Transcript Civil Procedure Overview

How will a case be conducted
differently under the CJR?
Tutorial Workshop through a case
study
Eric TM Cheung
Assistant Professor,
Faculty of Law, HKU
13 November 2008
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Can and should Fragrant Harbour seek discovery
of Cleanezee Ltd’s expert report and/or related
documents before commencing proceedings?
O 24 r 7A and s 41 HCO on pre-action discovery against likely party
• Pre-action discovery only confined to “directly relevant” documents
• S 41 (2) For the purposes of subsection (1), a document 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
document would be likely to be relied on in evidence by any party
in the proceedings; or (b) the document supports or adversely
affects any party’s case.
• Discovery shall not be made “unless the Court is of the opinion that
the order is necessary either for disposing fairly of the cause or matter
or for saving costs.”: O 24 r 8(2).
• Above conditions likely satisfied vis-a-vis expert report
• Main obstacle: Likely objection on the ground of privilege
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How should the sanctioned
offer for $2m be drafted?
• Should it be:
• “Without Prejudice Save as to Costs
• Our client offers to accept from your client
a sum of HK$2 million in full and final
settlement of its claim. This offer is open for
acceptance within 28 days from the date of
this letter, failing which we reserve our
client’s right to draw this letter to the
attention of the court when the issue of
costs arises.”
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Is it a sanctioned offer?
• 5. Form and content of sanctioned offer (O. 22, r. 5)
• (1) A sanctioned offer must be in writing.
• (2) A sanctioned offer may relate to the whole claim or to
part of it or to any issue arising from it.
• (3) A sanctioned offer must –
• (a) state whether it relates to the whole claim or to part of it
or to an issue arising from it and if so to which part or issue;
(b) state whether it takes into account any counterclaim or
set-off; and (c) if it is expressed not to be inclusive of
interest, give the details relating to interest set out in rule
26(2)….
• (7) A sanctioned offer made not less than 28 days before the
commencement of the trial must provide that after the
expiry of 28 days from the date the sanctioned offer is
made, the offeree may only accept it if –
• (a) the parties agree on the liability for costs; or
• (b) the Court grants leave to accept it
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• O 22 r 7 (1) A sanctioned offer made not less than 28
days before the commencement of the trial may not be
withdrawn or diminished before the expiry of 28 days
from the date the sanctioned offer is made unless the
Court grants leave to withdraw or diminish it.
• O 22 r 12 (1) A sanctioned offer is made when it is
served on the offeree.
• O 22 r 21 (1) Where a plaintiff’s sanctioned offer to
settle the whole claim is accepted without requiring
the leave of the Court, the plaintiff is entitled to his
costs of the proceedings up to the date upon which the
defendant serves notice of acceptance, unless the
Court otherwise orders.
• O 22 r 25 (1) A sanctioned offer is treated as “without
prejudice save as to costs”.
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• 2. Offer to settle with specified consequences (O.
22, r. 2)
• (1) A party to an action containing a money claim
or a non-money claim or both arising from any
cause or causes of action may make an offer to
settle the whole claim, a part of it or any issue
arising from it in accordance with this Order.
• …
• (3) An offer made under paragraph (1) has the
consequences specified in rules 20, 21, 22, 23 and
24 (as may be applicable).
• (4) Nothing in this Order prevents a party from
making an offer to settle in whatever way he
chooses, but if that offer is not made in accordance
with this Order, it does not have the consequences
specified in this Order, unless the Court so orders.
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Suggested Draft
• “This is a sanctioned offer made pursuant to Order 22 of
the Rules of the High Court. In full and final settlement of
its claim (exclusive of costs) in the above-mentioned
action, our client offers to accept from your client a sum of
HK$2 million, which sum shall be paid within 7 days of
acceptance of this offer. Upon acceptance, your client shall
also be liable for our client’s costs in accordance with
Order 22 r 21.
• Please note that this sanctioned offer (1) relates to the
whole of our client’s claim and (2) takes into account any
counterclaim or set-off.
• This sanctioned offer is open for acceptance without leave
from the court within 28 days from the date the sanctioned
offer is made. After the expiry of 28 days from the date this
sanctioned offer is made, your client may only accept it if
(a) the parties agree on the liability for costs; or (b) the
Court grants leave to accept it.”
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How should you advise the Defendant on the
consequences of accepting or not accepting
the sanctioned offer?
• Upon acceptance:
• P is entitled to his costs of the proceedings up to
the date of acceptance, unless the court otherwise
orders: O 22 r 20
• P’s claim is stayed, but the stay is upon the terms
of the sanctioned offer; and either party may apply
to enforce those terms or to claim the remedy for a
breach of the settlement contract without the need
to commence new proceedings: O 22 r 22.
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• If no acceptance:
• O 22 r 24(1): This rule applies where –(a) a defendant is
held liable for more than the proposals contained in a
plaintiff’s sanctioned offer; or (b) the judgment against a
defendant is more advantageous to the plaintiff than the
proposals contained in a plaintiff’s sanctioned offer.
• The court shall make the following orders unless it
considers it unjust to do so:
• (a) interest be awarded on the whole or part of any sum of
money (excluding interest) to the plaintiff at a rate not
exceeding 10% above judgment rate for some or all of the
period after the latest date on which the defendant could
have accepted the offer without requiring the leave of the
court;
• (b) the plaintiff be entitled to his costs on the indemnity
basis after that date; and
• (c) interest be awarded on those costs at a rate not
exceeding 10% above judgment rate.
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What alternatives does the Defendant have
in response to this offer?
• Counter-offer by sanctioned payment
• Seek clarification under O 22 r 14:
• O 22 r 14(1): The offeree may, within 7 days of a
sanctioned offer or a sanctioned payment being made,
request the offeror to clarify the offer or payment notice.
• R 14(2): If the offeror does not give the clarification
requested within 7 days of service of the request, the
offeree may, unless the trial has commenced, apply for an
order that he does so.
• Seeking further information/documents so as to properly
assess the value of P’s claim, and asking for an extension
of time to accept the offer pending receipt of the
information/documents (and agreeing to an interim stay for
this purpose)
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• O 22 r 24(5): When considering whether it would be
‘unjust’ to apply the stipulated sanctions, the court must
take into account all the circumstances of the case,
including: (a) the terms of any sanctioned offer; (b) the
stage in the proceedings when the sanctioned offer was
made; (c) the information available to the parties at the
time the sanctioned offer was made; and (d) the conduct of
the parties with regard to giving or refusing to give
information to enable the offer to be made or evaluated.
• Final Report of the Working Party on the Civil Justice
Reform paragraph 308: ‘It would accordingly be a mistake
for a Hong Kong party to believe that his sanctioned offer
carries the relevant consequences if it was made without
properly apprising the other side of the nature of his case.
He may not be required by the rules to take on the burdens
of pre-action protocols in general, but, if he wishes to avail
himself of the benefits of sanctioned offers and payments,
he must ensure that he has nevertheless fairly acquainted
the other side with all material aspects of his case.’
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What matters need to be considered or done by
the Defendant before the filing of the Case
Management Timetabling Questionnaire?
• Mutual discovery without order within 14 days after close of
pleadings: O 24 r 1 and 2
• O 24 r 15A and Draft PD for Order 25 on Case Management
para 6:
• “The parties should proceed with discovery without the need to
wait for an order of the court and try to agree on the directions
for modifying discovery obligations (e.g. limiting discovery to
specified issues) or on the manner of their implementation (e.g.
exchanging copy documents without the need to prepare lists of
documents) with a view to achieving economies in respect of
discovery.”
• Within 28 days after close of pleadings, each party must serve and file
the Timetabling questionnaire: O 25 r 1(1)
• See Draft PD on Case Management and on ADR
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Contents of the Timetabling Questionnaires
• Governed not by RHC, but by PDs
• Annex A of draft PD for O 25 shows that the questionnaires will cover
confirmation or information on the following:
• First on ADR (whether the parties have attempted ADR; whether willing to settle
by ADR and so request for a stay of ?? Weeks while trying settlement; to confirm
that he has filed the ADR certificate; and ADR Notice/Response)
• In the ADR certificate:
• (1) the solicitors shall expressly conform that they have explained to their client
the availability of ADR and “the respective costs positions for the ADR as
compared with the costs of the litigation”;
• (2) that the client “fully understands” the ADR PD and the availability of ADR;
• (3) Whether the party intends to explore ADR to settle or mediate, and if so, what
is the form of ADR it intends to engage. If not, state why he believes it is
premature to do so at this stage or inappropriate at any stage. If the parties have
already attempted an ADR procedure w/o success, state the mode of ADR
attempted and whether they are willing to attempt another mode of ADR.
• If a party wishes to invoke any ADR procedure, he should serve an ADR Notice
on the other party giving various details (proposed rules, mediator or neutral,
estimated costs, timetable and minimum level of participation).
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Other contents of the Timetabling Questionnaires:
Parties (any intention to add another party)
Pleadings (any intention to amend or request for F&BPs)
Evidence (whether list of docs filed or when it will be filed; number and
names of factual witnesses, and when witness statements can be
exchanged)
Expert Evidence (any intention to adduce expert evidence, and names and
fields of expertise, and when expert reports can be exchanged; whether
agreeable to appoint a single joint expert or a joint report by the parties’
experts)
Interlocutory applications (any outstanding directions to be complied
with, any intention to seek interrogatories, security for costs or other
interlocutory applications, and if so when the applications will be made)
Case management Conference/Pre-trial Review (whether or not one asks
for a CMC or for a PTR, and why)
Trial (whether it is appropriate to set down for trial and why; whether
Running List appropriate and why; whether to be tried before a bilingual
judge and why; estimated length of trial; the earliest date that the case be
ready for trial)
Proposed directions/timetable to be attached.
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