PRACTICE DIRECTION - 6.1
CONSTRUCTION AND ARBITRATION LIST
A Introduction
1. For guidance on matters which are not specifically dealt with below, practitioners should consult Practice Directions relating to General List cases.
B Construction and Arbitration List
2. The Construction and Arbitration List ("the List") was established to facilitate the disposal of specialised classes of civil action.
3. The classes of action within the List include (but are not limited to) cases concerning the following:
(1) civil or mechanical engineering;
(2) building or other construction work;
(3) claims by or against engineers, architects, surveyors and other professional persons or bodies engaged in matters relating to the construction industry; and
(4) applications relating to arbitration whether arising under the Arbitration Ordinance (Cap. 341), Rules of High Court ("RHC"), Order 73 or otherwise.
4. There shall be a Judge ("the Judge") in charge of the List. Other Judges ("designated Judges") may also be designated to hear proceedings within the List from time to time.
5. The Judge shall have control of the actions in the List and of interlocutory applications therein and may make such directions and orders regulating the conduct and trial of an action as he thinks fit.
6. The Judge may issue general directions for the better regulation of the List and for this purpose may form a consultative committee of legal practitioners.
7. The powers of the Judge shall, when necessary, be exercisable by another Judge.
8. The List will operate in the following manner:
(1) A plaintiff or applicant proposing to enter an action in the List shall prominently mark on the face of his originating process the words "Construction and Arbitration List".
(2) The Judge may, of his own motion or on the application of a party to any action, order that:
(a)
an action in the List be removed therefrom; or
(b)
an action pending elsewhere in the High Court (other than in another specialist list) be transferred to the List.
9. Interlocutory applications shall be returnable only before the Judge.
10. Any application (including applications in an action outside the List) relating to an arbitration should normally be listed to be heard by the Judge or a designated Judge.
C Interlocutory Applications
11. For all contested interlocutory applications listed for 30 minutes or more, the following directions will apply:
(1) At least 72 hours before the hearing, the applicant shall serve a skeleton on the other parties and the Court.
(2) At least 48 hours before the hearing, the respondent shall serve a skeleton on all other parties and the Court.
12. For interlocutory applications listed for less than 30 minutes, it is left to practitioners to decide whether the Court will be assisted by a skeleton.
D Standard Directions for Trials
13. A plaintiff should take out a summons for a 1st Case Management Conference before the Judge within 28 days after the close of pleadings.
14. Not later than 7 days before the hearing of the 1st Case Management Conference, each party to a proceedings shall lodge with the Clerk to the Judge, file with the Court and serve on the other parties a completed information sheet in the form set out in Appendix A.
15. The following are standard directions which the Court will make in most cases at a 1st Case Management Conference. These directions must be followed although the Court will consider deviating from them in appropriate cases:
Factual Witnesses
(1) Signed statements of factual witnesses shall be exchanged no later than [date]. Unless otherwise directed by the trial Judge, the statements are to stand as evidence in chief at trial.
Expert Witnesses
(2) Expert evidence will be required on the following subjects:
(a) [Subject A];
(b) [Subject B];
(c) [Subject C];
(d) ...
(3) Leave is granted for experts to be called by each party as follows:
(a) On Subject A, [number] expert(s);
(b) On Subject B, [number] expert(s);
(c) On Subject C, [number] expert(s);
(d) ...
(4) The experts in each subject are to answer the following specific questions:
(a) On Subject A:
(i) Question A1;
(ii) Question A2;
(iii) Question A3;
(iv) Question A4;
(v) Question A5;
(vi) ...
(b) On Subject B:
(i) Question B1;
(ii) Question B2;
(iii) Question B3;
(iv) Question B4;
(v) Question B5;
(vi) ...
(c) On Subject C:
(i) Question C1;
(ii) Question C2;
(iii) Question C3;
(iv) Question C4;
(v) Question C5;
(vi) ...
(d) ...
(5) Provisional expert reports shall be exchanged on a without prejudice basis no later than [date].
(6) Within [time period] from the date of exchange of provisional expert reports, the experts in each subject are to meet on a without prejudice basis to agree a common opinion on the questions within their subject.
(7) Within [time period] following their without prejudice meeting, the experts in each subject are to prepare a signed joint report which succinctly identifies:
(a)
the questions on which the experts have reached a common opinion and (in respect of each such question) what that common opinion is; and
(b)
the questions on which the experts have failed to reach a common opinion.
(8) Within [time period] following their joint reports, the experts in each subject are to exchange final signed reports. The final reports should succinctly state the following:
(a) the questions within a subject on which it was not possible to reach a common opinion;
(b) the competing views on each such question;
(c) why a given expert's views on each such question are right; and
(d) why any opposing expert's views on each such question are wrong.
Setting Down, Pre-Trial Review and Trial
(9) The parties have leave to set down the action for trial forthwith, with an estimated hearing length of [number] days. The trial is not to be heard before [date].
(10) The trial date is to be treated as a milestone date.
(11) Not later than 28 days before the Pre-Trial Review, each party to a proceedings shall lodge with the Clerk to the Judge, file with the Court and serve on the other parties a signed Pre-Trial Review checklist in the form set out in Appendix B.
(12) There will be a Pre-Trial Review not less than 28 days before the trial date.
(13) Trial bundles are to be lodged with the Court not less than 14 days before the trial date.
(14) The parties are to serve written opening submissions on the Court and each other not less than 7 days before the trial date.
(15) There will be liberty to apply.
Costs
(16) Costs will be in the cause.
16. At the 1st Case Management Conference, the Judge may direct that there be further Case Management Conferences.
E Application for Leave to Appeal Against Arbitration Awards
17. Every application for leave to appeal against an arbitration award shall contain a succinct statement of each ground upon which it is sought to contend that the arbitral tribunal erred in law. Reference shall be made to the paragraph or passage of the award and reasons where each alleged error is to be found. A copy of the award and reasons forming part of the award and any documents expressly incorporated in the award of such reasons shall accompany the application.
18. Any respondent to such an application who contends that the award should be upheld on grounds not, or not fully, expressed in the award and reasons should provide to the applicant and to the Court, not later than 7 days before the application for leave is to be heard, a succinct statement of such grounds in numbered paragraphs, with reference where appropriate to any relevant paragraph or passage of the award and reasons.
19. Where the applicant contends that any question of law arising out of an award concerns a term of contract or an event which is not a one-off clause or event, he shall serve on the respondent with his application, and lodge with the Court, an affidavit setting out the facts relied on in support of his contention. A respondent who challenges that contention shall provide to the applicant and to the Court, not later than 7 days before the application is to be heard, an affidavit setting out the facts upon which he relies.
F Voluntary Mediation
(1) General
20. Parties in construction cases are encouraged to attempt mediation as a possible cost-effective means of resolving disputes.
21. To promote the use of mediation, the Court may impose cost sanctions where a party unreasonably refuses to attempt mediation.
22. The purpose of this section of the Practice Direction is to facilitate the Court's consideration of whether or not to impose cost sanctions in relation to a refusal to go to mediation.
(2) Initiation of Mediation
23. A party ("the Applicant") to a construction action may serve a Mediation Notice upon any other party ("the Respondent") in the dispute. A copy of the Mediation Notice is to be filed with the Court.
24. The Mediation Notice should state that the Applicant wishes to attempt mediation to resolve all or a specified part of its dispute with the Respondent.
25. The Mediation Notice should identify the rules under which the proposed mediation is to take place, including the manner in which a mediator is to be appointed. The Mediation Notice should as much as possible also give some idea of the estimated costs to a party of engaging the services of a mediator.
26. The Mediation Notice should specify a timetable for the proposed mediation, stating what minimum amount of participation by the Respondent would qualify (as far as the Applicant was concerned) as a sufficient attempt at mediation.
27. Upon receiving the Mediation Notice, the Respondent should respond to the Applicant in writing within 14 days (or such other time as the parties may agree), stating:
(1)
whether the Respondent agrees to mediation of all or only a specified part of the relevant dispute;
(2)
whether the Respondent agrees to mediation in accordance with the rules identified by the Applicant or proposes that mediation proceed by some other set of rules;
(3)
whether the Respondent agrees with all or part of the timetable proposed by the Applicant and whether the Respondent suggests any modifications to timetable; and
(4)
the minimum amount of participation by the Respondent which (as far as the Respondent was concerned) would qualify as a sufficient attempt at mediation.
28. Where the Respondent refuses to mediate the relevant dispute, the Respondent should also state why it does not believe that mediation is appropriate.
29. A copy of the Respondent's reply to the Mediation Notice is to be filed with the Court.
30. Where the Respondent agrees to mediation, the Applicant and Respondent should proceed to mediation in accordance with the agreed timetable.
31. Where the parties agree on some (but not all) proposals in the Mediation Notice, the parties should meet as soon as possible to see whether agreement can be reached on those proposals over which they differ. Any agreement consequent upon such meeting should be reduced into a written minute signed by the Applicant and Respondent. A copy of the minute should be filed with the Court.
32. Where appropriate, the parties may apply to the Judge for assistance in resolving points of difference between them in relation to the mechanics of the proposed mediation.
33. The Applicant or Respondent may apply to the Judge to stay the relevant action pending the progress of any agreed mediation or further order. The stay application should specify the anticipated duration of the agreed mediation. The stay application should be supported by a brief affidavit.
34. Where the Applicant and Respondent differ as to the minimum participation which should qualify as a sufficient attempt at mediation, the Judge may (either when hearing a stay application or at any other time) specify the applicable level of expected participation.
35. It is recommended that any stay application be heard after the close of pleadings at the time of the 1st Case Management Conference.
36. At the 1st Case Management Conference, the Judge may ask the parties whether they have attempted mediation and (if not) the reasons for not so doing. The Judge may express a view as to whether mediation might help in resolving all or some of the disputes in an action.
(3) Nature of Mediation Agreement
37. No party to an action shall be compelled to go to mediation. The Court will treat an agreement to mediate reached pursuant to Section F(2) above ("a Mediation Agreement") as having been arrived at on a purely voluntary basis, without prejudice to the parties' contentions in the action.
38. A Mediation Agreement will not be actionable as a contract. The Applicant and Respondent will be free to withdraw from such agreement at any time and proceed with the underlying action.
39. No settlement reached in the course of a mediation under a Mediation Agreement will become binding on the Applicant or Respondent until the settlement is reduced into writing and signed by both parties.
40. The conduct of the mediation shall remain confidential to the parties and will proceed wholly on a without prejudice basis.
(4) Costs Sanctions
41. Where a Mediation Notice has been served, an unreasonable refusal or failure to attempt mediation may expose a party to an adverse costs order.
42. Where a party:
(1) has engaged in mediation up to the minimum level of expected participation agreed by the parties beforehand or as determined by the Court; or
(2) has a reasonable explanation for non-participation,
he should not suffer any adverse costs order.
43. What constitutes an adverse costs order will be a matter in the Court's discretion after taking into account all relevant circumstances.
44. In determining whether a party has acted unreasonably in refusing mediation, the Court will not take account of or inquire into:
(1) what happened during the mediation;
(2) why the mediation failed; or
(3) whether any failure in the course of mediation may be ascribed to unreasonable conduct by any party.
(5) Administration
45. A booklet issued by the Judiciary is available for those wishing information on mediation generally and on the resources available for mediation in Hong Kong.
46. For the purposes of compiling data on the effectiveness of mediation, the parties or their legal representatives are requested to report the following details to the Clerk to the Judge:
(1) the action number of any case in which mediation pursuant to a Mediation Agreement has been attempted;
(2) the amount claimed in the action;
(3) whether mediation has led to settlement of the dispute or part of it;
(4) the number of hours spent by the mediator (including preparation) on mediation (whether or not ultimately successful); and
(5) whether (in the opinion of the reporting party) the mediation has led to a significant saving in litigation costs.
47. The foregoing information may be provided by filling out an electronic questionnaire accessible through the website of the Hong Kong Judiciary (www.judiciary.gov.hk).
G Commencement Date
48. This Practice Direction supersedes the previous version of Practice Direction 6.1 on Construction and Arbitration List dated 31 December 1998, Practice Direction 6.2 on Application for Leave to Appeal Against Arbitration Awards and Practice Direction 6.3 on Construction and Arbitration List Pilot Scheme for Voluntary Mediation dated 4 July 2006.
49. This Practice Direction shall come into effect on 2 April 2009.
Dated this 12th of February 2009.
| (Anselmo Reyes) | |
| Judge in Charge of the Construction and Arbitration List |