Appendix A

    Appendix B

PRACTICE DIRECTION - 3.1

 BANKRUPTCY AND WINDING-UP PROCEEDINGS

Dated this 22nd day of June 2010.

PRACTICE DIRECTION - 3.2

PROCEDURE FOR FILING AND HEARING
BANKRUPTCY PETITIONS BY
DEBTORS WHO ARE LEGALLY REPRESENTED

1.    This Practice Direction applies only to uncontested hearings of petitions for bankruptcy by debtors themselves who are legally represented. It does not apply to the following cases:

(a)    where the petitioners are not legally represented;

(b)    where the petitions are opposed; or

(c)    where the petitions are presented by creditors.

2.    At the time of filing a petition and the related statement of affairs for each case, the solicitor in charge:

(a)    must lodge an Information Sheet in two copies in the form as set out in the Appendix with Part I duly completed; and

(b)    is strongly advised to lodge a draft order signed by the solicitor in charge for approval.

3.    Not later than two weeks before the hearing, the Court will process the petition and inform the solicitor of the outcome by returning a copy of the Information Sheet through the Registry.

4.    If the papers are in order, the attendance of the solicitor is dispensed with unless the Court directs otherwise.

5.    Where the papers are considered not in order, the solicitors are required to attend the hearing unless the requisitions are satisfactorily answered not later than 7 days before the hearing and their attendance is expressly dispensed with by the Court.

6.    For cases where the petitioner wishes to withdraw the petition or adjourn the hearing or where it is known that the petition will be opposed, the solicitor for the petitioner must attend the hearing.

7.    All hearings will be conducted in open court.

8.    It is strictly prohibited to make any telephone enquiry or any form of communication with the Registry on the status of the processing of the papers.

9.    This Practice Direction does not affect the Court's discretion to conduct the hearing in any other manner as it considers appropriate. Nor does it change the usual practice of adjourning the hearing of all petitions which are opposed, to a Judge in charge of the list.

10.    This Practice Direction shall come into effect on 2 July 2010. It applies to all petitions filed on or after that day by the solicitors on behalf of the petitioners for self bankruptcy.

11.    This Practice Direction supersedes the Practice Direction now appearing as 3.2.

Dated this 22nd day of June 2010.

Appendix

PRACTICE DIRECTION 3.3

Voluntary Mediation
in Petitions Presented under Sections 168A and 177(1)(f) of
the Companies Ordinance, Cap. 32

A.          General

1.    This Practice Direction sets out the provision for voluntary mediation in respect of petitions presented under section 168A and petitions for winding up on the just and equitable ground under section 177(1)(f) of the Companies Ordinance, Cap. 32, where there is no allegation of insolvency concerning the subject company and no allegation that the affairs of the company would require full investigation in the public interest.

2.    Where the petitions are purely disputes between shareholders, not involving the interest of the general body of creditors of the subject company or affecting the public interest, the court wishes to encourage the parties to consider the use of mediation as a possible additional means of resolving their disputes in a cost-effective and more expeditious manner.

B.          Initiation of Mediation

3.    At any stage of the petition, if a party (“the Applicant”) wishes to attempt mediation, this may be initiated by serving a notice (“a Mediation Notice”) on the other party or parties (“the Respondent”), inviting them to agree to mediation. The Mediation Notice, which is to be filed in court, should specify the following matters:

(1)	whether it is proposed to resolve by mediation the entire dispute or a part of the dispute, and if the latter, specify which part of the dispute;
(2)	the rules or procedures under which the proposed mediation is to take place, including the manner in which a mediator is to be appointed;
(3)	the estimated costs of engaging a mediator;
(4)	a timetable for the proposed mediation; and
(5)	what minimum amount of participation would qualify as a sufficient attempt at the proposed mediation, as far as the Applicant is concerned.

4.    Upon receiving a Mediation Notice, the Respondent should respond to the Applicant in writing within 14 days, or within such further time as the parties may agree, stating:

(1)	whether the Respondent agrees to mediation of the entire dispute or a part of the dispute as specified by the Applicant or by the Respondent;
(2)	whether the Respondent agrees to the proposed mediation in accordance with the rules or procedures as identified by the Applicant, or proposes some other rules or procedures by which mediation is to proceed;
(3)	whether the Respondent agrees with the timetable proposed by the Applicant or proposes modification to the timetable; and
(4)	what minimum amount of participation would qualify as a sufficient attempt at the proposed mediation, as far as the Respondent is concerned.

5.    Where the Respondent counter-proposes to mediate a different part of the dispute, the Applicant should reply to the Respondent in writing within 7 days of receipt of the Respondent’s response, or within such further time as the parties may agree.

6.    Where the Respondent (or the Applicant where the Respondent counter-proposes to mediate a different part of the dispute) does not agree to the proposed mediation to resolve the whole or part of the dispute, he should state in the response why he does not believe such proposed mediation to be appropriate, and be prepared to justify his refusal to attempt mediation at the conclusion of the trial.

7.    Where the Applicant and the Respondent agree on the proposals in the Mediation Notice, or on such modifications to the proposals, the agreement should be reduced into a written minute signed by the Applicant and the Respondent and the proposed mediation should proceed accordingly.

8.    The Applicant and the Respondent may apply to a Companies Judge for a ruling where,

(1)	they are unable to resolve their difference on a point of procedure or mechanics concerning the proposed mediation;
(2)	they are unable to agree on the minimum level to qualify as sufficient participation in the proposed mediation.

9.    Where the Respondent (or the Applicant where the Respondent counter-proposes to mediate a different part of the dispute) has given an affirmative response to mediation, the Applicant and the Respondent may apply to a Companies Judge to stay the petition, pending the progress of an agreement to proceed to mediation reached in accordance with this Practice Direction, with liberty to apply to extend the stay to enable the proposed mediation to be completed. The supporting affidavit should exhibit the Respondent’s response, the Applicant’s reply, the minute of agreement (if any), evidence of solvency of the company, and specify the expected duration of the proposed mediation.  

10.    If the Applicant and the Respondent are unable to resolve their differences by mediation within the specified period for which the petition is stayed, they are to apply to restore the petition within 7 days of the expiry of the stay, for the purposes of reporting back to the court what progress have been made by way of mediation and seeking further directions as follows:

(1)	the report is to cover only the process adopted for mediation (such as the number of sessions held and the participants) and the outcome, and shall not cover the content of the contact between the parties, their legal advisers and the mediator;
(2)	where further time is required to enable the mediation to be completed, what further period should the petition be stayed with evidence of solvency of the company;
(3)	where efforts towards settlement by means of mediation have proved fruitless, what directions are to be obtained from the court to proceed with the petition.

11.    A party is at liberty to apply to a Companies Judge at any time to lift the stay imposed on account of mediation in appropriate circumstances.

12.    At any hearing for directions of the petition, the Judge may ask the parties if they have attempted mediation and, if not, why not. The Judge may express a view as to whether mediation might assist in resolving all or some of the disputes in the petition. Legal representatives have a duty to advise clients at an early stage of resolving their dispute through mediation.

C.          Voluntary Nature of Mediation

13.    Parties reach an agreement to mediate on a voluntary basis. Such an agreement is not actionable as a contract, and is without prejudice to the parties’ contentions in the petition. A party to an agreement to mediate is free to withdraw from mediation at any time and to proceed with the petition.

14.    No settlement reached in the course of mediation will become binding on the Applicant and the Respondent until the settlement is reduced into writing and signed by both parties.

15.    The conduct of the mediation shall remain confidential to the parties and will proceed wholly on a without prejudice basis.

D.      Costs Sanction

16.    Where a Mediation Notice has been served, an unreasonable refusal or failure to attempt mediation may expose a party to an adverse costs order. Whether a party has acted unreasonably would be determined having regard to all the circumstances of the particular case. In general, a party shall not suffer any adverse costs order where,

(1)	he has engaged in mediation up to the minimum level of expected participation agreed by the parties beforehand or as determined by the court; or
(2)	he has a reasonable explanation for non-participation.

17.    In determining whether a party has acted unreasonably in refusing or failing to proceed with mediation, the court will not usually take account of or inquire into:

(1)	what happened during the process of mediation;
(2)	why the process failed; or
(3)	whether any failure in the process may be ascribed to unreasonable conduct by any party.

E.          Administration

18.    For the purpose of compiling data on the effectiveness of mediation, the parties or their legal representatives are requested to report to the Clerk to the Judge in charge of the Companies and Bankruptcy List the following matters within 28 days of the conclusion of the court proceedings:

(1)	the action number of any petition in which mediation has been attempted pursuant to an agreement to mediate reached in accordance with this Practice Direction;
(2)	whether mediation has led to settlement of the dispute or some part of it;
(3)	the number of hours spent by the mediator (including preparation) on mediation, whether or not ultimately successful; and
(4)	whether, in the opinion of the reporting party, the process of mediation has led to saving in litigation costs.

19.    A booklet is available from the Judiciary for those wishing information on mediation generally and on the resources available for mediation in Hong Kong.

F.          Commencement Date

20.     This Practice Direction supersedes the previous Practice Direction 3.3 on Pilot Scheme for Voluntary Mediation in Petitions Presented under Sections 168(A) and 177(1)(f) of the Companies Ordinance, Cap. 32 dated 4 September 2008, and Practice Direction 3.3A on Extension of Pilot Scheme for Voluntary Mediation in Petitions Presented under Sections 168(A) and 177(1)(f) of the Companies Ordinance, Cap. 32 dated 23 September 2009.

21.    This Practice Direction comes into effect on 1 January 2010.

Dated this 2nd day of December 2009.

PRACTICE DIRECTION - 3.4

CASE MANAGEMENT FOR BANKRUPTCY PETITIONS,
WINDING-UP PETITIONS AND
PETITIONS UNDER SECTION 168A
OF THE COMPANIES ORDINANCE

A     Scope of this Practice Direction

1.    This Practice Direction applies to all bankruptcy petitions and winding-up petitions that are opposed and to petitions presented pursuant to section 168A of the Companies Ordinance (Cap. 32).  

B     Draft Directions

2.    The petitioner and the respondent opposing the petition should submit draft directions for the conduct of the petition not less than 3 days before the call-over hearing or the directions hearing of the petition, or no later than noon on the preceding Friday (when the hearing falls on a Monday).  Except on the first occasion when the petition is listed for hearing before a Judge, the parties may submit agreed directions for the Court's consideration and approval and seek to vacate the call-over hearing or directions hearing before the Judge.

3.    Parties should give thought to the evidence to be filed on affidavit and avoid excessive rounds of affidavit.  They are expected to comply with directions given and the timetable laid down by the Court.  Unless sufficient grounds have been made out, the Court will not grant extensions of time or allow additional affidavits to be filed.

4.    In the absence of valid reasons, no cross-examination on affidavits will be allowed in petitions for bankruptcy or winding-up presented by a creditor.

5.    If a trial date is sought in the draft directions, each party shall state in the draft directions the estimated length of hearing.  Where it is envisaged that oral evidence would be given, each party should give time estimates (without taking into account the time estimates of other party) of:

(1)   his own opening submissions;

(2)   evidence-in-chief of each of his own witnesses;

(3)   cross-examination of each of the other side's witnesses; and

(4)   his own closing submissions.

C     Discovery

6.    In most bankruptcy or winding-up petitions presented by a creditor, no discovery of documents will be ordered.  If discovery is sought nonetheless, good grounds would have to be given to justify a departure from this practice.

7.    Where documents have been exhibited to affidavits filed by the parties, they should consider whether it is necessary to give discovery of any other documents.  In the event that mutual discovery by exchange of a list of documents is required, this should be confined to documents not hitherto exhibited in the affidavits filed, unless there are good reasons for departing from this practice.

D     Expert Evidence

8.    The Court will not give leave to a party to adduce expert evidence unless that party has:

(1)   identified the expert by name and field;

(2)   identified the specific issue or question to which expert evidence will relate;

(3)   considered the appropriateness of appointing a single joint expert in the case; and

(4)   considered the appropriateness of appointing an expert with regard to the progress and development of the proceedings.

E     Translation of Documents Exhibited in Chinese

9.    Where documents in Chinese are exhibited to an affidavit, the party exhibiting such documents should obtain an English translation of documents considered essential to his case or the essential parts of such documents within 28 days of the filing of the affidavit and submit the translation to the Court Language Office for certification.  A party should seek directions from the Court if he considers it appropriate to dispense with the preparation of English translation or some other direction(s) should be given in this respect.

F     Interlocutory Applications

10.    For all contested interlocutory applications in the petition listed for 30 minutes or more, Practice Direction 5.4 shall apply.

G     Pre-Trial Review and Trial

11.    The trial date of the petition is to be treated as a milestone date and will not be movable save in exceptional circumstances.

12.    In all petitions in which oral evidence is led, there will be a pre-trial review 4 to 6 weeks before the trial date.

13.    Unless otherwise directed, the petitioner is required to lodge in Court 7 days before the pre-Trial review:

(1)   the trial bundles; and

(2)   an agreed list of issues (or separate lists if no agreement can be reached) giving references of the relevant paragraphs in the petition and the affidavits filed.

14.    Trial bundles should be prepared in compliance with the requirements in Practice Directions 5.4 and 5.6.

15.    Unless otherwise directed, in all petitions,

(1)   the petitioner is to serve trial bundles (if there is no Pre-Trial Review and they have not been lodged as a result) 14 days before trial;

(2)   the petitioner is to serve his opening submissions, a jointly prepared chronology of events and dramatis personae where a number of individuals or companies may be mentioned in the course of submissions (see Practice Direction 5.4 paragraphs 2.2, 2.3 and 3) 7 days before trial; and

(3)   the respondent is to serve his opening submissions 3 days before trial.

H     Mediation

16.    Parties are reminded of Practice Direction 3.3 on voluntary mediation in petitions presented under sections 168A and 177(1)(f) of the Companies Ordinance.

I     Commencement Date

17.   This Practice Direction shall come into effect on 2 April 2009.

Dated this 12th of February 2009.

PRACTICE DIRECTION - 3.5

APPLICATIONS IN WRITING IN THE COMPANIES COURT

1.    It is becoming an increasingly common practice in the Companies Court for provisional liquidators, liquidators and their respective legal advisers to apply by letter for directions and substantive orders instead of making the application by summons.  While the Court may insist on a summons being taken out, it has dealt with applications made by letter in appropriate cases.  However, some of these applications do not identify the relevant legal principles or explain how it is said that they are satisfied. This Practice Direction is issued to address this problem.

2.    Save in simple cases or where the basis and justification for the direction or order sought is self-evident, any application by letter must be supported by submissions identifying:

(a)    the relevant legal principles: statutory provisions and legal authorities;

(b)    the evidence and facts relied on; and

(c)    how it is contended that the relevant legal principles are satisfied.

3.    The Court will not process any application which fails to satisfy paragraph 2 hereinabove.

4.    This Practice Direction only applies to applications made to the Companies Judge on or after the effective date of this Practice Direction.

5.    This Practice Direction does not affect applications made to the Master in charge of the Company List.  Such applications must be made by way of a summons, and, if necessary, supported by an affidavit or affirmation.

6.    This Practice Direction will come into effect on 19 May 2010.

Dated this 27th day of April 2010.

PRACTICE DIRECTION - 3.6

 OBJECTION TO DISCHARGE
FROM BANKRUPTCY UNDER
SECTION 30A(3) OF THE
BANKRUPTCY ORDINANCE

This Practice Direction is issued in the light of the decision of the Court of Appeal in Official Receiver, the trustee of the estate of Chan Kwok Keung, a bankrupt v. Chan Kwok Keung, a bankrupt [2008] 5 HKLRD 752, to minimize the prejudice that might be caused to a bankrupt by the de facto postponement of the date of his discharge.

1.    While a trustee or a creditor ("the Objecting Party") may object to the discharge of a bankrupt as late as not less than 14 days before the end of the relevant period under Section 30A(6), he is expected to take out the necessary application promptly if there are sufficient grounds to justify such an application and not to wait until the last possible moment.  The Objecting Party is also expected to take all reasonable and practical steps to ensure that the application is heard and disposed of upon an expedited basis.

2.    The Objecting Party is required to set out, by way of affidavit, detailed grounds and evidence in support of the application and file the supporting affidavit with the application.  Unless good and sufficient reasons are shown, no supplemental affidavit in support would be allowed to be filed.

3.    The Court will set a tight timetable for the parties to file affidavit evidence in opposition and in reply, having regard to the particular circumstances of the case and the application will be listed for a substantive hearing as soon as practicable and strictly in accordance with the directions given by the Court.

4.    An interim order to suspend the discharge pending the determination of the application will only be granted if the evidence before the Court justifies it, in that there are reasonable grounds for concluding that an order under Section 30A(3) would be made after the substantive hearing on the material placed before the Court.  The interim order granted will only be for a short period of time so as to ensure that the Objecting Party will proceed with the application without delay. 

5.    Any unreasonable delay in proceeding with the application and any failure in complying with the directions of the Court may expose the Objecting Party, and his legal representative, if appropriate, to an adverse costs order.

This Practice Direction shall come into effect on 2 July 2010.

Dated this 22nd of June 2010.

PRACTICE DIRECTION - 4.1

CIVIL APPEALS TO THE COURT OF APPEAL

A    General

1.    This Practice Direction is intended to provide comprehensive directions for the conduct of the civil business of the Court of Appeal.

2.    The task of overseeing the conduct of the civil business of the Court of Appeal and in particular the operation of this Practice Direction will be entrusted under the supervision of the Chief Judge to the Registrar (or alternatively to a Master to be nominated from time to time by the Chief Judge for that purpose) who is referred to hereafter as "the Registrar of Civil Appeals".

3.    The following parts of this Practice Direction deal with the following matters:

B - Applications for leave to appeal

C - Title of appeals

D - Listing of appeals

E - Documentation

F - Skeleton arguments

G - Case management

H - Dismissal of appeals by consent

I - Litigants in person

4.    The provisions of this Practice Direction are subject to any specific directions which the Registrar of Civil Appeals or a member of the Court of Appeal may make or give in any particular case.

5.    This Practice Direction reflects some of the changes brought about by the Civil Justice Reform. Any feedback including suggestions or proposals for its improvement will be welcome, and should be addressed to the Registrar of Civil Appeals.

B    Applications for Leave to Appeal

6.    Order 59, rules 2A to 2C deal with applications to the Court of Appeal for leave to appeal.

7.    Every application for leave to appeal made to the Court of Appeal under Order 59, rule 2A must be by way of summons accompanied by draft grounds of appeal, affidavit evidence where appropriate (such as to demonstrate any justification for an extension of time) and written submissions (in the form of skeleton arguments) as to why leave to appeal should be granted. In most cases, the requirement of a statement setting out the reasons why leave to appeal should be granted can be fulfilled by providing the above documents. Two sets of such documents are to be lodged with the Court.

8.    A party who intends to resist an application for leave to appeal must, within the specified time, serve affidavit evidence where appropriate and written submissions (in the form of skeleton arguments) as to why leave to appeal should not be granted or why leave should only be granted on terms to be imposed. Again, in most cases, the requirement of a statement setting out the reasons why leave to appeal should not be granted, or granted only on terms, can be fulfilled by providing the above documents. Two sets of such documents are to be lodged with the Court.

9.    After receipt of the documents referred to in paragraphs 7 and 8, the Court may determine the application without a hearing on the basis of written submissions only or it may direct that the application be heard at an oral hearing, and in either case, the Court may give such directions as it thinks fit. Accordingly, any party applying for leave to appeal or resisting such leave should, when serving the documents referred to in paragraphs 7 and 8 above, also state whether the application can be determined on the basis of written submissions only or otherwise (and providing reasons), and whether any directions are required.

10.    Where an application for leave to appeal is made, no date for hearing will be given by the Court. Only if the Court directs that the application be heard at an oral hearing will a date for hearing be given.

11.    If a party is aggrieved by a determination of the Court of Appeal on an application for leave to appeal where such determination has been made on the basis of written submissions only and wishes under Order 59, rule 2A(7) to request the Court to reconsider the determination at an oral hearing, it must within the time specified serve any written submissions (in the form of skeleton arguments) as to why leave should or should not be granted. Such written submissions will not be necessary where only the previous written submissions are relied on.

12.    Every application for leave to appeal made to the Court of Appeal under Order 59, rule 2B must be by way of summons accompanied by the same documents referred to in paragraph 7 above. The same procedure referred to in paragraphs 7 to 11 will also apply.

13.    Where an application for leave to appeal is made directly to the Court of Appeal under Order 59, rule 2B(4), justification must also be provided (by way of affidavit evidence and / or written submissions (in the form of skeleton arguments)) as to why leave is sought from the Court of Appeal directly. Such an application should be made in good time so that where the Court of Appeal refuses to entertain the application, an application can timeously be made to the Court below.

14.    If a party is aggrieved by a determination of a single Judge of the Court of Appeal on an application for leave to appeal and wishes under Order 59, rule 2C(1) to request the Court of Appeal to reconsider the determination, it must within the time specified serve any written submissions (in the form of skeleton arguments) as to why leave should or should not be granted. Such written submissions will not be necessary where only the previous written submissions are relied on.

15.    The skeleton arguments referred to under this part should not normally exceed 5 pages on A4 paper in no smaller than 14 pt. size.

C    Title of Appeals

16.    Any application or appeal to the Court of Appeal should only carry the same description of the parties in the title as that which obtained in the Court below. (There should be no references in the title to "the applicant", "the appellant" or "the respondent"; experience has shown that such references or references to "Applicant / Respondent", "Respondent / Appellant" and so on serve only to confuse.)

D    Listing of Appeals

17.    The Court of Appeal will maintain three lists of civil appeals: (1) a list of final appeals (see Order 59, rule 4(1)(c)); (2) a list of interlocutory appeals (see Order 59, rule 4(1)(a)); and (3) an applications list, the titles of which are self-explanatory. (An appeal from an order or decision made or given in the matter of the winding-up of a company, or in the matter of any bankruptcy, even if a final appeal, will, on the production of a certificate of urgency from the appellant's solicitors, be set down in the list of interlocutory appeals.)

18.    All applications to fix a date for the hearing of any application or appeal should be addressed to the Registrar of Civil Appeals, who will instruct the Clerk of Court to fix the earliest date available for the hearing of the application or appeal in accordance with the state of the list to which it has been assigned. The application to fix a date must include the applicant's estimate as to the length of the hearing.

19.    All applications to vary or vacate a date fixed for the hearing of an application or an appeal must be made to the Registrar of Civil Appeals who may refer as necessary any or all of such applications to a single Judge of the Court of Appeal. In order to maintain the integrity of the new listing system, any such application made on the ground of counsel's convenience or availability must be supported by a certificate from counsel's instructing solicitors stating why it is said to be impracticable for other counsel to be instructed and that the lay client has been informed that the result of the application may be to delay the hearing of the appeal.

20.    The Registrar of Civil Appeals must be informed as soon as possible of any settlement or compromise, negating the necessity for a hearing, or of any other event which will or may affect the estimate for the length of the hearing originally given. The information should be communicated orally in the first instance and confirmed by letter.

E    Documentation

21.    By the time cases come before the Court of Appeal, whether on applications or appeals, much of the documentation placed before the Court below is no longer relevant. Parties must take care to ensure and their solicitors will be required to satisfy the Registrar of Civil Appeals that the materials to be placed before the Court of Appeal in any case include only the documents necessary for decision of the issues before the Court. There is no justification for the cost and labour involved in the preparation of bundles containing documents which are never read or referred to and are not relevant to any question at issue on the appeal, and attention is drawn to the Court's powers to make wasted costs orders and to direct the taxing Master to disallow the cost of unnecessary copying.

22.    In cases where the appellant seeks to place before the Court bundles of documents comprising more than 500 pages, the appellant's solicitors must prepare and lodge with the Court the requisite number of copies of a core bundle containing the documents central to the appeal.

The core bundle must include the judgment under appeal, the notice of appeal, the order appealed against, any other orders (if relevant) made in the Court below, and the respondent's notice (if any). It should include only such of the documents put in evidence in the Court below as are central to the appeal, i.e. only those documents in support of, or in opposition to, the appeal which the Court will need to pre-read or which are likely to be referred to in the course of oral argument. Core bundles should contain as much material as is necessary to satisfy the above test and no more.

Core bundles (including documents which were also in the trial bundles) must have their own continuous pagination using the method prescribed below, though leaving the trial bundle page numbers visible along with the new core bundle numbers.

23.    Bundles must be paginated, not numbered merely by document. Each page must be numbered individually and consecutively, starting with page 1 at the top of the bundle and working continuously through to the end. Other numbering systems, such as 1.1, 1.2 or 2A, 2B, etc. must not be used, and care must be taken in preparation of the bundles to avoid the later insertion or interleaving of omitted pages. Page numbers should be placed in the bottom right-hand corner of the page. Page numbers used in previous hearings should be omitted unless such are necessary (for example, where the judgment appealed from contains references to page numbers), in which case care must be taken to distinguish them from the pagination of the appeal bundle(s). Where the documents are too numerous to fit into one file or bundle, each file or bundle should be marked with a letter and the page numbering should continue consecutively on from the end of one bundle into the next; thus, Bundle B and subsequent bundles should not start with page 1 again.

24.    There must be an index of the documents listing the documents and giving the page references for each. In the case of a class of documents such as letters, they can be shown in the index by a general description; it is not necessary to list every letter separately. But if a letter or other such document is particularly important to the case, then it should be listed separately in the index so that attention is drawn to it. In particular in the case of appeals and applications in judicial review proceedings, the letter or other document which constitutes the decision sought to be reviewed must be separately itemised in the index (whether or not it forms part of the exhibit to an affidavit). Where the documents consist of more than one file or bundle, an index covering all of them should be placed at the beginning of Bundle A; there should not be separate indexes for each file or bundle.

25.    All the documents (with the exception of transcripts) must be bound together in lever-arch files or ring-binders. Lever-arch files and ring-binders must not be over-filled (and should never include more than 250 pages) and care must be taken to ensure that the rings close and fit properly so that the pages can be turned over easily. Where each set of bundles consists of more than one file, the spines should be prominently labelled (e.g. Bundle A, Bundle B, etc.). Transcripts should be provided in a separate bundle.

26.    All documents must be legible. In particular, care must be taken to ensure that the edges of pages are not cut off by the photocopying machine or rendered illegible by the binding. If it proves impossible to produce adequate copies of individual documents, or if manuscript documents are illegible, typewritten copies of the relevant pages should also be interleaved at the appropriate place in the bundle.

27.    If there are more than 5 bundles in a case, each of the bundles should also be labeled on the top right-hand corner of the inside cover.

28.    Where the Court has directed that an application for leave to adduce further evidence is to be listed for hearing at the same time as the appeal, separate bundles must nevertheless be lodged in respect of that application so that the further evidence can readily be distinguished from the evidence which was before the Court below.

29.    Time limits for the lodgment of documentation must be complied with and will be strictly enforced except where there are good grounds for granting an extension. Order 59, rule 9(1) requires the documentation referred to therein to be lodged not less than 14 days before the date the appeal is listed to be heard. The appellant's solicitor (or the appellant, if in person) should therefore set about preparing the bundles well in advance of the date on which they are due to ensure due compliance with the said time limit and to ensure that the skeleton arguments properly refer to the hearing bundles. Where there is a cross-appeal, in order to enable skeleton arguments to be served in time, bundles should be lodged well in advance and in any event not less than 21 days before the date the appeal is listed to be heard. The Court will be reluctant to grant any extension of time where the failure to lodge documents within the prescribed time limit is due to failure on the part of the appellant's solicitors (or the appellant, if in person) to start soon enough on its preparation.

30.    The time limit for lodging documents referred to in the previous paragraph applies equally to any applications (other than applications for leave to appeal) to be heard by the Court of Appeal. References to the appellant in that paragraph will be references to the applicant in such applications.

31.    If the work of documentation is delegated to junior members of the solicitor's staff, the member of staff must be instructed fully on what is required and be capable of ensuring that these requirements are met, and the solicitor in charge of the case must personally satisfy himself / herself that the documentation is in order before it is delivered to the Court.

F    Skeleton Arguments

32.    Skeleton arguments and lists of authorities must be lodged in support of every appeal (and cross-appeal) and application to the Court of Appeal and should be lodged with the Registrar of Civil Appeals no later than 14 days before the relevant appeal or application is listed to be heard. A skeleton argument lodged later than this will not be pre-read by the Court and will accordingly fail to serve its only proper purpose. If the appellant's or cross-appellant's skeleton argument is not so lodged the case may be taken out of the list and re-fixed for another date with appropriate consequences as to costs. A respondent who wishes to lodge a skeleton argument and list of authorities should do so 7 days before the application or appeal to which it relates is listed to be heard.

G    Case Management

34.    The Registrar of Civil Appeals may, at any stage after an appeal has been set down, consider whether to exercise the powers conferred on the Registrar by Order 59, rule 9(3) and (4) of the Rules of the High Court to give such directions in relation to the documents to be produced at the appeal, and the manner in which they are required to be produced and as to other matters incidental to the conduct of the appeal, as appear best adapted to secure the just, expeditious and economical disposal of the appeal.

35.    Before giving any such directions the Registrar of Civil Appeals may consult the Chief Judge, Vice-President or Justice of Appeal who is expected to preside at the hearing of the appeal.

36.    Such directions may be communicated to the parties either on paper or at a hearing and any hearing will, if appropriate, be held before the Registrar of Civil Appeals or the Chief Judge, that Vice-President or Justice of Appeal.

37.    The directions to be given may include appropriate directions as to length of time to be allowed to each party for oral argument.

H    Dismissal of Appeals by Consent

38.    Where an appellant (other than a minor or person under disability) does not desire to prosecute an appeal he may present a request signed by his solicitor stating that he seeks to have the appeal dismissed, in which case (subject to the request being initialled by a Judge of the Court of Appeal) the appeal will be dismissed with costs and struck out of the list.

39.    If the appellant desires to have the appeal dismissed without costs his request must be accompanied by a consent signed by the respondents' solicitors stating that the respondents consent to the dismissal of the appeal without costs, in which case (subject to the request being initialled by a Judge of the Court of Appeal) the appeal will be dismissed and struck out of the list.

40.    Where any party has no solicitor on the record any such request or consent must be signed by him personally.

41.    All other applications as to the dismissal of an appeal and all applications for an order by consent reversing or varying the order under appeal will be placed in the list and dealt with in Court.

I    Litigants in Person

42.    All applications and appeals in which the applicant or appellant or respondent is acting in person will be set down in the first instance for a preliminary directions hearing before the Registrar of Civil Appeals, who will at that hearing exercise the powers conferred on the Registrar by Order 59, rule 9(3) and (4) of the Rules of the High Court to give all such directions in relation to the documents to be produced at the appeal, and the manner in which they are required to be produced and as to all other matters incidental to the conduct of the appeal, as appear best adapted to secure the just expeditious and economical disposal of the appeal.

43.    No application or appeal will be placed or listed before the Court of Appeal or any Judge thereof until such directions have been given and the Registrar of Civil Appeals has certified that those directions have been complied with.

J    Commencement Date

44.    This Practice Direction supersedes the previous Practice Direction 4.1 on Civil Appeals to the Court of Appeal dated 31 December 1998.

45.    This Practice Direction shall come into effect on 2 April 2009.

  Dated this 12th of February 2009.

PRACTICE DIRECTION – 4.2

CRIMINAL APPEALS TO THE COURT OF APPEAL

PART I – TITLE OF APPEALS

PART II – PROCEDURE

(ii) grounds are not put forward unless they are “reasonable”, that is, they afford some real chance of success;

(iii) grounds are not put forward unless they are supportable by oral argument and are particularised; and

(iv) the grounds put forward are settled with care and accuracy.

(b) It is not sufficient merely to state that “there was no or no sufficient evidence to ground the conviction”. While greater latitude will be given to applicants in person such grounds risk the application being treated as invalid.

(c) If leave out of time is sought in respect of either conviction or sentence, a grounding affidavit from the applicant personally should be filed with the application setting out in detail the reasons for it.

6. The Appeal Papers

(a) Once a notice of application for leave to appeal has been lodged with the Registrar, the Clerk of Appeals will obtain from the judge's clerk the “appeal bundle”.

(b) The Clerk of Court will send copies of the appeal bundle to the applicant or his solicitors or, if legal aid has been applied for, to the Director of Legal Aid and to the Secretary for Justice and will submit one set to a justice of appeal for directions. If the Directions Judge considers any additional papers are necessary, he will so direct and the Clerk of Court will arrange for them to be prepared and sent to the parties.

(c) If an applicant or his legal advisers, or the Secretary for Justice, consider that additional papers are necessary, he or they should apply in writing to the Registrar, High Court, marked for the attention of the Clerk of Court, stating precisely what papers are required and giving detailed reasons for the application. The application will then be referred to the Directions Judge.

(d) It should be clearly borne in mind by those requesting further papers that transcripts are expensive and take a long time to prepare. Only those portions of the transcript necessary for the purpose of arguing the initial grounds should be requested.

If it should become apparent that further papers are required before the perfection of the grounds, a fresh application should be made.

The above also applies to documentary exhibits.

(e) When the portions of the transcript or the additional papers requested have been received by the applicant's solicitors or the Director of Legal Aid, they should, without delay, be sent to counsel who should be instructed to “perfect” the grounds of appeal. When this has been done, the solicitor should send the perfected grounds, settled and signed by counsel, to the Clerk of Court and to the Secretary for Justice, with a copy to the applicant.

7. Perfected Grounds

(a) Perfected grounds of appeal should contain in respect of each ground:

(i) the references by page number and letter, if applicable, to all relevant passages in the transcript;

(ii) the reference to any authority on which counsel intends to rely; and

(iii) clear identification of any document referred to by exhibit number or otherwise.

(b) Perfected grounds should consolidate all the grounds of appeal in one document. If it is found necessary to amend or vary perfected grounds, then a further document to be entitled “amended perfected grounds” should be filed in substitution for the original and with the amendments or variations underlined in red. This document will then constitute the grounds of appeal to be argued at the hearing.

(c) Before perfected grounds are filed, instructed solicitors or the Director of Legal Aid should ensure that counsel, both for the applicant and the respondent, are consulted as to the estimate of the length of time likely to be required for the hearing. At the time of the filing of the perfected grounds an agreed time estimate if at all possible should be provided to the Clerk of Court. If there is a difference between the parties on the estimate, this should be stated.

(d) Should there be any application for the reception of fresh evidence by the Court of Appeal such application should be made by way of a separate notice.

(a) Applicants and their legal representatives are required to take all the steps necessary to bring on an application with due diligence. Delay should be avoided and undue delay may be considered a dereliction of duty by the counsel or solicitor concerned.

(b) All applications will be monitored by the Directions Judge to ensure that they proceed with expedition and he may from time to time give directions to effect this. Upon the filing of perfected grounds or where perfected grounds have not been filed in the time stipulated, the Directions Judge will where necessary give directions as to the time allowed for oral argument and as to the filing of written argument. Directions as to written argument in applications for leave to appeal against sentence will be given only in applications of particular complexity.

(c) All communications by or on behalf of the applicant, or the respondent to any application, which are sent to the Clerk of Court's office should be copied to the other side.

PRACTICE DIRECTION – 4.3

CRIMINAL APPEALS IN THE COURT OF APPEAL
HANDING DOWN JUDGMENTS

1. At present, reserved judgments in criminal cases in the Court of Appeal are delivered rather than handed down. A considerable amount of judicial time is used up, and the attendance of solicitors and counsel adds to the legal costs. Accordingly, in future, reserved judgments in criminal cases in the Court of Appeal will be handed down rather than delivered, save for those occasions on which the court decides that they should be delivered.

2. It will not be necessary for counsel or solicitors to attend on the day when the judgment is handed down. Defendants in custody will be brought to court, and defendants not in custody will be required to attend court. They will be provided at court with a copy of the judgment. Interpreters will be available to give the defendant an oral translation of the judgment if the judgment is in a language with which the defendant is unfamiliar. Copies of the judgment will also be available to the defendant’s solicitors (or to the Legal Aid Department if the defendant is legally aided) and to the Department of Justice.

3. Additional copies of the judgment will also be available to those who ask for them.

4. Notwithstanding paragraph 3 of Practice Direction 2.2, where a judgment is handed down in accordance with this Practice Direction, any application for a certificate to the Court of Appeal that the decision involves a point of law of great and general importance should be made within 7 days of the handing down of the judgment from which the appeal is to be brought.

5. This Practice Direction will take effect on 15 November 1999.

(Andrew Li) 
Chief Justice 
27 October 1999

PRACTICE DIRECTION - 5.2

CASE MANAGEMENT

A    Scope of Application of this Practice Direction

1.     This Practice Direction applies to all civil actions in the Court of First Instance (subject to Practice Direction 5.7) and the District Court, except cases in the specialist lists save to the extent that the Courts in charge of such lists may choose to adopt these directions in a particular case or in general. 

2.    The aim of this Practice Direction is to facilitate the more efficient, expeditious and fair disposal of cases.

3.    Although the Court will encourage parties to compromise their disputes, the primary function and objective of the Court should be the just resolution of disputes in accordance with the substantive rights of the parties.

4.    It is important for parties and their legal advisers to appreciate that efficient and cost effective resolution of disputes cannot be achieved without due diligence and cooperation on their part.  The Courts will be proactive in case management in accordance with the underlying objectives set out in Order 1A.

B     Preparation After Close of Pleadings

5.    Discovery

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.

6.    Interlocutory applications:

(1) Parties should actively consider what interlocutory applications they will take out and endeavour to reach agreement on directions.

(2) Parties should focus on the relevant issues.  Proliferation of efforts on irrelevant factual or legal disputes should be avoided.

(3) If they cannot reach agreement, the proper course is to take out the appropriate application as soon as possible.  They should not send copies of correspondence to the Court for adjudication on the papers and the Court will not respond to it.

(4) Unnecessary and disproportionate interlocutory applications should not be made and will not be entertained.  The same applies to unnecessary and unreasonable opposition.  They will be met with adverse costs orders summarily assessed. 

(5) Unnecessary hearings will be cut down.  In circumstances where directions could fairly be given on paper without any oral hearing, the Court will do so.

C    Timetabling Questionnaire

7.    The Timetabling Questionnaire shall be filed and served in the form as per Appendix A.

8.    The parties should consult each other but the process of consultation must not delay the filing of the Timetabling Questionnaire.

9.    Each party shall give as much information as is required in the Timetabling Questionnaire to enable the Court to give directions relating to management of the case and to fix a timetable for the steps to be taken.  Appendix A contains examples of such information. 

10.    Each party shall make all admissions and all agreements as to the conduct of the proceedings which ought reasonably to be made by them in the Timetabling Questionnaire.  Any unreasonable refusal to make any admission or agreement may be visited with costs sanctions.

11.    The plaintiff of the original action shall consider whether, in the light of the information in the Timetabling Questionnaire of the defendant(s) and other parties, he ought to modify any of his initial proposals or incorporate other parties' directions and identify those directions that he disputes.  The duty remains on him to communicate with the other parties with a view to agreeing the directions and timetable for the further progress of the case.

12.    For cases in the Court of First Instance (but not in the District Court) the trial of which are likely to last 15 days or longer, parties shall also comply with Practice Direction 5.7 on Long Cases and apply to have the matter assigned to a trial judge.

D    Steps to be Taken Where There is Agreement as to Directions

13.    If the parties are able to reach agreement, the plaintiff shall, within 14 days after receiving the Timetabling Questionnaire from all defendants or when the time for all defendants to file the Timetabling Questionnaire expires (whichever is the earlier) procure and file a consent summons containing the agreed directions or timetable for the Court's consideration and approval.

14.    Additionally, if a trial date or trial period is sought, it shall be attached to the consent summons referred to in paragraph 13 a certificate prepared by trial counsel or solicitor of each party giving time estimates (without taking into account the time estimates of other parties) of:

(1) his own opening submission;

(2) evidence-in-chief of each of his own witnesses;

(3) cross-examination of each of the other side's witnesses; and

(4) his own closing submission.

15.    Nothing in the foregoing paragraphs prevent the parties from filing a single set of Timetabling Questionnaire containing the joint views of the parties together with a consent summons containing the directions which they invite the Court to make.

E     Steps to be Taken Where There is No Agreement as to Directions

16.    If the parties are unable to agree all directions or the timetable or if the defendant does not file a Timetabling Questionnaire, the plaintiff shall take out a case management summons:

(1)   within 14 days after receiving the Timetabling Questionnaire from all defendants; or

(2)   within 14 days upon expiry of the period for the defendant(s) to file and serve a Timetabling Questionnaire

whichever is the earlier.

17.    For cases involving litigants in person, the plaintiff (whether legally represented or not) must take out a case management summons for directions within the time limit prescribed under paragraph 16 above.

18.   The case management summons shall set out:

(1) all directions and timetable that can be agreed; and

(2) each party's proposal in respect of the directions and the timetable that cannot be agreed.

A sample form of a case management summons is annexed at Appendix B.

F     The Court's Approach to Timetabling and Directions

19.   The Court will consider the Timetabling Questionnaires and other documents lodged / filed to decide what directions are needed and what the timetable should be.  It will give great weight to agreed directions and time limits put forward by the parties, although it will retain discretion to override the agreement where it considers the agreed directions and time limits to be unreasonable.

20.   Regarding expert evidence:

(1)   the Court will not give permission for a party to adduce expert evidence unless that party has:

(a) identified the expert by name and field;

(b) identified the issue to which the expert evidence will relate (a mere reference to adducing expert evidence "limited to the issue of liability" or "limited to the issue of quantum" is not sufficient); and

(c) considered the appropriateness of appointing a single joint expert in the case.

(2)   A party who obtains expert evidence before obtaining leave does so at his own risk as to costs, except where he obtained the evidence in compliance with a pre-action protocol.

21.   Unless it appears to the Court that a hearing is necessary, the Court will make orders nisi giving case management directions and fix a timetable for the proceedings in the light of the Timetabling Questionnaires and other documents filed / lodged and without a hearing.

22.   Any party who objects to one or more of the directions given in an order nisi should apply to the Court for variation within 14 days after the order is made, failing which the directions shall become absolute.

G     Case Management Conference ("CMC")

23.   A CMC will be held pursuant to the timetable laid down by the Court.

24.   Not less than 7 days before the date fixed for a CMC, each party shall file and serve the Listing Questionnaire at Appendix C and paragraphs  25 to 32 below will apply.

25.   If a trial date is sought, the parties should file and serve together with his Listing Questionnaire a certificate (preferably prepared by counsel who will handle the trial) giving time estimates (without taking into account the time estimates of other parties) of:

(1) his own opening submission;

(2)   evidence-in-chief of each of his own witnesses;

(3)   cross-examination of each of the other side's witnesses; and

(4)   his own closing submission.

26.   Not less than 3 clear days before the date fixed for a CMC, the plaintiff shall lodge with the Court a bundle ("the CMC bundle") containing copies of pleadings, witness statements, expert reports and a draft index of the document bundle.  Where possible the CMC bundle should be updated and re-used at subsequent CMC(s) (if any) and Pre-Trial Review(s) ("PTR") (if any).  The index to the CMC bundle should highlight the updated parts to assist the master or judge.

27.   At the initial stage of an action, a CMC is generally heard by a master.  A master may, if he considers appropriate, either adjourn the CMC to a judge or refer the action to a judge for holding a CMC.  The decision of a master in this regard is final.

28.   A CMC is a critical stage in the proceedings and for most of the cases virtually the only milestone event before trial.  It is not a second opportunity for the parties to ask for directions which they could have sought after they have first filed their Timetabling Questionnaires. 

29.   Parties are expected to have complied with the timetable laid down by the Court by the time of the CMC.  Unless sufficient grounds have been shown to it, the Court will not grant extensions of time for compliance.  If it does, the grant of extension will most likely be on an unless order basis with self-executing sanctions.

30.   The parties are also expected to indicate accurately and fully the extent of further interlocutory applications or appeals to be made. 

31.   The later in time and the closer to a trial date an application is made, the less likely it is for the Court to entertain it.

32.   The Court will at a CMC:

(1)   review the steps which parties have taken in the preparation of the case, and in particular their compliance with any directions that the Court may have given;

(2)   decide and fix a timetable for the steps which are to be taken by the parties to secure the progress of the case in accordance with the underlying objectives;

(3)   ensure as far as it can that all admissions that can be made and all agreements that can be reached between the parties about the matters in issue and the conduct of the claim are made and recorded;

(4)   adjourn the CMC to another date, fix a date for PTR, or fix the trial date or a trial period; and

(5) ascertain the parties' attempt or intention to undergo alternative dispute resolution.

H     PTR

33.   Where the Court decides to hold a PTR, it will normally be held about 8 to 10 weeks before the trial date or the beginning of the trial period.  A PTR is generally dealt with by the trial judge.

34.   A PTR is not an extension of the CMC.  The Court expects a case to be ready for trial.  Late interlocutory applications may be dismissed on the basis of delay alone.

35.   Not less than 3 clear days before the date fixed for a PTR, the plaintiff shall lodge with the Court an updated bundle containing copies of documents as specified under paragraph 26 herein.

36.   At the PTR, the Court will:

(1)   fix the starting date for the trial if a trial period has been fixed;

(2)   confirm or vary the estimated length of the trial in the light of completed interlocutory steps; 

(3)   give any further directions needed (including any needed extensions of time for interlocutory tasks not yet completed, or any appropriate unless order on terms as to costs) provided that such directions will not impinge upon the trial date; and

(4)   give directions in relation to the trial under Order 35, rule 3A.

I     Setting Down for Trial

37.   The party setting a case down for trial must file with the Registry the form at Appendix D.

J     Variation of Court-Determined Directions or Timetable

38.   The parties should note that case management decisions are matters within the discretion of the master or the judge making that decision and are generally not susceptible to appeals.

39.   Where there has been a change in the circumstances since the directions were given and the timetable was fixed, the Court may set aside or vary a direction it has given or give further directions either on application or on its own initiative.

40.   Where all the parties agree to a variation of the time limits for non-milestone events in the timetable, they may effect such variations by recording the agreement in a consent summons, provided that the agreed variations do not involve or necessitate changes to any milestone date.

41.   Where the parties cannot agree on extension of time:

(1)   The party in default should take out the appropriate application as soon as possible.  Such an application will not be granted as a matter of course, but only on sufficient grounds being shown and on the applicant satisfying the Court that he would be able to comply with an extension without impinging on the trial date or trial period.

(2)   Alternatively, any other party may apply for an order to enforce compliance or for a sanction to be imposed or both of these.

An application for extension will only be granted, if at all, on the basis of an immediate unless order prescribing a suitable sanction should there be any further non-compliance. 

42.   Milestone dates will be immovable save in the most exceptional circumstances and for that purpose, for instance, late instructions from client, change in the team of lawyers, the absence of prejudice to the other party which cannot be compensated for by costs, will not be treated as exceptional circumstances.

K     Attendance at Hearings for Directions, CMCs or PTRs

43.   The Court may hold a hearing on its own motion especially where litigants in person are involved.

44.   All hearings for CMC and PTR should be attended by the parties themselves or, if they are represented, by their legal representatives. 

45.   Unless otherwise directed by the Court, all hearings for CMC and PTR before a judge should be attended by the trial counsel.

46.   A legal representative who attends a hearing should be the person responsible for the case and must in any event be familiar with it, be able to provide the Court with the information it is likely to need to make its decisions about case management, and having sufficient authority to deal with any issues that are likely to arise.

L     Costs Sanction

47.   Where a hearing is necessitated due to the fault or default of a party (such as failure to comply with this Practice Direction or failure to cooperate), the Court may consider ordering that party to pay the costs of any other party who has attended the hearing, summarily assess the amount of those costs, and / or order them to be paid forthwith.

48.   Where the inadequacy of the person attending or of his instructions leads to the adjournment of a hearing, he will likely be visited with an order for the costs wasted.

M     Commencement Date

49.   This Practice Direction supersedes the previous Practice Direction 5.2 on Setting Down for Trial in the Court of First Instance.

50.   This Practice Direction shall come into effect on 2 April 2009.

Dated this 12th of February 2009.

   Appendix A

   Appendix B

   Appendix C

   Appendix D

PRACTICE DIRECTION – 5.3

LISTING AND HEARING OF SUMMONSES FOR
INTERLOCUTORY ORDERS AND INJUNCTIONS

　

1. SUMMONS DAY

1.1   In future each Friday during term time will be a summons day. The return dates for all summonses for interlocutory injunctions, including those where injunctions have been granted ex parte, will be Friday mornings at 10.00 a.m.

1.2  In the event that a Friday during term time shall be a public holiday the summons day shall be on Thursday that week.

2. LISTING

2.1  The Clerk of Court will mark on the summonses for all injunction applications the date of the next summons day provided that two clear days’notice can be given to the respondent.

2.2 The judge granting an ex parte injunction will determine on which summons day the injunction shall be returnable. In usual circumstances the return date for ex parte injunctions granted less than two clear days before a summons day will be the second summons day following the grant.

2.3 Applications for ex parte injunctions which are ready for hearing on summons day may be brought before the Summons Judge prior to 4 p.m. that day.

3. SUMMONS JUDGE

3.1 There will be one judge to hear summonses. For the time being the judge in charge of the Companies List shall be the Summons Judge.

3.2 If the volume requires it, any other judge available to assist with summonses will hear such summonses as the Summons Judge may direct.

4. NOTIFICATION OF REPRESENTATION

4.1 The solicitors for the applicant, if the applicant is legally represented, shall be responsible for completing representation forms which shall be lodged with the judge’s clerk by 9.45 a.m. on summons day.

4.2 If the applicant is not legally represented the respondent's solicitors, if any, shall be responsible for completing the representation form.

5. ORDER OF HEARING

The judge hearing summonses will review all cases listed at 10.00 a.m. All parties and their representatives should attend in the court room at that time. If any party requires his case to be heard in the absence of persons not a party to the action, the applicant should so endorse the summons and the respondent should make his wishes known to the judge when the case is called on. The judge will exercise his discretion as to the order in which he hears the cases, so that he may, for instance, give priority to any application that he considers to be sufficiently urgent, as may be the case with some ex parte applications. Subject to this:

5.1    summonses affecting the liberty of the subject will take priority over all summonses;

5.2    ineffective summonses, that is to say matters which are to be adjourned or have been settled, will be dealt with before effective matters;

5.3    all other listed, unlisted and ex parte summonses and applications to discharge ex parte orders will be heard in the order determined by the Summons Judge irrespective of the seniority of counsel or solicitor;

5.4    summonses likely to last more than half a day may be adjourned to a date to be fixed unless the state of work permits the judge to deal with them as they arise;

5.5    when another judge is available to assist with summonses, the Summons Judge may transfer to him such summonses as he considers appropriate, irrespective of priority;

5.6    any summons which at the end of the day is part heard will normally be heard on the next court day; and

5.7   the judge will usually give effect to any variation in this order of priority which is agreed by all who are affected.

6.  ADJOURNMENT OF SUMMONS

6.1    If all parties to a summons agree to do so, a summons can be adjourned for not more than 14 days by counsel or solicitors attending before the Clerk of Court at any time before 4.30 p.m. on the day before the hearing of the summons and producing a consent or consents signed by counsel or solicitors representing all parties agreeing to the adjournment. A litigant in person who is a party must attend before the Clerk of Court as well as signing a consent.

6.2    Not more than two successive adjournments may be made under para.6.1 and no adjournment shall be made to the last summons day of any sitting as defined by O.64 r.1.

6.3    In addition to the consents required under para.6.1 above, an agreed time-table for the swearing of any evidence must be produced to the Clerk of Court. Any application arising from the default of a party in abiding by the time-table and any application by the parties to extend the time-table must be made to the court. No period of longer than 14 days from the preceding step in the proceedings shall be allowed except with leave of the court.

6.4    Undertakings previously given to the court may be continued unchanged over the duration of any adjournment. Adjournments on which an undertaking is to be varied or a new undertaking given must be dealt with by the court. If the parties require an order to be made, whether as to costs or any other matter, application must be made to the court.

7.  COURT BUNDLES

7.1     The applicant should provide to the court and the respondent(s):

7.1.1    A lever arch bundle containing copies of only the court documents (summonses, pleadings, affidavits etc.) relevant to the particular application. The pages should be numbered. Solicitors should use their discretion in copying exhibits and only include those exhibits in the bundle which are important to the case or will be referred to frequently; other exhibits such as copies of advertisements, brochures, annual reports can be referred to in the court file unless specific pages are required. In the latter case only those pages are required. Documents which are merely repetitive of or similar in content to other documents should where possible not be copied.

7.1.2    A bundle containing relevant inter partes correspondence relating to the particular application.

7.1.3    The bundles should be agreed with the other party/parties and should be sent to the clerk to the Summons Judge and delivered not less than 24 hours and where possible 48 hours before the hearing.

7.2    Should further affidavits be filed, copies of these with holes punched ready for inclusion in the lever arch bundles prepared, should be given to the judge's clerk as early as possible.

7.3    Not later than 9.30 a.m. two days (i.e. one clear day) before the hearing, the solicitors for the applicant should file in court, with copies sent directly to the judge's clerk and to the respondent, a short and succinct skeleton setting out what the application is. Not later than 2.30 p.m. on the day before the hearing the solicitors for the respondent should file in court, with copies sent directly to the judge's clerk and to the applicant, a short statement setting out what is agreed and what is not and in very brief encapsulated form why that part which is not agreed is disputed. (Approximately half a page of A4 paper in total should suffice.)

8. CONSENT ORDERS

8.1 Where the respondent to a summons does not appear either by counsel, solicitor or in person, the applicant may ask the court to make a consent order, relying on a letter of consent from the respondent or his solicitors or on draft minutes of order signed by the respondent's solicitors.

8.2 If the relief sought by the applicant falls wholly within the relief claimed in the summons, no difficulty will normally arise, provided the court is able to grant the relief even in the absence of effective consent by the respondent.

8.3 Where, however, the order sought goes outside the relief claimed in the summons, or even in the writ, or when undertakings are proffered by the respondent, subject always to the discretion of the judge, no order will normally be made unless a consent signed by or on behalf of the respondent is put before the court in accordance with the following provisions:

8.3.1 Where there are solicitors on the record for the respondent, the court will normally accept as sufficient a written consent signed by those solicitors on their headed notepaper.

8.3.2 Where there are solicitors for the respondent but they are not on the record, the court will normally accept as sufficient a written consent signed by those solicitors on their headed notepaper only if in the consent (or in some other document) the solicitors certify that they have fully explained to the respondent the effect of the order and that the respondent has signified his understanding of the explanation.

8.3.3 Where there is a written consent signed by a respondent who is acting in person, the court will normally not accept it as being sufficient unless the court is satisfied that the respondent understands the effect of the order, either by reason of the circumstances (e.g. that the respondent is himself a barrister or solicitor) or by means of other material (e.g. that the respondent’s consent is given in reply to a letter to him which sufficiently explained the effect of the order in simple language or there is a certificate from the solicitor for the represented party that he had explained the order to the party acting in person. Translations into English of such letters should be made available to the court. These need not be certified unless the judge so requires).

8.3.4 Where the respondent offers any undertaking to the court,

(a) the letter or other document offering the undertaking must be signed by the respondent personally;

(b) solicitors must certify on their headed notepaper that the signature is the signature of the respondent; and

(c) the solicitor must similarly certify, if the case falls within sub-para. (2) or sub-para. (3) above, that they have explained to the respondent the consequences of giving the undertaking and that the respondent has signified his understanding of the explanation.

9. SPEEDY TRIAL

9.1 If on hearing a summons a judge considers that the trial of the matter should be expedited then he may direct the issue pro forma of a summons for directions. Subject to adjustment according to the circumstances the judge shall make an order in the following form:

And the solicitors for the Plaintiffs (by counsel for the Plaintiffs being their counsel for this purpose) undertaking forthwith to issue a summons for directions pro forma as for hearing.

And the court treating the summons for directions as before it [or treating this summons as the summons for directions]

It is ordered:

(a) that the Defendants do serve their defence within 14 days after the date of this order or after-service of the statement of claim and that the Plaintiffs do serve their reply (if any) within 7 days after the service of the said defence;

(b) that the Plaintiffs and the Defendants respectively do within 14 days after the service of the said reply or within 21 days after service of defence if there is no reply make and serve on the other of them a list of documents which are or have been in their possession, custody or power relating to the matters in question in this action and accounting therefor and do at the same time serve on the other of them a notice in conformity with O.24, r.9;

(c) that the Plaintiffs and Defendants respectively do within 7 days after service upon them respectively of such lists of documents produce and give inspection of the documents specified in their respective lists to the other of them and permit them to inspect the same and to take copies thereof;

(d) the matter be restored for further directions on summons day within 14 days of the time limited for inspection.

9.2 The court may give further directions at the time of ordering a speedy trial, including orders in relation to exchange of witness statements, expert evidence, bundles etc. depending on the nature of the case.

10. NON COMPLIANCE WITH DIRECTIONS

Those not observing or complying with the directions are liable to be penalized in costs irrespective of whether or not they represent the parties who succeed on the application.

11. This Practice Direction should come into effect on 25 April 1995.

PRACTICE DIRECTION – 5.5

SUBMISSION OF AUTHORITIES

1. This Direction applies to matters to be heard before the Court of Appeal, the Full Bench, a judge of the High Court or a master.

2. As early as possible before the hearing and, in any event, for the Court of Appeal and the Full Bench, not less than two clear days before (excluding public holidays), and for a judge of the High Court or a master not later than 12 noon on the day before the hearing, every party or his solicitor must lodge with the Clerk of the Court and the other party or his solicitor a list of authorities it is intended to cite.

3. In proceedings before the Court of Appeal the list must be in triplicate.

4. Such list must contain reference to all Law Reports, text books, articles, Ordinances and rules of court. Reference should be made to the edition of and as far as possible page numbers in text books and to sections in Ordinances.

5. For the removal of doubt practitioners are reminded that the Law Reports themselves only should be cited when the case to which reference is intended to be made is published in them. Only if that case does not appear in the Law Reports should other law reports or publications be cited. Where counsel consider it appropriate to cite other reports in preference to the Law Reports they should be prepared to give the court the references to the authority in the Law Reports.

6. Copies of unreported judgments should be attached to the list referred to in 2 above.

7. Where three or more copies of any authority indicated in the list are available in the court libraries, the Clerk of the Court will arrange for copies to be produced for the use of the court. Where less than three copies are available, photostat copies will be made and will be available to the court at the hearing. For this purpose the list of authorities supplied to the Clerk of the Court should as far as possible indicate clearly the particular passage to which reference is to be made.

8. If the court libraries have no copy of an authority listed, the Clerk of Court will inform the party or his solicitor. It will then be the responsibility of such party or his solicitor to produce the necessary photostat copies (three in number in case of proceedings before the Court of Appeal) at the hearing.

 

1. form of summons

Order 7 rule 2 of the Rules of the High Court which specifies the form of summons to be used must be complied with. Form 8 (the general form) will usually be appropriate. Form 10 (the expedited form) and Form 11 (the ex-parte form) are to be used only when they are authorised or required by the Rules or any statutory provision. Non-compliance may delay the proceedings or result in the summons being dismissed. It may also have costs consequences.

2. hearing

(a) The hearing of an originating summons on the date fixed under O.28 r.2 shall be a first hearing before a judge sitting in chambers at which directions as to the further conduct of the proceedings will be given, but nothing herein shall affect the court's power to dispose of an originating summons at such hearing under O.28 r.4 should the nature of the case so require.

(b) In future, the first hearing of all originating summonses will be listed for hearing on Tuesday mornings (or any other morning as circumstances may require) at 9:30 a.m. before the judge assigned to hear such summonses.

(c) The first or any subsequent hearing at which directions are to be given may be vacated, inter alia, if on a written application by the parties by consent for leave to fix a date for the substantive hearing made at least two working days prior hereto, the judge is satisfied that no further directions are required and the estimated length of the hearing is stated in the application.

3. This Practice Direction does not apply to summonses set down for hearing by the Registrar or a master.

4. This Practice Direction shall be effective from 1 March 1998.

PRACTICE DIRECTION - 6.1

CONSTRUCTION AND ARBITRATION LIST

A      Introduction

1.    For guidance on matters which are not specifically dealt with below, practitioners should consult Practice Directions relating to General List cases.

B      Construction and Arbitration List

2.    The Construction and Arbitration List ("the List") was established to facilitate the disposal of specialised classes of civil action.

3.    The classes of action within the List include (but are not limited to) cases concerning the following:

      (1)      civil or mechanical engineering;

      (2)      building or other construction work;

      (3)     claims by or against engineers, architects, surveyors and other professional persons or bodies engaged in matters relating to the construction industry; and

      (4)      applications relating to arbitration whether arising under the Arbitration Ordinance (Cap. 341), Rules of High Court ("RHC"), Order 73 or otherwise.

4.    There shall be a Judge ("the Judge") in charge of the List.  Other Judges ("designated Judges") may also be designated to hear proceedings within the List from time to time.

5.    The Judge shall have control of the actions in the List and of interlocutory applications therein and may make such directions and orders regulating the conduct and trial of an action as he thinks fit.

6.    The Judge may issue general directions for the better regulation of the List and for this purpose may form a consultative committee of legal practitioners.

7.    The powers of the Judge shall, when necessary, be exercisable by another Judge.

8.    The List will operate in the following manner:

      (1)      A plaintiff or applicant proposing to enter an action in the List shall prominently mark on the face of his originating process the words "Construction and Arbitration List".

      (2)      The Judge may, of his own motion or on the application of a party to any action, order that:

(a)	an action in the List be removed therefrom; or
(b)	an action pending elsewhere in the High Court (other than in another specialist list) be transferred to the List.

9.      Interlocutory applications shall be returnable only before the Judge.

10.   Any application (including applications in an action outside the List) relating to an arbitration should normally be listed to be heard by the Judge or a designated Judge.

C      Interlocutory Applications

11.   For all contested interlocutory applications listed for 30 minutes or more, the following directions will apply:

      (1)      At least 72 hours before the hearing, the applicant shall serve a skeleton on the other parties and the Court.

      (2)      At least 48 hours before the hearing, the respondent shall serve a skeleton on all other parties and the Court.

12.   For interlocutory applications listed for less than 30 minutes, it is left to practitioners to decide whether the Court will be assisted by a skeleton.

D      Standard Directions for Trials

13.   A plaintiff should take out a summons for a 1st Case Management Conference before the Judge within 28 days after the close of pleadings.

14.   Not later than 7 days before the hearing of the 1st Case Management Conference, each party to a proceedings shall lodge with the Clerk to the Judge, file with the Court and serve on the other parties a completed information sheet in the form set out in Appendix A.

15.   The following are standard directions which the Court will make in most cases at a 1st Case Management Conference.  These directions must be followed although the Court will consider deviating from them in appropriate cases:

Factual Witnesses

(1)      Signed statements of factual witnesses shall be exchanged no later than [date].  Unless otherwise directed by the trial Judge, the statements are to stand as evidence in chief at trial.

Expert Witnesses

(2)      Expert evidence will be required on the following subjects:

            (a)      [Subject A];

            (b)      [Subject B];

            (c)      [Subject C];

            (d)      ...

(3)      Leave is granted for experts to be called by each party as follows:

            (a)      On Subject A, [number] expert(s);

            (b)      On Subject B, [number] expert(s);

            (c)      On Subject C, [number] expert(s);

            (d)      ...

(4)      The experts in each subject are to answer the following specific questions:

            (a)      On Subject A:

            (i)      Question A1;

            (ii)      Question A2;

            (iii)      Question A3;

            (iv)      Question A4;

            (v)      Question A5;

            (vi)      ...

            (b)      On Subject B:

            (i)      Question B1;

            (ii)      Question B2;

            (iii)      Question B3;

            (iv)      Question B4;

            (v)      Question B5;

            (vi)      ...

            (c)      On Subject C:

            (i)      Question C1;

            (ii)      Question C2;

            (iii)      Question C3;

            (iv)      Question C4;

            (v)      Question C5;

            (vi)      ...

            (d)      ...

(5)      Provisional expert reports shall be exchanged on a without prejudice basis no later than [date].

(6)      Within [time period] from the date of exchange of provisional expert reports, the experts in each subject are to meet on a without prejudice basis to agree a common opinion on the questions within their subject.

(7)      Within [time period] following their without prejudice meeting, the experts in each subject are to prepare a signed joint report which succinctly identifies:

(a)	the questions on which the experts have reached a common opinion and (in respect of each such question) what that common opinion is; and
(b)	the questions on which the experts have failed to reach a common opinion.

(8)      Within [time period] following their joint reports, the experts in each subject are to exchange final signed reports.  The final reports should succinctly state the following:

            (a)      the questions within a subject on which it was not possible to reach a common opinion;

            (b)      the competing views on each such question;

            (c)      why a given expert's views on each such question are right; and

            (d)      why any opposing expert's views on each such question are wrong.

Setting Down, Pre-Trial Review and Trial

(9)      The parties have leave to set down the action for trial forthwith, with an estimated hearing length of [number] days.  The trial is not to be heard before [date]. 

(10)      The trial date is to be treated as a milestone date.

(11)      Not later than 28 days before the Pre-Trial Review, each party to a proceedings shall lodge with the Clerk to the Judge, file with the Court and serve on the other parties a signed Pre-Trial Review checklist in the form set out in Appendix B.

(12)       There will be a Pre-Trial Review not less than 28 days before the trial date.

(13)      Trial bundles are to be lodged with the Court not less than 14 days before the trial date.

(14)      The parties are to serve written opening submissions on the Court and each other not less than 7 days before the trial date.

(15)      There will be liberty to apply.

Costs

(16)      Costs will be in the cause.

16.   At the 1st Case Management Conference, the Judge may direct that there be further Case Management Conferences.

E      Application for Leave to Appeal Against Arbitration Awards

17.   Every application for leave to appeal against an arbitration award shall contain a succinct statement of each ground upon which it is sought to contend that the arbitral tribunal erred in law.  Reference shall be made to the paragraph or passage of the award and reasons where each alleged error is to be found.  A copy of the award and reasons forming part of the award and any documents expressly incorporated in the award of such reasons shall accompany the application. 

18.   Any respondent to such an application who contends that the award should be upheld on grounds not, or not fully, expressed in the award and reasons should provide to the applicant and to the Court, not later than 7 days before the application for leave is to be heard, a succinct statement of such grounds in numbered paragraphs, with reference where appropriate to any relevant paragraph or passage of the award and reasons.

19.   Where the applicant contends that any question of law arising out of an award concerns a term of contract or an event which is not a one-off clause or event, he shall serve on the respondent with his application, and lodge with the Court, an affidavit setting out the facts relied on in support of his contention.  A respondent who challenges that contention shall provide to the applicant and to the Court, not later than 7 days before the application is to be heard, an affidavit setting out the facts upon which he relies.

F      Voluntary Mediation

(1)      General

20.     Parties in construction cases are encouraged to attempt mediation as a possible cost-effective means of resolving disputes.

21.   To promote the use of mediation, the Court may impose cost sanctions where a party unreasonably refuses to attempt mediation. 

22.   The purpose of this section of the Practice Direction is to facilitate the Court's consideration of whether or not to impose cost sanctions in relation to a refusal to go to mediation.

(2)      Initiation of Mediation

23.   A party ("the Applicant") to a construction action may serve a Mediation Notice upon any other party ("the Respondent") in the dispute.  A copy of the Mediation Notice is to be filed with the Court. 

24.   The Mediation Notice should state that the Applicant wishes to attempt mediation to resolve all or a specified part of its dispute with the Respondent.

25.   The Mediation Notice should identify the rules under which the proposed mediation is to take place, including the manner in which a mediator is to be appointed.  The Mediation Notice should as much as possible also give some idea of the estimated costs to a party of engaging the services of a mediator.

26.   The Mediation Notice should specify a timetable for the proposed mediation, stating what minimum amount of participation by the Respondent would qualify (as far as the Applicant was concerned) as a sufficient attempt at mediation.

27.   Upon receiving the Mediation Notice, the Respondent should respond to the Applicant in writing within 14 days (or such other time as the parties may agree), stating:

(1)	whether the Respondent agrees to mediation of all or only a specified part of the relevant dispute;
(2)	whether the Respondent agrees to mediation in accordance with the rules identified by the Applicant or proposes that mediation proceed by some other set of rules;
(3)	whether the Respondent agrees with all or part of the timetable proposed by the Applicant and whether the Respondent suggests any modifications to timetable; and
(4)	the minimum amount of participation by the Respondent which (as far as the Respondent was concerned) would qualify as a sufficient attempt at mediation.

28.   Where the Respondent refuses to mediate the relevant dispute, the Respondent should also state why it does not believe that mediation is appropriate.

29.   A copy of the Respondent's reply to the Mediation Notice is to be filed with the Court.

30.   Where the Respondent agrees to mediation, the Applicant and Respondent should proceed to mediation in accordance with the agreed timetable.

31.   Where the parties agree on some (but not all) proposals in the Mediation Notice, the parties should meet as soon as possible to see whether agreement can be reached on those proposals over which they differ.  Any agreement consequent upon such meeting should be reduced into a written minute signed by the Applicant and Respondent.  A copy of the minute should be filed with the Court.

32.   Where appropriate, the parties may apply to the Judge for assistance in resolving points of difference between them in relation to the mechanics of the proposed mediation.

33.   The Applicant or Respondent may apply to the Judge to stay the relevant action pending the progress of any agreed mediation or further order.  The stay application should specify the anticipated duration of the agreed mediation.  The stay application should be supported by a brief affidavit.

34.   Where the Applicant and Respondent differ as to the minimum participation which should qualify as a sufficient attempt at mediation, the Judge may (either when hearing a stay application or at any other time) specify the applicable level of expected participation.

35.   It is recommended that any stay application be heard after the close of pleadings at the time of the 1st Case Management Conference.

36.   At the 1st Case Management Conference, the Judge may ask the parties whether they have attempted mediation and (if not) the reasons for not so doing.  The Judge may express a view as to whether mediation might help in resolving all or some of the disputes in an action.

(3)   Nature of Mediation Agreement

37.   No party to an action shall be compelled to go to mediation.  The Court will treat an agreement to mediate reached pursuant to Section F(2) above ("a Mediation Agreement") as having been arrived at on a purely voluntary basis, without prejudice to the parties' contentions in the action.

38.   A Mediation Agreement will not be actionable as a contract.  The Applicant and Respondent will be free to withdraw from such agreement at any time and proceed with the underlying action.

39.   No settlement reached in the course of a mediation under a Mediation Agreement will become binding on the Applicant or Respondent until the settlement is reduced into writing and signed by both parties.

40.   The conduct of the mediation shall remain confidential to the parties and will proceed wholly on a without prejudice basis.

(4)   Costs Sanctions

41.   Where a Mediation Notice has been served, an unreasonable refusal or failure to attempt mediation may expose a party to an adverse costs order.

42.   Where a party:

      (1)      has engaged in mediation up to the minimum level of expected participation agreed by the parties beforehand or as determined by the Court; or

      (2)      has a reasonable explanation for non-participation,

he should not suffer any adverse costs order.

43.   What constitutes an adverse costs order will be a matter in the Court's discretion after taking into account all relevant circumstances.

44.   In determining whether a party has acted unreasonably in refusing mediation, the Court will not take account of or inquire into:

      (1)      what happened during the mediation;

      (2)      why the mediation failed; or

      (3)      whether any failure in the course of mediation may be ascribed to unreasonable conduct by any party.

(5)      Administration

45.   A booklet issued by the Judiciary is available for those wishing information on mediation generally and on the resources available for mediation in Hong Kong.

46.   For the purposes of compiling data on the effectiveness of mediation, the parties or their legal representatives are requested to report the following details to the Clerk to the Judge:

      (5)      whether (in the opinion of the reporting party) the mediation has led to a significant saving in litigation costs.

47.   The foregoing information may be provided by filling out an electronic questionnaire accessible through the website of the Hong Kong Judiciary (www.judiciary.gov.hk).

G      Commencement Date

48.   This Practice Direction supersedes the previous version of Practice Direction 6.1 on Construction and Arbitration List dated 31 December 1998, Practice Direction 6.2 on Application for Leave to Appeal Against Arbitration Awards and Practice Direction 6.3 on Construction and Arbitration List Pilot Scheme for Voluntary Mediation dated 4 July 2006. 

49.   This Practice Direction shall come into effect on 2 April 2009.

 Dated this 12th of February 2009.

    Appendix A

    Appendix B

PRACTICE DIRECTION – 7.1

 COURT OF FIRST INSTANCE – CIVIL LISTING

 

 

A    Running and Fixture Lists

1.    Every action commenced by ordinary writ of summons, other than an action entered in or transferred to the Commercial List, the Construction and Arbitration List will be assigned to either the Running List or the Fixture List and shall be set down accordingly.

2.    Cases with an estimated length of trial of 3 days or less will be assigned to and set down in the Running List.

3.    An action will only be assigned to the Fixture List where the Master or Judge is satisfied that by reason of the estimated length of trial or for other good cause the action is appropriate to that List.

4.    The Running List

(1)      On the last day of each month those actions which are expected to be tried during the next succeeding month will be listed on the notice board at the reception area of the Clerk of Court’s Office, Ground Floor, High Court – the Pending List.

(2)     Each Wednesday those actions on the Pending List which are expected to be tried during the next succeeding week will be extracted from the Pending List and put in another list – the Warned List.

(3)      Actions on the Warned List will be taken out for hearing in the order in which they appear in so far as this is possible having regard to the estimated length of trial and the availability of Judges.

(4)     Copies of the Warned List will be faxed and sent by ordinary post on the day it is published to the parties in each action listed thereon or their solicitors on the record; but it shall be the duty of every party or his solicitor instructed in any action on the Running List to keep note of its position therein and to be ready for trial in due course.

(5)     Each day at 2.30 p.m., those actions which are to be heard the following day will be listed on the daily notice board outside the reception area of the Clerk of Court’s Office, Ground Floor, High Court.

(6)     Solicitors or parties with a case in the Running List will be notified not later than 2:30 p.m. on the day preceding the first day of the hearing that their case will be heard.  To facilitate notification, parties should leave with the Registry their telephone and fax number upon becoming unrepresented.

5.    The Fixture List

(1)     When granting leave to set down for trial in the Fixture List, the Master or Judge may fix the trial date or a trial period or direct the parties to attend before the Clerk of Court on a specified date to fix the date(s) for trial.

(2)     Unless otherwise directed by the Court, the Clerk of Court will notify the parties to attend the Court on a specified date for the purpose of fixing dates for trial.

(3)     An order that the date be fixed in consultation with counsel instructed or expected to be instructed for the hearing of any action does not bind the Court or the Clerk of Court to secure the agreement of such counsel.  It requires the Court or the Clerk of Court only to give effect to their wishes so far as may be convenient to the court diaries, which shall have priority.

(4)     Any cause or matter commenced other than by way of ordinary writ of summons will be treated as though it was an action assigned to the Fixture List and the above sub-paragraphs will apply accordingly.

6.    Change of circumstances after leave is given to set down or setting down a case in the Running List

(1)     A solicitor who applies to cease to act for a party in action after leave is given to set down or setting down the action in the Running List, has the duty of explaining to his client the operation of the Running List.  

(2)     Any party to an action may apply to transfer the action from one list to the other.  Such application shall be made by summons to the Listing Master or the Listing Judge with not less than one clear day’s notice to all other parties to the action.  The summons shall be supported by an affidavit setting out the matters on which the party making the application will seek to rely.  No order will be made under this sub-paragraph in respect of an action already listed in the Warned List unless there are exceptional circumstances.

B     Listing and Fixing of Dates

7.    A Judge of the High Court has been appointed Listing Judge (civil).  He will be in charge of the listing of civil causes in the Court of First Instance.

8.    A Master of the High Court has been appointed Listing Master.  He will perform such duties as shall be assigned to him by the Listing Judge.

9.    The powers of the Listing Judge or Listing Master shall, when necessary, be exercised respectively by another Judge or Master.

10.    The fixing of dates, either by a Judge or a Master, is an administrative function exercised under the direction of the Chief Justice in terms of the power granted to him by section 28(2) of the High Court Ordinance (Cap. 4).  It is not a judicial function exercised in accordance with Rules of the High Court and accordingly the appeal procedures provided by those Rules are not applicable.

11.    Applications for leave to set down civil causes for trial in either the Running List or the Fixture List shall generally be made at the Case Management Conference.

12.    In appropriate cases, the Master or Judge granting leave to set down for trial may direct that the bundle lodged for Case Management Conference (“CMC bundle”) to stand as the setting down bundle for the purpose of Order 34, rule 3 of Rules of the High Court (Cap. 4A). In other cases, the provisions of Order 34, rule 3 must be complied with at the time of setting down an action for trial, and unless the bundle stipulated by the said Order has been lodged with the Registrar, the action will not be set down for trial.

13.    Parties are reminded that the trial date is a milestone date under Order 25, rule 1B(8) and is immovable except in the most exceptional circumstances and for that purpose, for instance, late instructions from client, change in the team of lawyers, the absence of prejudice to the other party which cannot be compensated for by costs, will not be treated as exceptional circumstances.     

14.    Any application to vary the trial date shall be made by summons to the Listing Master or Listing Judge with supporting affidavit setting out the exceptional circumstances on which the party making the application will seek to rely.  The Listing Master may in his absolute discretion refer any application to the Listing Judge.

15.    In the event of the trial date being vacated by the trial Judge, new trial date(s) should not be fixed without reference to the Listing Judge or the Listing Master.  No new dates should be arranged directly with the Clerk of Court.

C     Commencement Date

16.    This Practice Direction consolidates and supersedes the previous Practice Direction 5.1 on Listing and Refixing of Dates dated 1 December 2000 and the previous Practice Direction 7.1 on Actions by Writ – Running and Fixture Lists.

17.    This Practice Direction shall come into effect on 2 April 2009.

Dated this 19th of March 2009.

 

 

(Andrew Li) Chief Justice

 

 

PRACTICE DIRECTION – 7.2

COURT OF FIRST INSTANCE – CRIMINAL RUNNING LIST

 

1. Criminal cases in the High Court which satisfy the following conditions shall be set down by the Listing Master in a list called the Criminal Running List. The conditions are:

(a) that the case has only one defendant;

(b) that the defendant is represented by the Director of Legal Aid;

(c) that the estimated length of trial agreed by the prosecution and the defence does not exceed 10 working days; and

(d) that the indictment does not contain any offence involving a homicide.

2. There shall be a judge in charge of the Criminal Running List who shall hear and determine all applications prior to trial in cases set down in that List. The judge in charge of the List shall decide and determine all matters regulating the List.

3. A case that has been set down in a month which cannot be reached within that month shall automatically be set down for the month immediately following. Paragraph 4 herein shall not apply to such a case, but the parties shall at the earliest opportunity inform the trial judge and the other party of any change in circumstances since the pre-trial review, or seek another pre-trial review under para.6 herein if necessary.

4. There shall be an initial pre-trial review on the first working day of the week two weeks after the first day of the month for all cases set down in the following month. The procedure set down in paras.5 and 6 of “Pre-trial Procedure” at pages 10.3 to 10.4 [now replaced by new PD No 9.3] of the Practice Directions shall apply at the initial pre-trial review. In addition, the parties shall endeavour, at the initial pre-trial review, to agree upon the order of trial for the cases set down for the month in question. Failing agreement, the judge in charge of the List shall determine the order of trial.

5. It shall be the duty of the parties to give notice and warn their witnesses that their attendance at the trial may be required at any time during the month in which the case has been set down and that they should be able to attend the trial at 24 hours' notice.

6. The parties shall, without delay, seek an urgent appointment with the judge in charge of the list for another pre-trial review subsequent to the initial pre-trial review as and when the necessity arises, by giving 24 hours' written notice to the other party and the judge. The judge may give such directions as he thinks fit and proper at such pre-trial review.

7. This Practice Direction shall come into force on 1 December 1992.

HOURS OF SITTINGS – HIGH COURT AND
DISTRICT COURT

PRACTICE DIRECTION – 8.2

VACATION BUSINESS IN THE HIGH COURT