit making full disclosure of his financial position
Ø (2) The Mareva can be over assets that on their face appear to belong to a non-party: see Hui Chi Ming.
n P wanted to extend the Mareva junction to a Trust. P’s shares in dispute are injected to the trust. The Q is whether the assets belong to P or not. Here
when the court try to assess, at interlocutory stage, whom does the assets belong to, it does not have to consider the ownership in a strict trust sense
n The most important issue is that of substantial control. So as long as you can show some degree of rights/control over/access to the relevant assets,
whether direct or indirect, that might well be enough.
Ø (3) P serves order on relevant third parties.
Ø (4) D still allowed reasonable living / legal costs.
n But court will check: Wharf Ltd: the court will check whether the funds are reasonable and see whether D has alternative funds. Reasonable living
expenses is what the D has ordinarily accustomed to. Will adopt a balance exercise to weigh the potential injustice to P of releasing the fund to
injustice to D to deprive him of legal representation
4) Worldwide Marevas
Ø Assets outside of jurisdiction. Additional principles (in addition to above Mareva principles) of court order of worldwide Mareva:
n (1) D has no/insufficient assets in HK; and (2) D has assets out of jurisdiction.
Ø Effects of court’s order of Worldwide Mareva
n (1) Effect on third parties – not binding but persuasive;
n (2) Binding on D personally: (a) D not to dispose of overseas assets; (b) disclose to P the overseas asset he possesses
n (3) court's jurisdiction to grant Mareva relief extended to preventing a debtor destroying the value of his assets to the detriment of creditors: see Sunlink
(court intervened to prevent a shareholder voting in a way which would result in the destruction of the economic value of other shareholders' shares
for no rational reason)
5) Procedures
Ø Compulsory practice directions:
n Practice Direction 5.3 (Listing and hearing of summonses for interlocutory orders and injunctions);
n Practice Direction 11.1 (Ex parte, interim and interlocutory applications for relief (including injunctive relief); and
n Practice Direction 11.2 (Mareva injunctions and Anton Piller orders).
Ø Documentation: Writ of summons; Affidavit – duty of full and frank disclosure; Skeleton submissions; and Draft order.
6) HCO s.21M
Ø Now possible to apply for a Mareva injunction over assets held by D in HK, where the substantive proceedings take place in another jurisdiction: Compania
n First stage: If P succeeds in the primary jurisdiction, whether the resultant judgement can be enforced in HK.
u Then also have to ask the same questions for general Mareva application: (1) good arguable case; (2) is there a real risk for dissipation.
n Second stage: whether “the fact that the court has no jurisdiction apart from this section in relation to the subject matter of the proceedings concerned”
makes it “unjust” or “inconvenient” for the court to grant the application. Consider judicial comity (The principle that, out of deference and respect, the
courts in one state or jurisdiction will give effect to the laws and judicial decisions of another.)
Ø The Hong Kong court will scrutinize applications under s21M to ensure the parties are not doing any inappropriate forum shopping
Case: Deiulemar
Fact: A shipping company P sued D a BVI company in English commercial court. P applied ex parte for a Mareva in HK (the action started the proceeding
in London before it), and tried to freeze the money held in HK bank account.
Held: the court could not see how the English court feel about the defence in UK before the HK court takes a proper view of the merits. In principle,
interlocutory forum shopping is not acceptable. If tried to apply s.21M, one have to show to the court that where the action is most effective. Here there
is no satisfactory explanation on why the world-wide injunction was not applied in England. Moreover, it was not good enough to say that, if only applied
 in London, it would need to apply in HK again. The risk of dissipation of asset is always a cardinal element. The word “BVI” does not speak itself that
such a risk exist. The court will exercise the discretion with care and critical scrutiny.

3. Anton Piller Orders

1) Introductions
Ø Form of mandatory injunction: Permits search and seizure. Inspection and preservation. Powers of the court: Section 21L(2) HCO & O.29 RHC.
2) Four conditions of Anton Piller
Ø i) P has extremely strong prima facie case;
Ø ii) Serious potential / actual damage to P’s interests;
Ø iii) Clear evidence of incriminating documents and real possibility of destruction before inter partes application; and
Ø iv) Proportionality between threat to P’s rights and remedy granted.
3) Requirement (Denning in Anton Piller and incorporated in PD 11.2)
Ø (1) Anton Piller orders are different from search warrants, it allows search but only with the permission of the householder (BUT: a householder
declining to cooperate may be guilty of contempt of court & have the adverse inference drawn against them);
Ø (2) In the enforcement of this order, P must act with due circumspection
Ø (3) P should be attended by his solicitor (an officer of the court)
Ø (4) D must be given an opportunity to consider and to consult own solicitor
Ø (5) D must be allowed to apply for the discharge of the order
Ø (6) D must be given opportunity to grab privileged/incriminating documents for the inspection of his solicitor
Ø (7) In England: independent third solicitor must be present
4) Procedures
Ø Compulsory practice directions: Practice Direction 5.3 (Listing and hearing of Summonses for interlocutory orders and injunctions); Practice Direction 11.1
(Ex parte, interim and interloctutory applications for relief (including injunctive relief); and PD 11.2 (Mareva Injunctions and Anton Piller orders).
Ø Documentation: Writ of summons; Affidavit (duty of full & frank disclosure); Skeleton submissions; and Draft order (note requirements for terms of order)
Ø Also applicable to Anton Piller orders: Undertakings also apply (You need to give an undertaking that you will not use the documents for any purpose other
than purpose of proceedings and P’s undertaking in damages (must be sufficient to cover) is important); Privilege against self-incrimination.

Week 11 Costs5

1. Security for Costs (O.23)

1) Introduction
Ø Application by a defendant (of claim or counterclaim) under O.23. Purpose: Protection against risk of irrecoverable legal costs.
Ø Action stayed until P pays security for costs by interlocutory application. Application by summons.
Ø Discretionary nature of the order; thus, 2 criteria: (i) meeting grounds under O.23, r.1; (ii) exercise of discretion.
n O.23, r.1: (a) ordinary resident out of jurisdiction; (b) P is nominal; (c) P’s address is not or incorrectly stated in the writ; (d) P’s change of address
Ø General principles: Verralls Amy
n The court has a complete discretion whether to order security. Will have regard to P's prospects of success.
n But should not go into the merits in detail.
n May order any amount up to the full amount claimed by way of security, provided that it is ≥ a nominal sum; not bound to order a substantial amount.
n Before refusing to order security on the ground that it would unfairly stifle a valid claim, the court must be satisfied that, in all the circumstances, it
is probable that the claim would be stifled. The court should consider not only whether the P company can provide security out of its own resources
to continue the litigation, but also whether it can raise the amount needed from its directors, shareholders or other backers or interested parties.
2) General Principles:
Ø Consideration #1 – Grounds under O.23, r.1
n P ordinarily resident out of jurisdiction – O.23, r.1(1)(a). But you can’t fake it:
Case: AR Evans
Fact: P wanted to wind up D’s company. D request security. P a company registered in BVI. Immediately after the proceedings, P applied to register in
HK in response for D’s application for security.
Held:
Ø Whether or not P is an ordinary resident out of jurisdiction is a matter of fact. Ordinary residence connotes a degree of continuity. No such
continuity has been shown in the present case.
Ø For the purpose of O.23 r.1(1)(a), whether a company is ordinarily resident out of the jurisdiction is to be decided by reference to the location of
its central management and control. The mere assertion of where the company's central management and control is located is unsatisfactory.
What is needed are the primary facts on which that assertion is based.
Ø All the circumstances in which the company carries on its business should be taken into account. Those factors include: i) the provisions of the
company's objects clause, ii) the place of incorporation, iii) the place where the company's real trade and business is carried on, iv) the place
where the company's books are kept, v) the place where the company's administration is carried out, vi) the place where the directors with power
to disapprove of local steps or to require different ones to be taken themselves meet or are resident, vii) the place where its chief office is or where
the company secretary is to be found, and viii) the place where its most significant assets are
Ø The Court will disregard any contrived steps taken by a plaintiff to make it appear that it is ordinarily resident in Hong Kong
n Nominal P O.23, r.1(1)(b).
u Nominal P who is suing for the benefit of some other person + there’s reason to believe that he will be unable to pay the costs of D if ordered
n Missing or incorrect address of P stated in the writ/other originating process: O.23, r.1(1)(c). (Example: Verralls Amy).
u Exception: no order if the court is satisfied that the reason for that was innocent and without intention to deceive
n Change of address: O.23, r.1(1)(d).
u P has changed his address with a view to evading the consequences of the litigation
Ø Consideration #2 – Court’s exercise of discretion
n Is P’s claim bona fide?
n Oppressive use of application for security by D? (The money claimed might affect P’s ability to continue its claim)
n Admissions by D?

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Two areas of costs in this session: Security against risk of irrecoverable costs & Costs orders made in proceedings. Importance of costs: Influence decision to
commence litigation. Influence settlement decisions.
 n P’s lack of means caused by D?
n Application for security is late/too early or for too much?
n Existence of a co-P in the jurisdiction?
n Ability to enforce judgment on costs in P’s jurisdiction (e.g. Australia has reciprocal enforcement under Cap319)
n Security for costs would prevent P’s prosecution of claim.
n Prospect of P’s success
n P being legally aided (Lauria; "it would rarely be just in all the circumstances for an order for security for costs to be made if the only costs are those
covered by the certificate since if the P were unsuccessful, those costs would be met out of the fund"
Ø But court should be slow to assess case on merits: see Lim Yi Shenn, “[I]t is not the function of the Court, when faced with an application for security for
costs, to make a preliminary run at deciding the ultimate success or failure of the claim…” BUT, later, “…the practice of going into the merits of the case in
an application of this kind is to be deplored, unless it can be clearly demonstrated one way or other there is high probability of success or failure.”
3) Another provision for security: s.905 Companies Ordinance
Ø What is it: A defendant can apply for an order for security for costs from a company, which may be incorporated in or outside Hong Kong
Ø (1) This section applies where: (a) a co. is a P in an action or other legal proceedings; and (b) it appears, by credible testimony, to the court having jurisdiction
in the matter that there is reason to believe the co. will be unable to pay D’s costs if D succeeds in the defence.
Ø (2) Without limiting the powers of the court under any other Ordinance, the court may: (a) require sufficient security to be given for those costs; and (b) stay
all proceedings until the security is given.
Ø Traditionally not applicable where P is a foreign plaintiff: Akai Holdings (concerned s.357 of the old Companies Ordinance, now permissible s.950(3))

2. Three general principles of costs

1) General Principles (c.f. Underlying Objectives – e.g. cost-effectiveness, expedition, proportionality, procedural economy, facilitating settlement)
(a) Principle 1 – Discretionary nature of costs.
Ø (1) Costs are in court’s absolute discretion – see s.52A and s.52B HCO and O.62, r.2(4) and r.3. RHC.
Ø (2) Discretion must be exercised judicially.
Ø (3) Discretion should not be exercised against successful party (except a successful party acted unreasonably, etc.)
(b) Principle 2 – Costs generally follow the event i.e. generally, loser pays – O.62, r.3(2).
Ø 1st Exception: Court has a discretion to make an order that is “just and fair” in the circumstances: REDA Hong Kong
n Costs generally follow the event. But Court has a discretion to make an order that is “just and fair” in the circumstances.
n May disallow a successful applicant’s costs to reflect the fact that certain significant time and costs have been incurred in the litigation by reason
of unsuccessful grounds raised. No need to show P raised the grounds unreasonably. More and more open-minded and willing to disallow costs.
Ø 2nd Exception: Where there are multiple Ds
n Bullock order – Bullock: P’s cost to the successful defended D be recoverable from the unsuccessful D
n Sanderson order – Sanderson: The unsuccessful D to pay directly to successful D’s costs. Doesn’t have to go through P.
n When does court grant Bullock or Sanderson orders? In court’s discretion.
u (1) Bullock for protection of successful D and P should do proper due diligence
Case: Mayer
Fact: P and D1 were neighbors. D2 was a builder, who fixed P’s roof, but used the wrong material. D2 hired D3 who was the plumber…At
trial, P lost against D1 and D2, but beat D3. What the court did first was to make a Bullock order, i.e. P was to pay D1 and D2 and recovered
all against D3. The problem here is that D3 is an undischarged bankrupt.
Held: The CA upheld Bullock order and held that P had every opportunity to ascertain what sort of man the 3rd D was. And if P did not make
any inquiry to 3rd D about his financial standing, then that is the fault of P. (if you are going to sue someone you have to work out whether he
was bankrupt)
u (2) Balance of hardship between P and the successful D
Case: Bankamerica Finance
Fact: A car dealer sold a financial company a car. There was a HP agreement between the financial company and the hirer. But the hirer found
out that the car had been stolen so he terminated the HP agreement as the financial com never had good title. The financial com sued the hirer
for breach of agreement. The hirer counterclaimed the money that had been paid but failed. Then the financial com joined the dealer as the
2nd D for misrepresentation and breach of contract. Ultimately the finance company’s claim against the hirer failed. The court gave judgment
for the hirer against the finance com, but also gave judgment for the finance company against the dealer. The problem here is that the dealer
is insolvent.
Held: Held: If a Sanderson order made, the hirer would, however, recover the sum of £8,344.83 awarded to him against the finance company
(C1), whereas the finance company would probably be unable to recover from the dealer either the sum of £23,996.34 awarded to it or its
own costs (C2). There would then be hardship to both parties, but more to the finance company than to the hirer. By contrast, if a
Bullock order was made, the hirer would recover from the finance company both the sum of £8,344.93 awarded to him and his costs. The
finance company on the other hand would probably recover nothing. There is much hardship to finance company than hirer.
u (3) Fault generally – for an example see Li Wai Ping
Ø 3rd Exception: Wasted costs order: Against parties for misconduct/neglect (O.62, r.7). Against legal representatives (solicitors/barristers)! (O.62, r.8).
n Lam Rogerio. Held: When seeking wasted cost order against legal representatives, have to ask
u Firstly, whether the solicitor was responsible for
l (i) acting improperly or without reasonable cause; or (ii) for undue delay or any other misconduct or default in proceedings.
u Secondly (causal link), whether such conduct of the solicitor caused costs to be incurred or wasted.
u Thirdly, whether the court should exercise its discretion to make an order
u N.B. Court would give the legal representative an opportunity to explain why an order should not be made; The more elaborate the
procedure needed to fairly dispose of the application, the more likely that it’s inappropriate to have it determined in this way. à Then more
appropriate by a separate action of professional negligence.
(c) Principle 3 – No costs without court order. Exceptions: if P discontinued, then generally P should pay; and Acceptance of Sanctioned Payment (O.22).

3. Taxation (Assessment)
(a) General: Costs should be taxed. Applicable scales of costs.
Ø Court has power to order costs to be dealt with summarily (Gross Assessment) rather than by taxation – O.62, r.9(4)(b).
Ø Taxation = the process whereby the court assesses the reasonable amount of costs payable under the costs order
(b) Bases of taxation: Party-Party
Ø Most common – O.62, r.28(2). Approximately 70-80% costs. Costs which “were necessary or proper for the attainment of justice”.
Ø “Relevant circumstances” to determine what is necessary or proper include those in paras. 1(2) and 2 in Part II of the First Schedule to O.62.
(c) Bases of Taxation: Common Fund – Less common but more generous
Ø O.62, r.28(4). Approximately 85% costs.
Ø Two-part test: “There shall be allowed a reasonable amount in respect of all costs reasonably incurred.”
Ø Awarded due to conduct of the paying party. Requirement of special / unusual feature in the case (e.g. delay/lack of preparation/failure to comply with
court order/other improper conducts)
(d) Bases of taxation: Indemnity Costs. O.62, r.28(4A). Recover more costs than party-party or common fund.
Ø Test: All costs except unreasonable costs. Onus on paying party to show unreasonableness – any doubts resolved in favour of receiving party.
Ø Criteria for award of indemnity costs:
Case: Lai Sin Yan Elsie
Fact: P claimed personal injury in a competition. P grossly exaggerated her case and consciously lied to the treating doctors. Ordered to pay indemnity costs.
Held: Bad faith/Intentional abuse: Where proceedings were (a) scandalous or vexatious, or (b) initiated maliciously, (c) for an ulterior motive, or (d)
in an oppressive manner, (e) in any circumstances that would constitute an upfront against the court; or (f) But not restricted to these dishonest conduct, “bad
faith” “intentional”. If it’s not intentional, must be unreasonable to a high degree but not just wrong. (e.g., gross negligence)
(e) Bases of taxation: others.
Ø Trustee (O.62, r.31(2)):
n Where a trustee is running a litigation on behalf of a trust, basis is "No cost will be disallowed unless they should not have been incurred"
Ø Solicitor and Own client (O.62, r.29(1)).: Where the solicitor is to pay his own client, taxation basis is "all costs shall be allowed except in so far as they are
of an unreasonable amount or have been unreasonably incurred"
(f) Appeal of costs awards O.62, r.33, 34 and 35.
Ø Application to taxing master within 14 days. Review operates like re-hearing. Appeal if party dissatisfied with review.
(g) Costs of Interlocutory Applications – Possible orders:
Ø General rule on award of costs in interlocutory proceedings: no longer that costs follow the event; court can award costs according to issues
n Astro Nusantara: “to promote the underlying objectives, [T]he court should not, in my view, hesitate about disallowing costs incurred by a winning
party (overall) on discrete issues which he has failed or even, in appropriate cases, ordering him to pay the costs incurred by the opposite party on such
issues.”
Ø Costs in the cause (the court does not decide at this stage which party is awarded the costs of this application; the party that is awarded the costs of the
action in the end (usually the party wining at trial) will also get the cost of this application);
Ø P’s/D’s costs in the cause (if the named party wins at trial, then he will get the cost of the interlocutory application; otherwise, each party bears his own costs
(When: misconduct on the unnamed party)
Ø P’s costs/D’s costs in any event (if P’s costs in any event: D has to pay P’s costs of the application in question, regardless of who wins the action);
Ø No order as to costs (default position: each party bears its own costs);
Ø Costs payable forthwith (costs must be paid immediately);
Ø Costs reserved (the Court does not at this stage decide on the costs of the app, but leaves this decision to later, e.g. a hearing is adjourned);
Ø Costs thrown away (where something happens in proceedings frustrating the proceedings => indemnity cost in interlocutory context (Costs either
unnecessarily incurred by a party as a result of some procedural error committed by the other party or properly incurred but wasted as a result of a subsequent
act of the other party (e.g. by amending the claim form or statement of case)

Week 12 Enforcement and Appeals

1. Enforcement of Judgments
1) Introduction
Ø Purpose of enforcement procedures. P’s general litigation strategy – will P be able to enforce any judgment?
Ø Terms: judgment debt (sum secured by the judgment); judgment creditor; and judgment debtor
Ø Find out what judgment debtor has – oral examination. Note: can bypass oral examination if you know what/where judgment debtor’s assets are.
Ø If available assets identified, proceed to enforce using one of following procedures: Execution. Charging Order. Garnishee Proceeding. Winding up/bankruptcy.
Injunction/prohibition order.
2) What “judgment”
Ø Decision of the Court (i.e., on liability, quantum & remedy).
Ø Perfection of judgment (O.42, r.3 & 5): Date from which judgment takes effect; Drawing up and entry of judgments and orders.
n A judgment or order of the Court takes effect from the day of its date (r.3(1)); no reasons given for the judgment not matter (r.3(3))
n Relevant to: post-judgement interests, appeal period

2. Ascertaining what assets a debtor has – Oral Examination

Ø Note: Can bypass oral examination if you know what/where judgment debtor’s assets are
Ø RHC O.48 (Examination of judgment debtor), O.49B (Execution & enforcement of judgment for money by imprisonment).
n O.48: judgment debtor questioned about assets by master/registrar (head master) about debts owed to him and whether he can satisfy the judgment.
n Use O.48 if judgment debtor is company to examine any officer.
n Use O.49B (only applicable to individuals) if judgment debtor questioned by judgment creditor.
n Possible penalty for failing to show up: contempt of court. (O.49B r.1B)
Ø Application made ex parte.
n Order can require judgment debtor to bring books / documents on his assets. Service of order and effect of penal notice.
Ø O.49B: Possible measures that judgment creditor can request include:
n i) Arrest of judgment debtor pending examination (r.1);
n ii) Prohibition from leaving Hong Kong (r.1(2) & 1A(3)); and
n ii) Imprisonment until examination over (r.1A(3)(b)).
Ø Post-examination (both O.48 and o.49B)
n Costs may be awarded at discretion of Master. Court may order payment of debt by instalments.
n Order for imprisonment – court may order this for up to 3 months if (O.49B, r.1B):
u i) Court satisfied debtor can satisfy judgment but has deliberately disposed of assets; and ii) Debtor has willfully failed to give full disclosure.

3. Five Main Methods of Enforcement (if available assets identified)

1) Writ of Fieri Facias
Ø Writ of Fieri Facias (“Fi Fa”): O.46 (Writs of execution (general)) & 47 (Writs of fieri facias).
Ø Enforcement against movable assets e.g., goods, chattels
Ø Instruction to bailiff to seize and sell to pay: Judgment debt. Interest. Bailiff’s fee. Costs.
Ø Procedure (see O.46): Writ and copies sent to bailiff à Give bailiff details of judgment debtor / location of goods à Give bailiff solicitor’s undertaking to
pay any additional security guard fees.
Ø Execution in practice and effects of execution: Goods seized. Bailiff will take walking possession. Third party interests. Sale of goods by most appropriate
method. Use of proceeds of sale. Any balance left over returned to judgment debtor.
2) Charging Order (an equitable order)
Ø Used to enforce against, for instance: Land. Interests in property. Stocks and shares. Unit trusts.
Ø RHC, RDC O.50 (Charging Orders, Stop Orders, etc.).
Ø Charging order absolute creates equitable charge only – still need to enforce (e.g., sale)
n Equitable charge over land, need to register as soon as possible to preserve priority
Ø Procedure (O.50):
n (1) Judgment creditor applies ex parte.
n (2) Application supported by affidavit, which should (O.50, r.1(3)):
u Identify judgment/order to be enforced. State amount unpaid (including interest since date of judgment).
u State name of judgment debtor and any other creditors she may have. Full details of subject-matter to be charged.
u Verify interest to be charged beneficially owned by judgment debtor.
n (3) Lodge application for order nisi (a temporary order) and affidavit at court registry.
n (4) Where there’s real risk that debtor will try to sell asset before order nisi made absolute:
u Apply for injunction to prevent asset being dealt with. Both applications may be heard together.
u N.B. duty of full and frank disclosure, undertakings as to damages
n (5) Hearing: Court decides whether to grant the order nisi as an order absolute.
n (6) If granted, JD has security for the debt owed
u e.g., Judgement creditor may not be able to sell the property until minors living in it turn 18
Ø General principles apply:
n Judgment debtor bears burden of showing cause why order nisi should not become absolute.
n Court takes into account all the circumstances of the particular case. (e.g. Sale of a house where child or some elderly are living can be impossible)
n Court considers all parties involved, including other, unsecured, creditors.
Ø Copy of order and a stop notice must then be served on company or other appropriate party to prevent any dealing.
Ø For land, send charging order (sealed copy) + memorial to Lands Registry.
Ø Subsequent sale: O.88 (Mortgage actions), r.5A (Action for the enforcement of Charging Order by sale).
3) Garnishee Proceedings
Ø When used: where a 3rd party within HK owes a debt to the JD, the court can make a garnishee order against that 3rd party (the Garnishee) ordering him to
pay the amt of that debt directly to the judgment creditor (the Garnishor)
n Common example: credit balance in judgment debtor’s bank account (the bank is the third party/garnishee).
Ø O.49, RHC. Procedure: Apply for an order nisi (order to show cause). Ex parte supported by affidavit (O.49 r.2).
Ø Order nisi freezes funds until hearing. Garnishee entitlement to set off costs/any sums owed by judgment debtor to garnishee. (e.g. before transfer the
money to the Garnishor, the bank can set off admin costs in advance owed by the judgment debtor)
Ø At hearing before Master: if order absolute granted, order sealed. Garnishor then entitled to demand immediate payment.
4) Prohibition Order
Ø Apply to prohibit debtor from leaving Hong Kong. Procedure derived from HCO s.21B (Prohibition on debtor leaving HK) – requirements: 21B(2) & (3).
Ø O.44A, r.2 (Prohibition order before or after judgment & attachment of property before judgment): application made ex parte supported by affidavit.
Ø Order served on Director of Immigration; Chief Bailiff; debtor (if possible to locate).
Ø Debtor may apply for order to be discharged (O.44A, r.4) and can be awarded compensation (O.44A, r.5) .
5) Bankruptcy and Winding Up – Not, strictly speaking, a method of enforcement
Ø Bankruptcy for individuals and winding up (liquidation) for companies
Ø Judgment debtor’s failure to pay judgment – evidence of insolvency. Unsatisfied judgment = a debt. Grounds for starting bankruptcy/winding up proceedings.

4. Appeals
1) Introduction
Ø Rationale: On the one hand, a need to provide mechanisms to correct mistakes. On the other hand, the need for finality in litigation.
Ø Restrictions on appeals: Leave of the Court in some cases. Findings of fact. Short time limits.
n An appeal is a review rather than “a second trial of a case”. Appeals on findings of fact are extremely limited and the Court will be circumscribed
in entertaining fresh pints not raised at trial. See the exposition on general principles of appeal in United Muslim Association of Hong Kong
n What does not count: “Regurgitation of arguments already deployed in closing submissions and rejected by the primary judge by itself would not be
a valid ground. Nor would general assertions that the judge’s finding was against the weight of the evidence or that the judge failed to believe a particular
witness or attach sufficient weight to a piece of evidence: Yap Sui Kong
2) Grounds of appeal – new evidence
Ø Ground #1: Appeal on question of fact very difficult:
n Lam Yin Kwan: A heavy burden to discharge in an appeal against findings of fact.
u Need to show the judge was plainly wrong in the sense that there was no evidence to support his findings of fact, or that the findings were
contrary to documentary or other incontrovertible evidence that the judge had overlooked
u An appeal to the CA is not a re-hearing, the appeal court will not usurp the function of the trial judge to find the facts, and it is not enough
to show there is little evidence to support the judge's finding, or that it was 'contrary to the weight of the evidence'.
n Au Kai To Karel: An appeal court must intervene only when there are “palpable errors “…[W]here a trial judge has reached a conclusion on the
primary facts, it is only in a rare case, such as where that conclusion was one (i) which there was no evidence to support, (ii) which was based on a
misunderstanding of the evidence, or (iii) which no reasonable judge could have reached, that an appellate tribunal will interfere with it.”
Ø Ground #2: New evidence has arisen
n The general rule: “[A]n appeal is not a second trial of the case. What the appellate court has to consider is mainly the evidence at trial, and whether
the decision of the trial judge is right or wrong”: Tsang Tak Wai.
n Collecting discovery or requesting discovery will only be allowed in exceptional circumstances, consider Ladd v Marshall criteria.
u (1) the evidence could not have been obtained with reasonable diligence for use at the trial,
l Bank of New York Mellon. The court will (non-exhaustively) take into account: the overall circumstances of the case, including: 1) the
time available to D to gather the evidence, 2) the nature of the evidence, 3) the difficulty encountered in obtaining the evidence, 4) the
effort that D had used in gathering the evidence.
u (2) if the further evidence is given, it would probably have an important influence on the result of the case, though it need not be decisive, and
u (3) the evidence should be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be
incontrovertible
n Delay (in bringing the appeal to the court’s attention) could be a ground to deny the admissions of new evidence Oriental Generation
Ø Ground #3: New point of law
 n New points of law – the “state of evidence bar” Flywin
n General rule: Where a party omitted to take a point at trial and then sought to raise it on appeal, he will be barred from doing so unless there was
no reasonable possibility that the state of the evidence relevant to the point would have been materially more favourable to the other side if the
point had been taken at trial. The foundational imperative of the "state of the evidence bar" was fairness (i.e. if that point was raised at trial, it will go
against you; then such a point should not be raised at appeal.); Rationale
u Where a point is taken at the trial, the facts pertaining to it are open to full investigation at the evidence-taking stage of the litigation
l (i) it is at trial that the court has the full opportunity to look at the arguments of law and match them with the full statement of evidence;
l (ii) by imposing this rule, the court is trying to stop the appealing party from (a) keeping an extra point in reserve in case the party needs
an appeal; (b) bring up a point in isolation of (and hiding from) the arguments with the full weight of the evidence against which the point
should be tested
Ø See also Lehmanbrown: “While the CA obviously has the power to entertain new points in an appeal, it is also clearly and firmly established that new
points which are fact-sensitive or otherwise affect the course of evidence or conduct of the case at the hearing below should not be allowed…” This
is not limited merely to where new points require further evidence. It may, for instance, include whether counterarguments require factual
assessment in a different light from the Court below or a different weighing of discretion or a different course of forensic conduct if the point were
taken earlier.
4) Appeals from Master
Ø Appeal from decision of Master6 → Judge in Chambers: RHC O.58 r.1 (Appeals from Masters).
n Appeal from judgment of a High Court Master is de novo (i.e. afresh) (except as to costs) to a CFI judge in chambers.
n Exceptionally: certain masters’ decisions are made to the Court of Appeal (O.58 r.2).
n Note: Proceedings not automatically stayed. A party must apply for stay (e.g. to prevent enforcement) in Notice of Appeal.
Ø Appeal from decision of Master → Court of Appeal:
n Direct appeal to CA – limited grounds under O.58, r.2. Procedure for appeals to CA set out in O.59. (Refer to Rules)
5) Appeals to CA
Ø CA has jurisdiction to hear appeals from: The District Court. The CFI. Certain tribunals.
Ø Procedure commenced by Notice of Appeal (O.59 r.3(1)). General principle: As of right appeal from CFI to CA (s.14, HCO).
Ø Applications for leave to appeal – by summons (O.59, r.2A). Apply to lower court first (particularly then appeal is based on a case management decision,
whose nature if sensitive to procedural history and circumstances) : Hingone.
Ø Appealing to the CA – one justice, then appeal to two justices (O.59, r.2C). Grounds of appeal should be specified in Notice of Appeal (O.59, r.3(2)).
Ø Time limits for service (O.59 r.4(1))
n (a) in the case where leave to appeal to the CA is required…7 days after the date on which leave to appeal is granted;
n (b) in the case of an appeal from a judgment, order or decision given or made in the matter of the winding up of a company, or in the matter of any
bankruptcy, 28 days from the date of the judgment, order or decision; and
n (c) in any other case, 28 days from the date of the judgment, order or decision concerned.
Ø Respondent who contends the appeal lodges a Respondent’s notice (O.59, r.6), r.6(3) Time limit: after the service of the notice of appeal on the respondent
n (a) If the notice of appeal related to an interlocutory order, within 14 day; (b) if in any other case, within 21 days,
Ø Other documents the Appellant must lodge (O.59, r.9). Note: PD 4.1 requirements. CA appeal is a re-hearing but not de novo.
6) Appeals to CFA
Ø Appeals to the CFA are governed by the HKCFAO (Cap.484). s.22 provides that all appeals to the CFA require discretionary leave from the Court below.
n Note: following the repeal of s.22(1)(a) of the HKCFAO, there are no longer any circumstances in which a party may appeal to the CFA as of right.
Ø The application for discretionary leave is made: By motion to CA / CFA – Section 24(1) HKCFAO.
n To CFA if leave to appeal from decision of CFI refused by CA – Section 24(3) HKCFAO.
Ø Procedure: HKCFAO (only read provisions mentioned above); Rules of the HKCFA and Practice Direction 2.1 (you do not need to read these).
Ø Counsel, solicitors and parties must assist the court on appeal by observing the Underlying Objectives in RHC O.1A r.1.
Ø Academics/Public interests: Rarely and exceptionally, the public interest in having a particular point of law decided can be so great as to warrant leave to
pursue an application or appeal even though the case has become academic, will such academic claim be entertained: Re CY Foundation Group
Ø Even fact-specific cases may raise questions of general or public importance: Building Authority v Appeal Tribunal (Buildings).
n Held: it is true that the Q of construction of special condition may have to decide with regards to the particular case with particular fact, but the Q of
special condition may have impact on the interpretation of the exercise in future cases. So it does raise Qs of general or public importance
Ø But challenges to well-known principles may not; and sometimes fact-specificity points against the granting of leave: Qin Jun
n Held: A question of great general or public importance did not arise simply because a party desired a well-established principle to be revisited. Further,
whether there was a reasonable possibility that new evidence would have been adduced was case-sensitive.
7) Appeals of interlocutory decisions
Ø Applies to appeals of interlocutory decisions (e.g. summary judgment, strike out, amendment, etc.) from CFI to CoA.
Ø Previously as of right. Now, need leave from CFI or CA (HCO, s.14AA). Test set out in HCO, s.14AA(4):
n (1) Reasonable prospect of success (i.e. merit test), or (2) Some other reason in the interests of justice.
Ø Rationale – limit satellite litigation (i.e. many interlocutory applications bouncing around the case).
Ø Exceptions to this – still as of right, set out in O.59, r.21.

6
Basically deal with interlocutory application.