China: Hong Kong. Selective Adoption of the English Woolf Reforms

Abstract

In the past, the Hong Kong judge played a passive role in case management. Undue delay became a by-product of such judicial inactivity. Litigation became far too adversarial and procedural deadlines were often unenforced. The root of the problem lay in the court’s overemphasis on the notion of ‘justice on the merits’ at the expense of procedural efficiency. Since the Civil Justice Reform (CJR) in 2009, the goal of civil justice has transcended the search for pure substantive justice and embraced a multi-faceted agenda to promote procedural efficiency and reasonable proportionality, as well as to encourage settlement. The CJR conferred extensive case management powers to the judge. The court is now equipped with greater discretionary powers to enforce procedural deadlines, limit discovery and administer the litigation timetable. This chapter critically examines the impact of the CJR on case management in Hong Kong, placing particular focus on fact-finding, the problem of undue delay and the new mediation regime.

Appendices

Appendices

1.1 Appendix 1: Facts and Figures Relevant for the Powers of the Judge and the Parties in Civil Litigation

Hong Kong

Year of Reference: 2011

General Data on the National Civil Justice System

• 1. Inhabitants, GDP and average gross annual salary

  Number of inhabitants	7,071,600257
  Per capita GDP (gross domestic product)	Approx. RMB 202,367258
  Average gross annual salary	No official statistics available

• 2. Total annual budget allocated to all courts Approx. RMB 928.8 Million²⁵⁹

• 3. Does the budget of the courts include the following items?

  	Yes	Amount
  Annual public budget allocated to salaries	✓	Approx. RMB 649,259,000260
  Annual public budget allocated to computerisation	□	N/A
  Annual public budget allocated to court buildings	✓	Approx. RMB 764,800261
  Annual public budget allocated to training and education	□	N/A
  Annual public budget allocated to legal aid	□	N/A262
  Other

• 4. Is the budget allocated to the public prosecution included in the court budget?

• □ Yes

• ☒ No

• (a) If yes, give the amount of the annual public budget allocated to the prosecution services

• Legal Aid (Access to Justice)

• 5. Annual number of legal aid cases and annual public budget allocated to legal aid

  	Number	Amount
  Civil cases	8,297263	N/A
  Other than civil cases	2,795264	N/A
  Total of legal aid cases	11,092	Approx. RMB 588,608,000265

• Organisation of the court system and the public prosecution

• 6. Judges, non-judge staff and Rechtspfleger

  	Total number	Sitting in civil cases266
  Professional judges (full time equivalent and permanent posts)	Total number: 71	Total Number: 37
  	Components:	Components:
  	The Court of Final Appeal: 4	The Court of Final Appeal: 4
  	The Court of Appeal of the High Court: 10	The Court of Appeal of the High Court: 7
  	The Court of First Instance of the High Court: 25	The Court of First Instance of the High Court: 9
  	District Court: 32	District Court: 17
  Professional judges sitting in courts on an occasional basis and paid as such	The Court of Final Appeal: 14267	The Court of Final Appeal: 14
  Non-professional judges (including lay-judges) who are not remunerated but who can possibly receive a defrayal of costs	N/A268	N/A
  Non-judge staff working in the courts (full time equivalent and permanent posts)	Lands Tribunal, Magistrates’ Courts and other Tribunals: 75269	N/A
  Rechtspfleger (if applicable)	N/A	N/A

• The performance and workload of the courts

• 7. Total number of civil cases in the courts (litigious and non-litigious):

  • Court of Appeal of the High Court: 291²⁷⁰

  • Court of First Instance of the High Court: 15,966²⁷¹

  • District Court: 45,383²⁷²

• 8. Litigious civil cases and administrative law cases in the courts

  		Litigious civil cases in general	Civil cases by category (e.g. small claims, family, etc.)
  Total number of first-instance cases	Pending cases on 1 January of the year of reference	N/A	N/A	N/A	N/A
  	Pending cases on 31 December of the year of reference	N/A	N/A	N/A	N/A
  	Incoming cases	61,270273	N/A	N/A	N/A
  	Decisions on the merits	52,721274	N/A	N/A	N/A
  Average length of first-instance proceedings275		Court of First Instance: 170.08 days276	N/A	N/A	N/A
  		District Court: 136.23 days277

1.2 Appendix 2: Data on Civil Cases in Selected Courts

The High Court of Hong Kong and the District Court of Hong Kong, 2011

• 1. What types of civil cases does the court decide?

The High Court of Hong Kong

The High Court of Hong Kong has jurisdiction over all types of civil matters. The common types of civil proceedings are²⁷⁸:

• Type 1: Admiralty

• Type 2: Bankruptcy

• Type 3: Breach of Contract

• Type 4: Tort

• Type 5: Company winding-up

• Type 6: Construction and Arbitration

• Type 7: Custody and ancillary relief in matrimonial proceedings

• Type 8: Hire-Purchase

• Type 9: Injunction

• Type 10: Intellectual Property

• Type 11: Judicial Review

• Type 12: Mortgage

• Type 13: Personal Injury

• Type 14: Probate and Administration

The District Court of Hong Kong

The District Court of Hong Kong has jurisdiction over the following types of civil proceedings²⁷⁹:

• Type 1: Contract

• Type 2: Quasi-contract

• Type 3: Tort (including personal injuries claims)

• Type 4: Recovery of land or premises

• Type 5: Claims in equity such as administration of estate of a deceased person, trust mortgage, specific performance, maintenance of infant, dissolution of partnership, relief against fraud or mistake distress

• Type 6: Employees’ compensation cases (there is no limit on the amount claimed)

• Type 7: Sex discrimination, disability and family status discrimination cases

• Type 8: Matrimonial cases including divorce, maintenance, custody and adoption of children

• 2. What is the volume of cases and their proportion to the caseload that the court decides on an annual basis?

The Judiciary Annual Report 2011, published by the Hong Kong Judiciary, sets out the caseload and disposal of cases in 2011. The caseload refers to the number of cases received and considered by the court in 2011. Disposal refers to the number of cases (including cases initiated before 2011) which have been allowed, withdrawn, abandoned or dismissed by the court. See below tables setting out the figures in relation to different courts with civil jurisdiction in Hong Kong.

The Court of Final Appeal of Hong Kong

	Type of Appeals280	Caseload	Disposal281
1	Application for leave to appeal	46	49(20)282
2	Substantive Appeals	21	23
	TOTAL	67283	72284

The Court of Appeal of the High Court of Hong Kong

	Type of Appeals285	Caseload	Disposal286
1	Appeals from the Court of First Instance	230	166
2	Appeals from the District Court	30	29
3	Miscellaneous Appeals	31	25
	TOTAL	291287	220288

The Court of First Instance of the High Court of Hong Kong

	Type of case	Caseload	Disposal289
1	Appeals from Labour Tribunal	33	29
2	Appeals from Small Claims Tribunal	38	37
3	Appeals from Minor Employment Claims Adjudication Board	6	8
4	Miscellaneous Appeals	2	5
5	High Court Actions	2,237	1,475
6	Miscellaneous Proceedings	2,700	1,984
7	Bankruptcy & Companies Winding-up	9,464	9,421
8	Personal Injuries Actions	941	691
9	Other cases290	545	265
	TOTAL	15,966	13,915

The District Court of Hong Kong

	Type of case	Caseload	Disposal291
1	Civil	4,994	3,715
2	Tax Claim	5,169	4,773
3	Distress for Rent	4,424	4,513
4	Employee’s Compensation	2,011	1,563
5	Other civil cases292	5,796	4,388
6	Family Cases293	22,989	19,933
	TOTAL	45,383	38,885

• 3. Are some of the types of cases regarded as complex? If yes, please indicate which cases are regarded as complex, in terms of time and efforts needed.

Medical Negligence cases (involving the participation of overseas medical experts) and Construction Proceedings.

• 4. Are some of the types of cases considered as urgent cases? If yes, please indicate which cases are regarded as urgent, and how this does affect the time of processing.

Defamation leading to an urgent application for interim injunction and Mareva Injunction in the context of fraud.

• 5. Is there information on the average or median duration of particular types of civil cases? If yes, please provide information on average/median duration of these cases.

The Judiciary Annual Report 2011 does not provide the statistics indicating the average and median duration of civil cases from commencement to completion. However, the said report provides that the average waiting time from application (to fix date) to hearing in the High Court was 231 days.²⁹⁴ As for the District Court, the average waiting time from application (to fix date) to hearing was 72 days.²⁹⁵

• 6. Are there targets in respect of the time needed to process each type of case in the court? If yes, please define how these targets are established (e.g. minimum and maximum time; average or mean time; percentage of cases completed within a certain period of time, etc.).

To the knowledge of the respondent, there are no such targets in Hong Kong courts that handle civil cases.

• 7. Does one discuss the timetable and the expected duration of the proceedings with the parties and other participants in the proceedings? If yes, please give examples.

Under the Civil Justice Reform, parties are required to agree on the timetable of the proceedings, failing such agreement, to be directed by the Master presiding over the Case Management Summons hearings. Parties are thereafter required to adhere to the timetable. Parties will also agree on the length of the trial at or before the Case Management Conference or Pre-trial Review, failing such agreement, to be directed by the Master or Trial Judge presiding over the respective hearing.

• 8. Are cases that are considered to last excessively long monitored? If yes, please explain which cases are considered to be excessively lengthy (e.g. cases pending more than 3/4/5 years), what their proportion is in your caseload, and which measures have been introduced for speeding up these cases.

Courts in Hong Kong are generally determined in enforcing deadlines after the Civil Justice Reform. In Nanjing Iron & Steel Group International Trade Co Ltd and others v. ST Pan Ocean Co Ltd and others,²⁹⁶ the Court of First Instance had struck out the plaintiff’s claim for inordinate delay (2 years) on the basis that such delay was contrary to the underlying objectives.

• 9. Is the duration of the proceedings monitored in the following terms? If yes, please provide data. If there are different ways of monitoring, please give information on the categories used.

No, the court uses the timetable referred to in the response to question 7 to monitor the duration of the proceedings.

• 10. Is information on the duration of the particular stages in the proceedings monitored and analysed? If yes, give some examples regarding the duration of particular stages of the proceedings. Ideally, give information on the ideal/average/mean duration of the preparatory stage (from the commencement to the first oral hearing on the merits), the trial stage (from the first oral hearing to closure of the proceedings) and the post-hearing stage (from the closure of the proceedings to judgment). If these data cannot be given, but there are other ways of monitoring, please give information in terms of the categories used.

The Hong Kong Judiciary Annual Report 2011 has no relevant information. However, Tables 6.1 and 6.2 of the First Year Report provide that the average time spent from commencement to trial (covering preparatory stage) in the Court of First Instance was 167 days.²⁹⁷ The average time spent for District Court was 134 days.²⁹⁸

Tables 8.1 and 8.2 of the First Year Report provide that the average time spent in trial in the Court of First Instance was 3.08 days.²⁹⁹ The average time spent in trial in the District Court was 2.23 days.³⁰⁰

According to an internal judicial guideline, a judge should hand down the written judgement within 6 weeks from the end of trial.

1.3 Appendix 3: Research Questionnaire (Hong Kong)

• Objective

• There has been a significant shift of case management powers from the parties to the judge in Hong Kong with the implementation of the Civil Justice Reform (CJR) since April 2009. The existing literature focuses primarily on the principles underlying the CJR and provides a functional assessment of the new procedural rules. Apart from the First Year Report 2010, there has been limited attention to the actual application of the new regime and its practical effect on case management. This Appendix addresses this deficit by critically examining the sources relating to the CJR (e.g. reports and case law) and gathering views of judges, practitioners and experts by way of questionnaire.

• Methodology

• These questionnaires are not designed for empirical research. They are designed to gather the views of specialists in the field of civil litigation to supplement the general investigation. As such the questions commonly require the respondent to comment extensively on the various aspects of judicial case management in Hong Kong in the context of the Civil Justice Reform

Part 1: General Questionnaire

Respondents:

A member of the Hong Kong Judiciary (Judge)

A leading litigation lawyer based in Hong Kong (Practitioner)

• I. Overview and fundamental principles of judicial case management

• 1. Has litigation become more efficient (i.e. less undue delay) as a result of the shift of case management powers from the parties to the judge since the Civil Justice Reform (CJR)?

• Practitioner: Litigation has become slightly more efficient. Parties are more self-disciplined after the CJR. They avoided trivial points or arguing for the sake of arguing. There are incentives for parties to focus on the real substance of the dispute. The greatest incentive is to avoid cost sanctions for failure to mediate. Lawyers understand the implications of cost sanctions and advise their clients accordingly.

  • (a) From your observation, has there been a decrease of interlocutory applications after CJR?

  • Judge: Yes.

  • Practitioner: Slightly less, but no material difference.

  • (b) Do you think paper disposal for interlocutory applications can enhance efficiency or lead to more complications and delay? Please provide 1 or 2 examples to support your view in this regard.

  • Judge: Yes. But there are exceptions: (i) where the legal representatives did not put their heads together in agreeing on the directions for paper disposal of interlocutory application (including even when such is expected in employees’ compensation case pursuant to PD 18.2); (ii) where the legal representatives filed far from being succinct written submissions (e.g. written submissions for variation of nisi costs order after trial that far exceeded the length of the submissions at the trial). All these could lead to waste of time and costs.

  • Practitioner: No view.

• 2. From the perspective of case management, do you think a good balance has been struck between procedural efficacy and substantive justice (i.e. ensuring a just outcome)? Please provide 1 or 2 examples to support your view in this regard.

• Judge: No reason to believe otherwise, if the underlying objectives under RHC O.1A are adhered to; and if the parties and their legal representatives assist the court as expected (see RHC O. 1A, r.3).

• Practitioner: Need to consider on a case-by-case basis. At a CMC, the presiding master insisted on the parties presenting their positions within 30 min. The parties were caught by surprise, as the session requires at least half a day, given the amount in dispute was huge and that expert directions were needed.

• 3. In your assessment, did the CJR case management regime lead to excessive judicial discretion and thereby create greater inconsistency in judicial decisions? Are the excesses (if any) outweighed by the benefits of case management? Please provide 1 or 2 examples to support your view in this regard.

• Judge: No.

• Practitioner: No. An arbitrary decision (if any) should have nothing to do with CJR. There is bound to be some disagreement with decisions on procedure, but it is not the result of CJR.

• 4. Is there any noticeable change after the CJR with discovery that had a positive impact on case management? Please provide 1 or 2 examples to support your view in this regard.

• Judge: Few applications for discovery have so far been heard or argued post-CJR. That may well reflect the change.

• Practitioner: Yes. The timetable for automatic discovery becomes more realistic. Before CJR, the timetable was too rigid and short (e.g. usually within 2 weeks). Now there is usually a more manageable timetable (e.g. the court is ready to agree to a 2-month discovery period). There are technical and logistical issues with discovery (e.g. impossible to dig out all emails, the need to agree on search terms with the other side, and the need for follow-up actions (for instance a further search)). Proportionality is not expressly built into CJR (unlike in CPR). The safer assumption is that proportionality is not a test of discovery in Hong Kong. Although in practice a party may try to increase flexibility by agreeing with the other side on the scope of discovery, this ultimately does not affect the right of the other side to apply for further disclosure on the basis of the Peruvian Guano ( PG ) test. The PG test produces quite a costly result. The PG test predates the electronic age. The exponential increase of documentation makes PG archaic. In England, there are increasing PDs to deal with electronic documents discovery. Hong Kong should consider steps to better regulate discovery of electronic documents. The PG test should be amended.

• 5. The CJR not only conferred extensive procedural case management powers to the judge but also substantive case management powers (e.g. RHC O.1A, r.4(2)(c): ‘[deciding] promptly which issues need full investigation and trial and accordingly disposing summarily of the others’ and RHC O.1B, r.1(2)(j): ‘[exclude] an issue from consideration’). Do you think:

• (a)  granting the court substantive discretion in case management is consistent with the adversarial traditions of civil procedure under the common law?

• (b)  civil adjudication has become too inquisitional?

• (c)  the importance of fair trial is compromised?

Please provide 1 or 2 examples to support your above views.

• Judge: (a) Not inconsistent; (b) No; and (c) No

• Practitioner: No such threat to the adversarial principle. The CJR provides a disciplined approach under which the court must search for the best solution.

• II. Overview of the court’s case management powers under the new regime

• 6. RHC O. 1A, r. 4 provides that the court must further the underlying objectives of the RHC by actively managing cases. Please provide a (significant) real-life example from your personal experience of active case management for the furtherance of the underlying objectives.

• Judge: The steps under RHC O.1A, r.4(2)(a); (b); (e); (g); (h); (i); (j); and (l) have been taken during hearings.

• Practitioner: See CMC example above. There is more active case management (but not substantially greater).

• 7. A remarkable novelty of the CJR in case management is conferring power to the court to make an order of its own motion for case management (particularly, it may on its own motion and without hearing the parties give procedural directions by way of order nisi) (see RHC O.1B generally). Please comment on the practical significance and effectiveness of this power in promoting case management and provide 1 or 2 examples (if any) in this regard.

• Judge: Chances are that the parties would have no strong views on the directions so made for the further conduct of the case, if they are so told by the court. That may well reflect the practical effectiveness of proactive case management in matters that the parties, for one reason or the other, have simply failed to or refrained from proposing. Directions have been given in this manner in employees’ compensation case.

• Practitioner: So far no examples of case management order of own motion from experience. Proceedings are still driven by parties. In reality, given the court’s heavy caseload, it is difficult to do something of its own motion. To be able to exercise these powers, the court needs time to read in and form its own views. Given current limited court resources, it still needs the parties to drive proceedings. With the help of the parties, the court will be in a good position to make proper case management orders.

• III. Case management timetabling and milestones (RHC O.25)

The timetabling questionnaire – benefits

Ref. (a)

The Final Report 2004 stated the following:

• ‘The proposed changes do not involve imposing any radically new duties on the parties or conferring much wider powers on the courts.’ ³⁰¹

• ‘The questionnaire aims at a more focussed exercise of such powers and observance of such duties. The Working Party believes that a questionnaire would be beneficial and promote cost-effectiveness in the litigation.’ ³⁰²

• 8. With reference to the above extracts from the Final Report (Ref. (a)), do you think the timetabling and listing questionnaires have achieved the purpose of promoting procedural efficacy and cost-effectiveness? Please provide 1 or 2 examples to support your view in this regard.

• Judge: Yes, by ensuring that the parties, as they were supposed to do so even prior to the CJR, actually consider the time estimate realistically so as to avoid future adjournment. In most cases in the District Court, this stage has passed by the time when the case comes before the judge; but adjournment of a case part-heard has become less often, and indeed rare from personal experience post-CJR.

• Practitioner: Timetabling Questionnaire (TQ): the court is quite formalistic with it (ticking boxes). The court emphasizes getting the form right ‘stylistically’. This slightly defeats the purpose of TQs. The form is intended to facilitate flexibility of timetabling. Furthermore, the format of the TQ form is not very user friendly (requires the party to tick boxes to confirm statements, but such statements are subject to caveats in subsequent pages).

Milestones and flexibility

Ref. (b)

The Final Report 2004 stated the following:

• ‘The aim of achieving a firm timetable which allows the flexibility needed requires a number of objectives to be pursued concurrently. The reforms should (i) seek to enhance the realism and appropriateness of the timetable which is set; (ii) build into the timetable mechanisms giving the parties and the court flexibility to react to developments while maintaining essentials of the timetable; and (iii) develop supporting reforms which will help to minimise disruption to the timetable.’ ³⁰³

• 9. Do you think the mechanism set out in RHC O.25 (in particular the milestone dates) has achieved the above objectives (Ref. (b)) in practice? Please explain.

• Judge: Yes. Properly set milestone dates are supposed to have taken into account potential development contemplated by the parties. With proper assistance from the parties and innovation in directions, the court should be able to set the milestone dates that could stand the test of contingencies. In terms of adhering to the dates so set, the objectives are achieved in practice.

• Practitioner: The RHC O.25 regime is effective in general. Apart from promoting a culture of compliance, it also keeps parties focused. Parties are not just motivated by sanctions. The regime provides more ‘pointers’ for parties to follow, thereby increasing efficiency. The regime helps legal advisers to convince clients the need to case-manage and focus on what to do to achieve efficiency (especially when there is an unresponsive client). In the past, both the litigants and the lawyers were ‘thrown into the sea’ with not much pointers.

• 10. What would you consider to be ‘exceptional circumstances’ that justify a variation of a milestone date under RHC O.25, r.1B(2) and (3), having to strike a delicate balance between the aim of having a firm timetable and maintaining an appropriate degree of flexibility?³⁰⁴ Do you have any practical experience where the milestone date was varied (under RHC O. 25, r. 1B(5) and (6)) or application for variation of milestone was rejected by the court? If so, please provide the example(s) without disclosing the identity of the parties and/or action number.

• Judge: This is fact-sensitive. To be exceptional, the circumstances have to be beyond reasonable expectation and control when the milestone dates were set. Impact of the variation will also be of significance. An example is where the determination of dispute in a case could impact on a series of similar cases. Significant amendments of pleadings at the PTR stage, properly explained, were allowed so as to set right the footing of the parties in that case. The consequential directions entailed the impracticability of adhering to the trial dates; so the trial dates were vacated and re-fixed.

• Practitioner: No experience.

• 11. Have you restored/successfully applied to restore a claim (or counterclaim) under RHC O.25, r.1C(4) after a claim (or counterclaim) has been struck out due to the plaintiff’s failure to appear at the case management conference or the pre-trial review? If so, why were you satisfied/what are the grounds relied upon that “good reasons” have been shown? What conditions were imposed on the restoration and why were such conditions imposed (e.g. a security)?

• Judge: No

• Practitioner: No experience. Heard that there was a case restored under RHC O.25, r.1C(4) at cost sanction.

Case management conference

Ref. (c)

The Final Report 2004 stated the following:

• ‘A court might order a case management conference where the case is heavy and procedural complications are likely to arise, for instance, where strongly contested interlocutory applications or interlocutory appeals are intended or pending (as disclosed in the questionnaire) making it difficult to fix a realistic trial date or trial period at the summons for directions stage.’ ³⁰⁵

• 12. What factors (apart from those stated above in Ref.(c)) would you take into consideration in determining whether a case management conference should be ordered?

• Judge: Direction for CMC in the District Court is mostly made by the Master. Seldom is CMC listed before a judge.

• Practitioner: No view.

• 13. From practice, how effective were case management conferences?

• Judge: See 12 above.

• Practitioner: No view.

• 14. From your experience, is a case management conference particularly useful when a party is a litigant in person?

• Judge: See 12 and 13 above. But almost invariably there will be PTR before the trial judge in cases of complexity and those involving litigant in person. Such PTRs are useful.

• Practitioner: No view.

• 15. Do you think pre-trial (or case management) conferences help shorten trial time and promote settlement?³⁰⁶

• Judge: The trial judge is in a good position to make use of the PTR as the opportunity to crystallize the parties’ dispute and to test the reality of their respective cases. Often issues become more refined and parties’ attention more focused after the PTR. Occasionally that actually facilitated settlement and thus saving the parties from the trial.

• Practitioner: CMC and PTR have practical use. They help parties to focus on the issues and determine whether to resort to mediation. They also gave pretext for settlement without appearing weak when initiating settlement. As PD 31 promotes settlement and mediation, it is only a ‘natural’ procedural step to try settlement. As a result, post-CJR settlement negotiations happen much earlier.

• IV. Case management at trial and appeal

• 16. Please comment on the effectiveness of RHC O.35, r.3A in practice.

• Judge: Effective in ensuring that the parties, as they were expected to do so even prior to the CJR, will consider the time estimates seriously and realistically. That helps avoiding adjournment of the hearing in the future.

• Practitioner: No experience.

• 17. What is your view on the following proposed amendment to the rules governing the appeal process?

• ‘[when] the parties are given notice of the hearing date, they receive from the court a questionnaire requiring them to provide information about the appeal and its state of preparation, including time estimates from the respective advocates who are to conduct the appeal.’ ³⁰⁷

• Judge: No view.

• Practitioner: No view.

• V. Limited tolerance of party default after CJR

Ref. (e)

• Zuckerman observed: ‘The consequences of this approach [justice on the merits] were inevitable: a weakening of the normative force of the time limits, for litigants could rest assured that failure to comply with time limits would have no serious consequences for their case except in the most extreme situations. Even disobedience of peremptory orders i.e. “unless orders” on pain of specified sanctions would rarely have adverse consequences. In addition to creating a normative deficit, this policy gave rise to a whole industry of satellite litigation on the interpretation of the Birkett v. James principles’ ³⁰⁸

• 18. Is Birkett v. James [1978] A.C. 297 still good law after the CJR? Please explain in the context of the academic comment above (Ref. (e)).

• Judge: See Re Wing Fai Construction Company Limited , FACV 3/2011 (8/12/2011).

• Practitioner: No experience.

• VI. Enforcement of deadlines and sanctions under the CJR

• 19. Do you have any practical experience in relation to RHC O.2, r.3? If so, please provide the example(s) without revealing the parties and/or action number. How effective is RHC O.2, r.3 (payment into court for non-compliance) in tackling non-compliance and promoting procedural efficiency?

• Judge: No.

• Practitioner: No experience.

• 20. When the court is considering whether to grant a relief from sanction it is required to consider ‘all circumstances’ (under RHC O.2, r.5). Please provide examples of the relevant factors/circumstances that the court has taken into consideration in the past? How do the underlying objectives guide the court in interpreting and applying RHC O.2, r.5?

• Judge: See 19 above.

• Practitioner: No experience.

• VII. Fact-finding: a case management perspective

In the context of fact-finding, the CJR emphasizes on identification of the issues at an early stage of the proceedings so that the court can take proactive steps to ensure this initial step of fact-finding is carried out expediently and appropriately. In this regard:-

• 21. Do you have any practical experience in relation RHC O. 24, r. 15A which gives the court power to limit discovery under RHC O. 24, r 1(1)? If so, please provide the example(s) without revealing the parties and/or action number.

• Judge: No.

• Practitioner: No experience.

• 22. Do you think that the initial step of fact-finding can be more expediently and appropriately carried out if the parties are required to set out a list of issues to be tried in the Timetabling Questionnaire? Please provide explanation(s) for your view.

• Judge: Preparing the list helps the parties more. The court is supposed to determine the issues transpiring from the pleadings (unless any of them has been abandoned, conceded or agreed) and irrespective whether they accord with a list of issues so prepared (as that does not bind the court anyway).

• Practitioner: Agree.

• VIII. Encouragement of ADR

It is an underlying objective of the RHC to facilitate the settlement of disputes (RHC O.1A, r.1(e)). It is also a duty of the court to encourage parties to use ADR (RHC O.1A, r.4(2)(e)) and to help the parties settle their disputes (RHC O.1A, r.4(2) (f)).

• 23. Would you agree that in practice the court is more successful than before in facilitating the settlement of disputes after CJR? Please comment with reference to the procedures in Practice Direction 31 (PD 31).

• Judge: Not in a position to conclude.

• Practitioner: Parties are using mediation much more frequently. This promotes earlier and active consideration of negotiating settlement. It logically follows that there will be a higher likelihood of settlement.

• 24. Do you think the PD 31 regime as a whole has been successful in striking a balance between promoting the speedy resolution of dispute via ADR on the one hand and protecting party autonomy on the other?

• Judge: It should be; but not in a position to conclude whether it has been.

• Practitioner: Yes

• 25. Do you think that penalizing the successful party (by way of an adverse cost order) effectively establishes a regime of quasi-mandatory mediation? If so, do you foresee any problems with such a regime?

• Judge: No. Spelling out the possible sanction is meant to be an effective means to ensure that the parties will spend reasonable effort to mediate with a view to saving costs in appropriate cases. The discretion as to costs is still to be exercised in the circumstances of each case. Construing that as creating a mandatory or quasi-mandatory obligation to mediate is negative thinking. Problems arise only if the parties, exactly due to such negative thinking, decide to pay lip service to readiness or attempt to mediate even in an inappropriate case.

• Practitioner: No comment on whether it is quasi-mandatory. In any event, there is no problem. The scheme is working quite well.

• 26. Have you been engaged in any case(s) where the courts encountered difficulties in determining whether a refusal to mediate is reasonable or not? If so, please provide examples.

• Judge: No

• Practitioner: No experience. General comment: Of all the CJR measures, PD 31 produces most tangible change in the litigation culture.

Part 2: Supplemental Questionnaire on Hong Kong’s mediation regime (For mediators only)

Respondent: a leading mediator in Hong Kong

• 1. Do you think the use of mediation prolongs delay or resolves the problem of delay? Please provide examples to illustrate.

• Does not prolong delays, provided the case is suitable for mediation; the mediator is skilful and the parties are willing and committed to resolving their differences by mediation.

• 2. Would you agree there is a necessity to formulate a unified accreditation system for mediators in order to enhance the implementation of Practice Direction 31 (PD31)?

• Yes, it makes it useful for users and ensures consumer confidence as they are assured of the quality of the mediators.

• 3. Do you recognize any specific categories of post-CJR cases where recourse to mediation is inappropriate?

• Defamation cases, as the disputants are not committed to using mediation to resolve their differences.

• 4. In light of the enactment of the Mediation Ordinance, to what extent does a mediation legislation impact on the role of mediation in civil litigation?

• None, as the Mediation Ordinance is limited in scope.

• 5. How do parties in mediation usually determine the ‘minimum level of participation’? ³⁰⁹

• Minimum participation should be 15 h and the mediator should write an independent assessment of the situation and only the judge (not the parties) should review such in confidence when required.