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On Tuesday January 26th Ivy Ong-Wood from Hong Kong’s The Standard, interviewed Dr Raymond Leung, General Editor of the Hong Kong Mediation Handbook.
The Standard - Raymond Leung Interview
The following link opens a copy of the article (A good compromise)
The Standard: Interview with Raymond Leung
For more information on the Hong Kong Mediation Handbook, please visit the Sweet & Maxwell website at www.sweetandmaxwell.com.hk
In this case, the respondents applied for leave to appeal against the order of the Honourable Madam Justice Kwan, who dismissed their application to strike out the misfeasance proceedings brought against them by the liquidators for want of prosecution or abuse of process. Two issues relating to the Civil Justice Reform arose.
Firstly, the test for leave to appeal under section 14AA of the High Court Ordinance (Cap.4) was considered by the court. The Honourable Kwan JA adopted the view expressed by the Honourable Madam Justice Chu in Wynn Resorts (Macau) SA v Mong Henry (unrep., HCA 192/2009, [2009] HKEC 1293): “To meet the reasonable prospect of success test, an applicant is required to show more than just an arguable case, but an appeal that has merits and ought to be heard, although he does not have to demonstrate that the appeal will probably succeed.”
Secondly, it was argued by the respondents that the principles in Birkett v James [1978] AC 297 for dismissal of action for want of prosecution would need to be adjusted in the post-CJR era. In support of this argument, the respondents relied on the judgment of the Honourable Mr Justice Reyes in Nanjing Iron & Steel Group International Trade Co Ltd v Stx Pan Ocean Co Ltd (unrep., HCAJ 177/2006, [2009] HKEC 1492), in which the court applied the underlying objective in O. 1A r. 1(b) (Rules of the High Court (Cap.4A – Sub. Leg.)) and regarded that as sufficient cause to strike out a claim under the new regime. The Honourable Madam Justice Kwan indicated that the issue as to “how the principles of Birkett v James should be applied in the post-CJR era is a matter of importance to warrant consideration by the Court of Appeal“, and granted leave to appeal to the respondents.
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] 19 CJRA.
The plaintiff made a late application two days before the assessment of damage hearing to file a witness statement and to give further discovery out of time.
Master Marlene Ng chastised the plaintiff for such late application and said that “last minute applications fly in the face of the underlying objectives of reasonable expedition, procedural economy, costs-effectiveness and fairness between the parties“. Master Marlene Ng further stressed that after the implementation of the Civil Justice Reform, if there is any last minute application, the court will expect a full account for the lateness of the application, and expect the applicant to place before the court full justification as to why the application should be entertained at all at such late stage notwithstanding the underlying objectives. The judgment provides guidance on the expectation of the court regarding efficient handling of cases and the importance of adherence to the prescribed timetable.
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] 18 CJRA.
Section 21M HCO (Cap 4), and the related provision of s 21N HCO, were introduced under the Civil Justice Reform (CJR) in April 2009. The new provisions have given the Hong Kong courts the power to grant interim relief, including interim injunctions, in Hong Kong in aid of substantive proceedings commenced abroad, even where there are no such proceedings on foot in Hong Kong.
In making the recommendations that led to the drafting and enactment of the section, the CJR Working Party considered the jurisprudence relating to s 25 Civil Jurisdiction and Judgments Act 1982 (“CJJA 1982”), which has now been extended in England and Wales to apply to non-Convention countries, and which is similar in terms to ss 21M and 21N HCO. It concluded amongst other things, and relying primarily on a passage of Morritt LJ from Refco Inc v Eastern Trading Co [1999] 1 Lloyd’s Rep 159, that the court’s proper approach was to first consider “whether the facts would warrant the relief sought if the substantive proceedings were brought in England” before moving on to ask whether it is “inexpedient” to grant the relief sought (para 358(a) Final Report of the CJR Working Party).
This alerter addresses how this test may be applied in relation to applications for interlocutory injunctions under s 21M HCO, and in particular the question of whether and in what situations the court will inquire into the merits of the plaintiff’s case. We hope to demonstrate two things: First, while the approach set out above is by and large correct, English case law and commentary shows that the English courts have, when acting as an ancillary court, only considered the underlying merits of an action in two specific situations; secondly, that in any event there is no good reason – particularly in relation to such applications – to interpret s 21M HCO as requiring an inquiry into the merits in all cases where an interim injunction is sought under the provision.
CJR Alerter: For full view of this article subscribe to the Sweet & Maxwell CJR Alerter, produced in association with Clifford Chance.
This article is available in [2009] 17 CJRA.
In this case, Registrar Au-Yeung considered how the parties should approach case management under the Civil Justice Reform (CJR), when the parties have also agreed to attempt mediation. In doing so, Registrar Au-Yeung emphasized one of the underlying objectives set out in O.1A r.1(b) of the Rules of the High Court (Cap.4A, Sub. Leg.), namely to ensure that a case is dealt with as expeditiously as is reasonably practicable. Registrar Au-Yeung remarked: “I wish to restate the court’s position. We do encourage parties to go ahead with mediation, but that does not necessarily mean all court proceedings, including milestone events, have to be stayed. What we do is that we take into account the time needed for mediation and may give leave to set down for trial if there are no outstanding directions. This will ensure that mediation and, if necessary, litigation, will proceed at reasonable speed. So once we fix a CMC and decline to move that date, parties are expected to comply with all directions and PD5.2.”
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] 13 CJRA.
There have not yet been any substantive cases in Hong Kong dealing with Statements of Truth. As we highlighted in [2009] 7 CJRA, however, it is important for practitioners to stay alert to useful and important decisions under equivalent provisions in other jurisdictions, in particular the UK. In this issue we consider the UK decision of KJM Superbikes Ltd v Hinton [2008] EWCA Civ 1280 in the context of statements of truth in Hong Kong, and application for leave to bring proceedings for contempt of court.
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] 11 CJRA.
This case deals with an application for directions to adduce expert evidence on liability. In this case, Registrar Madam Queeny Au-Yeung highlighted the general principles adopted by the court following the Civil Justice Reform when giving directions for expert evidence.
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] 10 CJRA.
Further to her decision in Lee Sau Fat v FH Security Services Co Ltd (unrep., DCEC 1720/2006, 120/2007, DCPI 1471/2008, [2009] HKEC 1085) (discussed in [2009] 8 CJRA), Madam Judge Marlene Ng again expressed her dismay in the present case, in respect of what she perceived as the parties’ attempt to usurp the court’s discretion to determine how expert medical evidence should be obtained and presented. In this case, she felt that the parties had sought to force the court’s hands by presenting the court with solo expert medical reports, obtained without prior leave of the court. In her concluding remarks, Madam Judge Marlene Ng commented that she hoped that the changes brought into effect by the Civil Justice Reform would improve the way parties litigated their claims going forward.
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] 10 CJRA.
The CJR has introduced changes updating the legislation dealing with vexatious litigants. In its Final Report, the CJR Working Party recommended that s.27 of the High Court Ordinance (Cap.4) (“HCO”) should be updated to include enhancements equivalent to those introduced by s.42 of the UK Supreme Court Act 1981, and that the court should be given an additional statutory power to control vexatious litigants upon the application of any person directly affected by the vexatious conduct. We discuss below the changes in legislation that have been brought into effect, dealing with the need for greater flexibility over the control of vexatious litigants.
CJR Alerter: For full analysis of the CJR’s changes updating the legislation dealing with vexatious litigants subscribe to the Sweet & Maxwell CJR Alerter, produced in association with Clifford Chance.
This article is available in [2009] 9 CJRA.
There has been much written in recent months on the Civil Justice Reform (”CJR”) legislation which came into effect on 2 April 2009 and which has implemented changes to the existing court rules and procedures. Certainly the changes are significant in that they demonstrate a new philosophy behind the management of litigation proceedings in Hong Kong and, in particular, the court’s role in those proceedings. Nonetheless, many of the substantive elements of the Rules of the High Court (Cap.4A, Sub.Leg.) (”RHC”) remain unchanged. This alerter highlights in brief, those parts of the Hong Kong court procedure which have not changed with the implementation of the CJR.
CJR Alerter: For full analysis of what has not changed since CJR came into effect subscribe to the Sweet & Maxwell CJR Alerter, produced in association with Clifford Chance.
This article is available in [2009] 9 CJRA.
