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Civil Justice Quarterly

2009
Civil justice reform in Hong Kong: a critical appraisal
Gary Meggitt
Farzana Aslam
Subject: Civil procedure
Keywords: Case management; Civil procedure; Hong Kong
Legislation: Civil Procedure Rules 1998 (SI 1998 3132)
Civil Justice (Miscellaneous Amendments) Ordinance 2008 (Hong Kong)

*C.J.Q. 111 Introduction

It is now almost 10 years since the Rules of the Supreme Court (RSC) and County Court Rules (CCR) were
consigned to the proverbial dustbin of history in favour of the Civil Procedure Rules (CPR). Moreover, it is over
15 years since Lord Woolf was first commissioned to write his Access to Justice reports, which precipitated the
CPR. Much lively discussion preceded, accompanied and followed Lord Woolf's work; the introduction of the
CPR; and the subsequent 48 updates to the CPR. Indeed, the discussions and updates continue to this day.
In Hong Kong,1 on the other hand, the rate of change has been languid.2 In February 2000 the Chief Justice of
Hong Kong appointed a Working Party of lawyers and laymen3 to review and recommend changes to the
territory's civil justice system. Hong Kong's own Civil Justice Reform (CJR) will finally come to fruition, over
nine years later, on April 2, 2009 with amended Rules of the High Court (RHC) and Rules of the District Court
(RDC).4 The contrast in terms of both the gestation period and, as will be seen, the scope of the CPR and CJR is
striking.
This article will examine why the CJR process began, where it led, how it ended and what may come next.
*C.J.Q. 112 The Hong Kong Civil Justice System
Before looking at CJR, however, it is worthwhile summarising the Hong Kong civil court system for those
readers who may not be familiar with it.
The starting point is Hong Kong's mini-constitution, the Basic Law of the Hong Kong Special Administrative
Region (the Basic Law),5 which established the territory's system of governance, including its judicial system,
when it passed from British to Chinese sovereignty in July 1997. Article 8 of the Basic Law specifically
maintains the pre-July 1997, common law, rules of equity, ordinances, subordinate legislation and customary
law, unless they contravene the Basic Law and subject to any amendment by the Legislative Council (also
known as LegCo).6 Further, art.84 permits the Hong Kong courts to refer to precedents of other common law
jurisdictions. Accordingly, the Hong Kong civil courts retain much of their English character, including the
adversarial approach to litigation.
Primary legislation consists of the Ordinances passed by the LegCo. They include the High Court Ordinance and
District Court Ordinance. Other important Ordinances, many of which pre-date July 1997 and are based on UK
legislation, are the Limitation Ordinance and the Civil Liability (Contribution) Ordinance. Subsidiary legislation
is made under rule-making powers delegated by the LegCo to, among others, the Chief Executive in his
Executive Council.7 Such subsidiary legislation relevant to this article includes the RHC and RDC. Practice
Directions are issued by the Chief Justice to regulate the practice and procedures of the civil courts (e.g. PD 11.2
on Mareva injunctions and Anton Piller orders). Whilst they are not part of the RHC or RDC and do not have
statutory force, the courts take a hard line with those parties who transgress them.8
As with other common law jurisdictions, case law continues to have a vital role in the Hong Kong civil justice
system. The Hong Kong courts also have an inherent power, by virtue of their function as courts of justice, to
control their own procedures so as to prevent injustice--this power is generally exercised by way of case law.
Finally, Chinese law and custom, comprising Chinese Imperial Codes and local customary law, was applied
by the courts in the absence of a relevant English law prior to 1997. The Basic Law retained only customary
law, which has little application in modern-day *C.J.Q. 113 Hong Kong, being mainly concerned with family
matters and property in the New Territories.9
The courts and tribunals in Hong Kong are listed (in order of precedence) at Fig.1.
Fig.1: The hierarchy of the Hong Kong courts
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Court of Final Appeal

Court of Appeal

Court of First Instance

District Court

Tribunals (Small Claims Tribunal; Lands Tribunal; Labour Tribunal)

The Small Claims Tribunal has exclusive jurisdiction over any monetary claim not exceeding HK$50,00010
founded in contract, quasi-contract or tort although it cannot hear all matters beneath this monetary threshold
(e.g. defamation claims). The District Court has non-exclusive jurisdiction over any monetary claim in contract,
quasi-contract or tort for a sum above HK$50,000 but not exceeding HK$1 million. In addition, all matrimonial
proceedings must be commenced in the District Court in its capacity as the Hong Kong Family Court.11
The Court of First Instance (CFI) is a superior court of record and has unlimited civil jurisdiction. The CFI has
exclusive jurisdiction to hear judicial review and habeas corpus proceedings. It also has appellate jurisdiction in
respect of certain matters dealt with by inferior courts and tribunals. Above the CFI sit the Court of Appeal and
the Court of Final Appeal albeit the High Court comprises both the Court of Appeal and CFI.
As will have already been appreciated, the RHC govern the CFI (and the Court of Appeal) and the RDC governs
the District Court in a manner not unlike that of the division between the old RSC and CCR (indeed, the RHC is
largely derived from the RSC). Whilst there are a considerable number of overlaps between the RHC and
RDC,12 the division between the two sets of courts and their respective rules is policed rigidly.13
*C.J.Q. 114 The Interim Report

Objectives
The Working Party was given the following terms of reference upon its appointment in 2000:
To review the civil rules and procedures of the High Court and to recommend changes thereto with a view to
ensuring and improving access to justice at reasonable cost and speed.14
From the outset, it was accepted that the civil justice system in Hong Kong needed reform. The Working Party's
Interim Report and Consultative Paper (Interim Report ) published on November 21, 200115 quoted
numerous judges, practitioners and academics bemoaning the state of common law systems in general and the
Hong Kong system in particular. Litton J., a former permanent judge of the Court of Final Appeal, commented,
Civil litigation is in a crisis. It has been so for some time.16 A like view was expressed by Seagroatt J:
the problems which gave the impetus to the Woolf proposals also exist here: delay, unwieldy procedure,
excessive use of resources to advance or rebut a claim, and an unacceptable level of cost.17
The Interim Report paid particular attention to Lord Woolf's Access to Justice reports,18 albeit reference was
also made to the First Report of the Ontario Attorney General's Civil Justice Review 19 and the articles of David
Ipp J., then of the Supreme Court of Western Australia now of the New South Wales Court of Appeal.20 The
focus on the CPR was maintained throughout the CJR process. Similarly, the prominence given to the views of
(often overseas) third parties throughout the Interim Report is indicative of the CJR's somewhat derivative
nature. The latter will become all too apparent.
The Working Party identified a number of ailments shared by common law jurisdictions including Hong Kong.
These included, in no particular order: expense; delay; uncertainty; and overly adversarial practices. Further,
there was perceived a lack of equality between wealthy litigants and poorer ones. In addition, the procedural
rules were incomprehensible to many members of the public. Finally, the courts were fragmented with no
one having clear overall responsibility for their administration.21 In addition to these *C.J.Q. 115 problems,
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Hong Kong suffered additional pressures caused by expense, delay, complexity and unrepresented litigants.22
Analysis
The Interim Report acknowledged the view of Professors Genn and Zander, amongst others, that there had been
little practical research into these problems.23 With that in mind, albeit the Working Party accepted the,
widespread consensuss to the nature of the problems afflicting civil justice systems, the Working Party
conducted some useful research of its own:
Expense--the Working Party examined all the High Court bills of cost taxed between July 1, 1999 and June 30,
2000.24 They discovered that many successful plaintiffs in smaller cases paid their legal advisers more in costs
than what they recovered from the defendants in damages.25 The costs in larger claims were almost, but not
quite, as disproportionate. Practitioners (and cynics generally) are unlikely to be surprised by these findings. It
was felt that this discouraged people from pursuing their legitimate rights and also made Hong Kong a less
attractive place in which to do business.26
Delay--the Working Party also examined the courts' records to determine the extent and cause of procedural
delays.27 Litigants, their lawyers and the courts themselves were all found to be at fault. For example,
overrunning trials leading to the postponement of subsequent hearings were just one of the many problems that
needed urgent attention. Complexity--the Interim Report praised the CPR for jettisoning Latin in favour of
functional terms. More importantly, it identified the CPR's overriding objective to deal with cases justly
as crucial to cutting through unnecessary complexity and focusing on what was important to the parties.28
Litigants in person--the increasing number of unrepresented litigants29 created delays because they did not
know what to do or when or how to do it. Worse still, there were unrepresented litigants who abused the system
by bringing unjustified claims. An additional problem for Hong Kong was the pressure such litigants often
placed on the courts' bilingual resources.
*C.J.Q. 116 The Working Party concluded: The faults in the civil justice system are generally seen to be the
product of distortions caused by its adversarial design.30 The principal defect in the adversarial design was
the primacy of the parties (and their lawyers) in the litigation process when compared to the courts' passive
role. The Interim Report, once again, relied heavily on the likes of Mr Justice Ipp and Lord Woolf when
reaching this view.
A consequence of this defect was a psychology of warfare leading to pleadings which obscured rather than
clarified the issues; the misuse of discovery as a deliberate tactic; experts acting as partisan hired guns;
and witness statements being drafted by lawyers so as to serve as adversarial weaponry rather than
representing the witness' own evidence. These faults were thought to be exacerbated by the growth in
litigation, alleged falling standards in the legal profession and inadequate judicial resources.
Lord Woolf himself pointed to the absence of the proper management of litigation as the prime defect of the
RSC and CCR.31 Accordingly, it is of little surprise that the Working Party reached the same view about a civil
justice system that was (and remains) based on those very same rules. Unfortunately, the Working Party shied
away from the next, almost inevitable, question: Why not change the adversarial design? Instead, they
stressed that Common law commentators are not suggesting abandonment of the adversarial system nor its
replacement by an inquisitorial one32 and opined that the problems were in the practice, rather than the
principle, of the adversarial design. It is disappointing that, instead of discussing the pros and cons of the two
systems, the Interim Report timidly quoted others' views to justify not doing so. After all, such reports are
supposed to be the place for such discussions are they not?
Proposals
Having decided that there were defects that needed fixing, the Interim Report identified what it saw as the
desired characteristics of a civil justice system or, rather, it acknowledged what others had previously
identified as these characteristics. In particular, it referred to the (then) Lord Chancellor's Department's March
2001 Emerging Findings Civil Justice Evaluation thus:
The system should be just in the results it delivers.
It should be fair and be seen to be so by:
-- ensuring that litigants have an equal opportunity, regardless of their resources, to - assert or defend their legal
rights;
-- providing every litigant with an adequate opportunity to state his own case and answer his opponent's;
-- treating like cases alike.
It should deal with cases with reasonable speed.
It should be understandable to those who use it.
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It should be responsive to the needs of those who use it.

It should provide as much certainty as the nature of particular cases allows.
It should be effective, adequately resourced and organised.33
Whilst this is a list that few would take issue with, its use demonstrates--again--the Working Party's reliance on
the opinions of others.
In a section headed Coordinated reforms on a broad front, the Working Party acknowledged that any rule
changes would need to be supported by judicial and court administrative staff in sufficient numbers, properly
resourced and given appropriate training34 together with a change in the territory's legal culture. The Working
Party seemed resigned to the difficulty of achieving the latter. In particular, they raised the question To what
extent will reforms to the civil justice system reduce litigation costs? and continued The answer requires
caution.
This caution was, it was argued, necessitated by the difficulty in assessing the costs implications of any reforms
and the fact that procedural changes could not in themselves reduce litigation costs (which are market-driven).
The Interim Report added that, as at the time of its publication, there was little (if any) evidence that the CPR
had reduced costs. Despite these problems, it was felt that changes to the civil justice system aimed at lowering
costs can and should be proposed. The Working Party brushed aside the option of capping or fixing lawyers'
fees and, whilst being prepared to consider court intervention where fees were unreasonable, its primary
approach was towards:
simplifying procedures;
case management powers;
giving clients more information about their own lawyers' and the other side's fees;
encouraging earlier settlements;
greater transparency in the legal professions' rules.
Yet, had not the first four measures been introduced in the CPR? Had they not failed to reduce costs? If so, why
not try something new? The Working Party's reluctance to go too far, already seen in relation to the
adversarial v inquisitorial question, is once more apparent.
Having said this, the Interim Report did set out an extensive catalogue of specific reforms. There were 80
separate Proposals on a wide variety of subjects, which are summarised in Figure 2. They were, however,
largely culled from the CPR rather than developed independently by the Working Party itself, and thus will be
familiar to most readers.
Fig.2: Summary of the proposals in the Interim Report

CPR-style overriding objective and a comprehensive case management approach;

pre-action protocols;

simplify the mode of starting proceedings;

streamline default judgments;

statements of truth in pleadings;

adopt the CPR-style test for summary judgment;

CPR Pt 36-style settlement offers and payments;

introduce a docket system and increase the number of specialist lists;

reform the rules on multi-party claims;

CPR-style disclosure and more pre-action and non-party disclosure;

give the courts more control of lay and expert witnesses;

adopt a more court-centred approach to trials;

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reform the rules on appeals, including a new requirement for leave to appeal;

simplify the taxation of costs;

introduce an element of compulsory mediation or other types of ADR.

*C.J.Q. 118 Arguably, the most important proposals were to adopt the overriding objective and active case
management along the lines of the CPR Pt 1. It was noted that the overriding objective, in particular, was
intended to introduce a new methodology into civil justice. The Interim Report also downplayed Professor
Zander's criticism that greater case management leads to excessive judicial discretion (with greater
inconsistency in judicial decisions as a consequence) and greater costs,35 and declared, It may persuasively be
argued that any disadvantages are clearly outweighed by the benefits of case management. 36 The Working
Party characteristically prayed in aid Ipp J.'s work in support of this declaration.
Just as important as what reforms to implement is how to implement them. The essential choice, as the
Working Party saw it, was between adopting the CPR, subject to minor amendments (Proposal 74 in the Interim
Report ) and limited, specific amendments to the existing RHC (Proposal 75).37 There were believed to be
several advantages to Proposal 74. The drafting work had already been done in England. The simpler English
of the CPR would reduce procedural complexity and could be translated into a simpler Chinese set of rules.
There were also several years of English court decisions, which had resolved contentious and ambiguous points,
to draw upon. Finally, a Hong Kong CPR would symbolise a fresh start and a sweeping change the whole
culture of dispute resolution in the territory.
*C.J.Q. 119 In comparison, amending the RHC would involve a great deal of redrafting. This process would
be complicated by the distinct styles of the CPR and RHC, making any selective borrowing highly
problematic. In addition, there could be serious difficulties over the boundaries between any new rules,
especially on case management, and the older parts of the RHC which would only be resolved by costly
satellite litigation.38
Accordingly, without being too explicit, the Interim Report favoured Proposal 74 over Proposal 75. Whatever
one may think of the CPR, this at least demonstrated a little boldness in the Working Party's thinking when
compared to its caution elsewhere.
The Final Report

The Consultation
A five-month consultation period for the Interim Report began following its publication.39 Almost 100 written
submissions in response were received from organisations and individuals, including the Law Society, Bar
Association and Consumer Council.40 The results of the consultation were covered by the Working Party's
Final Report, which was published on March 3, 2004 and whose object was, to identify the areas where reform
is considered necessary or desirable and to make recommendations to the Chief Justice accordingly.41
The Final Report contained 150 Recommendations, which focused on particular rule changes42 rather than
general aspirations. A perusal of the Final Report reveals a palpable resistance to change and, accordingly, many
of the 80 Proposals in the Interim Report failed to become Recommendations. For example, loosening the
parties'--in reality their lawyers'--control over witnesses and experts in favour of more court control was
described as an attack on, the fundamental common law principle that the parties may adduce relevant
factual evidence and decide what witnesses to call43 . Introducing a no real prospect of success test for
summary judgment in place of the existing no defence test was felt to be of little practical benefit by some and
potentially unjust by others.44 The consultees also opposed the end of Peruvian Guano45 discovery46 for two
reasons--it was felt that the problem in Hong Kong was insufficient rather than excessive discovery and that
CPR-style disclosure would require greater input by senior lawyers.
*C.J.Q. 120 There was, however, support for expanding the scope of pre-action and non-party discovery
beyond personal injury cases. There was also support for simplifying the commencement of proceedings and for
statements of truth in pleadings. In addition, CPR Pt 36-style settlement offers and payments received
considerable backing. Yet, this combination of rejection and acceptance hints at a desire on the part of the
consultees--most of whom were lawyers or other professionals involved in dispute resolution47 --to avoid any
changes that would involve a little more effort or a little less power. One begins to understand the Working
Party's caution in the face of such negative attitudes.
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Amendment not replacement

The most telling consequence of the consultation was the fate of the proposals on the overriding objective and
adopting the CPR. The Bar Association stated,
it is relatively easier for lawyers and judges to adapt to changes by familiarising themselves with specific
amendments as opposed to a wholly new code.
The Law Society added, the reforms can and should be implemented by amending and supplementing the
existing rules. One barristers' chambers argued against Proposal 74 and praised the way in which the RHC had
evolved over 150 years, a siren call for no change if ever there was one. Oddly, no one mooted the
possibility of merging the RHC and RDC, which would have been a less controversial and less expensive
alternative to both the CPR and the status quo.
As a consequence of this response the Final Report spends a great deal of text rejecting the Interim Report's
approach.
First, the Final Report identified four facets to the overriding objective:
It establishes a new procedural code (the new code methodology facet).
It introduces proportionality as a specific basis for deciding procedural issues (the proportionality facet).
Courts will actively manage cases, i.e. making orders of their own initiative, to further the overriding objective
(the active case management facet).
The general case management powers in CPR r.3.1 (the express powers facet).
The Final Report rejected the new code methodology as likely to give rise to misguided arguments and for
undermining the importance of specific provisions which had been refined over the years. Whilst something
akin to CPR r.1.1 could be introduced, it, should be made clear that such a rule *C.J.Q. 121 merely makes
explicit what are implicit objectives which underlie specific rules of the RHC. There was to be no new
code.48
The proportionality of CPR r.1.1(2)(c) was criticised for being ambiguous and for generating uncertainty as
to how it should be applied. The Working Party preferred a proportionality that merely acted as, a reminder
that commonsense notions of reasonableness and a sense of proportion should inform the exercise of a judicial
discretion. It missed the point that proportionality within the CPR informs the courts on such matters as
procedural track allocation and summary judgment.49
The Working Party had much more time for the third and fourth facets. It was keen to consolidate the court's
case management powers and link their exercise to the furtherance of the underlying objectives. Yet, the
Working Party frowned upon unwarranted proactivity by the court. The powers would be exercised to manage
rather than replace the adversarial system.50
As for adopting the CPR, the Final Report repeated the observation that they had not reduced costs in England
and Wales.51 It also alleged that the CPR had not reduced the complexity of the civil justice system in England.
Whilst its plain English language was clearer than that of the RSC and CCR, the CPR itself had become just
as complex and cumbersome as its predecessors. This process was fuelled, in part, by satellite procedural
litigation.52
The Working Party also changed its mind about the amount of work that would be needed to introduce the CPR
compared to amending the RHC. It was implied that the Interim Report had underestimated just how much
retraining (for the judiciary, court staff and the legal professions) would be called for. In addition, the plain
English attractions of the CPR were downplayed, and the ease of translating it into Chinese, when there was
already a serviceable Chinese version of the RHC, was also doubted.
The Final Report concluded its u-turn with a rhetorical question One must therefore ask to what extent such
additional cost would be justified by adopting the CPR.53 Its answer can be found in its decision,
(a) to try, if possible, to avoid the pitfalls revealed by the CPR experience, for example, in respect of measures
carrying frontloaded costs;
(b) to try to form a realistic view of the benefits likely to be achievable under local conditions; and
*C.J.Q. 122 (c) to ask whether such benefits can be achieved with less effort than by introduction of an
entirely new code.54
Accordingly, the Working Party plumped for amending the RHC (and RDC) and specific measures such as CPR
Pt 36 style settlement offers and payments. Ominously, or complacently, the Final Report was silent on the
danger of a conflict between the old rules and new ones.
Whilst there is certainly no consensus of opinion on the CPR, the Working Party's views, as expressed in the
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Final Report, did not reflect a detailed consideration of its merits and defects. Instead, too much reliance was
placed on the views expressed by others, the foremost of which was the need to avoid disruption. Although
the Working Party can be forgiven--a little--for retreating from its original, albeit tentative, support for adopting
the CPR in light of the concerted opposition, this sits uncomfortably with the Final Report 's robust defence of
alternative dispute resolution (ADR) in the face of a seemingly equal amount of opposition among the
consultees.55 We shall return to ADR later.
The Steering Committee and the Ordinance
The Final Report marked the end of the strategic aspect of the CJR process. Thereafter, the discussion moved
onto the tactical aspect of the nuts-and-bolts of specific rule changes. On March 19, 2004, the Chief Justice
announced his acceptance of the 150 Recommendations in the Final Report. At the same time, he established a
Steering Committee, to be chaired by the Chief Judge of the High Court, to focus on the amendments to primary
and subsidiary legislation that would be required to implement the Recommendations. In December 2005, the
Chief Justice also directed that this exercise should apply to both the District Court and the High Court as it
was considered appropriate for the two levels of Court to have the same set of procedures consequent on the
CJR. One lacuna of the previous stages of the CJR was thus filled.
On April 12, 2006, the Steering Committee published its own short Consultation Paper with, as annexes, a draft
Bill; draft Rules of the High Court (Amendment) Rules 2007; and draft High Court Fees (Amendment) Rules
2007. There followed a further three-month consultation period after which the Steering Committee was to
revise and refine the draft legislation in advance of its introduction into the LegCo. The actual Bill was
introduced into the LegCo on April 25, 2007. The Steering Committee produced a further draft RHC and a
Consultation Paper in October 2007. The Bill was passed into law on 30 January 2008 as the Civil Justice
(Miscellaneous Amendments) Ordinance. In July 2008 the draft RHC and RDC were approved by the LegCo.
Finally, with very little (if any) publicity, the judiciary issued a set of *C.J.Q. 123 draft Practice Directions on
the CJR in July, 2008 to the Bar Association and Law Society for consultation and responses (the Law Society
did not initially inform its members of this process). The consultation process had not been completed at the
time of writing.
Following the path trodden by the Working Party, the Steering Committee's Consultation Paper, the LegCo's
Ordinance and the draft RHC all borrow heavily (in terms of general principles and precise terms) from the
CPR. This is especially ironic given the decision not to adopt the CPR wholesale and the Interim Report's
warnings about such borrowing, not least in respect of the boundaries between the new and old rules. As
will be seen very shortly, this cut-and-paste exercise could well lead to the problems that the Working Party
foresaw.
The new rules in brief
The reforms to the RHC reflect the 150 recommendation and can be divided into six key areas:
underlying objectives and case management;
originating process and pleadings;
evidence and trial;
sanctioned offers;
costs;
appeals.
With very few exceptions, the text of the changes matches the equivalent provisions of the CPR almost word-
for-word.56
Underlying objectives and case management
The underlying objectives have been incorporated into a new RHC Ord.1A and the accompanying case
management powers included in a new Ord.1B. The resemblances between the underlying Ord.1A and 1B and
overriding CPR Pt 1 are striking, as shall be seen shortly.
The RSC-style summons for directions has been replaced with case management directions and conferences
similar to those in CPR Pts 28 and 29. Parties can still agree directions and a timetable by way of a consent
summons setting out the directions they wish the court to make but Ord.25 now provides for court-determined
timetables and directions without a hearing by an order nisi which becomes absolute after 14 days unless the
parties seek to vary the order (which can only be granted on sufficient grounds). This process will be familiar
to anyone who has practiced fast-track litigation or attended a multi-track CMC, as will the introduction of CPR
r.3.9-style relief from sanctions.
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*C.J.Q. 124 Originating process and pleadings

The choice of originating proceedings has been reduced from four procedures to two, namely, by writ or
originating summons. The rules do not dictate which types of actions should be commenced under which
procedure and, except for those certain situations, generally leave it for the plaintiff to choose whichever method
he considers appropriate.57
Order 13A introduces a default judgment process for disposal on the papers of undisputed liquidated or
unliquidated money claims modelled on that in CPR Pt 14.
The most significant changes to the rules relating to pleadings require a defendant who denies an allegation to
file a substantive defence stating his reasons for doing so and stating his own version of events where he intends
to put forward a different version from that given by the claimant.58 Amendments to pleadings and requests for
further and better may now be made by the court of its own motion and, moreover, any application for an
amendment or request for further and better particulars made by a party will only be granted if it is necessary
either for the fair disposal of the matter or for savings of costs.59
Further, all original and amended pleadings, witness statements and expert reports must be verified by a
statement of truth similar to that required by CPR Pt 22.
Evidence and trial

Discovery
Intriguingly, whilst the Final Report upheld the consultees' support of the Peruvian Guano test, the new RHC
Ord.24 r.15A enhances the courts power to limit discovery, specify the manner in which discovery is be made,
and direct when inspection of discovered documents should take place. Pre-action and non-party discovery are
no longer limited to personal injury and death claims, mirroring the changes introduced by the CPR.
Witnesses
Again, despite the objections raised in the consultation exercise to such a move, the new RHC Ord.35 r.3A
enables the courts to limit the number of witnesses that a party may call on a particular issue. As in CPR
r.35.5(3), a new RHC Ord.38 r.2A(7)(b) permits a witness, with the leave of the court, to amplify his witness
statement and to give evidence in relation to new matters that have arisen after service of the witness statement
if it considers that there is good reason not to confine the witness to the contents of his statement.
*C.J.Q. 125 Experts
By a new RHC Ord.38 r.4A the court may now order the parties to appoint a single joint expert, over the parties'
objections, if it is satisfied that it is, in the interests of justice to do so after taking into account all the
circumstances of the case. Where the parties are unable to agree on who should be appointed, the court may
select an expert from a list identified by the parties.
RHC Ord.38 r.35A is designed to counter any bias by reiterating that expert witnesses have an overriding duty to
assist the court and Ord.38 r.37C provides that their evidence will not be admissible unless it contains a
declaration that they have read an approved code of conduct and agree to be bound by it. A new--albeit brief--
code of conduct is at appendix D to the RHC.
Sanctioned offers and payments
A new Ord.22 sets out the procedures for both plaintiffs60 and defendants to make offers or payments into court
in whole or part settlement of a claim. The provisions are almost an exact cut-and-paste of the pre-April 2007
version of CPR Pt 36 and, accordingly, has the same requirement for a defendant to make a payment into court
(a sanctioned payment) when his sanctioned offer involves a payment of money to a plaintiff. The Hong
Kong courts have therefore maintained the anti-defendant stance that was removed in the CPR following the UK
Government consultation paper Part 36 of the Civil Procedure Rules: Offers to settle and payments into
court61 which was commissioned after Crouch v King's Healthcare NHS Trust.62
Fortunately RHC Ord.22 rr.23 and 24 maintain that both plaintiffs and defendants may be entitled to their,
costs on the indemnity basis from the latest date on which the [other side] could have accepted the payment or
offer without requiring the leave of the Court
and, interest on those costs at a rate not exceeding 10 per cent above judgment rate if their opponent fails to
accept a reasonable offer or payment. Thus a significant bias in CPR Part 36 is avoided. Sadly, Ord.22 r.24(2)
adopts the punitive enhanced interest payable on the damages awarded to a plaintiff where he or she beats his
or her own offer.
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Costs
Whilst the general principle regarding entitlement to costs, namely, that costs should follow the event,
continues to apply it is no longer accorded dominant status. RHC Ord.62 r.5(1) makes explicit the court's power,
in exercising its discretion as to costs, to take into account the underlying objectives of Ord.1A *C.J.Q. 126 and
to have regard to the conduct of all the parties, as well as any offers of settlement, save where the party could
have protected its position by means of a sanctioned offer or payment.
As under the CPR, the court now has the power to make a summary assessment of the costs of interlocutory
applications if it considers it appropriate to do so.63 The new RHC gives the court the power to make an order
of costs against a non-party to the proceedings if satisfied that it is in the interests of justice to do so. Also, as
was reluctantly conceded in the consultation process, the propriety of extending the wasted costs regime to
cover barristers is now reflected in the RHC.
Appeals
RHC Ord.59 r.2A introduces a fresh procedure on seeking leave to appeal from the Court of Appeal. The Court
of Appeal now has the power to determine the application based on written submissions, without the need for a
separate oral hearing.
The consequences of the CJR
As with the CPR, the most important change brought about the CJR are the concepts of the overriding or
underlying objectives and active case management. The other changes such as to the scope of discovery are
important but peripheral to this issue. The wording of Ord.1A r.1, containing the underlying objectives is
repeated at Figure 3.
Fig.3: RHC Order 1A rule 1

1. Underlying objectives

The underlying objectives of these rules are:

(a) to increase the cost-effectiveness of any practice and procedure to be followed in relation to proceedings
before the court;

(b) to ensure that a case is dealt with as expeditiously as is reasonably practicable;

(c) to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings;

(d) to ensure fairness between the parties;

(e) to facilitate the settlement of disputes; and

(f) to ensure that the resources of the court are distributed fairly.

The similarities between the overriding objective and the underlying objectives are set out in the table at
Fig.4.
Fig.4: Comparison of
underlying and overriding
objectives

Provision RHC CPR

New N/A 1.1(1)

procedural
code

Deal with Ord.1A r. 1.1(1)

cases 2(2)
justly

Cost Ord.1A 1.1 (2)(b)

 Page10

saving r.1(a)

Expedition Ord.1A 1.1 (2)(d)

r.1(b)

Proportion Ord.1A 1.1(2)(c)

ality r.1(c)

Equality Ord.1A 1.1(2)(a)

between r.1(d)
parties

Facilitate Ord.1A 1.4(2)(e)

settlement r.1(e) (f)

Distributio Ord.1A 1.1(2)(e)

n of court r.1(f)
resources

*C.J.Q. 127 The lineage from CPR r.1.1 is quite clear even though there are some differences in wording. For
example, RHC Ord.1A r.2(2) is the equivalent of CPR r.1.1(1) in that it requires the courts to secure the just
resolution of disputes. Also, the CPR speaks of equal footing whereas the RHC refers to fairness between
the parties. It is understood by the authors that these are meant to amount to the same thing, especially as an
earlier draft of the RHC referred to greater equality between the parties. Whether they do is, of course, open to
(potentially costly) debate. CPR r.1.4(2)(e) and (f) are the equivalent of RHC Ord.1A r.1(e)
There is nomention of a new procedural code in RHCOrd.1A, reflecting both the Working Party's and the CJR
consultees' desires. Yet, Ord.1A r.2(1), which is almost a direct copy of CPR r.1.2, states that the court:
shall seek to give effect to the underlying objectiveswhen it--(a) exercises any of its powers or (b)
interprets any of these rules or a practice direction.
Thus, the underlying objectives apply to all situations, not just the new provisions in the RHC. If so, what is the
relationship between the old rules and case law and the new underlying objectives?
This dilemma in relation to the CPR was addressed in Biguzzi v Rank Leisure Plc,64 where Lord Woolf himself
sat as part of the Court of Appeal and stated quite categorically:
The whole purpose of making the CPR a self-contained code was to send the message which now generally
applies. Earlier authorities are no longer generally of any relevance once the CPR applies.
May L.J. modified this all-or-nothing approach in Purdy v Cambran,65 where he commented:
Lord Woolf was not saying that the underlying thought processes of previous decisions should be completely
thrown overboard [but] reference to authorities under the former rules is generally no longer relevant.
*C.J.Q. 128 This has, in essence, been the approach since the introduction of the CPR and the English courts
have been prepared to take pre-CPR authorities into account since Biguzzi. For example, in Carnegie v
Giessen,66 the Court of Appeal applied the Queen's Bench master's Practice Direction 11 in the absence of any
relevant provision in the CPR itself (and urged the authorities to get on with the task of completing the CPR).
Yet, and this needs to be remembered, the default position is that the CPR is a new procedural code and
one must treat with caution decisions made on different wording in the former Rules of the Supreme Court in
the words of H.H. Judge Havelock-Allan Q.C. in SSQ Europe SA v Johann & Backes OHG.67
In the absence of an express default in the RHC and with no guidance in the CJR reports or the draft Practice
Directions, one can only speculate as to what the courts may do in a Biguzzi -style situation. This is not an
academic question as both Ord.25 r.1 and Ord.34 r.2(2) provide for the dismissal of a plaintiff's action for want
of prosecution (the matter in issue in Biguzzi ). Yet, whilst Ord.25 has been amended in the cut-and-paste
exercise, Ord.34 remains unchanged. The Hong Kong courts currently apply the old RSC Birkett v James68 test.
Will they continue to do so? If they do, what difference do the underlying objectives make? If not, would Hong
Kong have a new procedural code by stealth?
It can, of course, be argued that the underlying objectives are mere restatements of the basic principles of
justice which the Hong Kong courts have always applied. Therefore, there will be no conflict between the old
and new rules. Such an argument surely falls because these general principles of justice and fairness have
now been codified into a set of especially chosen words that will be applied consistently in all, and any variety
 Page11

of, situations. That is something very new. Much confusion and wasteful satellite litigation may be the price of
the contradiction between the desire to limit the scope of Ord.1A and using the words that were actually copied
from the CPR.69
The apparent lack of force in the underlying objectives may also be potentially fatal to the case management
powers introduced into the RHC. Order 1A rr.3 and 4 are almost exactly the same as CPR rr.1.3 and 1.4
respectively, obliging the parties to comply with the underlying objectives and the courts to actively manage
cases. The new Ord.1B introduces specific case management powers to augment Ord.1A and draws heavily on
CPR r.3.1 in doing so. A new Ord.2 r.5 introduces CPR r.3.9 almost word-for-word and Ord.25 has been *C.J.Q.
129 renamed Case Management Summons and Directions and now contains text that resembles that of CPR
Pts 26 to 29. The wording is not the problem. It is the spirit that is missing.
The overriding objective is designed to be aspirational. Its purpose is to drive the process of active case
management and give judges the moral authority to wrest control of the dispute from aggressive and wasteful
parties and their lawyers. At the risk of using too many metaphors, CPR r.1.1 is the engine that drives the
wheels and cogs of CPR r.3.1. If the underlying objectives are merely on the same level as the principles
informing the other procedural rules on, say, injunctions, then the process of case management is bereft of its
focus irrespective of the words in Ord.25 or its supporting Practice Directions. Case management may descend
into a purely reactive process, much like passive approach of the courts criticized by the Working Party over
eight years ago.
Just as damaging are the various typos in the RHC, namely the omissions in the new provisions and the
retention of old provisions that are inconsistent with the aim of active case management. The inconsistency
between Ord.25 and Ord.34 has already been mentioned. There is also the failure to amend Ord.14, dealing with
summary judgment, not only in that the old no defence remains but also in that the application is still only
available to plaintiffs. Thus, unmeritorious claims may still wind their happy way to trial--and consume court
time and resources whilst doing so--instead of being despatched as soon as possible.
Another cut-and-paste problem, this time in relation to evidential matters, is the retention of Peruvian Guano
and giving the courts a new power in RHC Ord.24 r.15A to limit discovery with no proper guidance on how it
will be exercised other than for furthering the [underlying] objectives. Also, the retention of interrogatories
sits awkwardly with the courts' enhanced controls over lay witnesses. Finally, in respect of single joint experts,
whilst Ord.38 r.4A makes accommodation for a party's objection to their appointment, there is no provision for
what happens if a party is subsequently unhappy with that single joint expert's report except for the ability to set
aside the appointment--which may be a disproportionate course in some cases.
Further, the resemblance of the new Ord.22 on sanctioned offers and sanctioned payments to the pre-April
2007 CPR Pt 36 has already been mentioned. The old version, with its defects, has been imported into the RHC
because,
the present draft O.22 has undergone two rounds of consultation and, save for some technical and textual
comments, there was no objection in principle.70
Presumably, one if not both of these rounds of consultation preceded the change in England.
*C.J.Q. 130 One could find more problems of this kind, such is the danger of borrowing someone else's
rules, and there is little doubt that more will become apparent when the new RHC is applied by the courts.
Therefore it makes little sense to try to list all of them here. Having said that, there is one more omission that is
worth mentioning. Order 1A r.1(e) requires the courts to facilitate the settlement of disputes, mirroring CPR
r.1.4(2)(e) and (f). Facilitating settlement is commonly understood to include encouraging the parties to try
ADR, usually mediation. The Interim Report put forward six options on promoting ADR--ranging from the
courts having the power to order the parties to engage in ADR to simply encouraging and facilitating purely
voluntary ADR.71 As already mentioned, the Final Report dealt with the concerns raised by consultees about
these proposals in a robust fashion before recommending that the courts the courts should be able to make
adverse costs orders in cases where mediation has been unreasonably refused. These recommendations do not
appear within the RHC, much to the disappointment of many interested parties.72
Having said that, Ord.1A r.1(e) might be a sufficient building block for the Hong Kong courts to develop a
constructive approach to ADR, especially as the judiciary has now produced a draft Practice Direction on
Mediation which adopts the English approach of costs sanctions for recalcitrant parties. If not, the Chief
Executive, Secretary for Justice and Chief Justice have promoted the development of mediation in very clear
terms in recent years. In his Policy Address in October 2007, the Chief Executive stated:
To alleviate conflicts and foster harmony, we will promote the development of mediation services The cross-
sector working group headed by the Secretary for Justice will map out plans to employ mediation more
extensively and effectively in handling higher-end commercial disputes and relatively small-scale local
disputes.
 Page12

The Secretary for Justice's group has subsequently started work on these plans. Consequently, of all the concepts
embodied by the overriding or underlying objectives, the courts' promotion of settlement may prove to be
the most far-reaching.
Conclusion
The aim of the CJR was to improve access to justice at reasonable cost and speed. The means to achieve this
aim were largely borrowed from the CPR. Yet, the CPR is generally acknowledged, not least by many of those
doing the borrowing, to have failed to improve access to justice or reduce litigation costs in England. Worse
still, the provision of the CPR which was designed to *C.J.Q. 131 be at the heart of this aim, namely the
overriding objective in CPR r.1.1, was diluted into the underlying objectives of RHC Ord.1A. If the CPR,
with this robust provision, could not overcome the defects of the adversarial system what hope does the new
RHC have?
This is not just a matter of words. The CPR, as a new procedural code, was intended to change the culture of
litigation in England and Wales. Whilst the results have been decidedly mixed there is little doubt that the
attitude of parties and their lawyers towards dispute resolution has changed in the last 10 years, not least in the
willingness to resort to mediation. How such a change of culture, with the resultant benefits for parties and the
wider community, can be achieved in Hong Kong when the new RHC is avowedly not a new procedural code
is difficult to see. Perhaps no such change is desired. If so, the recent fixation with mediation is hard to explain.
Finally, returning to borrowing, the new RHC is an amalgam of the CPR and the residue of the RSC. The CPR
was intended to supplant its predecessor, not live side-by-side with it. That process took several years, hence the
46 updates, satellite litigation, journal articles, law firm client briefings, books and CPD seminars. It was and
remains a painful and costly process. It was a process guided, however, by the acceptance that the new would
eventually supplant the old. How much more protracted and costly may that process prove to be in Hong
Kong where there is, it seems, no such consensus?
C.J.Q. 2009, 28(1), 111-131

1. The territory's full title is The Hong Kong Special Administrative Region or Hong Kong SAR.

2. There has also been little academic work on the subject. R.M. Wilkinson and J.R. Burton, Reform of the Civil Process in Hong
Kong (1999) is an exception

3. The Working Party's membership is listed in the Interim Report and Consultative Paper (IR), p.1, para.2.

4. Together with the High Court Fees (Amendment) Rules 2008, High Court Suitors' Funds (Amendment) Rules 2008, District Court
Civil Procedure (Fees) (Amendment) Rules 2008, District Court Suitors' Funds (Amendment) Rules 2008 and Lands Tribunal
(Amendment) Rules 2008.

5. The full text of the Basic Law can be found at http://www.info.gov.hk/basic_law/fulltext/ [Accessed November 5, 2008].

6. The LegCo website at http://www.legco.gov.hk/english/index.htm [Accessed November 5, 2008] contains detailed information on
the body's constitution and practices.

7. The Executive Council's role is explained at http://sc.info.gov.hk/TuniS/www.ceo.gov.hk/exco/eng/index.htm [Accessed November 5,

2008] on the Chief Executive's website.

8. In Tong Yi Sang v Fung Law [1993] 2 H.K.C. 665, Kaplan J. stated: Practice directions are intended to be complied with. They are
designed, in consultation with the profession, to ensure the efficient, expeditious and economical dispatch of the court's business.

9. Under s.13 of the New Territories Ordinance the courts may recognise and enforce Chinese customs or customary rights in relation
to land in the New Territories.

10. The HK$ to exchange rate in November 2008 was approximately 11.9:1

11. The Family Court, which is part of the District Court, deals specifically with petitions for divorce or judicial separation and other
ancillary matters under the Matrimonial Causes Ordinance.

12. In essence the differences are in relation to the jurisdiction over judicial appeals, habeas corpus and appeals.

13. For example, under s.41(1) and (2) of the District Court Ordinance, the District Court must transfer claims which are outside its
jurisdiction to the CFI (unless they are counterclaims) or, upon the defendant's application, it may strike out the claim if it appears
that the plaintiff knew or ought to have known that the District Court had no jurisdiction.

14. Working Party, Interim Report and Consultative Paper (Interim Report ) (November 21, 2001), p.1, para.1.
 Page13

15. The Interim Report is also found on the CJR website http://www.civiljustice.gov.hk/ [Accessed November 5, 2008].

16. Interim Report, p.15, para.37.1.

17. Interim Report, p.15, para.37.3

18. Interim Report, p.6, paras 16-17 and subsequently throughout both the Interim and Final Reports.

19. Interim Report, p.7, para.20.

20. Interim Report, p.7, para.19.

21. Interim Report, p.9, para.24.

22. Interim Report, pp.15-16, s.C: Pressures felt by the Hong Kong system.

23. Interim Report, p.8, para.23

24. Interim Report, pp.17-36, s.D: Expense and the Hong Kong Civil Justice System and appendix A, Report on Survey of
Litigation Costs.

25. Interim Report, pp.29-30, para.66.

26. Interim Report, p.40, para.214.

27. Interim Report, pp.37-48, s.E: Delays and the Hong Kong Civil Justice System and appendix C.

28. Interim Report, pp.51-53, paras 134-137.

29. Interim Report, pp.42-70, s.G: Unrepresented Litigants and appendix C, Tables 17-21.

30. Interim Report, p.10, para.26.

31. See Access to Justice Interim Report, Ch.5, The Need for Case Management by the Courts.

32. Interim Report, p.11, para.30.

33. Interim Report, p.9, para.25.

34. Interim Report pp 72-73 section H1--Coordinated reforms on a broad front

35. Interim Report, p.97, paras 246-247

36. Interim Report, p.98, para.250.

37. Interim Report, pp.255-258, s.M: Implementing the Reforms.

38. Interim Report, p.256, para.699.1.

39. Final Report, p.3, para.5 and appendix 1.

40. Final Report, appendix 2.

41. Final Report, p.3, para.7.

42. Final Report, p.3, para.8.

43. Final Report, p.306, para.578

44. Final Report, pp.134-143, s.10: Summary Disposal of Proceedings

45. Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 Q.B.D. 55.

46. Final Report, p.243, para.472.

47. A list of the consultees is found at appendix 2 of the Final Report.

48. The Final Report, p.48, para.96 noted that the New South Wales Courts had grafted an overriding objective onto an existing
 Page14

system. This was, of course, before the passage of the NSW Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005.
A speech on case management in New South Wales by the Honorouble J.J. Spigelman A.C., Chief Justice of New South Wale in
August 2006 provides a useful insight into the intent behind these reforms. See
http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_spigelman220806 [Accessed November 6, 2008].

49. See A. Zuckerman, Civil Procedure--Principles of Practice, paras 1.84-1.88.

50. Final Report, p.55, para.109.

51. Final Report, p.9, para.16.

52. Final Report, p.12, paras 17-18.

53. Final Report, p.16, para.24.

54. Final Report, p.16, para.26.

55. Final Report, pp.423-458, s.29. The Working Party's defence of ADR makes very interesting reading when compared to other parts
of the Final Report and deserves some praise.

56. The full text of the new provisions can be found at http://www.civiljustice.gov.hk/gaz sub leg/rhc.html [Accessed November 6,
2008].

57. RHC Ord.5 r.4(1).

58. RHC Ord.18 r.13.

59. RHC Ord.20 r.8(1A) and Ord.18 r.12(3A) and (3B).

60. The RHC and RDC both refer to plaintiffs rather than claimants and will continue to do so.

61. See the paper at http://www.dca.gov.uk/consult/civilproc36/cp0206.htm [Accessed November 6, 2008].

62. Crouch v King's Healthcare NHS Trust [2005] 1 All E.R. 207.

63. RHC Ord.62 r.9A.

64. Biguzzi v Rank Leisure Plc [1999] 1 W.L.R. 1926.

65. Purdy v Cambran [2000] C.P. Rep. 67; [1999] C.P.L.R. 843.

66. Carnegie v Giessen [2005] EWCA Civ 191; [2005] 1 W.L.R. 2510.

67. SSQ Europe SA v Johann & Backes OHG [2002] 1 Lloyd's Rep. 465.

68. Birkett v James [1978] A.C. 297; Hong Kong Civil Procedure 2008 (The Hong Kong White Book ), para.25/L/1.

69. Interestingly, the Hong Kong Bar Association and Law Society appear to differ in their views on whether English decisions on the
CPR can be looked at for guidance when the courts interpreting the new provisions in the RHC. See [CB(2)1469/07-08(01)] from
the Bar Association and [CB(2)1392/07-08(01)] from the Law Society on the LegCo CJR SubCommittee's website at
http://www.legco.gov.hk/yr07-08/english/hc/sub_com/hs51/papers/hs51_d.htm [Accessed November 6, 2008].

70. See item [CB(2)1373/07-08(02)] from the Judiciary at http://www.legco.gov.hk/yr07-

08/english/hc/sub_com/hs51/papers/hs51_d.htm [Accessed November 6, 2008].

71. Interim Report, pp.232-250, s.K21: Possible Reforms and ADR.

72. ADR Chambers (HK) Ltd expressed its disappointment that none of the ADR related recommendations in the Final Report were
mentioned in the Steering Committee's Consultation Paper on the Draft Bill, in a letter to the Legislative Council Secretariat of June
5, 2007.

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