PRACTICE DIRECTION - 18.2
THE EMPLOYEES' COMPENSATION LIST
1. Without prejudice to the general practice and procedure for employees' compensation matters, this Practice Direction identifies and gives effect to the relevant changes in civil procedure introduced by the Rules of District Court (Amendment) Rules 2008 which came into effect on 2 April 2009.
2. This Practice Direction is issued for the guidance of practitioners and / or litigants involved in employees' compensation matters. It is not a substitute for detailed knowledge of the Employees' Compensation Ordinance ("ECO") (Cap. 282), Employees' Compensation Regulations (Cap. 282A), Employees' Compensation (Rules of Court) Rules ("ECR") (Cap. 282B) and Rules of the District Court ("RDC") (Cap. 336H). 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 RDC, 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 negotiation 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 jeopardised 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 without good reason may lead to adverse costs consequences and / or sanctions including but not limited to those provided in the RDC, 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") in paragraphs 13 to 33, 90(13) and 113(5) and items 7 to 10 of Part I of Appendix D hereof shall be effective as from 1 January 2010.
A The Employees' Compensation List
10. All actions in which a claim is made for employees' compensation and / or other reliefs under ECO, section 18A should be commenced in the Employees' Compensation List ("EC List").
11. The Judge in charge of the EC List shall be known as the Employees' Compensation Judge ("EC Judge").
12. Hearings listed before the EC Judge on designated days of the month for giving directions relating to the management of cases in the EC List and / or for fixing timetables for steps to be taken, including hearing of the application specified in the ECR, rule 17(1) ("First Hearing"), shall be known as Direction Hearings.
B ADR
13. An underlying objective of the RDC 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.
14. The aim of the direction in Part B hereof is to assist the Court to discharge the duty in question.
15. In respect of cases in the EC List, parties are encouraged to 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.
16. 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 direction in Part B hereof applies to mediation.
17. 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.
18. 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 26 hereof; or
(2) a party has a reasonable explanation for not engaging in mediation, and the fact that active without prejudice 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.
19. In all contexts, including dealing with matters arising under Part B hereof and in exercising its discretion, 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.
(1) Mediation Certificate
20. Solicitors acting respectively for the parties and / or insurer(s) concerned shall file in Court a Mediation Certificate no later than 5 days before the date of the First Hearing, but for any party who is not legally represented at that stage of the proceedings, Solicitors subsequently instructed by such party shall file in Court a Mediation Certificate no later than 21 days after the date of filing of their Notice to Act.
21. 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 and / or the insurer(s) concerned.
22. Paragraphs 23 to 30 hereof apply to cases in the EC List in which all parties are legally represented.
(2) Mediation Notice and Response
23. 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 the insurer(s) concerned or their Solicitor.
24. 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 a 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 the insurer(s) concerned or their Solicitor.
25. 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 the insurer(s) concerned or their Solicitors.
26. 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 24 hereof and the matters referred to in paragraphs 4, 5, 6 and 7 of the said Notice and Response2.
27. 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.
28. 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 or the insurer(s) concerned. These documents may be taken into account by the Court on question of costs.
(3) Application for Stay for Mediation Purposes
29. 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.
30. Where the Court stays the proceedings, the Applicant must inform the Court if a settlement is reached and the parties should take the necessary steps to conclude the legal proceedings formally.
31. Paragraphs 32 to 33 hereof apply to cases in the EC List in which one or more parties are not legally represented.
32. 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.
33. Where the Court considers that mediation is appropriate, the Court may give directions that the parties should follow the procedure set out in paragraphs 21 to 30 hereof with any necessary modifications.
C Offer to Settle Before the Commencement of Proceedings
34. Parties are reminded of the provisions in RDC, 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.
35. Where the only remaining dispute is the quantum of costs, parties should actively consider at the pre-action stage whether the dispute can be resolved by costs-only proceedings.
D Commencement of Proceedings
36. When the written application by the Applicant in Form 1, 2 or 3 of the Schedule, ECR ("EC Application") is filed at the Registry of the District Court, it shall be accompanied by:
(1) a bilingual notice in the form as per Appendix A that the Respondent may make an admission in accordance with RDC, Order 13A and that the Respondent's written answer in Form 5 of the Schedule, ECR ("Answer") must be verified by a Statement of Truth in accordance with RDC, Order 41A;
(2) a Form 16 or Form 16C of Appendix A, RDC, whichever is appropriate, modified in the manner as set out in paragraph 37 hereof; and
(3) where the Applicant is legally represented, a certificate in the form as per Appendix B signed by the Applicant and his Solicitor stating that the action is not funded by any third party on the basis of any fee arrangement contingent upon the outcome of the litigation.
37. For cases in the EC List, Form 16 or Form 16C of Appendix A, RDC is modified as follows:
(1) the form number being "Form 16" or "Form 16C", as the case may be, must be marked at the top of the first page of the document;
(2) the word "plaintiff" whenever it appears shall be replaced by "applicant";
(3) the word "defendant" shall be replaced by "respondent"; and
(4) in relation to the second item under the Note at the end of the form, the phrase "obtain leave to represent the company from a Practice Master" shall be replaced by "comply with Order 5A, rule 2(b) and (c) of the Rules of the District Court (Cap. 336, sub. leg. H)".
38. Whenever a Notice to Act (unless such notice is filed at the same time with the EC Application at the Registry of the District Court) and / or a Notice of Change of Solicitors is filed with the Court on behalf of the Applicant or a party claiming employees' compensation, it shall be accompanied by a certificate as per the form at Appendix B signed by such party and his Solicitor stating that the action is not funded by any third party on the basis of any fee arrangement contingent upon the outcome of the litigation.
39. The Solicitor representing the Applicant or a party claiming employees' compensation has a duty to explain to the Applicant or such party 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).
E Pleadings
40. For the avoidance of doubt, the following documents are regarded as pleadings:
(1) EC Application accompanied by a concise statement of the circumstances in which the application is made and the relief or order which the Applicant claims, or the question which he desires to have determined (ECR, rule 16(1));
(2) Answer containing a concise statement of the extent and grounds of opposition (ECR, rule 17(2)); and
(3) written Reply and / or subsequent pleading filed and / or served with leave of the Court.
41. All pleadings including amendments thereto and Further and Better Particulars of any pleading should contain a Statement of Truth in compliance with RDC, Order 41A, rule 2 and rule 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 RDC, Order 18, rule 12A.
42. A request in writing for further particulars of the grounds upon which the EC Application is made or the ground upon which such application is opposed in Form 6 of the Schedule, ECR shall, at the same time upon filing at the Registry of the District Court and / or serving on the Applicant or Respondent as the case may be, be accompanied by a notice in the form as per Appendix C that the reply thereto must be verified by a Statement of Truth in accordance with RDC, Order 41A.
43. Application for dispensing with the Statement of Truth under RDC, Order 41A, rule 2(3) should be made as soon as it is realised that there exists valid grounds for such application and before the expiry of the time for filing of the relevant pleading. The application should be supported by affidavit setting out the grounds for the application and the salient supporting facts.
44. In pleading an Answer, a bare denial will only be regarded as a non-admission with the consequence that the Respondent may be precluded from leading evidence to prove a different version of events. Where a version of events different to that pleaded in the EC Application is relied upon by the Respondent, the Answer must condescend upon particulars of the events alleged by him.
F Witness Statements
45. All witness statements should contain a Statement of Truth in compliance with RDC, Order 41A, rules 2 and 5 and also with Practice Direction 19.3 (Practice Direction on Statement of Truth) with suitable adaptations.
G Protocol for Commissioning Expert Reports
(1) General
46. As a general rule, leave of the Court or consent of the parties is required before any expert evidence can be adduced at trial.
47. 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.
48. As soon as it is realised there exists a need or an anticipated need for adducing expert evidence at trial or if the parties fail to reach agreement on arranging joint examination and / or compiling joint expert report by the parties' respective experts or if no agreement can be reached as to directions on obtaining expert evidence and / or for permission to adduce expert evidence, a party or parties (as the case may be) shall apply to the EC Judge for directions on obtaining expert evidence and / or for permission to adduce expert evidence in the following manner:
(1) a party or the parties shall apply by any manner specified in directions given by the Court;
(2) where there are no such directions, a party shall apply or the parties shall jointly apply to restore the case for a Direction Hearing; or
(3) where all the parties are legally represented and agree to such mode of application the parties shall jointly apply by Joint Written Application (see paragraph 69(2) hereof).
49. 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 claimant by the named expert(s) and the date or proposed date of completion of the expert report by such expert(s).
50. If a party retains different expert(s) for the same area(s) of expertise for any corresponding common law personal injuries action ("PI 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).
51. 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 claimant) within a reasonable time of the instructions given and / or having regard to the case management timetable.
52. 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.
53. A party or parties instructing a medical expert should:
(1) inform such expert in writing of the matters in paragraphs 51 and 52 hereof;
(2) secure confirmation in writing from such expert as to the date of examination of the injured claimant and the date by which the expert report will be completed and available for filing and service on the basis of paragraphs 51 and 52 hereof;
(3) notwithstanding paragraph 53(2) hereof, ensure that instructions are accepted on the basis that the date of examination of the injured claimant and the date for filing and / or 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 53(3) hereof and, if any of the committed dates is varied by the Court, the varied date(s) which shall then be the relevant committed date(s).
54. The EC Judge 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 53 and 55 hereof are not 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.
55. 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 claimant and to prepare a joint expert report,
the party or parties instructing the medical expert(s) should comply with paragraph 53(1) and (2) hereof and ensure that instructions are given and accepted on the basis that the date of examination of the injured claimant 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 53(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 53(4) hereof).
56. All expert reports (save and except medical reports from treatment hospitals or clinics documenting the treatment received by the injured claimant) shall comply with Part IV of RDC, Order 38 and the requirements set out in Appendix E, RDC referred to in rules 37B and 37C thereof.
57. The requirement in paragraph 56 hereof shall be specifically brought to the attention of the expert by the party or parties instructing him. In particular, it is emphasised that an expert report should be verified by:
(1) a Statement of Truth in compliance with RDC, 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 Appendix E, RDC in compliance with RDC, Order 38, rule 37C.
(2) Joint Examination and Joint Report
58. Where each party instructs his own medical expert, arrangements should be made for joint examination of the injured claimant, 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.
59. If a medical expert intended to be instructed by a party is unwilling to conduct a joint examination of the injured claimant 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 shall be sought from the EC Judge as soon as possible.
60. Insofar as is practicable, parties should prepare agreed instructions to the medical experts for conducting a joint examination of the injured claimant and preparing a joint expert report.
61. A party who unreasonably fails to cooperate in instructing or arranging joint examination of the injured claimant 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
62. To avoid unnecessary delay and / or to minimise the need for supplemental report(s), the party or parties instructing an expert or experts 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.
63. Without prejudice to the generality of paragraph 8 of Appendix E, RDC, 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.
64. Without prejudice to the generality of paragraph 8 of Appendix E, RDC, and in addition to the provisions in paragraph 63 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.
(4) Single Joint Expert
65. In appropriate cases, the Court may give directions for the appointment of a single joint expert (see RDC, Order 38, rule 4A).
66. If it is anticipated that a single joint expert is appropriate in light of the considerations identified in RDC, Order 38, rule 4A(5), the direction of the Court should be sought as soon as possible.
H Case Management
(1) General
67. Save as provided in the RDC or in this Practice Direction, RDC, Order 25 shall not apply to cases in the EC List.
68. It is important for parties and their legal representatives to appreciate that:
(1) efficient and cost-effective resolution of disputes cannot be achieved without due diligence and cooperation on their part; and
(2) the Court will be proactive in case management in accordance with the underlying objectives set out in RDC, Order 1A and the case management powers set out in RDC, Order 1B.
69. The parties should consult one another before:
(1) any Direction Hearing; or
(2) where all the parties are legally represented, any joint written application to the Court (whether made pursuant to directions by the Court or on the parties' own initiative by way of Consent Summons / Application or joint letter with "Joint Written Application" written / typed in clear permanent dark blue or black marking at the top margin) ("Joint Written Application") to give directions relating to management of the case and / or to fix a timetable for steps to be taken,
but the process of consultation must not delay:
(a) any application to restore the case for fixing a Direction Hearing or making a Joint Written Application pursuant to directions by the Court or in accordance with the reasonable needs of the case or as required in this Practice Direction;
(b) giving of information and / or documents to the Court under paragraphs 73, 75, 76, 77 and 78 hereof;
(c) the lodging and service of the written letter under paragraph 75 hereof; and / or
(d) taking any step required to be taken under this Practice Direction.
70. Each party shall make all admissions and all agreements as to the conduct of the proceedings which ought reasonably to be made by him. Any unreasonable refusal to make any admission or agreement may be visited with costs sanctions.
71. At the determination of any Direction Hearing or Joint Written Application, the Court:
(1) may endeavour to secure that the parties make all admissions and all agreements as to the conduct of the proceedings which ought reasonably to be made by them; and
(2) may cause the order on such Direction Hearing or Joint Written Application to record:
(a) any admissions or agreements so made; and
(b) (with a view to such special order, if any, as to costs as may be just being made at the trial) any refusal to make any admission or agreement.
72. Nothing in paragraph 71 hereof shall be construed as requiring the Court to endeavour to secure that the parties shall agree to exclude or limit any right to appeal, but the order made may record any such agreement.
(2) Duty to Give All Information
73. Each party and his legal representatives shall give as much information (including, without limitation, information on the matters in Appendix D) and produce all such documents as the Court may reasonably require to enable the Court to give directions relating to management of the case and to fix a timetable for steps to be taken. For the avoidance of doubt, it is unnecessary to lodge draft trial bundle for Direction Hearings.
74. The Court may, if it appears proper so to do in the circumstances, authorise any such information or documents to be given or produced to the Court without being disclosed to the other parties. In the absence of such authority, any information or document given or produced under paragraphs 73, 75, 76 and 78 hereof shall be given or produced to all parties as well as to the Court.
75. Without prejudice to the generality of paragraph 73 hereof and to any directions given by the Court for a party or parties to provide information and / or produce documents, each party if legally represented shall not less than 5 days before a Direction Hearing lodge with the Court and serve on the other party or parties a written letter giving information on:
(1) all matters in Part I of Appendix D;
(2) item 18 in Part II of Appendix D and all other matters in Part II of Appendix D that are known to such party or can be ascertained by him through reasonably diligent inquiry;
(3) any matter in Part III of Appendix D that are relevant to the current and / or anticipated future stage of the proceedings;
(4) unless such party gives reason(s) for not seeking directions or timetable on those matters, all matters in Parts IV, V and VI of Appendix D; and
(5) proposed directions for management of the case and / or proposed timetable for steps to be taken.
The written letter should set out the above matters in the same itemised order as in Appendix D.
76. Without prejudice to the generality of paragraph 73 hereof and to any directions given by the Court for a party or parties to provide information and / or produce documents, where all the parties are legally represented, all parties shall in the Joint Written Application give information on the matters in paragraph 75(1) to (5) hereof in the same itemised order as in Appendix D.
77. Any omission to give information on any matter in Parts II, III, IV, V and VI of Appendix D under paragraphs 75 and / or 76 hereof shall be taken that the party or parties:
(1) having considered those matters, have decided they are not relevant or required; and / or
(2) having made reasonably diligent inquiry, have no knowledge of such matters.
78. Without prejudice to the generality of paragraph 73 hereof and to any directions given by the Court for a party or parties to provide information and / or produce documents, the Court may in cases involving litigant(s) in person give directions at any Direction Hearing for such litigant(s) in person to give information on any of the matters in paragraph 75(1) to (5) hereof either before or at the next Direction Hearing.
79. If any party fails to give or adequately give information and / or produce documents on the matters in paragraphs 73 and / or 75(1) to (5) hereof within the time specified in paragraphs 75, 76 and / or 78 hereof, and the absence or inadequacy of such information and / or documents leads to an adjournment of the Direction Hearing or Joint Written Application, such party may be visited by costs sanctions, including a wasted costs order.
80. If the Court at the determination of the Direction Hearing or Joint Written Application requires a party or his legal representatives to give any information and / or produce any document and that information or document is not given or produced, then, subject to paragraph 81 hereof, the Court may:
(1) cause the facts to be recorded in the order with a view to such special order, if any, as to costs as may be just being made at trial; or
(2) if it appears to the Court to be just so to do:
(a) order the whole or any part of the pleadings of the party concerned be struck out; or
(b) if the party is the applicant or the claimant of any relief(s) sought in the proceedings, order the action or the relevant relief(s) sought be dismissed on such terms as may be just.
81. Notwithstanding anything in this Practice Direction, no information or documents which are privileged from disclosure are required to be given or produced under paragraphs 73 to 76 and 78 hereof by the legal representatives of any party otherwise than with the consent of that party.
82. Subject to paragraph 83 hereof, no affidavit shall be used at the determination of any Direction Hearing or Joint Written Application except with the leave or directions of the Court.
83. No leave is required by virtue of paragraph 82 hereof for the use of an affidavit by any party at the determination of any Direction Hearing or Joint Written Application in connection with any application for any order if, under the ECR and / or the RDC, an application for such an order is required to be supported by an affidavit.
(3) Direction Hearings and Joint Written Applications
84. If parties are able to reach agreement as to the conduct of the proceedings before any Direction Hearing, the Applicant (failing whom the Respondent) shall not less than 4 days before the Direction Hearing procure and:
(1) file a Consent Summons / Application seeking agreed directions and / or timetable;
(2) apply to vacate the Direction Hearing; and
(3) unless paragraph 75 hereof has been complied with and subject to paragraphs 73, 77 and 79 hereof, lodge a joint letter of the parties giving information on the matters in paragraph 75(1) to (5) hereof in the same itemised order as in Appendix D and, where appropriate, giving reasons for the agreed directions and / or timetable sought
for the Court's consideration and approval / direction.
85. If the parties are able to reach agreement as to the conduct of the proceedings before expiry of any time-limit for applying to restore the case for fixing a Direction Hearing or for making a Joint Written Application for the Court to give directions relating to management of the case or to fix a timetable for steps to be taken, the Applicant (failing whom the Respondent) shall on or before the expiry of such time-limit procure and lodge a joint written letter of all parties:
(1) with "Joint Written Application" written / typed in clear permanent dark blue or black marking at the top margin;
(2) containing the agreed directions and / or timetable; and
(3) subject to paragraphs 73, 77 and 79 hereof, give information on the matters in paragraph 75(1) to (5) hereof in the same itemised order as in Appendix D and, where appropriate, giving reasons for the agreed directions and / or timetable sought
for the Court's consideration and approval / direction.
86. Any unnecessary oral hearing resulting from belated agreement may be visited by costs sanctions, including a wasted costs order.
87. If no agreement can be reached on any or some of the directions relating to management of the case or any or some aspects of the timetable for steps to be taken, the Court may give such directions and fix such timetable:
(1) at a Direction Hearing restored on application made by any party; or
(2) upon Joint Written Application by all relevant parties requesting for written directions by the Court and setting out each party's proposal and reasons therefor in respect of the directions and / or timetable that cannot be agreed,
such application to be made as soon as possible and, where there is any time-limit for applying to restore the case for Direction Hearing or for making Joint Written Application, before the expiry of such time-limit.
88. Nothing in the foregoing paragraphs prevent the parties from making a Joint Written Application containing the joint views of all relevant parties and / or the directions they jointly invite the Court to make and giving reasons therefor at any time.
89. In cases involving litigant(s) in person, the Court shall give directions relating to management of the case or fix a timetable for steps to be taken at Direction Hearings, and may hold a Direction Hearing on its own motion. For the avoidance of doubt, paragraphs 84 to 88 hereof do not apply to cases involving litigant(s) in person.
90. The Court will have regard to and consider the information given by the parties in paragraphs 73, 75, 76, 78, 84 and / or 85 hereof and to the reasonable needs of the case in deciding what directions relating to management of the case are needed and / or what the timetable for steps to be taken should be, and, without limiting the generality of the foregoing, may upon application or on its own motion make the following orders:
(1) an order for adding or substituting parties to the action (ECR, rules 22 to 24 and / or RDC, Order 15, rule 4);
(2) an order for amendment of pleadings (ECR, rules 17(3) and 19 and / or RDC, Order 20, rules 5 and 8);
(3) an order for Further and Better Particulars (ECR, rule 18 and / or RDC, Order 18, rule 12(3A));
(4) an order for further discovery and inspection (RDC, Order 24, rules 3, 7 and 11) and / or an order limiting discovery (RDC, Order 24, rule 15A);
(5) an order granting leave to administer interrogatories (RDC, Order 26, rule 1);
(6) an order for split trial (RDC, Order 33, rule 4);
(7) an order directing the hearing of a preliminary issue and entering judgment or dismissing the claim, where appropriate, upon determination of such preliminary issue (RDC, Order 33, rules 3 and 7 and RDC, Order 1B, rule 1(2)(k));
(8) entering of judgment on liability for compensation to be assessed;
(9) any other order as may be deemed appropriate for the just, expeditious and economic resolution of the case, including orders relating to the filing and exchange / service of witness statements, obtaining and filing medical or other expert report(s), and expert directions restricting expert evidence;
(10) an order for interim payment (RDC, Order 29, rule 11);
(11) an order for extension of time under ECO, sections 14(4), 16B(2) and / or 18(2);
(12) an order for payment of periodical payments under ECO, sections 10(1) and / or 10(5);
(13) an order for staying the action to facilitate an attempt on ADR;
(14) fixing a Direction Hearing if the Court is of the opinion that it is desirable to do so;
(15) where necessary, fixing a date for Case Management Conference ("CMC") and / or Pre-Trial Review ("PTR");
(16) an order or direction in exercise of the powers conferred by the provisions specified in paragraphs (a) to (c) of RDC, Order 25, rule 6; and / or
(17) an order setting the case down for trial in the fixture list specifying the trial date(s) or in the running list specifying that the trial will not to be warned before a particular date.
91. In addition to the Court's power and discretion in giving directions for management of the case and in fixing a timetable for steps to be taken in paragraph 90 hereof, the Court shall endeavour to secure that all matters which must or can be dealt with on interlocutory applications and have not already been dealt with are also then dealt with. The Court also retains a discretion to:
(1) override agreed directions and time-limits put forward by the parties where the Court considers it appropriate to do so in all the circumstances and / or in accordance with the underlying objectives and case management powers in RDC, Orders 1A and 1B;
(2) adjourn or reserve consideration of any or all of the directions and / or timetable proposed by the parties for later resolution; and / or
(3) fix a Direction Hearing, CMC or PTR or set a time-limit for the parties to apply by Joint Written Application to restore the adjourned or reserved matters in paragraph 91(2) hereof for consideration by the Court.
92. At any Direction Hearing where the action is likely to be set down for trial, all parties must have the necessary information as to availability of trial Solicitor or Counsel, witness(es) and / or expert(s) to enable the Court to fix the trial date(s).
93. Unless it appears to the Court that an oral hearing is necessary, the Court may give directions for management of the case and / or fix a timetable for steps to be taken in writing and without a hearing.
94. Parties are expected to comply with the directions and timetable laid down by the Court. Unless sufficient grounds are shown, the Court may not grant extensions of time for compliance.
(4) Interlocutory Applications
95. Parties should focus on the relevant issues. Proliferation of efforts on irrelevant and / or unnecessary factual, legal or procedural disputes should be avoided. Unnecessary and / or disproportionate interlocutory applications should not be made. The same applies to unnecessary and / or unreasonable opposition. They will be met with adverse costs orders to be summarily assessed.
96. Matters relating to management of the case and to fixing a timetable for steps to be taken should be dealt with at Direction Hearings before the EC Judge or, where all the parties are legally represented, by Joint Written Applications. Unnecessary interlocutory applications relating to such matters should not be made, and may be met with adverse costs orders to be summarily assessed.
97. Parties should as early as possible actively consider what interlocutory applications they will take out and endeavour to reach agreement on directions.
98. If parties cannot reach agreement, the proper course is to take out the appropriate application as soon as possible. Parties should not send copies of their respective correspondence to the Court for adjudication on paper, and the Court will not respond to them.
99. If the application is made after the last Direction Hearing or CMC but before PTR, and is contentious, the hearing shall be before the Judge designated to conduct the PTR.
100. If the application is made after PTR but before trial, and is contentious, the hearing shall be before the designated trial Judge, or if the trial Judge is not yet designated, the Judge who conducted the PTR.
101. Save as provided in paragraphs 99 and 100 hereof, the application is to be heard before the EC Judge or any other Judge, and the EC Judge may refer the hearing of such application to any other Judge as he / she may deem fit, and vice versa.
102. At the conclusion of the hearing, the parties are required to supply a short statement as to the costs of and occasioned by the application so that the Court may make an order under RDC, Order 62, rule 9A for summary assessment of costs that may be payable forthwith.
(5) CMC
103. The Court may, upon application or on its own motion, fix and specify a Direction Hearing (but excluding the First Hearing) as a CMC. A CMC need not be fixed for each and every case in the EC List.
104. A party may at a Direction Hearing or, where all the parties are legally represented, the parties may by Joint Written Application apply for a CMC. Alternatively, where all the parties are legally represented, any party may apply by letter to the EC Judge (with copy served on the other party or parties) setting out the reasons for such hearing, and the other party or parties must within 7 days of receiving such copy letter respond by letter to the EC Judge setting out their objections thereto (if any).
105. Save where such application is made at a Direction Hearing, directions will be given in writing and without a hearing by the EC Judge or any other Judge. The EC Judge may refer such application to any other Judge as he / she may deem fit.
106. CMC is a milestone date, and is generally held before the EC Judge provided that the EC Judge may on his / her own motion and by directions in writing to the parties refer the CMC to another Judge as he / she may deem fit.
107. For the avoidance of doubt and subject to paragraphs 108 and 109 hereof, paragraphs 73, 74, 77 and 79 hereof apply with suitable adaptations to CMC.
108. Not less than 7 days before the date fixed for a CMC, each party if legally represented shall lodge with the Court and serve on the other party or parties a written letter:
(1) giving information on all matters in Parts I, II, III, IV and VI and item 40 of Part V of Appendix D in the same itemised order as in Appendix D; and
(2) indicating accurately and fully the extent of further interlocutory applications or appeals to be made.
109. In cases involving litigant(s) in person, the Court may give directions at any Direction Hearing requiring such litigant(s) in person to give information on any of the matters in Parts I, II, III, IV and VI and item 40 of Part V of Appendix D either before or at the CMC.
110. A CMC is a critical stage in the proceedings. It is not a second opportunity for parties to ask for directions or timetable which they could have sought at any previous (and / or after the last) Direction Hearing or Joint Written Application. The later in time and the closer to trial an interlocutory application is made, the less likely it is for the Court to entertain it.
111. Parties are expected to have complied with the directions given and timetable laid down by the time of the CMC. Unless sufficient grounds are shown, the Court will not grant extensions of time for compliance. If it does, such grant of extension will most likely be on the basis of an unless order with self-executing sanctions.
112. At the hearing of the CMC, all parties must have the necessary information as to availability of trial Solicitor or Counsel, witness(es) and / or expert(s) to enable the Judge to fix the trial date(s).
113. At a CMC the Court may consider applications for and may 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. Without prejudice to the generality of the foregoing, the Court at a CMC:
(1) shall review the steps which parties have taken in preparation of the case, and in particular their compliance with any directions that the Court may have given;
(2) shall decide and fix a timetable for the steps which are to be taken by the parties between the date of the CMC and trial to secure the progress of the case in accordance with the underlying objectives in RDC, Order 1A and, where necessary, will exercise its case management powers under RDC, Order 1B;
(3) may ensure as far as it can that all admissions that can be made and all agreements that can be reached between the parties about the matters in issue and the conduct of the claim are made and recorded;
(4) may adjourn the CMC to another date, fix a date for a PTR, or set the case down for trial in the fixture list specifying the trial date(s) or in the running list specifying that the trial will not to be warned before a particular date;
(5) may ascertain the parties' attempt or intention to undergo mediation and / or other ADR means; and / or
(6) may make any of the orders in paragraph 90 hereof.
(6) PTR
114. Irrespective whether there is any CMC, the Court may upon application or on its own motion provide for and fix a hearing for a PTR. A PTR need not be fixed for each and every case in the EC List.
115. A party may at a Direction Hearing or CMC or, where all the parties are legally represented, the parties may by Joint Written Application apply for a PTR. Alternatively, where all the parties are legally represented, any party may apply by letter to the EC Judge (with copy served on the other party or parties) setting out the reasons for such hearing, and the other party or parties must within 7 days of receiving such copy letter respond by letter to the EC Judge setting out their objections thereto (if any).
116. Save where such application is made at a Direction Hearing or CMC, directions will be given in writing and without a hearing by the EC Judge or any other Judge. The EC Judge may refer such application to any other Judge as he / she may deem fit.
117. A PTR is a milestone date and is generally held before the trial Judge, or if the trial Judge is not yet designated, the EC Judge.
118. For the avoidance of doubt and subject to paragraph 119 hereof, paragraphs 73, 74, 77 and 79 hereof apply with suitable adaptations to PTR.
119. Not less than 7 days before the date fixed for a PTR,
(1) each party if legally represented shall lodge with the Court and serve on the other party or parties a written letter giving information on all matters in Parts I, II, III, IV and VI of Appendix D in the same itemised order as in Appendix D; and
(2) the Applicant by his Solicitors or, if he is not legally represented, the Respondent by his Solicitors shall lodge a fully indexed and fully paginated bundle of documents (in ring-binder(s) or lever-arch file(s)) with each page individually and consecutively numbered on the top right-hand corner from the top of the bundle working continuously through to the end and with the following sections:
(a) properly coloured latest versions of the pleadings, application for periodical payment under ECO, section 10(5), notice(s) of appeal under ECO, section 18, notice(s) of cancellation under ECO, section 16B, and relevant Court orders, but Further and Better Particulars of a pleading should immediately follow the pleading to which it relates;
(b) witness statements as to liability and / or quantum;
(c) relevant medical report(s) from treatment hospitals or clinics documenting the treatment received by the injured claimant;
(d) expert medical report(s) for the Applicant (if any), then expert medical report(s) for the Respondent (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);
(e) relevant documents as to liability;
(f) relevant documents as to quantum;
(g) correspondence exchanged between the parties and their Solicitors that are necessary, directly relevant and arranged in chronological order,
together with:
(h) a full index placed at the top of the bundle listing the sections of the bundle and the documents contained therein, and giving the page reference for each document unless a class of documents can appropriately be shown in the index by general description, but a particular document within a class should be listed separately if it is particularly important to the case; and
(i) a section index placed at the top of each section of the bundle listing the documents contained in such section prepared in the same manner as for the full index.
120. Solicitors acting for the Applicant or the Respondent, as the case may be, must collect the bundle for re-use with the addition of new documents, if necessary, at the conclusion of the PTR or any adjourned PTR.
121. The Court expects the case to be ready for trial by the time of the PTR. Late interlocutory applications may not be entertained.
122. For the avoidance of doubt, if the case has not been set down for trial, paragraph 112 hereof with suitable adaptations applies to PTR.
123. At the hearing of a PTR the Court may consider applications for and may 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. Without prejudice to the generality of the foregoing, the Court at a PTR will:
(1) confirm or vary the estimated length of trial in light of the completed interlocutory steps;
(2) if the case has not been set down for trial, set the case down for trial in the fixture list specifying the trial date(s) or in the running list specifying that the trial will not to be warned before a particular date;
(3) give any further directions needed (including any required extensions of time for interlocutory tasks not yet completed, or any appropriate unless order on terms as to costs) provided that such directions will not impinge on the trial date(s) or the particular date from when the trial can be warned; and
(4) if necessary, give directions in relation to the trial under RDC, Order 35, rule 3A.
(7) Case Managing for Trial
124. If at any stage it is sought to set the case down for trial, each party should have ascertained from trial Solicitor or Counsel or, where trial Counsel has not been briefed yet, the handling Solicitor of the case, and be in a position to give to the Court (if so required) the time estimates (without taking into account the time estimates of other party or parties) of:
(1) opening submission;
(2) evidence-in-chief of each of his / her witnesses;
(3) cross-examination of each of the other party's or parties' witnesses; and
(4) closing submission.
125. If the time estimates are provided to the Court, they are taken to have been provided by trial Solicitor or Counsel or the handling Solicitor of the case, and are expected to be realistic and adhered to at trial. The Court can, if it considers desirable, direct that a certificate as to such time estimates prepared by trial Solicitor or Counsel or the handling Solicitor of the case be filed and served.
126. If there is a change of circumstances that may affect the time estimates given to the Court, parties are expected to inform the Court as soon as possible, and in any event no later than 21 days before the trial date or the particular date from when the trial can be warned.
127. Parties are reminded of the Court's case managing powers at trial under RDC, 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.
(8) Milestone Dates
128. For the avoidance of doubt, the trial date(s) or the particular date from when the trial can be warned as specified in any direction or order is a milestone date.
129. Milestone dates (including the trial date(s) and / or the particular date from when the trial can be warned as specified in any direction or order) will be immovable save in the most exceptional circumstances.
130. RDC, Order 25, rules 3(2) to (3) and 4 shall apply to all dates specified in this Practice Direction as milestone dates.
(9) Variation of Court-Determined Directions and Timetable
131. Where there has been a change in the circumstances since directions were given and timetable was fixed, the Court may set aside or vary a direction it has given or give further directions either upon application or on its own motion.
132. Where all the parties are legally represented and 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 / Application or Joint Written Application provided that the agreed variations do not involve or necessitate changes to any milestone date.
133. The Court retains a discretion to override agreed directions for variation of the time-limits put forward by the parties where the Court considers it appropriate to do so in all the circumstances and / or in accordance with the underlying objectives in RDC, Order 1A and using its case management powers under RDC, Order 1B.
134. Where the parties cannot agree on extension of time:
(1) the party in default should take out the appropriate application to the EC Judge as soon as it is realised 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 for extension of time satisfying the Court that he will be able to comply with an extension without impinging on the trial date(s) or the particular date from which the trial can be warned;
(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 of time may be granted on the basis of an immediate unless order prescribing a suitable sanction should there be any further non-compliance.
(10) Attendances
135. All Direction Hearing, CMC and PTR should be attended by the parties themselves, or if they are legally represented, by their legal representatives.
136. Representation at Direction Hearing and CMC shall be by Solicitor. Where Counsel is instructed unnecessarily for such hearing, the Court may refuse certificate for and / or disallow costs of instructing Counsel.
137. Representation at PTR shall be by Solicitor or, where necessary, Counsel fully instructed for the purpose of trial or PTR. The Court retains discretion whether to grant or refuse certificate for Counsel.
138. A legal representative who attends any of the hearings in paragraph 135 hereof should be the person having prime responsibility for the case and must in any event be familiar with it, be able to provide the Court with information and / or documents likely to be needed to make its decision about case management, and having sufficient authority to deal with any issues that are likely to arise.
(11) Costs Sanctions
139. 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.
140. 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.
141. 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 RDC, Order 62, rules 8, 9(4)(b) or 9A to be payable forthwith.
(12) Documents for Use at Trial / Assessment of Compensation
142. Subject to and / or unless otherwise provided in this Practice Direction, Practice Direction 5.6 (Practice Direction on Documents for Use at Trial) shall apply to cases in the EC List.
143. Where the Applicant is not but the Respondent is legally represented, Solicitors acting for the Respondent should proceed to prepare the trial bundle.
144. Where all the parties are not legally represented, the EC Judge 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 setting the case down for trial in the fixture list specifying the trial date(s).
145. The trial bundle shall be prepared in the same manner as for the bundle of documents for use at a PTR as set out in paragraph 119(2) hereof, and in addition:
(1) No other pagination numbering system, such as 1.1, 1.2 or 2A, 2B, etc. shall be used.
(2) Care must be taken in the preparation of the trial bundle to avoid later insertion or interleaving of omitted pages.
(3) 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.
(4) Plans and photographs must be in a separate section of the trial bundle, and all photographs must be numbered and properly mounted with an agreed description.
(5) Transcripts of magisterial or other legal proceedings should be in a separate section of the trial bundle.
(6) Medical records (hospital or otherwise) must be in a separate section of the trial bundle. 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.
(7) The proper way to deal with a disagreement as to the inclusion of a document 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.
(8) 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 it is the party who succeeds at trial or not.
146. Any document the translation of which requires a certification must be submitted to the Court Language Section in good time before trial.
147. The Solicitor in charge of the case must personally satisfy himself / herself that the trial bundle is in order before it is delivered to the Court.
148. Where the case has been set down for trial on the fixture list, the trial bundle must be lodged with the Court at least 72 hours (excluding Saturdays, Sundays and general holidays) before the specified trial date. Such time-limit must be complied with and will be strictly enforced except where there are good grounds for granting an extension. The party or Solicitors 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-limit.
149. 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.
150. Paragraphs 142 to 149 hereof shall apply with suitable adaptations to the preparation and lodging of the assessment bundle for assessment of compensation.
(13) Assessment of Compensation
151. Where liability in the action is not in issue or is conceded in advance of a Direction Hearing, CMC or PTR, or of any time-limit for applying to restore the case for fixing a Direction Hearing or for making a Joint Written Application for the Court to give directions relating to management of the case or to fix a timetable for steps to be taken, the parties must notify the Court of that fact immediately and previous directions in so far as they relate to the issue of liability shall no longer apply. Directions will be given at the relevant Direction Hearing, CMC or PTR or pursuant to Joint Written Application in relation to the assessment of compensation. The directions in this Practice Direction in relation to Direction Hearing, CMC and PTR and / or Joint Written Application shall apply with suitable adaptations to assessment of compensation.
152. In all cases where trial on liability and quantum has been set down in the fixture list or running / warned list, and the parties have agreed to the issue of liability in advance of trial, the case will nonetheless remain in the respective list for assessment of compensation although with a revised estimated length of hearing which the parties are required to give to the Court immediately.
(14) Settlement
153. 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 compensation.
154. The parties or their Solicitors shall promptly inform the Court of any settlement or likely settlement of the case. Solicitors acting for the Applicant 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.
I Filing of Documents
155. 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 need for any application to call a witness for cross-examination under the Evidence Ordinance (Cap. 8), section 48.
156. For the avoidance of doubt, pleadings, lists of documents, witness statements, and expert reports should be filed. Paragraph 10 of Practice Direction 24.1 (Practice Direction on Sealing of Writ of Summons, Newspaper Advertisements, Filing of Documents) shall not apply to cases in the EC List.
J Actions by Persons under a Disability
157. Where death results from the injury, a claim for employees' compensation by eligible members of the family of the deceased employee which include a claim on behalf of a member of the family, who is a minor or under any other disability, requires approval of the Court for any proposed settlement.
158. Where personal injury results from the injury, a claim for employees' compensation by a claimant, who is a minor or under any other disability, requires approval of the Court for any proposed settlement.
159. In any application to the Court for approval for settlement of the case involving a person under disability, or for payment out of sms paid into Court for the benefit of a person under disability and / or for variation of Court order(s) 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 case must contain full details of all relevant matters to enable the Court to consider the matter fully, including, without limitation:
(1) whether there is any corresponding PI Action and / or other litigation involving the person under disability;
(2) if so, state in relation to such PI 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 case(s), with copies of the relevant Court order(s);
(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 order(s).
160. RDC, Order 80, rules 10 to 12 will be strictly applied. It is improper to seek a consent order under RDC, Order 42, rule 5A for settlement of an action involving a person under disability, and practitioners should in no circumstances attempt to do so.
161. Paragraph 184, 186, 188 to 193 and 201 of Practice Direction 18.1 (Practice Direction on The Personal Injuries List) shall apply with suitable adaptations to cases in the EC List.
K Part II of Mental Health Ordinance (Cap. 136) ("MHO")
162. Paragraphs 194 to 200 of Practice Direction 18.1 (Practice Direction on The Personal Injuries List) shall apply with suitable adaptations to cases in the EC List.
L Sanctioned Offers and Sanctioned Payments
163. The attention of practitioners is drawn to the new regime of sanctioned offers and sanctioned payments under RDC, Order 22.
164. The costs consequences under RDC, Order 22, rules 19 and 20 should be brought to the attention of the party concerned by his Solicitor.
M Drawing Up Orders
165. It is the duty of Solicitors acting for the Applicant, and, where the Applicant is not legally represented, Solicitors acting for the Respondent to draw up orders made at Direction Hearing, CMC and / or PTR and on Joint Written Application that accurately reflect the directions made by the Court. The orders are to be drawn up and submitted to the Court for approval as soon as possible after the hearing and / or the granting of directions in writing and in any event no later than 5 days after the hearing and / or directions in writing. The date on the Order drawn up is the date on which the Order is made by the Court.
166. Subject to paragraph 165 hereof, Practice Direction 16.1 (Practice Direction on Settling Draft Orders and Judgments) shall apply to cases in the EC List.
N Commencement Date
167. This Practice Direction shall come into effect on 2 April 2009.
Dated this 12th of February 2009.
| (Andrew Li) | |
| Chief Justice | |
|
|
1 See RHC, Order 1A, rule 1(e), rule 3 and rule 4(2)(e) and (f).
2 Paragraph 26(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 26(1).