Friday Tea Workshop

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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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(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)
Interlocutory Applications
Pleadings (Statement of Claims, Defence or Reply)

• Interlocutory Appeals
• as of right

Default Judgments, Summary Judgment etc.
Summons for Directions
Taxation
Checklist Review
After Listing
Listing

• Late Discovery
• New Witness Statements
• Amendment of Pleadings

Pre-trial Review
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

Commencement (2 types OS or writ, unless
otherwise Prescribed by law)

• Interlocutory Appeals to
• Court of First Instance
• as of right

• Interlocutory Appeals
• to Court of Appeal
• Leave required

Pleadings (Statement of truth)
Admissions and Default Judgments
Court-determined Timetable with
Immovable Milestone dates
Summary Assessment of Costs
Sanctioned Offer At any stage
CMC
Pre-trial Review
All Interlocutories Completed Before Listing
Trial
Appeal
Taxation
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(4) Interlocutory Applications
(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.

• Interlocutory applications
• Take out only if necessary, procedural economy
  encouraged.
• Procedural directions may be given on application
  or courts own motion Order 1B, r.3(1).
• Order nisi, 14 days absolute Order 1B, r.3(2).
• Keep within timetable.
• Delay / default in compliance unless order,
  barred on expiry of time, or conditions imposed
  Order 2, r.3(2).

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• Sanctions do have effect unless defaulting party
  obtains relief Order 2, rr.4, 5.
• When Court makes order on interlocutory
  application
• before it has given CM directions under Order 25,
  it may specify sanction Order 32, r.11B
• After it has given CM directions under Order 25,
  it shall specify sanction Order 32, r.11B.
• Disposal on the Papers
• Limited to interlocutory applications before
  Masters who may
• determine an interlocutory application without an
  oral hearing or
• adjourn the application to be heard before him or
  another master or a judge in chambers.
• Order 32, r.11A.
• Directions for filing of evidence skeleton
  submissions (and cost statements) will be given.

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• Order date will be set before which all evidence
  will be closed and skeleton submissions filed.
• If new circumstances render oral hearing
  desirable, must inform court as soon as possible.
• Determination is final as far as the Master is
  concerned, not order nisi.
• Examples of suitable applications security for
  costs, FBP, interim payment, simple landlord and
  tenant matters.
• Experience.
• Appeals in interlocutory matters
• From Master to CFI judge remains as of right
  Ladd v. Marshall applies Order 58, r.1.
• 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
• For main action costs generally to follow event
  r.3(2).
• For interlocutory application costs to follow
  event is but one option r.3(2A).
• No satellite litigation on costs.
• Proportionality
• 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
• Fees for mechanical preparation abolished and
  photocopying fees have been changed Order 62,
  1st Schedule.
• New fixed costs for default judgment and judgment
  on admissions under O.13A given without a
  hearing Order 62, 2nd Schedule.
• Transitional provisions.
• Certify no breach of indemnity principle.
• Summary Assessment of Costs r.9A(1)(a)
• Applies to both interlocutory (r.9A)
  non-interlocutory matters (r.9).
• Receiving party to provide a costs statement
  (will be in PD).
• 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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• Broad-brush approach no mini-taxation.
• 14 days to pay except for legally aided paying
  party r.9B.
• Provisional summary assessment r.9A(1)(b)
• 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.
• Adjustment of costs summarily assessed against
  the taxed costs.
• 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)
• One taxation at end of case r.9D(1).
• 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).
• Court has power to make an unless order
  compelling a party to commence or proceed with
  taxation r.22(3).

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• Delay in commencing or proceeding with taxation
  may result in
• costs consequence
• global reduction of taxed costs
• reduction in interest
•   r. 22(5)
• New procedure for filing Notice of Commencement
  of Taxation (NOCT) in draft PD r.21(1).
• Taxing fee to be paid to court based on amount
  claimed r.21(5), Fees Rules.
• Reimbursement of taxing fee based on amount
  allowed r.32B, Fees Rules.
• Application to set down after time for filing
  list of objection has expired r.21A, (see draft
  PD).
• Bills channelled to
• Chief Judicial Clerk if amount of bill is
  200,000 or below r.13(1A)

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• 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
• New format of bill of costs.
• Taxation of bundle to be properly prepared.
• 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
• Transitional position procedure and scale costs
  Order 62, r.37.
• Experience.

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

• Paying partys offer by way of sanctioned payment
  (S/P) i.e. payment into court r.3(1).
  Receiving partys offer by way of sanctioned
  offer (S/O) r.4.
• 14 days for acceptance without leave rr.13,
  14(1).
• 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.
• Withdrawal or diminution of offer within 14 days
  requires leave of court r.10.
• If S/O or S/P withdrawn, will not have
  consequences of Order 62A r.7(4) r.10(4).
• 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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• If receiving party fails to do better than paying
  partys 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 Pointsfor Solicitors
to Remember

• Discuss with the opposing party as much as
  possible.
• New statutory forms
• Pleadings
• Mark diaries difficult to get extensions of time
  
• Transitional provisions for filing of pleadings
• Brief counsel
• Signing statement of truth
• Fill in summonses properly

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• Train your filing clerks
• New fees apply
• New set of fixed costs
• New set of scale fees
• New chops to prepare
• Costs
• Discuss with LCDs and try out paper taxation
• Dont modify your templates for producing bills
  yet until the PD has been issued.

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(8) Some Practical Points forCounsel to Remember

• Settle pleadings / affidavit in good time.
• 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.
• 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

• Remember the underlying objectives
• increasing the costs effectiveness in the courts
  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 courts 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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• Plan ahead and focus on the main issues
• Keep timetable
• Agree procedural directions and issues as far as
  possible
• If need to go to court, try paper disposal if
  permitted by rules
• If order nisi, usually 14 days to become absolute
• No satellite litigation on interlocutory matters
  and costs
• Appeal period counted from date of order, not
  date of perfection of order
• Try out some of the incentives by consent
• 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