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PRACTICE DIRECTION 11

By Fred Berry,2014-05-06 08:58
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PRACTICE DIRECTION 11

    PRACTICE DIRECTION 11.3

    HIGH COURT AND DISTRICT COURT

    RESTRICTED APPLICATION

    AND RESTRICTED PROCEEDINGS ORDERS

A Scope of This Practice Direction

1. This Practice Direction, which applies to all civil cases in the

    High Court and the District Court, is made following and on the basis of

    the decision of the Court of Final Appeal in Ng Yat Chi v Max Share Ltd & Anr (FACV 5 of 2004, 20 January 2005) concerning measures in

    response to persistent abuse of process by litigants. Reference should be

    made to that decision in applying this Practice Direction. A copy of the

    Order made in that case is annexed hereto as Appendix A for guidance.

2. This Practice Direction deals with:

    (1) “Grepe v Loam order” which prohibit the relevant litigants

    from making further applications to the Court in existing

    proceedings without the leave of a Judge. Such orders

    should be referred to as “restricted application orders”

    (“RAOs”).

    (2) Extended Grepe v Loam order” which prohibit the relevant

    litigants from commencing, without the leave of a Judge,

    fresh proceedings which abuse the Court’s process by

    seeking to re-litigate proceedings which have already

    concluded. Such orders should be referred to as “restricted

    proceedings orders” (“RPOs”).

    RAOs and RPOs are together referred to as “restrictive orders”.

3. The common law power to make RAOs and RPOs should be

    distinguished from the statutory power to make restrictive orders granted to

    the Court under the High Court Ordinance (Cap. 4) (HCO), sections 27 and 27A. This Practice Direction concerns the Courts inherent jurisdiction at common law to make RAOs and RPOs to prevent its procedures from

    being abused. The exercise of the statutory power under HCO, sections 27

    and 27A is regulated by those provisions and Rules of the High Court,

    Order 32A.

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4. In this Practice Direction, a litigant who is subject to an RAO

    or to an RPO is referred to as an “RAO litigant” or an “RPO litigant” as

    the case may be.

B RAOs

    (1) When Made

5. In accordance with Ng Yat Chi, an RAO should only be made

    if the person to be subjected to the order has abused, and is likely to

    continue abusing, the Court’s process by persistently making unwarranted

    applications to the Court in certain existing proceedings, whether before

    or after judgment, in circumstances where an RAO would be a

    proportionate response.

    (2) By Whom Made

6. An RAO is made by a Judge of the Court of First Instance in

    respect of proceedings in the Court of First Instance. An RAO may also

    be made by a District Court Judge in respect of District Court

    proceedings. The Court of Appeal may make an RAO not only in respect

    of applications before itself but also in relation to proceedings before the

    Court of First Instance and / or the District Court.

    (3) Contents of an RAO

7. Subject to any modifications or additions which may be

    necessary or desirable, the RAO should provide as follows:

    (1) that the RAO litigant is prohibited from making any further

    application to the Court in the proceedings specified,

    whether before or after judgment, without the leave of a

    Judge (who should be designated in the order itself) being

    first obtained;

    (2) that all applications for leave to issue an application in the

    specified proceedings (“RAO leave applications”) must be

    made in writing to the designated Judge (and not to any other

    Judge or to a Master) without giving notice of the

    application to the intended respondent;

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    (3) that in the event that no Judge designated in the order is

    available to deal with the RAO leave application, the same

    should be dealt with by another Judge designated by the

    Chief Judge of the High Court or the Chief District Judge, as

    the case may be;

    (4) that all RAO leave applications and all matters ancillary

    thereto should be dealt with on the papers and without any

    oral hearing unless the designated Judge otherwise directs;

    (5) that where leave to make the substantive application is

    granted, service of the order giving leave must accompany

    service of the substantive application in question, which

    should be heard by a Judge and not a Master unless the

    Judge otherwise directs;

    (6) that if, contrary to the RAO, the RAO litigant seeks to issue

    an application in the specified proceedings without prior

    leave of the Court, the purported application should

    forthwith be referred by the Registry to a Master for such

    application to be dismissed in accordance with the RAO; and

    (7) that if, contrary to the RAO, the RAO litigant purports to

    serve on the respondent any application in the specified

    proceedings without at the same time serving on the

    respondent a copy of an order giving leave to issue such

    application, such application should automatically stand

    dismissed, so that neither the respondent nor the Court

    would be required to take any steps in response.

C RPOs

    (1) When Made

8. In accordance with Ng Yat Chi, an RPO should only be made

    if the person to be subjected to the order has abused, and is likely to

    continue abusing, the Court’s process by seeking persistently to re-litigate

    in fresh proceedings, without viable legal grounds, matters which have

    already been determined by the Court, in circumstances where an RPO

    would be a proportionate response.

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    (2) By Whom Made

9. An RPO is made by a Judge of the Court of First Instance in

    respect of proceedings in the Court of First Instance and, if appropriate,

    proceedings involving the same subject-matter in the District Court. An

    RPO may also be made by a District Court Judge in respect of District

    Court proceedings. The Court of Appeal may make an RPO in relation to

    proceedings in the Court of First Instance and / or the District Court.

    (3) Contents of an RPO

10. Subject to any modifications or additions which may be

    necessary or desirable, the RPO should provide as follows:

    (1) that the RPO litigant is prohibited from commencing any

    fresh proceedings by whatever originating process (“fresh

    proceedings”) concerning any matters involving or relating

    to or touching upon or leading to the concluded proceedings

    specified in the RPO without the leave of a Judge (who

    should be designated in the order itself) being first obtained;

    (2) that all applications for leave to issue fresh proceedings

    covered or which may be covered by the RPO (“RPO leave

    applications”) must be made in writing to a designated Judge

    (and not to any other Judge or to a Master) enclosing a copy

    of the draft document by which the fresh proceedings are

    intended to be commenced;

    (3) that at least 7 days before filing an RPO leave application,

    the RPO litigant should notify in writing each intended

    defendant of his intention to make such application,

    enclosing a copy of the aforesaid draft document by which

    the fresh proceedings are intended to be commenced, and if a

    response is received by the applicant, that he should file a

    copy thereof with his RPO leave application; and that, in any

    event, each intended defendant should be entitled, but under

    no obligation, to place before the Court any desired

    representations regarding any such intended proceedings of

    which he has notice;

    (4) that in the event that no Judge designated in the order is

    available to hear the RPO leave application, the same should

    be dealt with by another Judge designated by the Chief

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    Judge of the High Court or the Chief District Judge, as the

    case may be; and

    (5) that all RPO leave applications and all matters ancillary

    thereto should be dealt with on the papers and without any

    oral hearing unless the designated Judge otherwise directs.

    (4) Disposal of RPO Leave Applications and Fresh

    Proceedings Begun Without Leave

11. In disposing of RPO leave applications, the designated Judge

    may give weight to any failure by the RPO litigant to give notice of the

    intended fresh proceedings to each intended defendant and should in each

    case decide either:

    (1) that the proceedings fall outside the terms of the RPO and

    direct that leave is not required; or

    (2) that the proceedings fall within the class defined by the RPO

    and refuse leave to commence the fresh proceedings in

    question; or

    (3) that although the proceedings fall within the class defined by

    the RPO, they should nevertheless be permitted to proceed.

12. If the RPO litigant should issue fresh proceedings covered or

    which may be covered by the RPO without first seeking the Court’s leave:

    (1) and if such fact should come to the notice of the Registry or

    to the notice of any Master or any Judge, the Registry,

    Master or Judge in question should refer those proceedings

    to the designated Judge for a decision as to whether they

    should be permitted to continue or be dismissed;

    (2) upon such fresh proceedings coming to the notice of the

    designated Judge, they should either be allowed to continue

    or be dismissed as set out in paragraph 11 above; and

    (3) whether or not the proceedings are brought to the notice of

    the designated or some other Judge, if a defendant is served

    with such proceedings unaccompanied by either an order

    giving leave to proceed or a direction that leave is not

    required, such defendant should be entitled to make no

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    response pending notification of the Court’s decision in

    relation to those proceedings; and, in so far as necessary,

    time for acknowledging service or for otherwise responding

    to such proceedings should be deemed extended accordingly.

    13. Notice of the Judge’s decision disposing of the RPO application or giving directions in relation to proceedings commenced

    without prior leave should be given by the Court to the RPO litigant and

    to each defendant named in the fresh proceedings.

D The Interpretation of RAOs and RPOs

14. Attention is drawn to paragraph 121 of Ng Yat Chi where, in

    relation to the interpretation and application of RAOs and RPOs, the

    Court has stated that regard should be had to the substance of the

    proposed applications or proceedings and not merely to their form.

    Accordingly:

    (1) Collateral attacks made outside the proceedings covered by

    an RAO may in substance be merely a device to re-open

    without justification some matter already determined in

    those proceedings or otherwise an abuse of the process in

    respect of those proceedings and, if so, may be treated as

    applications within those proceedings, caught by the RAO.

    (2) Where new proposed proceedings involve new elements or

    parties not found in the concluded proceedings referred to in

    the RPO, but are nevertheless in substance merely an

    unjustified attempt to re-litigate those proceedings, such

    proposed proceedings may be treated as falling within the

    RPO.

15. Attention is drawn to paragraph 122 of Ng Yat Chi regarding

    how the Court should deal with questions concerning disqualification of

    Judges.

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    E Appeals in High Court Proceedings

    (1) Right of Appeal Against RAOs and RPOs

16. Litigants in the High Court who are subject to a restrictive

    order have a right of appeal from the Court of First Instance to the Court

    of Appeal:

    (1) against the making of the restrictive order; and

    (2) (subject to any order made by the Court of Appeal restricting

    future appeals referred to in the next paragraph) against the

    refusal of an RAO or RPO leave application made pursuant

    to such restrictive order.

Note in contrast that, where the Court of First Instance refuses leave to

    institute or continue proceedings to a person who is subject to a restrictive

    order made under to HCO, section 27(1), there is no automatic right of

    appeal to the Court of Appeal. Leave to appeal against the refusal of leave

    must first be obtained from the Court of First Instance. See HCO,

    section 27A(2).

    (2) Power of Court of Appeal to Restrict Abuse of Appellate

    Process

17. Where on the hearing of an appeal the Court of Appeal is

    satisfied that an RAO litigant or RPO litigant has abused the appellate

    process by bringing an appeal or appeals, whether against the original

    restrictive order, or against a subsequent refusal of an RAO or RPO leave

    application made pursuant to such restrictive order, the Court of Appeal

    may make an order restricting future appeals and direct:

    (1) that the RAO litigant or RPO litigant should thenceforth not

    be permitted to bring any appeal in respect of any decision of

    a Judge at first instance pursuant to, relating to or in

    connection with the RAO or RPO unless, at the same time as

    giving the decision in question, the Judge has granted the

    said litigant leave to appeal to the Court of Appeal; and

    (2) that unless such leave to appeal is given, the Judge’s

    decision, including his refusal to grant leave to appeal to the

    Court of Appeal, should be final.

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    18. Where an order restricting future appeals has been made by

    the Court of Appeal:

    (1) where the first instance Judge dismisses an RAO or RPO

    leave application, a direction should be given as to whether

    leave to appeal is granted or refused; and

    (2) leave to appeal may be granted by the Judge at first instance

    if satisfied that an appeal would not be an abuse of the

    appellate process, for example, where the Judge considers

    that reasonably arguable grounds may exist for challenging

    on appeal his decision to refuse an RAO or RPO leave

    application.

F Appeals in District Court Proceedings

    (1) Applications for Leave to Appeal to the Court of Appeal

19. Litigants in the District Court who are subject to an RAO or

    an RPO:

    (1) require leave to appeal to the Court of Appeal in accordance

    with section 63(1) of the District Court Ordinance (Cap. 336)

    against the making of the restrictive order and against refusal

    of an RAO or RPO leave application made pursuant to such

    restrictive order; and

    (2) (subject to any order made by the Court of Appeal restricting

    future applications for leave to appeal referred to in

    paragraph 24 below) in the event that leave to appeal is

    refused by the District Court under Order 58, rule 2(4) or if

    the Court of Appeal allows an application for leave to appeal

    to be made directly to itself under Order 58, rule 2(6), such

    litigants may apply to the Court of Appeal for leave to

    appeal against the aforesaid orders.

    (2) Procedure on First Application for Leave to Appeal

    Against Restrictive Order

20. On the first occasion that an RAO litigant or RPO litigant

    makes an application to the District Court for leave to appeal to the Court

    of Appeal against the original restrictive order, such application shall be

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    heard by the District Court inter partes and, where such litigant seeks for

    the first time to apply to the Court of Appeal for leave to appeal, that

    application shall be heard by the Court of Appeal and its refusal of leave

    is final.

    (3) Applications for Leave to Appeal Against Restrictive

    Order After Leave Has Already Been Refused

21. If leave to appeal against the original restrictive order has been

    finally refused, but the litigant nevertheless purports to apply afresh either

    to the District Court or to the Court of Appeal for such leave to appeal:

    (1) such application shall be treated as one made ex parte in

    writing without notice to the other side and may be

    summarily dismissed or otherwise dealt with on the papers

    without any oral hearing; and

    (2) the respondent to such application shall be entitled to ignore

    such renewed application for leave to appeal unless and until

    the Court issues directions to the contrary.

    (4) Procedure for First Application for Leave to Appeal

    Against Refusal of RAO or RPO Leave Application

22. On the first occasion that an RAO litigant or RPO litigant

    makes an application to the District Court for leave to appeal to the Court

    of Appeal against a refusal of an RAO or RPO leave application, such

    application for leave to appeal shall be heard by the District Court inter

    partes and, where such litigant seeks for the first time to apply to the

    Court of Appeal for leave to appeal, that application shall be heard by the

    Court of Appeal and its refusal of leave is final.

    (5) Procedure on a Subsequent Application for Leave to

    Appeal Against Refusal of RAO or RPO Leave

    Application

23. Where a previous application for leave to appeal to the Court

    of Appeal against refusal of an RAO or RPO leave application has been

    unsuccessful before the District Court and, if applicable, also before the

    Court of Appeal, any subsequent application for such leave to appeal

    against a subsequent RAO or RPO leave application shall be made to the

    District Court or, subject to the next paragraph, made to the Court of

    Appeal, ex parte in writing without giving notice to the other side, and

     - 10 - may be summarily dismissed or otherwise dealt with on the papers

    without a hearing.

    (6) Power of Court of Appeal to Restrict Abuse of Appellate

    Process

24. The Court of Appeal may at any stage, if satisfied that an

    RAO litigant or an RPO litigant has abused the appellate process by

    bringing one or more applications before the Court of Appeal for leave to

    appeal:

    (1) against the original restrictive order; and / or

    (2) against refusal of an RAO and / or an RPO leave

    application;

it may make an order directing that any future refusal by the District

    Court of leave to appeal pursuant to, relating to or in connection with the

    RAO or RPO in question should be final and that no renewed applications

    for leave to appeal to the Court of Appeal should be entertained.

G Ancillary Directions and Restrictive Orders Made on the

    Court's Own Motion

25. Attention is drawn to paragraphs 102 and 111 of Ng Yat Chi

    where the Court of Final Appeal noted that this is an area of developing

    jurisprudence and acknowledged the power of the Courts to give ancillary

    directions aimed at increasing the effectiveness of RAOs and RPOs.

26. Attention is drawn to paragraphs 17 and 111 of Ng Yat Chi

    where it is noted that it may sometimes be appropriate for the Court to act

    on its own motion in initiating consideration of a restrictive order.

H Challenges to Decision to Give RAO or RPO Leave

27. Attention is drawn to paragraph 88 of Ng Yat Chi where it is

    noted that a decision to grant RPO leave is necessarily without prejudice

    to any inter partes application that the defendant may wish to mount to

    strike out the proceedings or to set aside the leave, as appropriate. Where

    the Court has granted RAO or RPO leave and where the respondent or

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