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Friday Tea Workshop

4 July 2008

6.30 pm – 7.45 pm

 Civil Justice Reform

Practice before Masters

Room UT,

City University of Hong Kong,

SCOPE Admiralty Learning Centre, 8/F., United Centre,

95 Queensway,

Admiralty,

Hong Kong.

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Topics in Civil Justice Reform:

• Chart A

(2) Chart B

(3) Important Note

(4) Interlocutory Applications

(5) Costs – Order 62

(6) Costs Offer and Payments into Court – Order 62A

(7) Some General Practical Points for Solicitors to Remember

(8) Some Practical Points for Counsel to Remember

(9) Conclusion

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Pre-action Discovery(PI & Fatal Cases only)

DefaultJudgments,Summary

Judgment etc.

Commencement(4 types – OS, Writ,Petitions or Motions)

Pleadings(Statement of Claims,

Defence or Reply)

Summons for Directions

Checklist Review

Listing

Pre-trial Review

Appeal

Taxation

InterlocutoryApplications

Interlocutory Appeals•as of right

Taxation

•Late Discovery

•New Witness Statements

•Amendment of Pleadings

Trial aborted

Trial

After Listing

Existing Procedures

Possible Delaysat Each Step

(1) Chart A

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Underlying Objectives and Case Management

Reformed System ofInterlocutoryApplications•paper disposal

Pre-action Discovery(All Types of Proceedings)

Commencement(2 types – OS or writ,

unless otherwisePrescribed by law)

Pleadings(Statement of truth)

Court-determinedTimetable with Immovable

Milestone dates

CMC

Pre-trial Review

Appeal

All InterlocutoriesCompleted

Before Listing

Costs-OnlyProceedings

Admissions andDefault Judgments

Sanctioned OfferAt any stage

Taxation

Trial

Reformed Procedures (2) Chart B

New Features toReduce Delays /

Complexity

New Measures toFacilitate

Settlement

Interlocutory Appeals toCourt of First Instance•as of right

Interlocutory Appealsto Court of Appeal•Leave required

SummaryAssessment of Costs

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(4) Interlocutory Applications

Interlocutory applications

1. Take out only if necessary, procedural economy encouraged. 2. Procedural directions may be given on application or court’s

own motion: Order 1B, r.3(1).

3. Order nisi, 14 days absolute: Order 1B, r.3(2).

4. Keep within timetable.

5. Delay / default in compliance: unless order, barred on expiry of time, or conditions imposed: Order 2, r.3(2).

(3) IMPORTANT NOTE

This note only sets out a part of the CJR incentives. Readers should refer to the final version of the

Rules of the High Court (Amendment) Rules 2008gazetted on 6 June 2008 and the

relevant Practice Directions to be issued in due course.

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6. Sanctions do have effect unless defaulting party obtains relief: Order 2, rr.4, 5.

7. When Court makes order on interlocutory application

a) before it has given CM directions under Order 25, it may specify sanction: Order 32, r.11B;

b) After it has given CM directions under Order 25, it shall specify sanction: Order 32, r.11B.

Disposal on the Papers

8. Limited to interlocutory applications before Masters who may

a) determine an interlocutory application without an oral hearing; or

b) adjourn the application to be heard before him or another master or a judge in chambers.

Order 32, r.11A.

9. Directions for filing of evidence skeleton submissions (and cost statements) will be given.

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10. Order date will be set before which all evidence will be closed and skeleton submissions filed.

11. If new circumstances render oral hearing desirable, must inform court as soon as possible.

12. Determination is final as far as the Master is concerned, not order nisi.

13. Examples of suitable applications: security for costs, F&BP, interim payment, simple landlord and tenant matters.

14. Experience.

Appeals in interlocutory matters

15. From Master to CFI judge remains as of right; Ladd v. Marshall applies: Order 58, r.1.

16. From Judge to CA requires leave, subject to exceptions (see Order 59, r.21).

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(5) COSTS – Order 62

General Principles Governing Costs

17. For main action: costs generally to follow event: r.3(2).

18. For interlocutory application: costs to follow event is but one option: r.3(2A).

19. No satellite litigation on costs.

20. Proportionality

21. 4 ways for deciding amount of costs:

Fixed costs and statutory scale of costs Summary assessment } new Provisional summary assessment } scale of Taxation } costs

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A New Set of Fixed Costs and Statutory Scale of Costs

22. Fees for mechanical preparation abolished and photocopying fees have been changed: Order 62, 1st Schedule.

23. New fixed costs for default judgment and judgment on admissions under O.13A given without a hearing: Order 62, 2nd Schedule.

24. Transitional provisions.

25. Certify no breach of indemnity principle.

Summary Assessment of Costs: r.9A(1)(a)

26. Applies to both interlocutory (r.9A) & non-interlocutory matters (r.9).

27. Receiving party to provide a costs statement (will be in PD).

28. Assessment done right after disposal of the interlocutory application by the same judge or master or adjourn to another day (for paper assessment or 15 minute hearing).

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29. Broad-brush approach; no mini-taxation.

30. 14 days to pay except for legally aided paying party: r.9B.

Provisional summary assessment: r.9A(1)(b)

31. Judge of Master will need to make an order under this rule; do summary assessment subject to the right of either party to tax the costs.

32. Adjustment of costs summarily assessed against the taxed costs.

34. A party who insists on taxation at risk as to a special order for costs of the taxation if the taxed costs do not materially exceed the assessed costs: Order 62, r.9A(4), (5).

Taxation: r.9A(1)(c)

35. One taxation at end of case: r.9D(1).

36. Taxation to be commenced within 2 years of completion of case (judgment or date or order absolute on costs whichever is the later): r.22(7)-(9).

37. Court has power to make an unless order compelling a party to commence or proceed with taxation: r.22(3).

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37. Delay in commencing or proceeding with taxation may result in:

costs consequence global reduction of taxed costs reduction in interest

  r. 22(5)

39. New procedure for filing Notice of Commencement of Taxation (NOCT) in draft PD: r.21(1).

39. Taxing fee to be paid to court based on amount claimed: r.21(5), Fees Rules.

40. Reimbursement of taxing fee based on amount allowed: r.32B, Fees Rules.

41. Application to set down after time for filing list of objection has expired: r.21A, (see draft PD).

42. Bills channelled to:

Chief Judicial Clerk if amount of bill is $200,000 or below: r.13(1A)

Taxing master for paper disposal: r.21B. Taxing master for taxation with a hearing: r.21C.

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43. Paper taxation on a nisi basis with a right to ask for oral hearing; party requesting for oral hearing bears cost of hearings if he fails to do materially better.

Practical Matters in Taxation

44. New format of bill of costs.

45. Taxation of bundle to be properly prepared.

46. Fill in summary sheet properly after taxation when you submit allocatur for sealing to enable us to collect information on taxed costs:

to promote consistency, accuracy and fairness in judicial awards of costs

to assist parties in negotiation of legal fees to settle dispute as to costs to educate your client

47. Transitional position: procedure and scale costs: Order 62, r.37.

48. Experience.

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(6) Costs Offer and Payments into Court – Order 62A

1. Paying party’s offer by way of sanctioned payment (“S/P”) i.e. payment into court: r.3(1). Receiving party’s offer by way of sanctioned offer (“S/O”): r.4.

2. 14 days for acceptance without leave: rr.13, 14(1).

3. Leave to accept required if:

acceptance beyond 14 days and parties cannot agree on costs: r.13(2).

persons under disability involved: r.17.

Court will deal with question of costs when granting leave.

4. Withdrawal or diminution of offer within 14 days requires leave of court: r.10.

5. If S/O or S/P withdrawn, will not have consequences of Order 62A: r.7(4) & r.10(4).

6. Consequence of acceptance of S/O or S/P: taxation is stayed (in whole or in part as case may be); either party may apply to enforce those terms without the need to commence new proceedings: r.18.

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7. If receiving party fails to do better than paying party’s sanctioned payment: r.19.

interest on costs for the period after the latest date on which the payment could have been accepted without requiring leave disallowed

costs to paying party incurred after the date on which the payment was made on indemnity basis

enhanced interest on those costs up to 10% above judgment rate

8. If RP does better than his own sanctioned offer: r.20.

enhanced interest on costs up to 10% above judgment rate for the period after the date of service of the S/O on PP

receiving party to get costs after the date of service of the S/O on indemnity basis

enhanced interest on those costs

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(7) Some General Practical Pointsfor Solicitors to Remember

1. Discuss with the opposing party as much as possible.

2. New statutory forms

3. Pleadings

4. Mark diaries: difficult to get extensions of time

Transitional provisions for filing of pleadings

Brief counsel

Signing statement of truth

5. Fill in summonses properly

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6. Train your filing clerks

a) New fees apply

b) New set of fixed costs

c) New set of scale fees

d) New chops to prepare

7. Costs

Discuss with LCDs and try out paper taxation

Don’t modify your templates for producing bills yet until the PD has been issued.

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(8) Some Practical Points forCounsel to Remember

1. Settle pleadings / affidavit in good time.

2. For open court hearings (whether before Master, Judge, CA, CFA), get certificate if client wants to cover costs for 2 or more counsel; specify senior or junior if more than 3 certificates.

3. Rule for allowing fees of counsel in full unless excessive or unreasonable abolished; may need to assist solicitor in giving breakdown of fees to justify on taxation.

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(9) Conclusion

1. Remember the underlying objectives

increasing the costs effectiveness in the court’s

procedures

Ensuring the expeditious disposal of cases as it reasonably practicable

promoting a sense of reasonable proportion and

procedural economy in the conduct of cases

ensuring fairness between the parties

facilitating settlement

distributing the court’s resources fairly,

always recognizing that the primary aim of judicial case management should be to secure the just resolution of the parties’ dispute in accordance with their substantive rights

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2. Plan ahead and focus on the main issues

3. Keep timetable

4. Agree procedural directions and issues as far as possible

5. If need to go to court, try paper disposal if permitted by rules

6. If order nisi, usually 14 days to become absolute

7. No satellite litigation on interlocutory matters and costs

8. Appeal period counted from date of order, not date of perfection of order

9. Try out some of the incentives by consent

10. Watch out for draft PDs and comment on them – July / August 2008

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REMEMBER

THIS MILESTONE DATE

FOR

IMPLEMENTATION

OF THE

CIVIL JUSTICE REFORM

2 APRIL 2009

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THANK YOU