Transcript Document

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.
1
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
2
(1) Chart A
Existing Procedures
Possible Delays
at Each Step
Pre-action Discovery
(PI & Fatal Cases only)
Commencement
(4 types – OS, Writ,
Petitions or Motions)
Default
Judgments,
Summary
Judgment etc.
Pleadings
(Statement of Claims,
Defence or Reply)
Interlocutory
Applications
Interlocutory Appeals
•as of right
Summons for Directions
Taxation
Checklist Review
After Listing
Listing
•Late Discovery
•New Witness Statements
Pre-trial Review
•Amendment of Pleadings
Trial
Trial aborted
Appeal
Taxation
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Reformed Procedures
(2) Chart B
Underlying Objectives and Case Management
New Features to
Reduce Delays /
Complexity
New Measures to
Facilitate
Settlement
Pre-action Discovery
(All Types of Proceedings)
Costs-Only
Proceedings
Reformed System of
Interlocutory
Applications
•paper disposal
Interlocutory Appeals to
Court of First Instance
•as of right
Interlocutory Appeals
to Court of Appeal
•Leave required
Summary
Assessment of Costs
Commencement
(2 types – OS or writ,
unless otherwise
Prescribed by law)
Pleadings
(Statement of truth)
Court-determined
Timetable with Immovable
Milestone dates
Admissions and
Default Judgments
Sanctioned Offer
At any stage
CMC
All Interlocutories
Completed
Before Listing
Pre-trial Review
Trial
Appeal
Taxation
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(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 2008
gazetted on 6 June 2008 and the
relevant Practice Directions to be issued in due course.
(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).
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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.
33.
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)
34.
One taxation at end of case: r.9D(1).
35.
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).
36.
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)
38.
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.
8.
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
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 Points
for 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
5.

Transitional provisions for filing of pleadings

Brief counsel

Signing statement of truth
Fill in summonses properly
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6.
7.
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
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 for
Counsel 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
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