ADMIRALTY ACTIONS
1. Upon being asked to fix a date for the hearing of an interlocutory application in the admiralty jurisdiction, the Clerk of Court may set it down before the Admiralty Judge in chambers for a preliminary hearing.
2. At the preliminary hearing, the Admiralty Judge will fix times for the filing of affidavits and give such other directions as to the main hearing as he may consider appropriate.
3. At the preliminary hearing, the Admiralty Judge will fix the date for the main hearing.
4. The solicitors for the parties shall, for use at the main hearing, prepare a paginated bundle of documents, in chronological order if possible, with an index at the front thereof showing the dates of filing and page numbers.
5. At least four bundles shall be prepared, for use of the Judge, counsel for each party and witnesses. The bundle shall be provided to the Judge and the other party not less than 48 hours before the main hearing.
6. Save where the Rules of the Supreme Court otherwise require, applications to the Admiralty Judge should be made by way of summons. A party who proceeds by way of motion may, in an appropriate case, be penalized in costs.
PRACTICE DIRECTION – 2.1
CIVIL APPEALS TO THE COURT OF FINAL APPEAL
1. When the Court of Appeal has made an order giving final leave to appeal, a copy of the approved order must be delivered to the Clerk of Court within five days of the making of the order.
2. (a) Where the parties have agreed:
(i) that an appeal lies as of right under s.22(1)(a) of the Ordinance; and(ii) to the conditions which should be imposed under s.25;
the notice of motion for conditional leave should be endorsed with the consent of the parties to the order sought.
(b) If the notice is so endorsed, the application will be dealt with by a single judge of the Court of Appeal without the need to fix a date for hearing. No attendance will normally be required by any party.
(c) If, at any time after a date for hearing has been fixed but before the hearing of an application, the parties reach an agreement in accordance with 2(a) above, the applicant must inform the Clerk of Court immediately. The matter will then be dealt with as in 2(2) above and the date for hearing will be vacated.
(d) In all other cases, applications for conditional leave will be heard in open court by three judges.
(e) Applications for final leave will always be dealt with by a single judge of the Court of Appeal without the attendance of counsel. They must be supported by an affidavit verifying that the conditions have been fulfilled.
3. This Practice Direction shall take effect on 15 February 1998.
PRACTICE DIRECTION – 2.2
CRIMINAL APPEALS TO THE COURT OF FINAL APPEAL
1. Section 33(1) of the Hong Kong Court of Final Appeal Ordinance provides that an application for leave to appeal to the Court of Final Appeal (“the CFA”) should be made within 28 days from the date of the decision of the Court of Appeal or the Court of First Instance as the case may be.
2. Section 32 of the Ordinance as interpreted by the CFA [see [1997] HKLRD 1204] provides that leave to appeal shall not be granted by the CFA unless:
(a) it is certified by the Court of Appeal or the Court of First Instance that a point of law of great and general importance is involved in the decision. Where they decline to certify, the CFA may so certify and grant leave; or
(b) it is shown to the CFA that substantial and grave injustice has been done. This is a matter for the CFA alone.
3. Applications for a certificate to the Court of Appeal or the Court of First Instance that the decision involves a point of law of great and general importance should be made immediately after the judgment is given from which the appeal is to be brought.
4. The applicant should provide the court with a written statement of the point of law involved. Submissions on the application will then be heard and determined.
5. If either party requests for time to prepare the written statement or submissions and obtains an adjournment, an early date will be fixed for the resumed hearing.
6. A failure to make the application in accordance with these directions may make it difficult or impossible for parties to comply with the time limit for applications for leave to appeal to the CFA.
7. This Practice Direction shall take effect on 1 January 1998.
PRACTICE DIRECTION – 3.1
BANKRUPTCY AND WINDING-UP PROCEEDINGS
Part I: Bankruptcy Proceedings
1. Rule 49(9) of the Bankruptcy Rules
1.1 Rule 49(9) of the Bankruptcy Rules provides that the Court may decline to file the petition if it is not satisfied that the creditor has discharged his obligation in respect of the service of statutory demand imposed by Rule 46(2). To give effect to this rule, a petitioning creditor shall observe the following practice directions relating to the service of statutory demands and the filing of bankruptcy petitions.
1.2 A bankruptcy petition based on the failure to comply with a statutory demand shall first be lodged with the High Court Registry together with the affidavit(s) proving service of the statutory demand. The papers will then be passed to the master in charge of the Bankruptcy and Winding-up List to consider whether service of the statutory demand has fully complied with Rules 46(2) and 49. After perusing the papers, the master may either allow or reject the filing of the petition concerned. In appropriate cases, the master may specify the steps that need to be taken before allowing filing.
1.3 The solicitors lodging the petition shall return to the High Court Registry not earlier than 3 working days after the lodging of the petition to ascertain whether the petition is allowed to be filed or not.
1.4 Where the statutory demand has been served personally on the debtor, the petition may be filed upon presentation without the necessity of referring the papers to the master for consideration, provided that the petition when filed is accompanied by a certificate signed by the handling solicitor stating that the statutory demand has been served personally on the debtor. Practitioners are reminded that the filing of such certificate does not relieve the petitioning creditor of the obligation to file an affidavit of service by the person who effected that service, pursuant to Rule 49(3) of the Bankruptcy Rules.
1.5 For a petition which is not based on failure to comply with a statutory demand, the petitioning creditor does not need to observe the matters in paras 1.2-1.3 above. Hence to avoid unnecessary confusion and delay, practitioners should endorse in the header of all petitions the grounds upon which the petitions are based.
1.6 Urgent application for leave to file a petition may be made to the master in charge of the Bankruptcy and Winding-up List. Applications that cannot wait until the said master is available should be made to the practice master.
2. Service of statutory demand and petition
2.1 The creditor is under an obligation to do all that is reasonable to bring the statutory demand to the debtor's attention and, if practicable, to cause personal service to be effected. If the debtor is represented by a solicitor, an attempt should be made to arrange an appointment for personal service through such solicitor. Rule 49(4) of the Bankruptcy Rules enables a solicitor to accept service of a statutory demand on behalf of his client.
2.2 Practitioners are reminded that a statutory demand is not a document issued by the Court. Leave to serve out of jurisdiction and leave to effect service by way of substituted service are not, therefore required. A creditor wishing to serve a statutory demand outside the jurisdiction in a foreign country may adopt the procedure prescribed by the Rules of the High Court in Order 11 Rule 6.
2.3 When a statutory demand is to be served outside the jurisdiction, the time limits of 21 and 18 days respectively referred to in the demand must be amended by adding 21 days to each of these time limits wherever they appear.
2.4 Advertisement can only be used as a means of substituted service of a statutory demand without first attempting personal service where the demand is based on a judgment or order of any Court and the requirements of Rule 46(3) (a) and (b) are met. The advertisement shall be made in a language which the debtor is expected to understand. As there is no statutory form of advertisement, the Court will normally accept an advertisement in the following form:
STATUTORY DEMAND
To (block letters)
of
TAKE NOTICE that a Statutory Demand has been issued by (name of creditor) of (address of creditor)
The creditor demands payment of $ _______________ the amount now due (on a Judgment/Order/Award of the _______________ Court/Tribunal dated the ________ day of ________________________). (Give the date when the debt was incurred and a description of the debt. If the creditor holds any security, the amount of the debt should be the sum the creditor is prepared to regard as unsecured for the purposes of the demand, giving brief details of the total debt, the nature of the security and the value put upon it by the creditor as at the date of the demand.)
The Statutory Demand is an important document and it is deemed to have been served on you on the date of the first appearance of this advertisement. You must deal with this demand within 21 days of the service upon you by paying the debt or reaching a settlement with the creditor or you could be made bankrupt and your property and goods taken away from you. If you consider you have grounds to set aside the statutory demand, you should apply to Court within 18 days of the service upon you. If you are in any doubt as to your position, you should seek advice immediately from a solicitor.
The Statutory Demand can be obtained or is available for inspection and collection from:
Name
Address
(Solicitor for) the creditor
Tel No. Reference You have only 21 days from the date of the first appearance of this advertisement before the creditor may present a Bankruptcy Petition. You have only 18 days from that date within which to apply to the Court to set aside the demand. (A corresponding Chinese translation should be given)
2.5 For the guidance of practitioners, the steps set out in the paragraph below are considered reasonable steps that should normally be taken by a creditor to discharge his obligation under Rule 46(2) in respect of the service of a statutory demand. These steps are similar to all the reasonable steps that should be complied with by a creditor in order to satisfy the Court that an order for substituted service of a petition should be made. Appropriate alterations should be made to the affidavit proving service of the statutory demand where the requirements of the supporting affidavit for substituted service of a petition are inapplicable.
2.6 In most cases, evidence of the following steps will suffice to justify an order for substituted service of a petition:
(a) at least 2 personal calls should be made to all the debtor's addresses known to the petitioning creditor;
(b) the calls should be made on weekdays and at reasonable hours. If the service is attempted at the residential address, it should be at such time of the day when the debtor is expected to be found there (usually before or after normal working hours). If the service is attempted at the business address, it should be at such time of the day when the debtor is expected to be found there (during normal working hours);
(c) each call should be made on a separate day. The calls should not be made in close succession and an appropriate interval should be allowed between them;
(d) the second (or subsequent) call(s) should be made by appointment by letter ("the appointment letter") sent to the debtor by ordinary prepaid letter post, giving not less than 2 business days' notice, enclosing a copy of the statutory demand or petition to be served, and offering an opportunity of making a different appointment;
(e) where the appointment is for service of a statutory demand, the appointment letter should state that if the debtor fails to keep the appointment, the creditor proposes to serve the debtor by post and by advertisement, and that in the event of a bankruptcy petition being presented, the Court will be asked to treat such service as service of the statutory demand on the debtor. Where the appointment is for service of a petition, the appointment letter should state that if the debtor fails to keep the appointment, the creditor will apply to the Court for an order for substituted service either by advertisement, or in such other manner as the Court may think fit;
(f) upon keeping the appointment made by letter, and if the debtor to be served cannot be found, the process server should inquire whether the debtor has received the appointment letter and the debtor's whereabouts;
(g) if the process server is informed that the debtor is away, inquiry should be made as to when he will return and whether letters are being or have been forwarded to another address;
(h) the affidavit for the purposes of Rule 49(9) and/or in support of an application for leave for substituted service of the petition should also deal with the following matters:
(i) all relevant facts as to the debtor's whereabouts;
(ii) whether the appointment letter has been returned;
(iii) whether the debtor was within the jurisdiction or believed to be so at the time when the attempts to effect service were made, giving the facts upon which the inference is founded for such belief;
(iv) in the case of an application for leave for substituted service of the petition, whether the debtor to be served is within the jurisdiction or whether he is believed to be so at the time when the application is made, giving the facts upon which the inference is founded for such belief; and
(v) in respect of a statutory demand, specify a date by which, to the best of the knowledge, information and belief of the deponent, the demand will have come to the debtor's attention; in respect of a petition, whether the substituted service proposed will probably come to the knowledge of the debtor;
(i) if an application for the purpose of Rule 49(9) or for substituted service of the petition is based on an evasion of service of the statutory demand or the petition, the grounds for the statement that the debtor to be served is evading service must be given. In such a case, the efforts which have been made to find the debtor must also be stated.
2.7 Practitioners are reminded of the practice of the Court to require 7 clear days to lapse after service of a bankruptcy petition by advertisement for the hearing of the petition. This is based on the requirements in Order 9 Rule 4(2) of the Rules of the High Court.
3. Application to masters in bankruptcy proceedings
3.1 The following applications may be heard and determined by a master in Chambers under Rule 6(a) of the Bankruptcy Rules:
(a) for leave to continue or commence proceedings against a debtor under Section 12 of the Ordinance;
(b) to dispense with a statement of affairs or to extend the time for submitting such statement under Section 18 of the Ordinance;
(c) for arrest of a debtor under Section 27(1) of the Ordinance and for an order for release;
(d) for the re-direction of debtors' mail under Section 28 of the Ordinance;
(e) for a certificate of automatic discharge from bankruptcy where the application is unopposed under Section 30A of the Ordinance and Rule 92;
(f) for production of documents by the Commissioner of Inland Revenue under Section 30D(1) of the Ordinance;
(g) to extend the time for trustee to make a decision relating to a proof of debt under Section 34(7A) of the Ordinance;
(h) to approve the disposition of bankrupt's property under Section 42(1) of the Ordinance;
(i) to extend the time limit for notice under Section 43C(1) of the Ordinance;
(j) to include or exclude items from the bankrupt's estate under Section 43D(2) of the Ordinance;
(k) for income payments order under Section 43E of the Ordinance and to vary and review such order under Rules 128B, 128D and 129;
(l) for an order to extend the bankrupt's occupation of family home under Section 43F(1) of the Ordinance;
(m) for disclaimer and extension of time for disclaimer of onerous property under Section 59(1) of the Ordinance;
(n) for the appointment of a solicitor under Sections 61(c) and 61A of the Ordinance;
(o) to reduce the allowance to a bankrupt under Section 63 of the Ordinance;
(p) to approve the dealings relating to copyright work of a bankrupt's estate under Section 65 of the Ordinance;
(q) for the release of a trustee under Section 94 of the Ordinance and Rule 169;
(r) for the appointment of a creditors' committee under Section 100E of the Ordinance;
(s) for leave to commence and prosecute any action in the names of the trustee and of the bankrupt's partners under Section 107 of the Ordinance;
(t) for leave to disclose the names of the partners in proceedings in partnership name under Section 109 of the Ordinance;
(u) for summary administration and rescission of a summary administration order under Section 112A of the Ordinance;
(v) for service of the petition, order or summons on a debtor who cannot be found or is outside the jurisdiction under Rule 31;
(w) for leave to file a petition under Rule 49(9);
(x) for security for costs under Rule 55;
(y) for substituted service of a petition under Rule 59(2);
(z) to vary the dates relating to the submission of nominee's abstracts and reports under Rule 122Z(6);
(aa) to extend time for the nominee's notice of final completion of the voluntary arrangement and report under Rule 122ZC(4);
(bb) to dispense with the production of bills and notes under Rule 124;
(cc) for leave to disclaim a lease under Rule 130;
(dd) to give directions to the Official Receiver where there are no available assets under Rule 158A;
(ee) for disposal of books and papers under Rule 202;
(ff) for abridgement or enlargement of time under Rule 204;
(gg) to dispense with a public examination under Section 19A of the Ordinance for cases in which bankruptcy proceedings were commenced before 1 April 1998;
(hh) for adjudication under Section 22 of the Ordinance for cases in which bankruptcy proceedings were commenced before 1 April 1998.
4. Corporate petitioners in bankruptcy proceedings
4.1 Many petitions in bankruptcy, purporting to be by corporations, are being presented without proper authority.
4.2 This inevitably leads to adjournments, which cause unnecessary expense and waste of time.
4.3 Practitioners are reminded that an officer of a corporation who lodges a bankruptcy petition on behalf of the corporation, or who swears an affidavit of truth of statements in a bankruptcy petition, must be duly authorized in writing under the seal of the corporation so to do. The petition and affidavit must also recite the authority under seal.
4.4 For a corporate petitioner which does not possess a corporate seal, the petition and the affidavit should recite the fact that the company does not have a seal. The petition and affidavit must also recite the authority by which the officer lodges the bankruptcy petition.
4.5 Forms 10, 10A, 10B, 10C and 11 of the Bankruptcy (Forms) Rules are, therefore, applicable only when appropriately amended. Suitable forms are to be found in the books of precedents.
5. Proof of debt in bankruptcy proceedings
5.1 On the hearing of a petition for a bankruptcy order, to satisfy the Court that the debt on which the petition is founded has not been paid or secured or compounded the Court will normally accept as sufficient a certificate signed by the person representing the petitioning creditor in the following form:
"I certify that I have/my firm has made inquiries of the petitioning creditor(s) within the last business day prior to the hearing/adjourned hearing and I am informed by (name and position of representative of Petitioner) and verily believe that the debt on which the petition is founded is still due and owing and has not been paid or secured or compounded for (save as to )
Signed _________________ Dated____________________"
5.2 For the convenience of practitioners, this certificate will be printed on the attendance slips. It will be filed after the hearing. A fresh certificate will be required at each adjourned hearing.
6. Application for certificate of discharge of bankruptcy
6.1 Discharged bankrupts can apply to Court for a certificate of discharge pursuant to Rule 92 of the Bankruptcy Rules. Such kind of application should be made ex-parte to the master in charge of the Bankruptcy and Winding-up List with an appropriate supporting affidavit. A letter from the Official Receiver indicating no objection to the issuance of the certificate should be exhibited to the supporting affidavit.
7. Application to set aside statutory demands
7.1 Where an application to set aside a statutory demand is not dismissed by the Court under Rule 48(1), the Court shall initially schedule an inter partes directions hearing as soon as practicable before fixing a date for the hearing of the application under Rule 48(3).
7.2 A debtor who wishes to apply to set aside a statutory demand after the expiration of 18 days from the date of service of the statutory demand (where service is effected by advertisement in a newspaper the period of 18 days is calculated from the date of the first appearance of the advertisement) must apply for an extension of time within which to apply.
Part II: Winding-Up Proceedings and Company Matters
1. Application to masters in winding-up proceedings
1.1 The following applications may be heard and determined by a master in chambers under Rule 6(a) of the Companies (Winding-up) Rules:
(a) for leave to continue or commence proceedings against a company under Section 186 of the Ordinance;
(b) to extend the time for submission of a statement of affairs under Section 190(3) of the Ordinance;
(c) to bring or defend an action under Section 199(1)(a) of the Ordinance;
(d) to appoint a solicitor to assist the liquidator under Section 199(1)(c) of the Ordinance;
(e) for the release of a liquidator under Section 205 of the Ordinance and Rule 189 of the Companies (Winding-Up) Rules;
(f) to appoint a liquidator and a committee of inspection under Section 206 of the Ordinance and Rule 45 of the Companies (Winding-Up) Rules;
(g) to order the arrest of an absconding contributory or officer under Section 224 of the Ordinance and for an order for release;
(h) for a summary winding-up order and for rescission of a summary winding-up order under Section 227F of the Ordinance;
(i) to consider under Rule 42 of the Companies (Winding-Up) Rules any default in complying with the requirements of Section 190 of the Ordinance relating to the submission of a statement of affairs;
(j) for an order to inspect the books and papers of the company under section 219 of the Ordinance;
(k) to extend time for disclaiming onerous property under section 268 of the Ordinance and Rule 63 of the Companies (Winding-Up) Rules;
(l) to dispense with a statement of affairs under Rule 44 of the Companies (Winding-Up) Rules;
(m) to extend time for dealing with proofs under Rules 103 and 104 of the Companies (Winding-Up) Rules;
(n) to extend time for holding first meetings of creditors and contributories under Rule 106 of the Companies (Winding-Up) Rules;
(o) for the disposal of books under Rules 167 and 190 of the Companies (Winding-Up) Rules;
(p) to extend time for sending liquidator's statements under Rule 181 of the Companies (Winding-Up) Rules;
(q) under Rule 196 of the Companies (Winding-Up) Rules to give directions to the Official Receiver where there are no available assets;
(r) to give directions relating to gazetting of notices under Rule 202 of the Companies (Winding-Up) Rules;
(s) for enlargement and abridgement of time under Rule 208 of the Companies (Winding-Up) Rules;
(t) for the withdrawal of a petition which has not been advertised;
(u) to reduce the Official Receiver's fees under paragraph 9 of the Companies (Fees and Percentages) Order; and
(v) to dispense with advertising a petition which only seeks relief under Section 168A of the Ordinance and not a winding-up of the company.
1.2 Applications referred to in paragraph 1.1(d) above shall be supported by an affidavit particularizing the matter(s) in relation to which the assistance of a solicitor is sought. An order will normally not be made except in relation to a specific matter or matters.
2. Advertisement of petition
2.1 For the avoidance of doubt, the reference to at least 2 Hong Kong daily newspapers for the advertisement of a petition under Rule 24 of the Companies (Winding-Up) Rules should include publication once in English in an English language newspaper and once in Chinese in a Chinese language newspaper.
2.2 Where the only relief sought in a petition is under Section 168A of the Ordinance, in the absence of exceptional circumstances, the petition will not be ordered to be removed from the file for failure to advertise pursuant to Rule 24 of the Companies (Winding-Up) Rules. To avoid uncertainty, applications for dispensation from advertising such petitions may be made to the master in charge of the Bankruptcy and Winding-up List at any time after the filing of the petition.
3. Application for certificate of compliance
3.1 Under Rule 29 of the Companies (Winding-Up) Rules, the petitioning creditor has to obtain a certificate of compliance from the Registrar prior to the making of a winding-up order. In the case of a contested petition, the master will not adjourn the petition to a judge for hearing in the absence of such a certificate.
3.2 The application for a certificate of compliance will be dealt with by the master in charge of the Bankruptcy and Winding-Up List on Mondays at 9:30 a.m., or at any time fixed by the court if Monday is not available for hearing. Urgent applications for such a certificate shall be made to the same master and if he is unavailable, to the practice master.
3.3 Practitioners are reminded that they should obtain the certificate of compliance without undue delay. Failure to obtain such a certificate without good reasons may result in the dismissal of the petition.
4. Service of the petition
4.1 Rule 25 of the Companies (Winding-Up) Rules sets out the manner in which the petition should be served. Service should ordinarily be effected on business days and during normal working hours.
4.2 The affidavit proving service of the petition should, so far as possible, identify the person with whom a copy of the petition has been left, if applicable.
5. Petitions and other company applications
5.1 The first hearing of an opposed winding-up petition which has been adjourned to be heard by the Companies Judge shall, unless the Companies Judge otherwise directs, be listed for hearing in court on Mondays at 9:30 a.m. before the judge of the Companies Court.
5.2 Where it appears to the judge that the subsequent hearing will be a hearing for directions only, the petition may be adjourned for hearing in court or in chambers as the court may direct at 9:30 a.m. on any weekday other than a Monday.
5.3 Where a winding-up petition has been adjourned for hearing in court on a Monday and further directions become necessary, the parties may apply by way of a consent application lodged 3 clear days prior to any resumed hearing for directions, to vacate the hearing and adjourn it to a day other than a Monday for hearing in chambers. A statement of reasons shall accompany such application. Unless the application is granted, the original appointment for hearing in court shall stand.
5.4 Where, after a winding-up petition has been advertised, the parties reach agreement that the petition be dismissed or struck out, the petition shall be listed for hearing in court and the court may dismiss or strike out the petition without the parties having to attend the hearing provided that :
(a) a consent order is lodged 2 clear days prior to the hearing;
(b) provision is made in such order for the costs of the Official Receiver; and
(c) the dismissal is not opposed by any creditor or other interested party at the hearing itself.
5.5 A summons for directions taken out in a petition filed pursuant to the provisions of Section 59 of the Companies Ordinances or an originating summons for leave to convene any meeting(s) to consider a scheme of arrangement pursuant to Section 166 shall be listed for hearing in chambers on Tuesdays at 9:30 a.m. The hearing bundle must be lodged no later than the preceding Tuesday. Non-compliance with this direction may result in the appointment being vacated or adjourned.
5.6 These practice directions apply to proceedings where the only relief sought is under s.168A Companies Ordinance i.e. where no winding-up order is sought.
5.6.1. The application should be by way of petition. (See also practice direction 2.2 regarding dispensations from advertising).
5.6.2 The petition should specify briefly the grounds on which it is presented and the nature of the relief which is sought, in view of directions for particulars of claim, etc. which would likely be given except in very simple cases (see 5.6.6(b) below). The petition shall be delivered to the Court for filing together with sufficient copies for service under 5.6.5.
5.6.3. The court will fix a hearing for a day ("the return day") on which the petitioner and any respondent shall attend before the Companies Judge in chambers for directions to be given in relation to the procedure on the petition.
5.6.4. On fixing the return date, the Court shall return to the petitioner sealed copies of the petition for service, each endorsed with the return day and the time of hearing.
5.6.5. The petitioner shall at least 14 days before the return day serve a sealed copy of the petition on every respondent named in the petition, including the company.
5.6.6. On the return day, or at any time after it, the Court shall give such directions as it thinks appropriate including directions regarding the following matters:-
(a) service of the petition on any other person;
(b) whether particulars of claim, defence and reply are to be delivered, and the procedure to be adopted on the petition;
(c) the manner in which any evidence is to be adduced, including in particular:-
(i) directions for adducing evidence by affidavit or affirmation or orally,
(ii) cross-examination of any deponents to affidavits or affirmations,
(iii) directions regarding expert evidence on valuation, such as of shares or property.
Part III: Bankruptcy and Winding-Up Proceedings
1. Uncontested petitions in bankruptcy and winding-up proceedings
1.1 Where no notice of intention to appear has been served, or no notice to show cause has been filed, it will not be necessary for the petitioner or his representative to attend the hearing.
1.2 The judge or master will on the hearing announce in open court that a winding-up or bankruptcy order is being made by him.
1.3 This direction is designed to save expense to the parties and the time of the court. This practice direction, however, does not apply to the debtor's petition for self bankruptcy.
2. Urgent applications
2.1 Any urgent application relating to a Bankruptcy and Winding-up List matter shall be made to the Companies Judge, not to the Duty Judge.
2.2 Only if such an application is so urgent that it cannot wait until the Companies Judge is available should such an application be made to the Duty Judge.
This Practice Direction consolidates, revises and supersedes the Practice Directions now appearing as 3.1 to 3.4.
This Practice Direction shall take effect on 15 July 2002.
Dated this 25 day of June 2002.
| (Andrew Li) | |
Chief Justice |
Practice Direction 3.2
Procedure for filing and hearing bankruptcy petitions
by debtors who are legally represented
2. At the time of filing a petition and the related statement of affairs for each case, the practitioner in charge or the solicitor in charge:(a) where the petitioners are not legally represented;
(b) where the petitions are opposed; or
(c) where the petitions are made by creditors.
(i) must lodge an Information Sheet in duplicate or in two copies in the form as set out in the Appendix with Part I duly completed; and
(ii) is strongly advised to lodge a draft order signed by the practitioner in charge or the solicitor in charge for approval.
3. The Court shall not later than two weeks before the hearing, process the petitions and inform the practitioners of the results by returning a copy of the Information Sheet through the Registry.
4. If the papers are in order, the attendance of legal practitioners is dispensed with.Where the papers are considered not in order:
| 5. | (a) | If requisitions need to be answered, the practitioners may take the appropriate action as they consider necessary e.g. writing in for waiver, filing and serving a supplemental affidavit/affirmation and/or applying leave therefor, applying leave to amend petition etc. The documents submitted must be filed with the Court Registry not later than seven days before the hearing, failing which the Master may not have time to consider them before the hearing and the hearing will have to be adjourned. |
| (b) | After the practitioners have filed their additional documents, the Court is not obliged to further inform them whether the queries have been waived or satisfactorily answered. | |
| (c) | For these cases legal practitioners are required to attend by themselves or by counsel unless the Court otherwise directs. |
6. For cases where the petitioners wish to withdraw the petitions or adjourn the hearing or where it is known that the petitions will be opposed, the solicitors for the petitioners must attend and inform the court clerk of the matter before the hearing.
7. All hearings will be conducted in open court.8. The order of hearing will be as follows:
(a) Those cases that fall within paragraph 6 above; (b) Those cases that fall within paragraph 5 above; and
(c) Those cases where the papers are in order i.e. paragraph 4 above.
9. For cases under paragraph 8(a) and (b), the Court will deal with them individually one after another.
10. For cases under paragraph 8(c) the Master will ask the court clerk to read out the case numbers, the names of the petitioners and the firms representing them. After that, the Master will ask whether there is any opposition to the petitions in those cases. If there is no opposition, the Master will make bankruptcy orders in respect of all those cases. 11. Notwithstanding the above provisions the Master reserves the right to request the attendance of the practitioner for hearing of any case if the Master considers necessary or to adjourn the hearing of any case, for which it has been indicated that the papers are in order. 12. If bankruptcy orders are granted, the draft orders duly approved will be returned through the Registry in the usual manner. 13. It is strictly prohibited to make any telephone enquiry or any form of communication with the Registry on the status of any petition. 14. 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. 15. This Practice Direction will come into effect on 2 October 2003. It applies to all petitions filed on or after that day by the practitioners on behalf of the petitioners for self-bankruptcy.Dated this 28th day of August 2003.
| Andrew Li | |
Chief Justice |
Appendix to PD 3.2
Information Sheet for Self-bankruptcy Petition
PART I
Registry Box No.: __________
Case No. HCB __________ / 200___
Name of Petitioner :_______________________________________________________________
Date & Time of Hearing :___________________________________________________________
Solicitors' Firm for the Petition :_______________________________________________________| Petition filed. | ||||
| Statement of Affair filed. | ||||
| Draft bankruptcy order for approval lodged with this attendance slip. |
PART II
Official Use
Results of Vetting
| 1) | Papers in order | ||||
| 2) | Papers not in order. Please see requisitions attached. | ||||
| 3) | Others :__________________________________________________________________ | ||||
| ________________________________________________________________________ |
Dated the ________ day of ____________________ 2003.
| Signed by: _______________________ |
PART III
Court Use
Coram: Registrar / Master ___________ in Court. Date: _____________ at _______ a.m. / p.m.
Mr. / Miss / Mrs. __________________________________________________________________
Instructed by / of Messrs. ___________________________________________________________
Appearance dispensed with
Order:-
| 1) | Bankruptcy order made. | ||||
| 2) | Adjourned to the date before a Master as stated in requisitions sheet. | ||||
| 3) | Adjourned to the _______ day of _____________ 200( ) at 9:30 a.m. before a Bankruptcy Judge. | ||||
| 4) | Leave to file and serve supplemental affirmation(s) / affidavit(s) (Folio _____) granted and the filing and service of that / those affirmation(s) / affidavit(s) do stand. | ||||
| 5) | Leave to the petitioner to withdraw the petition with no order as to costs except costs to the Official Receiver agreed at the sum of _________________ to be deducted from the deposit. | ||||
| 6) | Undertakings noted. | ||||
| 7) | Others: ________________________________________________________________ | ||||
| ______________________________________________________________________ | |||||
| 8) | Costs reserved / No order as to costs for today's hearing. |
| Signed by: _______________________ |
Court:
PRACTICE DIRECTION – 4.1
CIVIL APPEALS TO THE COURT OF APPEAL
PART I – GENERAL
1. This Practice Direction is intended to provide comprehensive directions for the conduct of the civil business of the Court of Appeal. Accordingly it supersedes all presently existing Practice Directions specifically relating to civil appeals, namely 5.1, 5.2, 5.3 and 5.4.
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”. In the first instance, the Chief Judge has nominated Master Chu to act in the capacity of Registrar of Civil Appeals.
3. The following Parts of this Practice Direction deal with the following matters:
Part II – Title of appeals
Part III – Listing of appeals
Part IV – Documentation
Part V – Skeleton arguments
Part VI – Case management
Part VII – Dismissal of appeals by consent
Part VIII – Litigants in person
4. The provisions of this Practice Direction are subject to any specific direction which the Registrar of Civil Appeals or a member of the Court of Appeal may make or give in any particular case.
5. As this Practice Direction is new it is to be expected that it will prove in practice to be capable of improvement. Any suggestions or proposals to that effect will be welcome, and should be addressed to the Registrar of Civil Appeals.
6. This Practice Direction will come into force on 1 February 1999.
PART II – TITLE OF APPEALS
7. Any application or appeal to the Court of Appeal should carry the same description of the parties in the title as that which obtained in the Court of First Instance. (It will no longer be necessary to refer in the title to “the applicant”, “the appellant” or “the respondent”; experience has shown that references to Applicant / Respondent”, “Respondent/Appellant” and so on serve only to confuse.)
PART III – LISTING
8. The Court of Appeal will maintain three lists of civil appeals: (a) a list of final appeals (see O.59 r.4(1)(c)); (b) a list of interlocutory appeals (see O.59 r.4(1)(a)); and (c) 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.)
9. 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.
10. 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.
11. 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.
PART IV – DOCUMENTATION
12. 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.
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.
14. 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. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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. Although O.59 r.9(1) currently requires the documentation to which it refers to be lodged “not less than 7 days before the appeal is likely to be listed for hearing”, it will facilitate the efficient operation of this Practice Direction if, pending an appropriate amendment of O.59 r.9(1), the documentation is in fact lodged not less than 14 days before the date on which the appeal is listed for hearing. 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. 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.
20. 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.
PART V – SKELETON ARGUMENTS
21. 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 seven days before the week in which the application or appeal to which it relates 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 two days before the application or appeal to which it relates is listed to be heard.22. (a) The purpose of a skeleton argument is to identify and summarise the points, not to argue them fully on paper (if the court should require such an argument, it will give directions for the lodgment of written submissions). A skeleton argument should therefore be as succinct as possible. The appellant's skeleton argument should commence with a brief statement of the nature of the proceedings below; a similarly brief statement of the facts, so far as material to the resolution of the issues which are said to arise on the appeal; and a concise statement of those issues (not a rehash of every finding of law and fact by the court below, baldly asserting that the judge was wrong). The skeleton argument should then outline the points which the appellant intends to take and a brief statement of the appellant's argument on each of those points.
(b) Skeleton arguments should not normally exceed 10 pages in the case of an appeal on law and 15 pages in the case of an appeal on fact. Parties should not, however, assume that longer cases justify proportionately longer skeleton arguments; and, in the case of interlocutory and shorter final appeals, it should normally be possible to do justice to the relevant points in a skeleton argument of considerably less than 10 pages.
(c) In the case of points of law, the skeleton argument should state the point and cite the principal authority or authorities in support, with references to the particular page(s) where the principle concerned is enunciated.
(d) In the case of questions of fact, the skeleton argument should state briefly the basis on which it is contended that the Court of Appeal can interfere with the finding of fact concerned, with cross-references to the passages in the transcript or notes of evidence which bear on the point.
(e) The skeleton argument should be accompanied by a written chronology of relevant events cross-referenced to the case bundle or the appeal bundle. The chronology must be a separate document so that it may easily be consulted in conjunction with other papers.
PART VI – CASE MANAGEMENT
23. 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 O.59 r.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.
25. 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 that Vice-President or Justice of Appeal.
26. The directions to be given may include appropriate directions as to length of time to be allowed to each party for oral argument.
PART VII – DISMISSAL OF APPEALS BY CONSENT
27. 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 Justice of Appeal) the appeal will be dismissed with costs and struck out of the list.
28. 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 Justice of Appeal) the appeal will be dismissed and struck out of the list.
29. Where any party has no solicitor on the record any such request or consent must be signed by him personally.
30. 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.
PART VIII – LITIGANTS IN PERSON
31. 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 O.59 r.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 other matters incidental to the conduct of the appeal, as appear best adapted to secure the just expeditious and economical disposal of the appeal.
32. 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.
Dated this 31st day of December 1998.
(Andrew Li)
Chief Justice
PRACTICE DIRECTION – 4.2
CRIMINAL APPEALS TO THE COURT OF APPEAL
PART I – TITLE OF APPEALS
1. Any application for leave to appeal and any appeal to the Court of Appeal will carry the same title as that which obtained in the Court of First Instance.
2. This means that the prosecutor will be shown first as such in the title, whether he is the appellant or respondent in the appellate court.
3. The Hong Kong Special Administrative Region will appear first, whether it is appellant or respondent.
PART II – PROCEDURE
4. Initial Grounds
Where there are “reasonable” grounds of appeal, the solicitor or counsel who was present at the trial, if instructed, should give advice on the prospects of an appeal. He should be in a position to formulate “initial grounds” immediately after the conclusion of the case and without waiting for the transcript of the evidence, of the summing-up or of the reasons for verdict or sentence and to advise the applicant on the filing of the required notice. These grounds are termed “initial grounds” in contrast with “perfected grounds” and should be signed by the drafter and accompany the notice of application for leave to appeal.If the lay client is not given advice, and is unrepresented during the period limited for the bringing of appeals against either conviction or sentence, officers of Correctional Services will assist him by the provision of the required forms and the forwarding of them to the Registrar, High Court.
5. Where solicitor or counsel settles grounds of appeal, it is his duty to ensure that—
(a) (i) grounds are only put forward where he has satisfied himself that they are arguable; it is not his duty to put forward grounds merely because the appellant wishes him to do so;
(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”.
This will consist of—
(ii) in District Court cases—the charge sheet, the summary of facts, the criminal record, and the reasons for verdict or, where appropriate, the reasons for sentence and any reports called for by the judge; and
(iii) in all cases any statement of agreed facts introduced at the trial will also be required.
(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.
8. Lists of Authorities
Separate lists of the authorities intended to be relied upon at the hearing should be supplied to the Clerk of Court, and not by fax, by both the applicant and the respondent two clear days before the date of hearing. At the same time each should exchange his list with the other.9. General
(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.
11. The powers to be exercised by the Directions Judge as mentioned above may also be exercised by the Registrar of High Court.
12. This Practice Direction consolidates and supersedes the Practice Directions now appearing at pages 10.7, 10.8, 10.9 and 10.11.
13. This Practice Direction shall take effect on 1 February 1999.
Dated this 31st day of December 1998.
(Andrew Li)
Chief Justice
PRACTICE DIRECTION – 4.3
CRIMINAL
APPEALS IN THE COURT OF APPEAL
HANDING DOWN JUDGMENTS
PRACTICE DIRECTION – 5.11. 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
LISTING AND REFIXING OF DATES
SECTION I - LISTING
1. A judge of the High Court has been appointed Listing Judge. He will be in charge of the listing of trials in the Court of First Instance.
2. 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.
3. Applications for leave to set down civil causes for trial in either the Running List or the Fixture List will be made on personal appearance before the Listing Master commencing 9.30 a.m. on Wednesday morning of each week, unless a Wednesday should be a public holiday, when the next following working day will be used. Prior appointments will be made through the Chief Judicial Clerk, High Court Registry not later than 14 days before the date of hearing and parties to the hearing must have their signed checklists filed with the High Court Registry not later than 4.00 p.m. on the Friday immediately preceding the said hearing. This paragraph shall apply to applications for leave to set down under a summons for directions.
4. Save for unrepresented parties, appearances before the Listing Master or Listing Judge should be by barristers or solicitors, and in the latter case it should be the handling solicitor; if he be unavailable, the solicitor appearing shall be familiar with the case.
5. Applications to transfer an action from one list to another or otherwise to vary an order for set-down shall be made by summons to the Listing Master supported by affidavit.
6. The Listing Master may at his absolute discretion refer any application to the Listing Judge.
7. The Running List will be divided into two parts: Pt.I will cover cases estimated to last three days or less; Pt.II will cover cases estimated to last from four to six days.
8. Solicitors or parties with a case within Pt.I of the Running List will be notified that their case will be heard not later than 2.30 p.m. on the day preceding the first day of the hearing. For cases within Pt.II of the Running List such notification will be not later than 2.30 p.m., two days prior to the first day of the hearing.
9.The powers of the Listing Judge or Listing Master shall, when necessary, be exercised respectively by another judge or master.
10. Solicitors are reminded that the provisions of O.34 r.3 must be complied with at the time of setting down an action for trial. Unless the bundle stipulated by the said Order has been lodged with the Registrar, the action will not be set down for trial.
SECTION II - REFIXING OF HEARING DATES
11. It may be necessary, on good cause being shown, to vacate the dates allocated for the trial of a particular cause.
12. However, in the event of this being done by the trial judge, new dates 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.
13. It should be noted that the fixing of dates, either by the Listing Judge or the Listing Master is an administrative function exercised under my direction in terms of the power granted to the Chief Justice by s.28(2) of the High Court Ordinance (Cap.4). It is not a judicial function exercised in accordance with the Rules of the High Court and accordingly the appeal procedures provided by those Rules are not applicable.
14. This Practice Direction consolidates and supersedes the Practice Directions now appearing at pages 5.1.
15. This Practice Direction shall take effect on 1 March 2001.
Dated this 1st day of December 2000.
| Andrew Li | |
| Chief Justice |
PRACTICE DIRECTION – 5.2
SETTING
DOWN FOR TRIAL IN THE COURT OF
FIRST INSTANCE
A solicitor wishing to set a civil case down for trial in the Court of First Instance must provide particulars in the form set out below:
IN THE COURT OF FIRST INSTANCE
JURISDICTION
Plaintiff(s)BETWEEN
Defendant(s)
APPLICATION TO SET A CASE DOWN FOR TRIAL
(1) The time estimated for trial in the
Order of Directions dated the
day of 19 is day
(2) This estimated length of hearing continues/does not continue to hold good for the following reasons.
(3) It is anticipated that witnesses will be called to give evidence for the plaintiff and witnesses will be called to give evidence on behalf of the defendant
(4) The following unusual features are likely to prolong the hearing of this case
.........................................................................................................................................
(6) The time now estimated for the trial of this case is days.