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This case demonstrates the court’s readiness to give effect to the underlying objectives of the Civil Justice Reform in exercising its powers.
This was an application by the defendants for stay of proceedings instituted by the plaintiff for the dispute between the parties to be referred to arbitration. The only real issue between the parties was whether the dispute which had arisen fell within the scope of the arbitration agreement contained in Clause 15 of the written contract entered into between the parties.
District Judge Mimmie Chan was not satisfied that the language used in the arbitration clause was clear enough to exclude the present dispute from the scope of the clause, but in any event, she ruled that there was a good prima facie case that an arbitration clause existed to bind the parties to refer to arbitration a dispute such as the one before the court. The court failed to see how the arbitration clause was incapable of being performed, and ordered a stay of proceedings.
On the basis that the plaintiff was on notice of the defendants’ counterclaim and their wish to arbitrate the matter when instituting these proceedings, the court allowed the defendants’ claim for costs on an indemnity basis, taking into account the underlying objectives of the Civil Justice Reform:
“When the Plaintiff instituted these proceedings on 2 October 2009, they had clear notice that the Defendants dispute its claim and have a counterclaim, and that the Defendants wish to arbitrate in accordance with the arbitration agreement which they had freely contracted for. These proceedings were instituted in knowing breach of Clause 15. With the introduction of the Civil Justice Reform and the emphases on cost efficiency, procedural economy and fair distribution of the resources for the Court, I consider that this is an appropriate case for ordering that the costs of the institution of these proceedings and of the application for stay should be paid by the Plaintiff on an indemnity basis, with certificate for Counsel.”
CJR Alerter: For full analysis of this case subscribe to the Sweet & Maxwell CJR Alerter, produced in association with Clifford Chance.
This article is available in [2009] 24 CJRA.
A contract entered into between the plaintiff and the defendant contained a usual clause for submission of disputes to arbitration.
Despite the existence of the arbitration agreement, the plaintiff commenced legal proceedings against the defendant. A statement of claim was filed. The defendant did not apply to stay the proceedings in favour of arbitration, but instead, filed a defence and counterclaim. The plaintiff also filed a reply and defence to the counterclaim.
Following the close of pleadings, the plaintiff applied to the court to stay the proceedings, and the Honourable Mr. Justice Saunder held that it had power to grant a stay in favour of arbitration in the present case, by reasons of its inherent jurisdiction and its general case management powers under O.1A and O.1B.
CJR Alerter: For full analysis of this case subscribe to the Sweet & Maxwell CJR Alerter, produced in association with Clifford Chance.
This article is available in [2009] 23 CJRA.
In Mediation (Part 1) in the last issue of the CJR Alerter, we provided an overview of the role of mediation in the administration of justice under the CJR legislation. In this issue, we will look at the application of Practice Direction 31 (“PD 31“) and the costs consequences that parties to litigation may face for unreasonably refusing to mediate.
CJR Alerter: For full analysis of the application of PD31 subscribe to the Sweet & Maxwell CJR Alerter, produced in association with Clifford Chance.
This article is available in [2009] 6 CJRA.
One of the underlying objectives under O.1A is to facilitate the settlement of disputes. The Court has a duty as part of its active case management to further that objective by encouraging the parties to use an alternative dispute resolution procedure (“ADR”) if the Court considers that appropriate, as well as facilitating the use of such a procedure (the “Duty”). The parties to any proceedings and their legal representatives are also under a duty to assist the Court to further the underlying objectives.
CJR Alerter: For full analysis of mediation under O.1A subscribe to the Sweet & Maxwell CJR Alerter, produced in association with Clifford Chance.
This article is available in [2009] 5 CJRA.
Andrew Aglionby, Partner and Head of International Arbitration in the Asia-Pacific Region, at Baker & McKenzie, gives his views on the use of the International Chamber of Commerce (ICC) in Hong Kong, and what that means for the region.
Baker & McKenzie律師事務所合夥人暨亞太區國際仲裁業務主管Andrew Aglionby，將於本影片中發表個人見解，講述就國際商會在香港之功能，以及中心對亞太區重要之處。
Baker & McKenzie律师事务所合伙人暨亚太区国际仲裁业务主管Andrew Aglionby，将于本影片中犮表个人见解，讲述国际商会在香港的功能，以及中心对亚太区重要之处。
