PRACTICE DIRECTION - 18.1
THE PERSONAL INJURIES LIST
1. This Practice Direction identifies and gives effect to the relevant changes in civil procedure introduced by the Rules of High Court (Amendment) Rules 2008 which came into effect on 2 April 2009.
2. The Practice Direction is issued for the guidance of practitioners involved in personal injury matters. It is not a substitute for detailed knowledge of the relevant Rules of the High Court ("RHC") (Cap. 4A). It is imperative that practitioners should keep themselves abreast of the changes brought about by the Civil Justice Reform and familiarize themselves with the Rules of the Court implementing the Civil Justice Reform, especially the underlying objectives and the Court's case management powers under RHC, Orders 1A and 1B.
3. Practitioners are expected to have a firm grasp of the details of the case, to have an early identification and framing of the issues, and to map out a realistic timetable for the expeditious resolution of the case. An overall approach should be taken rather than a piecemeal one with one or few steps at a time.
4. Trial should be regarded as the last resort, failing resolution by alternative means such as negotiations or mediation.
5. If a trial cannot be avoided, the parties should consider and take all necessary steps in preparation for the trial, making only such interlocutory applications as are necessarily required for the expeditious resolution of the ultimate dispute and the saving of costs.
6. Late amendments to pleadings even on otherwise justified grounds will not be allowed if the timetable for trial is jeopardized and there is delay in making the application.
7. Practitioners should explain to their clients the necessity of timely and adequate preparation of the case according to the timetable set, and the immutable nature of milestone dates in the proceedings.
8. Practitioners should also explain to their respective experts that the expert's overriding duty is to assist the Court; and partisanship and lack of independence on the part of the expert will devalue his role in the judicial process.
9. Non-compliance with this Practice Direction and the Pre-Action Protocol herein without good reason may lead to adverse costs consequences and / or sanctions including but not limited to those provided in RHC, Order 62, rule 8 (wasted costs order) and exercise of the Court's power to stay proceedings.
* The provisions relating to alternative dispute resolution procedure ("ADR") under paragraphs 14, 16, 17, 25 to 49, 116(10) and Part A of Appendix F hereof shall be effective as from 1 January 2010.
A The Personal Injuries List
10. With effect from 15 April 1996, all actions in which a claim is made for damages arising out of death or personal injury, including claims arising out of alleged medical negligence, but excluding all actions within the jurisdiction of the Admiralty Court, should have been commenced in the Personal Injury List ("PI List").
11. The Judge in charge of the PI List shall be known as the Personal Injury Judge ("PI Judge"). Pursuant to RHC, Order 72, rule 2(3), the PI Judge herein directs that, unless otherwise stated hereof or unless otherwise ordered, Masters may continue to deal with and hear interlocutory applications in cases in the PI List.
12. An action claiming damages arising out of death or personal injury in the Admiralty List may be assigned to the PI List if the Admiralty Judge so directs.
13. The Directions contained herein shall also apply, with suitable adaptation, to actions commenced in the District Court.
B Pre-Action Protocol
14. Paragraphs 14 to 23 hereof are to be read together with Part D hereof on ADR. Prior to the commencement of proceedings, parties should explore settlement by making bona fide attempts to engage in settlement negotiations by without prejudice correspondence, by structured without prejudice face-to-face meeting, or by any other manner agreed by the parties. If such negotiations do not result in any settlement after a reasonable time, the parties should proceed to explore ADR by mediation or other ADR.
15. Prior to the commencement of proceedings, the claimant should send to the proposed defendant(s) 2 copies of a letter of claim which should follow the format of the specimen letter as per Appendix A. Where the identity of the insurer(s) concerned is known or can be ascertained, a copy of such letter of claim should additionally be sent to them. The format of the specimen letter can be amended to suit the particular case, and it may be appropriate to make proposal for obtaining expert medical report and / or arranging expert medical examination (see paragraph 22 hereof). By such letter of claim, the claimant shall give as much information and produce such documents as are reasonably required to enable the proposed defendant(s)' Solicitors or insurer(s) concerned to give a constructive reply (including, if available and practicable but without limitation, the information and documents identified in Schedule A of the specimen letter).
16. Solicitors for the claimant should explain to their client Part D hereof on ADR as soon as the letter of claim is sent.
17. Solicitors for the proposed defendant(s) or insurer(s) concerned should explain to their client(s) Part D hereof on ADR as soon as the letter of claim is received.
18. Subject to paragraph 21 hereof, in the event of a claimant failing to send a letter of claim, or failing to send a letter of claim which contains information reasonably required to enable the proposed defendant(s)' Solicitors or the insurer(s) concerned to commence investigation and thereby evaluate the merits of the claim and / or the necessity, relevancy and probative value of any expert medical report and / or expert medical examination proposed to be obtained and / or arranged, the claimant and / or his Solicitors may be required to justify the incurring of costs of commencing proceedings and / or of any expenditure incurred which is argued to be premature and, save in cases of urgency, further progress in the proceedings commenced by the claimant may be delayed for such period as the Court thinks fit for the claimant / Plaintiff to comply with the spirit and timescale of paragraphs 15 and 19 hereof.
19. The letter of claim should be sent no later than 4 months prior to the commencement of proceedings, and the proposed defendant(s) or insurer(s) concerned should reply constructively thereto within one month. A simple acknowledgement is not a constructive reply. If there is no such reply, the claimant will be entitled to commence proceedings forthwith without risk as to costs arising out of non-compliance of this paragraph. If such reply is received within one month, the parties should over the next 3 months communicate constructively and provide mutual disclosure of information and documents with respect to issues of liability and quantum (including, without limitation, the information and documents identified in Schedules A and B of the specimen letter which have not already been served) as are reasonably required for attempting to settle the claim in whole or in part, instructing medical expert(s) and / or arranging expert medical examination (see paragraph 22 hereof).
20. If the proposed defendant(s) fail to give a constructive reply or reasonably investigates into the merits of the claim and give a positive reaction, then they will not receive sympathy from the Court after the commencement of proceedings, and the Court may not allow time for them to make up for their omission.
21. In the case of a claimant first instructing a Solicitor or in the case of a legally aided claimant first being assigned a Solicitor towards the end of the relevant limitation period, so that the end thereof falls within the timescale set out in paragraph 19 hereof, the provisions of paragraph 19 hereof will not apply and proceedings should be commenced, but the claimant will nonetheless be expected to comply with the spirit of paragraphs 15 and 19 hereof and further progress in the action should be delayed, save in cases of urgency e.g. advanced age of the claimant, risk of early death, whilst the timescale in paragraph 19 hereof is followed. The Plaintiff must nonetheless comply with the requirements of Part M hereof (The Check List Review and Case Management Questionnaire).
22. If the claimant finds it necessary to obtain medical expert report(s) before commencement of proceedings, he should consider arranging medical examination either by single joint expert(s) if agreed upon or jointly together with the expert(s) of the proposed defendant(s). A party who unreasonably fails to cooperate in instructing or arranging such expert medical examination before the commencement of proceedings will risk sanctions being imposed by the Court (see paragraphs 81 and 84 hereof) should proceedings be commenced.
23. Where the only dispute remaining is the quantum of costs, parties should actively consider at the pre-action stage whether the dispute can be resolved by costs-only proceedings.
C Offer to Settle before Commencement of Proceedings
24. Parties are reminded of the provisions in RHC, Order 62, rule 5 that the Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account any written offer which is expressed to be "without prejudice save as to costs" and which relates to any issue in the proceedings to be commenced.
D ADR
25. Paragraphs 26 to 49 hereof are to be read together with paragraphs 14 to 23 hereof on Pre-Action Protocol.
Part I
26. An underlying objective of the Rules of the High Court and of the District Court is to facilitate the settlement of disputes. The Court has the duty as part of active case management to further that objective by encouraging the parties to use an ADR if the Court considers that appropriate and facilitating its use ("the duty in question"). The Court also has the duty of helping the parties to settle their case. The parties and their legal representatives have the duty of assisting the Court to discharge the duty in question1.
27. The aim of the Directions in Part D hereof is to assist the Court to discharge the duty in question.
28. ADR means a process whereby the parties agree to appoint a third party to assist them to settle or resolve their dispute. Settlement negotiations between the parties do not amount to ADR. A common mode of ADR is mediation. The Directions in Part D hereof apply to mediation. Where the parties are engaged in arbitration proceedings, the Court proceedings would be stayed and the Directions in Part D hereof would not apply to such proceedings.
29. In exercising its discretion on costs, the Court takes into account all relevant circumstances. These would include any unreasonable failure of a party to engage in mediation where this can be established by admissible materials. Legal representatives should advise their clients of the possibility of the Court making an adverse costs order where a party unreasonably fails to engage in mediation.
30. The Court will not make any adverse costs order against a party on the ground of unreasonable failure to engage in mediation where:
(1) The party has engaged in mediation to the minimum level of participation agreed to by the parties or as directed by the Court prior to the mediation in accordance with paragraph 41 hereof.
(2) A party has a reasonable explanation for not engaging in mediation. The fact that active without prejudice settlement negotiations between the parties are progressing is likely to provide such a reasonable explanation. However, where such negotiations have broken down, the basis for such explanation will have gone and the parties should then consider the appropriateness of mediation. The fact that the parties are actively engaged in some other form of ADR to settle the dispute may also provide a reasonable explanation for not engaging in mediation in the meantime.
31. In all contexts, including dealing with matters arising under the Directions in Part D hereof and in exercising its discretion on costs, the Court cannot compel the disclosure of or admit materials so long as they are protected by privilege in accordance with legal principles, including legal professional privilege and the privilege protecting without prejudice communications. What happens during the mediation process, being without prejudice communications, is protected by privilege. It must be emphasized that there is no question of the Court undermining the protection afforded by privilege.
32. Subject to paragraphs 34 to 37 hereof, Part II of Part D hereof applies to proceedings in which all parties are legally represented. Part III of Part D hereof applies to proceedings in which one or more of the parties are not legally represented.
Part II
33. Subject to paragraphs 34 to 37 hereof, this Part applies to proceedings in which all parties are legally represented.
(a) Mediation Certificate
34. Paragraphs 35 and 36 hereof shall apply where all parties are legally represented at the Pre-Action Protocol stage.
35. Solicitors acting for the Plaintiff shall file in Court a Mediation Certificate at the same time of the issuance of the Writ. The Mediation Certificate shall contain the information required and be in the form as per Appendix B of Practice Direction 31 (Practice Direction on Mediation), with modifications if necessary, and signed by the Solicitors and the party they represent.
36. Solicitors acting for the Defendant(s) shall file into Court a Mediation Certificate at the same time with the Acknowledgement of Service.
37. In proceedings where a Mediation Certificate is not filed by any party who is not legally represented initially in the proceedings but subsequently all parties become legally represented by the time of filing the first Questionnaire as required to be filed in paragraph 107 hereof, Solicitors acting for the respective parties who have not filed a Mediation Certificate previously shall file in Court a Mediation Certificate at the time of filing of the first Questionnaire.
(b) Mediation Notice and Response
38. If a party ("the Applicant") wishes to attempt mediation, he should as soon as practicable after filing the Mediation Certificate serve a Mediation Notice on the other party or parties ("the Respondent") in the dispute in the form and containing the information as per Appendix C of Practice Direction 31 (Practice Direction on Mediation), with modifications if necessary, and signed by the Applicant or his Solicitor.
39. Upon receiving the Mediation Notice, the Respondent should respond to the Applicant by way of a Mediation Response within 14 days (or such other time as the parties may agree or as the Court may direct) in the form and containing the information as per Appendix D of Practice Direction 31 (Practice Direction on Mediation), with modifications if necessary, and signed by the Respondent or his Solicitor.
40. Where the parties put forward differing proposals in the Mediation Notice and Mediation Response, the parties should attempt to reach agreement on the proposals on which they differ as soon as practicable. Any agreement consequent upon such discussion should be reduced into writing in a minute called the Mediation Minute signed by the Applicant and the Respondent or their Solicitors.
41. Where the parties are unable to reach agreement on certain proposals in the Mediation Notice and Mediation Response in relation to the mediation:
(1) if the parties are willing to have their differences resolved by direction of the Court, they may make a joint application to the Court for directions resolving the points of difference between them; and
(2) in the absence of such willingness, any party may apply to the Court for directions and the Court may give such directions as are appropriate to resolve differences between the parties regarding the proposals that they have each made in the Mediation Notice and the Mediation Response respectively, but only in respect of the matter of time referred to in paragraph 39 hereof and the matters referred to in paragraphs 4, 5, 6 and 7 of the said Notice and Response2.
42. Where the parties reach agreement on mediation in accordance with the Mediation Notice, Mediation Response and any Mediation Minute, the parties should proceed in accordance with the stipulated rules and timetable and, if appropriate, may apply to the Court for an interim stay of the proceedings.
43. The Mediation Notice and Mediation Response shall be filed in Court at the time of the service of the same on the other party. The Mediation Minute shall also be filed in Court within 3 days after it has been signed by or on behalf of both parties. These documents may be taken into account by the Court on questions of costs.
(c) Application for Stay for Mediation Purposes
44. The Court may, on the application of one or more of the parties or on its own motion, stay the proceedings or any part thereof for the purpose of mediation for such period and on such terms as it thinks fit, bearing in mind the importance of avoiding so far as possible, disruption to the milestone dates and of avoiding, save in exceptional circumstances, any postponement of the trial dates.
45. Where the Court stays the proceedings, the Plaintiff must promptly inform the Court if a settlement is reached and the parties should take the necessary steps to conclude the legal proceedings formally.
Part III
46. This Part applies to proceedings in which one or more parties are not legally represented.
47. On the application of a party or on its own motion, the Court may consider at a suitable stage whether mediation is appropriate, taking into account all the circumstances. The Court may seek information from the parties for this purpose, always respecting privilege.
48. Where the Court considers that mediation is appropriate, the Court may give directions that the parties should follow the procedure set out in Part II of Part D hereof with any necessary modifications.
49. Insofar as applicable, the Mediation Certificate, Mediation Notice, Mediation Response and Mediation Minute may be signed by the insurer(s) of the Defendant(s).
E Commencement of Proceedings
50. Before commencement of proceedings, the Plaintiff's Solicitors should conduct a critical assessment on the strengths and weaknesses of the case. A realistic assessment of the quantum of damages should also be made so as to decide whether the action should be commenced in the Court of First Instance or the District Court. Counsel's initial opinion should be sought where appropriate. The costs implication should be explained to the Plaintiff in the event that a claim within the jurisdiction of the District Court is brought in the Court of First Instance.
51. If a Writ is indorsed with a full Statement of Claim, the whole document together with any materials attached thereto are vulnerable to search and public disclosure by virtue of RHC, Order 63, rule 4(1)(a). Where therefore the Plaintiff chooses to file a full Statement of Claim contemporaneously with a Writ, (1) the Writ should be physically separated from the Statement of Claim and any of the documents filed contemporaneously with the Writ; and (2) the Writ should also contain on its reverse the concise statement of the nature of the Plaintiff's claim as if the proceedings were commenced by the issue and filing of the Writ alone. Examples of such concise statements are attached hereto as per Appendices B and C.
52. The Statement of Claim, whether it is filed contemporaneously with the Writ or subsequent thereto, shall be given or shall bear the full number and heading of the action. It shall not include in the pleading itself any description of injuries other than those identified by hospital records or medical reports, or identified immediately by the Plaintiff or by a medical report if no hospital treatment is received, and shall not include any verbatim recital from any medical report obtained. It must state the date of birth and age of the Plaintiff or of the deceased in fatal accident claims as at the date of filing.
53. A medical report(s) within the meaning of RHC, Order 18, rule 12(1C) including in a fatal accident case a post-mortem report (if one exists) shall be filed and served at the same time as the Statement of Claim but not attached thereto. If liability has been admitted and no Statement of Claim is filed, then such medical report(s) should be filed and served at the same time as the Statement of Damages.
54. Full particulars of the heads of damage claimed shall appear in the Statement of Damages including a summary of the Plaintiff's injuries, the treatment received and, where practicable, the prognosis. The Statement of Damages shall be filed and served contemporaneously with the Statement of Claim, and be physically separated from that and from any other document. If liability has been admitted and no Statement of Claim is filed, then the Statement of Damages shall be filed and served at the time when the Statement of Claim should have been filed had liability not been admitted.
55. The Writ shall be accompanied by a certificate ("the said certificate") in the form as per Appendix D signed by the Plaintiff and his Solicitor stating that the action is not funded by any third party on the basis of a fee arrangement contingent upon the outcome of the litigation. The Solicitor has a duty to explain to the Plaintiff that any fee arrangement contingent upon the outcome of the litigation, champerty and / or maintenance of legal proceedings are unlawful save for agreements entered into with the Legal Aid Department under the Supplementary Legal Aid Scheme established under the Legal Aid Ordinance (Cap. 91).
56. In the event that the Plaintiff is not represented by Solicitors at the time he filed the Writ but is subsequently represented by Solicitors, the Notice to Act filed by the Solicitors shall be accompanied by the said certificate.
57. In the event that there is a change of Solicitors representing the Plaintiff, the Notice of Change of Solicitors filed by the Solicitors shall be accompanied by the said certificate.
58. Any failure to observe strictly the Directions in paragraphs 51 to 57 hereof, may result in the Registry staff refusing to accept such documents until they all, at the same time of submission, comply with the above direction, save that the Registry staff will not check the contents of such documents.
59. Given that the date for the Check List Review Hearing is fixed on issue of the Writ (see paragraph 99 hereof), the Plaintiff or his Solicitors should not withhold service of the Writ and should proceed with the case in consideration of the Check List Review Hearing date. Any application to adjourn the Check List Review Hearing on the ground that the Writ has not been served must be justified and the PI Master may give such directions or make such orders with regard to service of the Writ and costs as he thinks fit (see also paragraph 104 hereof).
F Pleadings
60. All pleadings subsequent to the Statement of Claim, including the Defence and any Request for Further and Better Particulars of a pleading and the Particulars supplied pursuant to any such request, shall be filed at the same time as the service thereof.
61. All pleadings settled or drafted by Counsel shall bear Counsel's name in addition to the full name and address for service of the Solicitors acting for the party concerned. Where the firm of Solicitors concerned settles or drafts the pleading, its name and address for service shall appear in full at the end of the pleading and it shall be signed by the firm. All pleadings shall be dated with the date of filing.
62. The Statement of Claim must state the age and date of birth of the Plaintiff. For claims under the Fatal Accidents Ordinance (Cap. 22), similar particulars of the deceased and the person(s) on whose behalf the action is brought must be given. The Statement of Damages, any Revised Statement of Damages and / or Answer thereto will stand as part of the pleadings and should be pleaded with full particulars to facilitate early resolution of the case.
63. All pleadings including any revision thereof or amendments thereto and Further and Better Particulars of any pleadings should contain a Statement of Truth in compliance with RHC, Order 41A, rules 2 and 5 and also with Practice Direction 19.3 (Practice Direction on Statement of Truth) with suitable adaptations notwithstanding that alternative facts may have been pleaded pursuant to RHC, Order 18, rule 12A.
64. Application for dispensing with the Statement of Truth under RHC, Order 41A, rule 2(3) should be made as soon as it is realized that there exists valid grounds for such application and before the expiry of time for filing of the relevant pleading. The application should be supported by affidavit setting out the grounds for the application and salient facts pertinent thereto.
G Documents to be Served with the Statement of Claim
65. The following documents must be served with the Statement of Claim or Counterclaim (in the case of a Defendant claiming damages arising out of death or personal injury by way of counterclaim) in compliance with RHC, Order 18, rule 12(1A):
(1) medical report(s) within the meaning of RHC, Order 18, rule 12(1C), including in an action brought on behalf of the estate of a deceased person, a post-mortem report if one exists. At least one medical report must describe the Plaintiff's condition at a time preferably no earlier than 4 months prior to service thereof; and
(2) a Statement of Damages claimed, giving the following:
"In Personal Injuries Cases" (including Medical Negligence cases)
(a) the Plaintiff's date of birth;
(b) a summary of the Plaintiff's injuries, the treatment received, the permanent disability, if any, suffered by him / her and, where practicable, the prognosis in respect of such disability;
(c) any special damages claimed for losses and expenses already incurred, including pre-trial loss of earnings with full particulars of the pre-accident employment income for 12 months preceding the accident;
(d) an estimate of any future expenses and losses, including loss of earnings, pensions and MPF contributions, and, where practicable, the multiplier or the range of multipliers claimed in respect of such future losses and expenses and such estimate should give full particulars of any credit given for post-accident earnings;
(e) where practicable, all material facts relied upon in support of a claim for damages for loss of earning capacity;
(f) where practicable, a statement of the range of damages claimed as general damages for pain, suffering and loss of amenities and damages for loss of earning capacity; and
(g) the amount claimed as damages for loss of society, where applicable.
"In Fatal Accident Cases" (including Medical Negligence cases)
(a) the name and date of birth of each dependant and the status thereof e.g. student at university or nature of employment;
(b) the deceased's date of birth, occupation and income at the date of the accident;
(c) any special damages claimed for losses and expenses already incurred (including loss of dependency);
(d) an estimate of any future expenses and losses, including loss of dependency, and, where practicable, the multiplier or range of multipliers claimed in respect of such future losses and expenses;
(e) an estimate of the claim for loss of accumulation of wealth, including, where practicable, a statement of all material facts relied upon in support of the claim and a statement of how such claim has been calculated, including, where appropriate, the multiplier or range of multipliers used in the calculations; and
(f) the amount claimed as damages for bereavement and / or loss of society.
66. In order to avoid unnecessary delay and costs, the Plaintiff should additionally serve together with the Writ and Statement of Claim and documents set out in paragraph 65 hereof copies of the following documents, if they are available and not already served under the Pre-Action Protocol (see paragraphs 14 to 23 hereof) before the commencement of proceedings, and in so far as this is practicable:
(1) a copy of any Statement of Facts and finding of guilt, or otherwise, arising out of any prosecution of any party in respect of the accident in which the Plaintiff was injured or the deceased was killed, together with a sketch plan prepared by and photographs taken by and / or on behalf of any investigating or prosecuting authority, and any statements made by any witnesses, including where available a Police Investigation Report or a report by the Occupational Safety Officer;
(2) in respect of any post-accident earnings,
(a) where the Plaintiff has returned to work other than with his pre-accident employer and if such employer(s) is / are not Defendant(s) in the action, a record of earnings and allowances received by the Plaintiff contained reasonably sufficiently either in his pay slips, statement(s) obtained from his employer(s) or his bank account or other records; or
(b) where the Plaintiff is self-employed, his profit and loss accounts,
together with copies of his tax returns lodged with the Inland Revenue Department by him / her and, where appropriate, by his employer(s), and his ORSO and / or MPF Statements;
(3) in respect of any pre-accident earnings,
(a) where the Plaintiff was employed by employer(s) who is / are not Defendant(s) in the action, a record of earnings and allowances received by the Plaintiff for the 12-month period prior to the accident, contained reasonably sufficiently either in his pay slips, statement(s) obtained from his employer(s) or his bank account or other records; or
(b) where the Plaintiff was self-employed, his profit and loss accounts for the 2 years prior to the accident,
together with copies of his tax returns lodged with the Inland Revenue Department by him / her and, where appropriate, by his employer(s) and of his ORSO and / or MPF statements for the 2 years prior to the accident;
(4) copies of any statements by the Plaintiff and any other person who was an eyewitness to the accident in question as to the circumstances of the accident, upon which the Plaintiff relies in support of his pleaded case, to the extent that this has not been fulfilled by (1) above; and
(5) in all Medical Negligence cases, a copy of any expert medical report relied upon as to liability and causation.
H Documents to be Served with the Defence
67. In order to avoid unnecessary delay and costs, the Defendant(s) should serve together with their Defence copies of the following documents, if they are available and not already served under the Pre-Action Protocol (see paragraphs 14 to 23 hereof) before the commencement of proceedings, and in so far as this is practicable:
(1) Form 2 with English translation and a copy of any other record or entry of the accident in question in any statutory document including any Occupational Safety Officer's report;
(2) a statement as to the current whereabouts of the machine or equipment concerned together with any brochure or manual in respect of it;
(3) records of the service and maintenance of such machine or equipment for the 12-month period prior to the accident in question;
(4) records of the Plaintiff's / deceased's gross and net earnings and allowances for the 12-month period prior to the accident, and, if the Plaintiff has returned to employment with any Defendant post-accident, for the period following his return to such employment to date;
(5) he tax returns lodged with the Inland Revenue Department in respect of the Plaintiff's / deceased's earnings for the 2-year period prior to the accident;
(6) records of the current earnings and allowances of 2 comparable workers or of the person who now occupies the Plaintiff's / deceased's pre-accident position, for a 6-month period prior to the date of service of the Defence;
(7) ORSO and / or MPF statements supplied to any Defendant in respect of the Plaintiff / deceased;
(8) copies of any statements by the Defendant(s) and any other eyewitnesses to the accident in question taken in the course of an investigation into the circumstances of such accident and of any witnesses relied upon in their pleaded case as to the system of work adopted or instructions given to the Plaintiff / deceased;
(9) any photographs taken or obtained by the Defendant(s), their servants or agents, of the scene of the accident in question, the vehicles concerned, the equipment or machinery involved, and of any other relevant feature; and
(10) in all Medical Negligence cases, a copy of any expert medical report relied on as to liability and causation.
68. Of the foregoing only (8) and (9) above apply to Defendant(s) in Road Traffic Accident actions unless in such actions the Defendant(s) rely upon an allegation of pre-existing defect in the vehicle concerned, in which cases (2) and (3) above also apply. Where the Plaintiff was employed by the Defendant or by the same employer of the driver and suffered the injury in the course of employment, (1) and (4) to (7) above will also apply, as the case may be.
I. Protocol for Commissioning Expert Reports
(1) General
69. As a general rule, leave of the Court or consent of the parties is required before any expert evidence can be adduced at trial.
70. A party who obtains expert evidence before obtaining leave, other than from a single joint expert or pursuant to joint examination and joint expert report with the expert(s) of the other party or parties, does so at his own risk as to costs and / or eventual refusal of leave to adduce such expert evidence.
71. As soon as it is realized there exists a need or an anticipated need for adducing expert evidence at trial or if parties failed to reach agreement on arranging joint examination and / or compiling joint expert report by the parties' respective experts before or after the commencement of proceedings or if no agreement can be reached as to directions on obtaining expert evidence and / or for permission to adduce expert evidence, a party shall apply (by inter partes summons or by restoring the case for Check List Review Hearing) or the parties shall jointly apply (by Consent Summons to expedite or restore the hearing of the Check List Review) to the PI Master as soon as possible upon the commencement of or in the course of proceedings, as the case may be, for directions on obtaining expert evidence and / or for permission to adduce expert evidence.
72. In respect of the application for such directions and / or permission, each party is required to state to the Court the name(s) and area(s) of expertise of his expert(s) on liability and / or quantum issues, and in the case of medical expert(s), the date or proposed date of examination of the injured person by the named expert(s) and the date or proposed date of completion of the expert report by such expert(s).
73. If a party retains different expert(s) for the same area(s) of expertise for any corresponding proceedings under the Employees' Compensation Ordinance (Cap. 282) ("EC Action") with disclosure of the expert report(s) from such different expert(s) in those proceedings, such party is required to state to the Court the name(s) and area(s) of expertise of such different expert(s).
74. Any expert instructed by a party or parties should be able to produce the expert report (and in the case of a medical expert, also conduct an examination of the injured person) within a reasonable time of the instructions given and / or having regard to the case management timetable.
75. The case management timetable will be fixed according to such time as may reasonably be required for preparation of the case for trial rather than according to experts' diaries. Parties should not expect the Court to allow any prolonged timetable to suit the diary of any expert who is unable to conduct an examination and / or complete the expert report within a reasonable time.
76. A party or parties instructing a medical expert should:
(1) inform such expert in writing of the matters in paragraphs 74 and 75 hereof;
(2) secure confirmation in writing from such expert as to the date of examination of the injured person and the date by which the expert report will be completed and available for service on the basis of paragraphs 74 and 75 hereof;
(3) notwithstanding paragraph 76(2) hereof, ensure that instructions are accepted on the basis that the date of examination of the injured person and the date for serving the expert report specified in the case management timetable fixed by the Court are the relevant committed dates unless leave is granted to vary or set aside such dates; and
(4) immediately inform such expert of the committed dates in paragraph 76(3) hereof and, if any of the committed dates is varied by the Court, the varied date(s) shall then be the relevant committed date(s).
77. The PI Master shall be notified at once (but no later than 5 days in any event) by the party or parties instructing a medical expert if any of the dates or varied dates in paragraphs 76 and 78 hereof are not and / or will not be met, including, without limitation:
(1) cancellation or adjournment of the date of examination of the injured claimant for whatever reason; and
(2) receipt of notice that the medical expert cannot meet any of such dates.
Extension of time will not be granted as a matter of course, but only on sufficient grounds being shown and on the applicant party or parties satisfying the Court that such extension of time will be complied with. The Court may, if considered appropriate, impose an unless order prescribing a suitable sanction should there be any further non-compliance.
78. Where the parties:
(1) anticipate the need for adducing expert medical evidence at trial;
(2) have not applied to the Court for directions on obtaining expert evidence and / or for permission to adduce expert evidence; and
(3) intend to instruct a single joint expert or their own medical expert(s) to carry out a joint examination of the injured person and to prepare a joint expert report,
the party or parties instructing the medical expert(s) should comply with paragraph 76(1) and (2) hereof and ensure that instructions are given and accepted on the basis that the date of examination of the injured person and the date for completing the expert report specified in the instructions are committed dates unless varied by subsequent directions given by the Court (see paragraph 76(3) hereof). The party or parties instructing the medical expert(s) shall immediately inform such expert(s) if and when any of the committed dates is varied by the Court, which varied date(s) shall then be the relevant committed date(s) (see paragraph 76(4) hereof).
79. All expert reports (save and except medical reports from treatment hospitals or clinics documenting the treatment received by the injured persons) shall comply with Part IV of RHC, Order 38 and the requirements set out in RHC, Appendix D referred to in RHC, Order 38, rules 37B and 37C thereof.
80. The requirements in paragraph 79 hereof shall be specifically brought to the attention of the expert by the party or parties instructing him / her. In particular, it is emphasized that an expert report should be verified by:
(1) a Statement of Truth in compliance with RHC, Order 38, rule 37A and Order 41A, rules 2 and 5 and also with Practice Direction 19.3 (Practice Direction on Statement of Truth) with suitable adaptations; and
(2) a Declaration of Compliance with the Code of Conduct in RHC, Appendix D in compliance with RHC, Order 38, rule 37C.
(2) Joint Examination and Joint Report
81. Where each party instructs his own medical expert, arrangements should be made for joint examination of the injured person, and the respective medical experts should prepare a joint expert report and / or joint supplemental expert report(s) pertaining thereto for or with a view for disclosure in the proceedings (see also paragraph 22 hereof).
82. If a medical expert intended to be instructed by a party is unwilling to conduct a joint examination of the injured person or prepare a joint expert report with medical expert(s) of the other party or parties, each party shall then nominate other medical experts for the purpose of conducting a joint examination and preparing a joint report. If there is still no agreement, directions should be sought from the PI Judge or PI Master as soon as possible.
83. Insofar as is practicable, parties should prepare agreed instructions to the medical experts for conducting a joint examination of the injured person and preparing a joint expert report.
84. A party who unreasonably fails to cooperate in instructing or arranging joint examination of the injured person and / or in instructing or preparing joint expert report will risk sanctions being imposed by the Court as it deems fit, which may include refusal of leave by the Court to adduce expert report prepared singly by such party's own medical expert and / or refusal by the Court to allow costs for obtaining such report.
(3) Form of Expert Report
85. To avoid unnecessary delay and / or to minimize the need for supplemental reports, the party or parties instructing an expert should ensure that all necessary information, documents and records are made available to the expert(s). The matters to be investigated and the issues to be addressed by the expert(s) should be clearly identified in the instructions.
86. Without prejudice to the generality of paragraph 8 of RHC, Appendix D, an expert should be asked to specify in the expert report:
(1) the materials, documents and records available to him;
(2) the matters to be investigated and the precise issues and subjects to be addressed;
(3) where there is a range of opinion on the matters to be investigated and the issues and subjects to be addressed, a summary of such range of opinion and the reasons for his own opinion; and
(4) a summary of the conclusions reached.
87. Without prejudice to the generality of paragraph 8 of RHC, Appendix D, and in addition to the provisions in paragraph 86 hereof, the parties' respective experts when preparing joint expert report should be asked to adopt and specify in such report the common parameters upon which their opinions are based, and they should be asked to specify in the joint expert report:
(1) if different parameters have been used, the parameters upon which each expert's opinion is based and the reasons for adopting different parameters;
(2) the issues on which the experts have reached a common opinion and in respect of each such issue what that common opinion is;
(3) the issues on which the experts have failed to reach a common opinion and their competing views on each such issue; and
(4) the reasons for a given expert's disagreement with any opposing expert's views on each such issue.
88. Paragraphs 22 and 81 hereof shall not apply to medical negligence cases.
(4) Single Joint Expert
89. In appropriate cases, the Court may give directions for the appointment of a single joint expert (see RHC, Order 38, rule 4A).
90. If it is anticipated that a single joint expert is appropriate in the light of the considerations identified in RHC, Order 38, rule 4A(5), the direction of the PI Judge or PI Master should be sought as soon as possible and preferably not later than the first Check List Review Hearing.
J Compliance with RHC, Order 25, rule 8 (Automatic Directions)
91. If RHC, Order 25, rule 8 is applicable, there shall be strict compliance with it to the extent that disclosure of documents provided for under paragraphs 65 to 67 hereof has not fulfilled the requirements of disclosure. In considering whether to make any order for specific discovery or disclosure, the Court will have regard to whether there is any compliance with Parts G and H hereof and whether the documents and matters sought to be discovered or disclosed are strictly and directly relevant to the issues between the parties.
K Interlocutory Applications
92. Practice Direction 5.4 (Practice Direction on Preparation of Interlocutory Summonses and Appeals to Judge in Chambers for Hearing) shall not apply to cases in the PI List.
93. The following provisions shall instead apply:
(1) Where the matter is contentious and of such urgency and at least one month is likely to elapse between the date of hearing of the application and the date of the Check List Review Hearing and the application is likely to last more than one hour, the applicant shall serve and lodge a short skeleton argument (of one page maximum) with the complete reference of any authority relied upon no later than 48 hours before the hearing and the respondent to it shall serve and lodge a short skeleton argument in reply (of one page maximum) no later than 24 hours before the hearing. The hearing will take place before the Master or Judge designated to conduct the Check List Review. An alternative to the above is an agreed request to expedite the hearing of the Check List Review.
(2) Nothing hereof shall be construed to fetter the power of the Master to determine an interlocutory application without an oral hearing under RHC, Order 32, rule 11A. A party to a contentious interlocutory application who wishes to be heard in an oral hearing should state the grounds therefor in the application.
(3) When the application is to be made subsequent to the Check List Review Hearing but before any Case Management Conference or Pre-Trial Review and is contentious and of urgency and at least one month is likely to elapse between the date of the hearing of the application and the date of the Case Management Conference or Pre-Trial Review the same provisions as under (1) above shall apply and the hearing will take place before the Master or Judge designated to conduct the Case Management Conference or Pre-Trial Review.
(4) Where the application is to be made subsequent to the Pre-Trial Review, the same provisions as under (1) above shall apply and the hearing will take place before the designated trial Judge or, if not yet designated, the Judge who conducted the Pre-Trial Review.
(5) Where the application is to be made subsequent to the Check List Review and there is no provision for a Case Management Conference or Pre-Trial Review, the party so applying shall ask for a Case Management Conference so that the matter may fully be dealt with.
94. In all cases, at the conclusion of the hearing the parties will be required to supply a short statement as to the costs of and occasioned by the application so that the Master or Judge may make an order under RHC, Order 62, rules 9(4)(b) or 9A for summary assessment of costs, payable forthwith.
L Transfer from the PI List
95. At any stage of the proceedings after the service of the Statement of Claim and / or the Statement of Damages, the PI Judge may release a personal injury case from the PI List if it appears to him to be a case involving complex issues of fact or law and he may, with the approval of the Chief Judge of the High Court, assign such cases to himself or to a nominated Judge, in which event all future interlocutory applications shall thereafter be made to the Judge so assigned and he may give such directions as he deems appropriate and apply or vary or dispense with the directions which follow.
96. The PI Judge or PI Master may transfer an action commenced in the Court of First Instance to the District Court pursuant to section 43 of the District Court Ordinance (Cap. 336) where he considers that the maximum amount of damages likely to be awarded to the Plaintiff falls within the jurisdiction of the District Court.
97. Where it becomes clear that a case is within the jurisdiction of a Court other than the Court where the action has been commenced, an application for transfer should be made as soon as possible.
M The Check List Review and Case Management Questionnaire
98. Subject to the provisions of this Practice Direction, RHC, Order 25 shall apply whilst Practice Direction 5.2 (Practice Direction on Case Management) shall not apply to actions in the PI List.
99. The Plaintiff's Solicitors shall, at the same time as a Writ is filed at the Registry, lodge a Notice in duplicate in the form as per Appendix E (The Check List Review Notice). One copy shall be filed at the Registry and one copy sealed shall be returned to the Plaintiff's Solicitors.
100. A date for the Check List Review Hearing shall be given on the date of the filing and issue of the Writ, which shall be not less than 5 months and not more than 6 months from the said date, and shall be indorsed upon the Check List Review Notice and the Writ.
101. For the avoidance of doubt, parties are not required to take out a Case Management Summons under RHC, Order 25, rule 1.
102. Upon service of the Writ upon the Defendant(s), the Plaintiff must also serve the Check List Review Notice bearing the date of the Check List Review Hearing. A Questionnaire for PI Actions ("Questionnaire") in the form as per Appendix F shall be annexed to such Notice.
103. In Admiralty actions assigned to the PI List the hearing of the Case Management Summons under RHC, Order 25, rule 1 shall be known as the Check List Review Hearing. In any such Admiralty action, the Plaintiff's Solicitors shall file and serve a Check List Review Notice within 7 days of the assignment.
104. Subject to paragraph 59 hereof, in the event of either or any of the parties not being ready for the Check List Review Hearing, application may be made by either or any party to the PI Master to postpone the hearing. Such application shall be inter partes (unless the Writ has not been served) by letter with detailed explanation from the Solicitor having conduct of the case, explaining in full the reasons for the application. Such letter shall be filed not later than 14 days prior to the hearing. If the other party or parties oppose the application, the grounds for such opposition shall be set out in a letter which is to be filed with the Court no later than 10 days prior to the hearing. The application shall be determined on paper without a formal hearing unless the Court otherwise directs. The Check List Review Hearing may be adjourned, if considered appropriate, but for no more than 2 months. Where the adjournment is necessitated by the Plaintiff's Solicitors not having served the Writ on the Defendant(s), the Court may make such orders as it thinks fit, including an unless order, with regard to the service of the Writ and any adjourned Check List Review Hearing shall not be less than 5 months and not more than 6 months from the date of service of the Writ.
105. The Direction in paragraph 104 hereof shall not preclude either or any of the parties from applying for an earlier Check List Review Hearing date. Such application must be by summons which must set out the reasons for an earlier hearing. A Consent Summons may be dealt with by the PI Master without an oral hearing.
106. In the event of the Plaintiff's Solicitors failing to serve the Writ and the Check List Review Notice as soon as practicable following the issue of the Writ, so as to give the Defendant(s) the full proper notice of the date of hearing of the Check List Review, the Plaintiff's Solicitors will be required to justify such failure in order to avoid any order for costs wasted by any adjournment of the Check List Review Hearing.
107. The Plaintiff or his Solicitors shall not later than 14 days prior to the Check List Review Hearing and any adjourned Check List Review Hearing, file at the Registry and serve a Questionnaire in the form as per Appendix F and lodge the following documents whether already served or not:
(1) all witness statements relied upon in support of the Plaintiff's claim including a signed and dated statement by the Plaintiff verifying his claimed loss of wages, as well as all other items of special damage claimed;
(2) in a Road Traffic Accident action any report made and statements taken in respect of any prosecution of a Defendant arising out of the collision in question, and a plan of the locus in quo and any relevant photographs;
(3) in any other action any report made by and statements taken by the Occupational Safety Officer or other government department arising out of any investigation of the accident in question;
(4) any medical report(s) other than that or those served with the Statement of Claim and any other expert report(s) to be relied upon;
(5) a certified copy of any transcript or other record of any Magisterial proceedings or Inquest or Inquiry relating to the accident in question together with any exhibits supplied and list thereof; and
(6) a copy of any proposed pleadings, particulars or interrogatories not already filed with the Court.
108. The Defendant(s) or their Solicitors shall, not later than 14 days prior to the Check List Review Hearing and any adjourned Check List Review Hearing, file at the Registry and serve a Questionnaire in the form as per Appendix F and lodge the following documents whether already served or not:
(1) all witness statements in support of the Defendant(s)' defence;
(2) any statutory record, report or form completed by or on behalf of the Defendant(s) or by any other individual, partnership or corporation and in the Defendant(s)' possession or control arising out of the accident in question; and
(3) any medical or other expert report(s) obtained in respect of the Plaintiff's injuries to be relied upon.
109. The documents lodged under paragraphs 107 and 108 hereof shall be contained in a composite bundle with a paginated index and properly sectioned.
110. Such bundles of documents lodged shall be released to the parties lodging the same after the Check List Review Hearing, or, in the event of the Check List Review Hearing being adjourned or vacated, after the adjournment or vacation of the hearing. The respective parties or their Solicitors are required to collect their bundles immediately after the hearing or after the adjournment or vacation of the hearing, which must be re-used, but are to leave with the Court a copy of the Index or Indices.
111. The parties should consult each other before completing the Questionnaire but the process of consultation must not delay the filing of the same. Insofar as is practicable, the parties may jointly file a single Questionnaire.
112. Each party shall give as much information as is required in the Questionnaire to enable the PI Master to give directions relating to management of the case and to fix a timetable for the steps to be taken.
113. 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 Questionnaire. Any unreasonable refusal to make any admission or agreement may be visited with costs sanctions.
114. If the Plaintiff does not file the Questionnaire within the time specified under paragraph 107 hereof, the Defendant or any Defendant may apply for an order to dismiss the action.
115. Irrespective of whether a single or separate Questionnaires are filed, if the parties are able to reach agreement as to the conduct of proceedings, they should file a Consent Summons setting out the agreed directions or timetable for the Court's approval and ask for vacation of the Check List Review Hearing provided that the Consent Summons shall be filed not less than 7 days before the Check List Review Hearing. Any unnecessary oral hearing that resulted from belated agreement may be visited by costs sanctions, including a wasted costs order.
116. At the Check List Review Hearing, the PI Master may consider applications for any of the following orders or make such orders on his own motion where it is appropriate under the relevant rules of Court:
(1) an order for adding or substituting parties to the action (RHC, Order 15, rule 4);
(2) an order for amendment of pleadings (RHC, Order 20, rules 5 and 8);
(3) an order for Further and Better Particulars (RHC, Order 18, rule 12(3));
(4) an order for further discovery and inspection or an order limiting discovery (RHC, Order 24, rule 15A);
(5) an order for a split trial (RHC, Order 33, rule 4);
(6) an order directing the hearing on a preliminary issue and entering judgment or dismissing the claim, where appropriate, upon determination of such preliminary issue (RHC, Order 33, rule 7 and Order 1B, rule 1(2)(k));
(7) the entering of judgment on liability for damages to be assessed (RHC, Order 18, rule 19 and / or in the exercise of the inherent jurisdiction of the Court);
(8) an order for interim payment (RHC, Order 29, rule 11);
(9) any other order as may be deemed appropriate for the just expeditious and economic resolution of the action including orders relating to the service or exchange of witness statements and expert reports not yet disclosed, to the obtaining of any joint medical or other expert reports and to the restriction upon and exclusion of any expert reports;
(10) an order for staying the action to facilitate an attempt on ADR;
(11) an order for adjourning any matter of dispute for later resolution;
(12) fixing a date for Case Management Conference;
(13) a direction reserving any issue raised at the Check List Review Hearing to be determined by the PI Judge at a Pre-Trial Review;
(14) fixing a date for a Pre-Trial Review where necessary and in Medical Negligence cases a Pre-Trial Review will always be provided for; and
(15) an order to set the case down for trial or specify a period in which the trial is to take place or grant leave to set the case down for trial.
117. Representation at the Check List Review Hearing and Case Management Conference shall be by Solicitor who shall be the Solicitor having prime responsibility for the conduct of the action. When Counsel is instructed unnecessarily for such hearing the PI Judge or PI Master may refuse to give a certificate for or disallow the costs of instructing Counsel.
118. If at the Check List Review Hearing the PI Master considers that no further order as to the conduct of the action needs to be made and the case is in a sufficient state of readiness for listing, he shall fix a date for expedited trial with or without a Pre-Trial Review.
119. The Registry will allocate not less than 2 days per week as the Check List Review Hearing days for the PI Master.
N Case Management Conference
120. The PI Master need not fix a Case Management Conference for each and every case.
121. A Case Management Conference may be fixed by the PI Master upon application or on his own motion by directions on paper or at the Check List Review Hearing. The Case Management Conference is a milestone date under RHC, Order 25, rule 1B(8) and shall have the effect specified under RHC, Order 25, rules 1B and 1C.
122. A Case Management Conference is a critical stage in the proceedings and for most 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 in their first or previous Questionnaires or at the Check List Review Hearing.
123. Parties are expected to have complied with the timetable laid down by the Court by the time of the Case Management Conference. 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.
124. At the Case Management Conference, the PI Master may consider applications for or make such orders as may be necessary and appropriate for the efficient resolution of all outstanding matters and to ensure that the action is tried justly, speedily and efficiently, and any other orders referred to in paragraph 116 hereof as appropriate.
125. Not less than 7 days before the date fixed for the Case Management Conference, each party shall file and serve an updated Questionnaire and lodge the documents set out in paragraphs 107 and 108 hereof, as the case may be.
O Pre-Trial Review
126. The PI Master or the PI Judge may provide for and fix the date for hearing of a Pre-Trial Review by directions on paper, at the Check List Review Hearing or subsequently.
127. The parties by consent may apply to the PI Master for a Pre-Trial Review by letter setting out therein the reasons for such a hearing. Alternatively one of the parties may so apply by letter setting out the reasons and giving notice to the other parties who must within 7 days of receiving such notice set out their objections thereto. Such application may be dealt with by the PI Master on paper without a formal hearing.
128. Each party to the action shall file and serve upon any other party a notice in the form as per Appendix G, not later than 7 days before the Pre-Trial Review.
129. The Plaintiff or his Solicitor must not later than 7 days before the hearing of the Pre-Trial Review lodge a bundle or bundles of documents (in ring-binder(s) or lever-arch file(s) with hard cover) paginated with the following sections:
(1) an index identifying the items, sections and pagination together with a comment as to what reports or documents are agreed;
(2) properly coloured latest versions of the pleadings and the relevant Court order(s) (including the order(s) made in the directions on paper, at the Check List Review Hearing and Case Management Conference) in chronological order and a copy of the Revised Statement of Damages, if such has been necessitated, which must appear at the end of the Pleadings section and which must have been served upon the Defendant(s) not later than 14 days before the Pre-Trial Review;
(3) witness statements as to liability and / or quantum;
(4) any expert report and documents relevant to liability;
(5) medical report(s) obtained on behalf of the Plaintiff in chronological order, and other expert report(s) as to quantum obtained on behalf of the Plaintiff in chronological order;
(6) medical report(s) obtained on behalf of the Defendant(s) in chronological order, and other expert report(s) as to quantum obtained on behalf of the Defendant(s) in chronological order; and
(7) any documents relevant to quantum which are agreed by both parties to be relevant to the Pre-Trial Review in chronological order.
130. At the conclusion of the Pre-Trial Review or any adjourned Pre-Trial Review, the Plaintiff or his Solicitors must collect the bundle(s) of documents which must be re-used.
131. The Pre-Trial Review shall be attended by the following persons:
(1) the Solicitor who has prime responsibility for the conduct of the action and authority from the Plaintiff or Defendant(s) and / or insurer(s) concerned to settle the action or resolve matters of dispute including medical evidence; or
(2) counsel fully instructed for the purposes of the trial and / or the Pre-Trial Review with like authority.
132. Save as is otherwise ordered by the Judge the costs of the Pre-Trial Review shall be costs in the cause.
133. At the Pre-Trial Review, all parties must have the necessary information as to availability of Counsel, witnesses and, where appropriate, experts to enable the Judge to fix a trial date. Where it appears that the case will not exceed 3 days in length and is suitable for the Running List the Judge may direct that the case be set down for trial in the Running List.
134. At the Pre-Trial Review, the Judge may consider applications for or make such orders as may be necessary and appropriate for the efficient resolution of all outstanding matters and to ensure that the action is tried justly, speedily and efficiently, including the entering of judgment under RHC, Order 18, rule 19 and / or in the exercise of the inherent jurisdiction of the Court, and any other orders referred to in paragraph 116 hereof as appropriate.
135. The Pre-Trial Review is a milestone date under RHC, Order 25, rule 1B(8) and shall have the effect specified under RHC, Order 25, rules 1B and 1C.
P Variation of Court-Determined Directions or Timetable
136. 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.
137. 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.
138. 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.
139. Where the parties cannot agree on extension of time:
(1) the party in default should take out the appropriate application as soon as it is realized or anticipated that any of the time-limits will not be met. 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 the period in which the trial is to take place;
(2) alternatively, any other party may apply for an order to enforce compliance or for a sanction to be imposed or both of these;
(3) an application for extension may be granted on the basis of an immediate unless order prescribing a suitable sanction should there be any further non-compliance.
140. Milestone dates will be immovable save in the most exceptional circumstances and for that purpose, for instances, late instructions from client, change in the team of lawyers, no prejudice to the other party which cannot be compensated for by costs, will not be treated as exceptional circumstances.
Q Case Managing Trial
141. If a trial date or a period in which the trial is to take place is sought at any stage, each party shall file and serve on each other a certificate prepared by trial Counsel or handling Solicitor of the case giving time estimates (without taking into account the time estimates of other party) of:
(1) opening submission;
(2) evidence-in-chief of each of his witnesses;
(3) cross-examination of each of the other side's witnesses; and
(4) closing submission.
142. The time estimates given are expected to be realistic and adhered to at trial. If there is a change of circumstances that may affect the time estimates given, parties are expected to inform the Court as soon as possible and in any event not later than 21 days before the trial date or before the commencement of the period in which the trial is to take place.
143. Parties are reminded of the Court's case managing power at trial under RHC, Order 35, rule 3A, to limit the time allocated for different stages of trial, for instance, time to be taken in examining, cross-examining or re-examining witness(es), in making an oral submission and in presenting a party's case, with or without reference to the time estimates that may be given to the Court.
144. The trial date or the period fixed by the Court in which the trial is to take place are milestone dates under RHC, Order 25, rule 1B(8) and shall have the effect specified under RHC, Order 25, rules 1B and 1C.
R Undue Delay, Default, Unnecessary Applications, and Vexatious Frivolous, or Unmeritorious Opposition to Applications
145. 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 the other party or parties who have attended the hearing, summarily assess the amount of those costs and / or order them to be paid forthwith.
146. Where the inadequacy of the person attending or of his instructions leads to adjournment of a hearing and wastage of costs, he will likely be visited with costs sanctions.
147. If the Court considers any party or legal representative has been at fault or in default in respect of any requirement, act or step specified in this Practice Direction, the Court may make such orders as to costs as it thinks fit, including an order under RHC, Order 62, rule 8, rules 9(4)(b) or 9A to be payable forthwith.
S Assessment of Damages
148. Where liability in an action is not in issue or has been conceded in advance of the Check List Review Hearing, or after such hearing and in advance of the Case Management Conference or Pre-Trial Review, the parties must notify the Court of that fact immediately and the previous directions in so far as they relate to the issue of liability shall no longer apply. The PI Judge or PI Master will give directions in relation to assessment of damages at the relevant hearing. The Directions in this Practice Direction in relation to Check List Review, Case Management Conference and Pre-Trial Review shall apply with suitable adaptations to the assessment of damages.
149. Where at a Check List Review Hearing, Case Management Conference or Pre-Trial Review judgment has been entered by the Court for the Plaintiff under RHC, Order 18, rule 19 (or by the exercise of judicial discretion generally), directions will be given for the assessment of damages either by the PI Judge or PI Master.
150. In all cases referred to in paragraph 148 hereof, the parties may, by agreement, ask the Court to expedite the relevant hearing.
151. In all cases referred to in paragraph 148 hereof the Plaintiff or his Solicitors must serve and lodge with the Court, no later than 7 days before the relevant hearing at which directions will be given:
(1) a paginated and indexed bundle containing all the documents and reports relevant to an assessment; and
(2) a statement setting out what directions as to medical or quasi-medical evidence are sought identifying the experts and areas of expertise, what matters are agreed, and a realistic estimate agreed with the other party or parties of the length of the assessment hearing.
152. A period of 20 minutes will be allocated to such hearings for the giving of directions. In the event of the parties considering that in their particular case 20 minutes will not be adequate, they are required to inform the Court in advance of their agreed estimate.
153. In all cases which have been fixed for trial on liability and quantum in the fixture list or running / warned list, and where the parties have agreed the issue of liability in advance of trial, the action will nonetheless remain in the respective list for assessment of damages although with a revised estimate of the length of hearing which the parties are required to give to the Court immediately. Under no circumstances will the hearing of the assessment of damages be remitted to the Masters' List. RHC, Order 34, rule 8(2) and (3) must be adhered to.
T Settlement
154. It is the duty of Solicitors (and Counsel if brief has been delivered) to keep the Court promptly informed of the progress of a case which has been set down for trial or assessment of damages.
155. The parties or their Solicitors shall promptly inform the Court of any settlement or likely settlement of the case. The Plaintiff's Solicitors should maintain contact with the Listing Clerk and / or the clerk to the Judge hearing the trial / assessment by telephone and in writing (preferably by fax) confirming the telephone communication to keep them informed of any likely reduction of the length of the trial / assessment, agreement as to liability or quantum, or settlement of the case. Solicitors lodging the Consent Order / Summons must indicate (if within their knowledge) the Judge for the trial / assessment.
U Filing of Documents at the Registry
156. Save as is specifically provided for in this Practice Direction and as appears hereunder, there shall be no filing of documents at the Registry.
157. An affidavit or affirmation is required to be filed as are any documents annexed or exhibited thereto.
158. Practitioners are reminded that the new hearsay regime has come into effect since June 1999 and no hearsay notice is required to be filed. Consideration should be given as to whether there is any application to call a witness for cross-examination under section 48 of the Evidence Ordinance (Cap. 8).
159. For the avoidance of doubt witness statements, expert reports, notes and other documents in relation to proceedings in any Court, investigation by any body, and photographs and plans are not to be filed.
160. No documents in relation to special damages, periods of sick leave, or census statistics of wages, etc. are to be filed.
161. Lodging does not mean filing.
V Photographs
162. All references to photographs in this Practice Direction mean photographs produced from negatives or laser copies of original photographs. For colour photographs, only colour printed copies, colour photocopies or colour duplicates from negatives shall be included in the trial bundle. Black and white photocopies of colour photographs are not acceptable unless the original colour photographs or any colour copies thereof are no longer available.
163. The original photographs are never to be lodged with the Court.
W Bundles of Documents for Trial
164. Subject to the provisions in this Practice Direction, Practice Direction 5.6 (Practice Direction on Documents for Use at Trial) shall apply to actions in the PI List.
165. Where the Plaintiff acts in person but the Defendant(s) are legally represented, the Defendant(s)' Solicitors should proceed to prepare the trial bundle.
166. Where all the parties act in person, the PI Master shall give all such directions in relation to the trial bundle, and the manner and time in which such bundle is to be prepared and lodged, as appear best adapted to secure the just, expeditious and economic disposal of the trial before fixing the date of trial or the period in which the trial is to take place.
167. The bundle must be fully 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 bundle to avoid later insertion or interleaving of omitted pages.
168. There must be an index of the documents in the bundle listing the documents and giving the page reference for each. In the case of a class of documents, such as letters, they can be shown in the index by general description; it is not necessary to list every letter separately. But if a letter or such other document is particularly important to the case, then it should be listed separately in the index so that attention is drawn to it. A full index of all documents in the bundle should be placed at the beginning of the bundle and an index covering all documents in a particular section of the bundle shall be placed at the beginning of such section.
169. The bundle must be properly sectioned in accordance with the following format:
(1) properly coloured latest versions of the pleadings and relevant Court orders in chronological order but any particulars of a pleading should immediately follow the pleading to which it relates;
(2) witness statements as to liability and / or quantum;
(3) medical reports from treatment hospitals or clinics documenting the treatment received by the injured person;
(4) expert medical report(s) for the Plaintiff(s) (if any), then expert medical report(s) for the Defendant(s) (if any) followed by joint expert medical report(s) within separate sub-sections and in chronological order within each sub-section (and the index must state whether they are agreed reports or not);
(5) documents as to liability; and
(6) documents as to quantum.
170. Plans and photographs must be lodged in a separate folder and all photographs must be properly numbered and mounted with an agreed description.
171. Any medical records (hospital or otherwise) must be in a separate file the nature of which depends on what is appropriate for the volume and nature of these records. Where it proves impossible to produce adequate or legible copies, there must be an agreed typed transcription of all the relevant pages, which should also be interleaved at the appropriate place in the trial bundle. The original records must always be available at Court for the trial unless they are agreed or the Court directs otherwise.
172. No documents relating to special damages, sick leave or statistics shall be included in the trial bundle unless both parties agree that they are relevant to a material issue and that it is essential for the Judge or Master to read them and rule upon them.
173. Transcripts of magisterial or other legal proceedings should be in a separate section of the trial bundle.
174. Any documents the translation of which requires a certification must be submitted to the Court Language Section in good time before trial.
175. The Solicitor in charge of the case must personally satisfy himself / herself that the bundle is in order before it is delivered to the Court.
176. For actions in the PI List in the District Court that are set down in the Fixture List, the trial bundle must be lodged with the Court at least 72 hours before the date fixed by the Court for trial (excluding Saturdays, Sundays and general holidays).
177. For actions in the PI List in the District Court that are set down in the Running List for trial, items (1), (2), (3) and (4) under paragraph 169 hereof of the trial bundle shall be lodged with the Court 72 hours before the date fixed by the Court from when the trial can be warned (excluding Saturdays, Sundays and general holidays). Items (5) and (6) under paragraph 169 hereof of the trial bundle must be lodged forthwith when the action is warned.
178. Time limits for lodgment of the trial bundle must be complied with and will be strictly enforced except where there are good grounds for granting an extension. The party or his Solicitors who are responsible for preparing the trial bundle should therefore set about physical compilation of the bundle well in advance of the date on which it is due to ensure compliance with the time limits.
179. The proper way to deal with a disagreement as to the inclusion of a document in the trial bundle is not for the parties to go about preparing different bundles but for such document to be inserted in the trial bundle with the objection to its inclusion noted in the index.
180. Where all the parties are legally represented, if a party fails or refuses to agree or cooperate in respect of the trial bundle without justification and if such failure or refusal results in any wastage of costs, that party may be visited with costs sanctions irrespective of whether or not it is the party who succeeds at trial.
181. Paragraphs 164 to 180 hereof shall apply with suitable adaptations to the preparation and lodging of the assessment bundle for assessment of damages.
X Actions by Persons under Disability
182. RHC, Order 80, rule 3 sets out carefully the considerations for the appointment of the next friend or guardian. A divorced wife is not to be regarded as appropriate. Such a person is unlikely to meet the requirement of RHC, Order 80, rule 3(8)(c)(iii).
183. RHC, Order 80, rules 10, 11 and 12 will be strictly applied. It is improper to seek a Consent Order under RHC, Order 42, rule 5A for settlement of an action by a person under disability and practitioners should in no circumstances attempt to do so.
184. Claims under the Fatal Accidents Ordinance (Cap. 22) and the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23) which include claims on behalf of an infant dependant, or a dependant under any other disability, require approval by the Court of any proposed settlement.
185. Practitioners are required to follow the procedure set out in the Hong Kong Civil Procedure 2009 paragraphs 80/11/8 to 80/11/9 at pages 1166 to 1167.
186. In any application to the Court for approval for settlement of an action involving a person under disability, or for payment out of sums paid into Court for the benefit of a person under disability and / or for variation of Court orders relating to payment out of such sums, Solicitors acting for the person under disability must ensure that the Memorandum in support of the application prepared by the Solicitor having prime responsibility for the action must contain full details of all relevant matters to enable the Court to consider the matter fully, including, without limitation, the following:
(1) whether there is any corresponding EC Action and / or other litigation involving the person under disability;
(2) if so, state in relation to such EC Action or other litigation the action number and the names of the parties and their Solicitors (if any);
(3) whether any sums have been awarded or agreed to be paid (whether on interim or final basis) in favour of the person under disability in such other cases, with copies of the relevant Court orders;
(4) if so, whether such sums have been paid into Court or whether there are any or any other Suitors' Funds held by the District Court and / or the High Court for the benefit of the person under disability; and
(5) whether any sums (whether by lump sum, periodical or other mode of payment) have been or will be paid out of Court with copies of the relevant Court orders.
187. At the hearing of the application for approval of any compromise or settlement, the Plaintiff's Solicitors are required to set out all proposed directions as to the disposal of any of the monies which form a part of such compromise or settlement. The contentsof the Order sought should follow Form PF 170 or PF 171, as appropriate, at pages 114/115 of Volume 2 of The Supreme Court Practice 1999.
188. In respect of a person under disability by reason of mental incapacity, practitioners should be mindful of the jurisdiction of the High Court under Part II of the Mental Health Ordinance (Cap. 136) ("MHO") and the practice set out under Part Y hereof. Solicitors are expected to advise their clients (both the person under disability as well as his next friend and other relatives) about the same before the commencement of legal proceedings, during the course of the proceedings as well as after judgment is entered and / or settlement is achieved.
189. Save as is otherwise ordered by the Judge the proper order for costs in respect of such compromised proceedings is on a common fund basis.
190. In the event of a Solicitor for a Plaintiff seeking to charge against a Plaintiff's damages, costs and disbursements which he considers he will not recover from the Defendant(s), he must produce at the hearing for approval a statement of the maximum amount of such costs and disbursements and will be required to justify them. The Plaintiff and / or the next friend must have been advised in writing of the estimate of the amount of costs and disbursements in question, and any consent thereto must be in writing and produced to the Court. The written advice must set out clearly why those costs and disbursements have been incurred and why it is considered that they are not recoverable from the Defendant(s). A general undertaking to be responsible for costs signed by the client will not be sufficient for these purposes.
The proposed direction set out by the Plaintiff's Solicitors pursuant to paragraph 187 hereof should also set out how the balance of the amount of such costs and disbursements after deduction of the taxed costs payable to them should be settled by or on behalf of the Plaintiff.
No approval will be given to any settlement unless the Court can be told with reasonable accuracy, the maximum amount it is sought to be deducted from the Plaintiff's damages. If the Court is not satisfied with the maximum amount as put forward by the Plaintiff's Solicitors as being necessary, the Court may, whilst granting an approval of the settlement figure, give such directions for dealing with the application for approval of the distribution of the award as it thinks fit, including a speedy taxation of all the costs and disbursements.
191. No amount of damages will be released from the Court's control and investment on behalf of a claimant, save for direct transmission to the claimant e.g. for the benefit of the widow and family in a fatal claim, until it is satisfied that any claim for costs and disbursements as set out in paragraph 190 hereof and / or by virtue of the First Charge of the Director of Legal Aid has been quantified.
192. If, after the Order 80 approval, it becomes apparent that a Plaintiff who is under disability will have to pay costs in an amount higher than the amount stated at the Order 80 hearing, the Plaintiff's Solicitors should immediately inform the Court with full details of the reasons and seek directions. The Court will not entertain such application unless the Plaintiff is properly represented and his interest is sufficiently protected.
Y Part II of MHO
| 193. | (1) | Practitioners acting for a mentally incapacitated person ("MIP") on instructions from a next friend should bear in mind their duties towards the MIP and give consideration to the appointment of a committee or seeking other directions under Part II of the MHO. Relevant guidance is set out in Re CK, HCMP 1150 of 2006 and Re YPC, HCMP 1174 of 2006. |
| (2) | Solicitors acting for an MIP who has been a breadwinner for his / her family should take specific instructions regarding the means of support for the family after the accident. If loans were raised for that purpose, an application under Part II of the MHO should be made to avoid the difficulties in Re YWK HCMP 2467 of 2006 and Re C HCMP 15 of 2002. | |
| (3) | Practitioners are reminded that after an appointment of committee under Part II of the MHO, nobody else apart from the committee should be permitted to act as the next friend of an MIP to pursue a claim for the MIP unless the Court otherwise orders. |
194. A committee should apply for specific authorization under Part II of the MHO to commence or defend legal proceedings. Such application should be supported by evidence as to the following:
(1) the merits of the intended claim;
(2) the benefit that the MIP might derive from the intended claim;
(3) the estimate costs of prosecuting the claim;
(4) the resource available to meet such costs;
(5) the alternative options including alternative modes of dispute resolution that may achieve similar benefit for the MIP; and
(6) the exposure of the estate of the MIP to costs liability of the opposite party in case the action fails.
Z Approval of Settlement under RHC, Order 80 involving an MIP
195. Where Part II proceedings have not been commenced before settlement, the Court may direct such proceedings to be commenced in the course of approval of settlement. In considering whether Part II proceedings should be required when approving a settlement under RHC, Order 80 involving an MIP, the Court will exercise its discretion by reference to what is in the best interest of that particular MIP in the context of the factual matrix of the case before the Court. The following factors can be relevant:
(1) the condition of the MIP including his or her age and prognosis;
(2) the future needs and requirements of the MIP;
(3) the quantum of the award and, without prejudice to the Court's discretion to direct proceedings under Part II of the MHO to be commenced in respect of the particular case before the Court, the appointment of a committee will generally not be necessary when the award, and where the particular MIP is involved in more than one action, the accumulated awards, is / are not more than HK$1 million or such sum as the Court may direct from time to time;
(4) the background and experience of the next friend including the relationship of the next friend with the MIP and the ability of the next friend to keep proper account and to appreciate his duty;
(5) the adequacy of advice regarding the duty of a next friend;
(6) the needs and resources of the MIP's family;
(7) the likelihood of applications to use funds in Court for acquisitions of a capital nature;
(8) the attitude of the primary carer of the MIP and, to a lesser extent, the attitude of the immediate family members of the MIP; and
(9) the possible alternatives in terms of investment of the funds as opposed to leaving the monies in Court.
196. If the Court comes to the conclusion that Part II proceedings should be instituted to protect the interest of the MIP but the proceedings have yet to be commenced, approval for settlement may still be obtained under RHC, Order 80 provided that the terms to be approved under RHC, Order 80 should provide for the following:
(1) for once and for all payment out (if any) like disbursement of legal expenses or reimbursement of money previously spent on maintenance of the MIP and / or periodic payment out for maintenance of the MIP (if any), the PI Judge or PI Master can deal with the same under RHC, Order 80, rule 12;
(2) the balance of the funds shall remain in Court pending Part II proceedings; and
(3) the disposal of the balance of the funds in Court shall be in accordance with the directions of the Court in the Part II proceedings.
197. Where a committee has been set up before settlement, the committee shall file an application in the context of the Part II proceedings for sanctioning the settlement in which the committee was appointed and the papers will be passed to the Registrar of the High Court for a report under section 13 of the MHO. Based on the report of the Registrar, the Court will usually deal with the application on paper. A hearing will only be required if the Court so directs. The committee should only apply for approval pursuant to RHC, Order 80 after it has obtained sanction under Part II of the MHO. The committee should also draw the Court's attention to the Part II approval in the Order 80 application.
198. For cases where the Court does not require Part II proceedings to be taken out and orders payment out from the Suitors' Fund on a periodical basis or otherwise for the maintenance or benefit of the MIP, Solicitors acting for the MIP should advise the recipient of the periodical payments as regards the following:
(1) the money is to be paid to the recipient for the maintenance and benefit of the MIP and not for any other purposes;
(2) the recipient should keep account of monies paid to him / her and upon request by the Court, he / she should be ready to produce such account for inspection;
(3) if the Court pays out a sum for a specific purpose, it should not be used for other purposes without any prior approval from th Court;
(4) the recipient has a duty to inform the Master in charge of Suitors' Fund of any material change of circumstances including reduction or increase in expenditure for the maintenance of the MIP, recovery or deterioration of the MIP, accumulation of surplus from monies paid out, changes in the relationship between the MIP and the recipient, and changes in the needs of the MIP.
199. The Court may require assurance from the Solicitor acting for the MIP that the above advice has been given and undertakings from the recipient to comply with paragraphs 198(1) to 198(4) hereof.
AA Minors
200. Solicitors acting for minors are reminded that paragraph 198 hereof will apply with suitable adaptations to minors as for MIPs.
AB Sanctioned Offers and Sanctioned Payments
201. The attention of practitioners is drawn to the new regime of sanctioned offers and sanctioned payments under RHC, Order 22.
202. The costs consequences under RHC, Order 22, rules 20 and 21 should be brought to the attention of the party concerned by his Solicitor.
AC Drawing up Orders
203. It is the duty of the Plaintiff's Solicitors, and where the Plaintiff acts in person, the Defendant(s)' Solicitors to draw up orders made at Check List Review Hearings, Case Management Conferences and Pre-Trial Reviews which accurately reflect the directions made by the Master or Judge.
204. The orders should follow a logical sequence. Appendix H sets out the form and structure to be followed. The orders are to be drawn up for approval as soon as possible after the hearing and in any event no later than 5 days after the hearing. The date on the Order drawn up is the date on which the Order is made by the Master / Judge.
205. Subject to paragraphs 203 and 204 hereof, Practice Direction 16.1 (Practice Direction on Settling Draft Orders and Judgments) shall apply to cases in the PI List.
AD Commencement Date
206. This Practice Direction supersedes the previous Practice Direction 18.1 on The Personal Injuries List dated 11 January 2001.
207. This Practice Direction shall come into effect on 2 April 2009.
Dated this 12th of February 2009.
| (Andrew Li) |
| Chief Justice |
| (Barnabas Fung) | (Marlene Ng) |
| Judge in Charge of the Personal Injuries List in the High Court | Judge in Charge of the Personal Injuries List in the District Court |
1 See RHC, Order 1A, rule 1(e), rule 3 and rule 4(2)(e) and (f).
2 Paragraph 41(2) is directed at facilitating the mediation by having the Court resolve differences concerning the details or mechanics of the mediation process where the parties have agreed to attempt mediation. The Court may not, for instance, be asked to direct a party to engage in mediation or to appoint a particular mediator over the opposition of the other party, unless both parties are willing to have their differences resolved by the Court. See paragraph 41(1).