Transcript PowerPoint 簡報

Civil Justice Reform
Seminar on
Interim Report and Consultative Paper
5 January 2002
Terms of reference
“To review the civil rules and procedures
of the High Court and to recommend
changes thereto with a view to ensuring
and improving access to justice at
reasonable cost and speed.”
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Membership
Six Judges from CFA, CA, CFI
Representatives from the DOJ and LAD
A barrister and a solicitor appointed in consultation
respectively with Chairman of Bar Association and
President of Law Society
Law professor from HKU
Chief Executive, Consumer Council
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Aims of the Report
Examine situation in Hong Kong
Report on developments in comparable legal systems
Consult court users and the general public on possible
reforms to the civil justice system
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Common complaints
Too expensive –with costs sometimes exceeding value
of claim
Too slow bringing case to conclusion
Lack of equality between wealthy and poorer litigants
Too uncertain in terms of time and cost
Incomprehensible rules
Too fragmented – no one taking charge of
administration of civil justice
Allows misuse of adversarial system – rules often
ignored by parties and not enforced
Allows certain cases to take up disproportionate
judicial resources
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The main ills:

Excessive cost

Excessive delay

Excessive complexity
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Pleadings
Should – focus the issues between the parties,
promoting fairness and procedural efficiency
But – they often obscure the issues and complicate the
case
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Discovery
Should – promote fair resolution of the dispute and
equality of arms between the parties
But – often leads to overloading case when only a
handful of documents matter – may be used
oppressively
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Expert Witnesses
Should – give court reliable and objective help with
technical questions
But – often used unnecessarily, excessively or as
“hired guns”
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Witness Statements
Should – contribute to “cards on table” approach −
encourage early settlement, prevent surprise and save
costs
But – often prepared by lawyers at great expense to
place “massaged” case before court, not reliable
evidence
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Non-interference by judges
Should – promote impartiality and perception of
impartiality
But – Excessive passivity leads to actions taking too long
and costing too much
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Why are there these problems?
Misuse of adversarial system
Design of system does not sufficiently prevent
abuse, disproportion and lack of economy
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No Quick Fix

Many processes in complicated interaction with
actors pursuing sometimes conflicting interests

Changes to particular rules may have unforeseen
impact

Working Party’s approach – a series of co-ordinated
and mutually supporting changes
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80 Proposals

Not recommendations – Floated for consultation

Drawing on reforms in the UK, Australia and
Canada

Woolf Reforms a useful framework :
- reforms system virtually identical to ours
- operates against very similar common law
background
- implemented by set of rule drafted over 3 years
- now in force for over 2 years
- benefit of judicial clarification
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Themes for possible reforms
(1)
Giving overriding prominence to procedural
economy and proportionality
Re-defining procedural requirements where they
result in disproportionate cost, delay or complexity
Encouraging earlier settlement
Limiting interlocutory applications
Giving court greater case management powers and
sanctions
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Themes for possible reforms
(1)
Minimising need for court hearings
Introducing costs transparency to allow better
client control and assessment of costs
Trying to help unrepresented litigants navigate the
system
Exploring use of voluntary ADR to complement
judicial system
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(1) Procedural economy as an overriding principle
Overriding Objective - England and Wales:
“1.1 (1) These Rules are a new procedural code with the overriding
objective of enabling the court to deal with cases justly.
(2) Dealing with a case justly includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii)
to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
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“1.1 (2) (d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the court’s resources,
while taking into account the need to allot resources to other
cases.
1.2
The court must seek to give effect to the overriding objective
when it(a) exercises any power given to it by the Rules; or
(b) interprets any rule.
1.3
The parties are required to help the court to further the
overriding objective.”
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New South Wales:
“Overriding purpose
1.3 (1)
The overriding purpose of these rules, in their application to civil
proceedings, is to facilitate the just, quick and cheap resolution of the real
issues in such proceedings.
(2)
The Court must seek to give effect to the overriding purpose when it
exercises any power given to it by the rules or when interpreting any rule.
(3)
A party to civil proceedings is under a duty to assist the Court to
further the overriding purpose and, to that effect, to participate in the
processes of the Court and to comply with directions and orders of the
Court.
(4)
A solicitor or barrister shall not, by his or her conduct, cause his or her
client to be put in breach of the duty identified in (3).
(5)
The Court may take into account any failure to comply with (3) or (4) in
exercising a discretion with respect to costs.”
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The Purpose of Overriding Objective
Principles to guide interpretation and application
of rules
Less reliance on reported decisions on procedural
questions – Less complexity
Conveys explicit policy of procedural economy
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(2) Redefining procedural requirements
Discovery
Present: “Peruvian Guano” .
Automatic duty in all cases to disclose four classes of
document:
Party’s own documents

Adverse documents

Relevant documents

Train of inquiry documents
Too Wide

Restrict to the first two categories: Parties’ own and
adverse
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Restrict duty of search
CPR: “a reasonable search”
Judged by

number of documents involved

nature and complexity of proceedings

ease and expense of retrieval of any particular
document; and

significance of any document which is likelyto be located
during the search
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Another approach - New South Wales

no automatic discovery

parties serve notice requiring disclosure of documents
mentioned in pleadings etc.

plus up to 50 other specified documents
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(3) Encouraging earlier settlements
Very small proportion of cases go to trial
Settlement often very late in the action
If earlier settlement costs saved, congestion reduced
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Encouraging early settlement – 3 examples
(A) Pleadings
to settle, must define issues
Parties must expose true cases at early stage
Some proposals :
require pleading of concise summaries which accurately raise
the issues

substantive, not stone-walling, defences. If denial or
non-admission, say why

responsible allegations only
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(B) Part 36 offers
Part 36 offers in CPR allow Plaintiff means of forcing
defendant to consider early settlement
How it works - Plaintiff offers to accept less than his claim
- If rejected and at trial plaintiff does better, defendant may
be ordered to pay
(i) indemnity costs and,
(ii) interest on the sum awarded at up to base rate +10%
Controversial – “front end loading” of costs
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(C) Pre-action protocols
Laying down standards for responsible pre-action conduct
- Costs sanctions based on unreasonable pre-action conduct
Now protocols in 5 areas:
- personal injury
- clinical negligence
- defamation
- construction and engineering dispute
- professional negligence
Controversial – “front-end loading” of costs
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(4) Limiting interlocutory applications
One of the most serious causes of additional expense and
delay
Particularly if taken on appeal: in HK as of right
Proposals include:
Skipping the master
Requiring leave of CFI judge or CA on interlocutory
appeals
CA refusing leave unless an important question of
principles raised
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In CFI
Discouraging unnecessary or disproportionate
interlocutory applications
Grouping applications in one hearing
Summary assessment of costs paid forthwith as
deterrence
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(5) Greater case management powers
Already an accepted function of the court
Proposal is to enhance and put powers on
statutory footing
CPR - part of overriding objective
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 CPR 1.4(1)
“(1) The court must further the overriding objective by actively managing cases.
(2) Active case management includes –
(a) encouraging the parties to co-operate with each other in the conduct of
the proceedings;
(b) identifying the issues at an early stage;
(c) deciding promptly which issues need full investigation and trial and
accordingly disposing summarily of the others;
(d) deciding the order in which issues are to be resolved;
(e) encouraging the parties to use an alternative dispute resolution procedure
if the court considers that appropriate and facilitating the use of such
procedure;
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“
(f) helping the parties to settle the whole or part of the case;
(g) fixing timetables or otherwise controlling the progress of the case;
(h) considering whether the likely benefits of taking a particular step justify
the cost of taking it;
(i) dealing with as many aspects of the case as it can on the same occasion;
(j) dealing with the case without the parties needing to attend at court;
(k) making use of technology; and
(l) giving directions to ensure that the trial of a case proceeds quickly and
efficiently.”
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 Timetable

Court (not parties) sets timetable/milestones

To be effective, court must know what case is about

Milestones events – almost immovable

Between milestones, flexibility: Parties agree time
extensions, etc, without court sanction provided
milestones not disturbed

Not set before defence filed to avoid unnecessary costs
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
Court no longer refuses to allow case to proceed to trial if
parties are not ready
- prevents parties’ delay by dragging their feet
- flexible sanctions
- encourages better planning by parties
- allows better use of court resources
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 Summary assessment of costs and wasted costs orders

Summary assessment orders become routine - Parties go to hearing armed with relevant fee information
- Transparency as to costs of both sides

Wasted costs –
- whether extended to barristers
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Other aspects of case management
 Taking action of court’s own motion
 Flexible and proportionate directions
 Managing the trial process
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(6) Minimising the need for court hearings

Self-executing sanctions

Greater use of paper applications and
provisional orders

Eliminating the need for court approval

Skipping the master and limiting interlocutory
appeals
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(7) Greater costs transparency

Costs are market driven, albeit in an imperfect
market

The Working Party does not advocate trying to
regulate fee levels

Transparency: giving clients more information
and so better ability to assess and contest costs
- client reporting requirements
- codes of conduct

Transparency of other side’s costs

Benchmark costs
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(8) Unrepresented litigants

Need assistance to deal with litigation process

Many of the proposals will help
- simplifying the procedures and court forms
- changing the rules to use more modern and
understandable language
- case-specific case management
- court-annexed ADR where appropriate
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
Other measures which could
- getting them representation or advice
- streaming them towards small claims-type tribunals and
increasing their monetary jurisdiction
- providing alternatives to litigation, such as mediation,
whether by volunteers or funded by public funds
- providing better information resources
- training judges and court staff to deal with such litigants

But Court must remain impartial
- can assist in procedure but cannot give legal
advice
- important for other agencies to give such help
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(9) Alternative dispute resolution

ADR can be valuable adjunct to litigation

Various degrees of court sponsorship of ADR :
- making ADR compulsory condition of
being allowed to pursue proceedings
- making unreasonable rejection of ADR
relevant to costs orders
- ADR entirely left up to the parties with court
providing only background support
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How to implement any reforms
Depends on what and how many reforms
Extent of new rules to be adopted
New resources may be required
Significant effort, including judges and practitioners
learning and applying new rules and approaches
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Some concerns voiced in the media
Proposals give too much power to judges
Proposals do not mean lower costs
Benchmark costs would interfere with
market
Needs of unrepresented litigants not
sufficiently addressed
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Too much judicial discretion?

Necessary response to adversarial
excesses

Training essential

In time, less need for judicial regulation

Participation of profession
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Lower Costs?
 Aim: Value for money
 Tendency of reforms
- Eliminate abuse/waste
- Reduce inefficiency
- Earlier settlements
 Market forces – transparency
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Benchmarks
Ø
Not compulsory fee levels, market is free
Ø
Guide to reasonable costs, aid to consistency
Ø
Coupled with transparency requirements –
enables better client assessment
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Unrepresented litigants

Simpler procedures, case management,
equality of arms

Separately being considered: how assistance
might be improved

Necessarily limited – Court’s impartiality

Help from others: legal aid, pro bono
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Conclusion
Report seeks constructive and informed
discussion
Please let the Working Party have your views
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