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Amended PRACTICE DIRECTION - 5

By Diane Jones,2014-05-07 13:35
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Amended PRACTICE DIRECTION - 5

    PRACTICE DIRECTION 5.4

PREPARATION OF INTERLOCUTORY SUMMONSES

    AND APPEALS TO JUDGE IN CHAMBERS FOR HEARING

    Part A

(1) Contested Interlocutory Summonses Listed Before a

    Judge and Appeals to Judge in Chambers and Contested

    Interlocutory Summonses Listed Before a Master for

    More Than 30 Minutes

    1. The directions in paragraphs 2 to 12 hereinbelow must be

    complied with for:

(1) all contested interlocutory summonses listed before a Judge

    for 30 minutes or more, except interlocutory injunctions

    (which will continue to be governed by Practice

    Direction 5.3), and appeals to Judge in chambers; and

(2) all contested interlocutory summonses listed for more than

    30 minutes before a Master for oral hearing or disposal on

    the papers.

(2) Jointly Prepared Hearing Bundles, Dramatis Personae

    and Chronology of Events

    2. There should be before the Court:

(1) the following paginated hearing bundles:

    (a) one containing copies of the court documents (pleadings,

    summons, notice of appeal, order for directions,

    affidavits / affirmations, etc.) relevant to the particular

    application or appeal;

    (b) one containing copies of the exhibits relevant to the

    particular application or appeal (save and except

    correspondence between the parties and / or their

    solicitors);

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    (c) one containing copies of inter partes correspondence

    relevant to the particular application or appeal (if any);

(2) The hearing bundles must be paged consecutively on the top

    right-hand corner;

(3) where a number of companies / firms / individuals may be

    mentioned in the course of the submissions, a dramatis

    personae; and

(4) a chronology of the relevant events cross referenced to the

    hearing bundles.

    3. (1) The Court expects the parties to be able to agree on and to

    jointly prepare the hearing bundles, dramatis personae and

    chronology.

     (2) The proper way to deal with a disagreement as to the

    inclusion of a document is not for the parties to go about

    preparing different hearing bundles but for such document to

    be inserted in the hearing bundles with the objection to its

    inclusion noted in the index.

     (3) In the exceptional case where such agreement cannot be

    reached, it shall be the duty of the applicant or the appellant

    to prepare the same. If a party refuses to agree the hearing

    bundles without justification and if such refusal results in any

    wastage of costs, that party may be penalized in costs

    irrespective of whether or not it is the party who succeeds on

    the application or appeal.

     (4) Unless otherwise agreed with the other parties, the applicant

    or appellant shall have the responsibility for the physical

    compilation of the hearing bundles, dramatis personae and

    chronology.

     (5) The costs of making copies of the hearing bundles, dramatis

    personae and chronology is and will be dealt with as part of

    the costs of the application or appeal at the end of the hearing.

    In providing the other parties with their own sets of the

    hearing bundles, dramatis personae and chronology, the

    applicant or appellant must not impose any condition of

    prepayment of photocopying charges.

     - 3 -

    4. Hearing bundles should contain only the documents relevant

    to the particular application or appeal and to which the parties will need

    to refer in the course of their respective submissions. More particularly,

    they should be prepared as follows:

     (1) Bundle of Court Documents

     (a) Court documents need not be arranged in the

    chronological order in which they were filed.

     (b) The following order is generally more sensible and

    helpful to the Court:

     (i) the pleadings;

     (ii) the summons;

     (iii) the order for directions for the preparation of the

    summons for hearing;

     (iv) in the case of an appeal, the order made by the

    Master, the written reasons given by the Master (if

    any) and the notice of appeal; and

     (v) the affidavits / affirmations.

     The above order should, where possible, be adopted and,

    where necessary, be adapted to suit the specific

    application or appeal. For instance, the lists of

    documents can be put after the pleadings in a specific

    discovery application.

    (c) There is no need to put in the generally indorsed writ of

    summons (if any) unless the contents of the general

    indorsement are relevant to the application or appeal. It

    is usually sufficient for the Court to see just the

    Statement of Claim.

    (d) Only the latest version of each pleading should be

    included.

    (e) Where a pleading has been amended more than once,

    the copy in the hearing bundle should be properly

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    coloured unless the precise timing and sequence in

    which the amendments were made are irrelevant to the

    application or appeal.

(f) Further and Better Particulars of a pleading should be

    placed immediately after the pleading to which it relates.

    There is no need to include the Request for Further and

    Better Particulars.

(g) Summonses and orders for extension of time for the

    filing and service of evidence in support of or in

    opposition to the application or appeal are rarely

    relevant at the substantive hearing and should be

    omitted.

    (2) Bundle of Exhibits (excluding correspondence between the

    parties and their solicitors)

     (a) Solicitors should use their discretion in copying exhibits.

    Only exhibits which go to facts and circumstances that

    are in dispute between the parties and that are relevant

    to the application or appeal should be included.

     (b) By way of illustration, public records such as land

    search and company search records can be left out

    unless the matters evidenced thereby are in dispute and

    such matters are relevant to the application or appeal.

     (c) Commercial documents in a standard form such as

    conditions of sale or purchase, sales or purchase orders

    or confirmations, bills of lading, sea or air waybills,

    commercial invoices, certificates of origin, certificates

    of quality / quantity, packing lists, delivery orders, etc.

    are often exhibited in bulk where the case concerns a

    series of transactions. However, it is rarely necessary

    for the parties to refer to or for the Court to read each

    and every of such documents. It is sufficient for a copy

    of one such document to be included in the hearing

    bundle as being representative of the others in the same

    category.

     - 5 -

     (d) The same practice should be followed with other

    documents which are merely repetitive of or similar in

    content to other documents.

(3) Bundle of Correspondence: This should include copies of all

    the relevant letters exchanged between the parties and their

    solicitors, whether before or after the commencement of the

    action, arranged in a chronological order.

(4) All the documents (with the exception of transcripts) must be

    bound together in lever-arch files or ring-binders. Lever-

    arch files and ring-binders must not be over-filled (and

    should never include more than 250 pages) and care must be

    taken to ensure that the rings close and fit properly so that

    the pages can be turned over easily. Where each set of

    bundles consists of more than one file, the spines should be

    prominently labelled (e.g. Bundle A, Bundle B, etc.).

    Transcripts should be provided in a separate bundle.

(5) All documents must be legible. In particular, care must be

    taken to ensure that the edges of pages are not cut off by the

    photocopying machine or rendered illegible by the binding.

    If it proves impossible to produce adequate copies of

    individual documents, or if manuscript documents are

    illegible, typewritten copies of the relevant pages should also

    be interleaved at the appropriate place in the bundle.

(6) If there are more than 5 bundles in a case, each of the

    bundles should also be labelled on the top right-hand corner

    of the inside cover.

(7) The advocates who have the conduct of the case on behalf of

    the parties have the duty to ensure that the hearing bundles

    are properly prepared.

(8) Bundles that have been provided on a previous occasion

    could be retrieved from Court for reuse with the addition of

    new documents, if necessary, unless the Court considers that

    this is not appropriate.

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    (3) Skeleton Arguments and Lists of Authorities

5. Skeleton arguments and lists of authorities must be lodged in

    support of / in opposition to every application or appeal.

6. A skeleton argument should be concise and succinct.

7. It should at the same time be comprehensive in that it should

    state all the points which a party intends to take and summarize the

    argument on each of those points. A point not taken or an argument not

    advanced in a party’s skeleton argument may not be pursued at the

    hearing of the application or appeal without the leave of the Court.

    8. More particularly, the skeleton argument lodged by the applicant / appellant should outline:

    (1) the order sought;

    (2) the grounds upon which the order is sought;

    (3) the relevant rules of the High Court;

    (4) paragraph numbers of notes in the Hong Kong Civil

    Procedure relied upon;

    (5) the authorities to be cited with references to passages relied

    upon;

    (6) the evidence relied upon cross referenced to the hearing

    bundles; and

    (7) the points of fact, law and procedure to be taken and the

    arguments on each of such point.

9. The skeleton argument of the respondent to the summons or

    the appeal should outline:

     (1) what part of the order is opposed;

     (2) the grounds of opposition;

     (3) whether any other rules of the High Court are to be referred

    to or relied upon;

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     (4) whether any other notes in the Hong Kong Civil Procedure

    are to be referred to or relied upon;

     (5) what additional authorities, if any, are to be referred to with

    details of the passages relied upon;

     (6) which part of the evidence is relied upon if different to the

    references in the applicant / appellants skeleton argument;

     (7) if any order different from that being sought by the other

    party is being put forward, the reasons why it is more

    appropriate than the order being sought; and

     (8) the points of fact, law and procedure to be taken and the

    arguments on each of such point.

10. Photocopies of the authorities cited (save and except the Rules

    of the High Court and notes from the Hong Kong Civil Procedure) should

    be annexed to the list of authorities. For the avoidance of doubt,

    paragraphs 2, 6, 7 and 8 of Practice Direction 5.5 relating to submission

    of authorities do not apply to interlocutory summonses and appeals to

    Judge in chambers governed by this Practice Direction.

    (4) Time for Filing and Service and Reckoning of Time

11. The applicant or appellant should serve on the other party /

    parties and lodge with the Court the hearing bundles, dramatis personae,

    chronology of events, his skeleton argument and list of authorities at least

    72 hours before the hearing (excluding Saturdays, Sundays and general

    holidays).

12. The respondent should serve on the other party and lodge with

    the Court his skeleton argument and list of authorities at least 48 hours

    before the hearing (excluding Saturdays, Sundays and general holidays).

     - 8 -

    Part B

    (1) Contested Interlocutory Summonses Listed for Less

    Than 30 minutes for Argument Before a Judge

13. In respect of contested interlocutory summonses listed for

    argument for less than 30 minutes before a Judge, except summonses for

    extension of time and unless orders, the following provisions shall apply:

     (1) The applicant should serve on the other side and lodge with

    the Court his skeleton argument and list of authorities and

    also for the Court copies of authorities (other than the Rules

    of the High Court and notes from the Hong Kong Civil

    Procedure) at least 72 hours before hearing (excluding

    Saturdays, Sundays and general holidays).

     (2) The respondent should serve on the other side and lodge

    with the Court skeleton argument and list of authorities and

    also for the Court copies of authorities (other than the Rules

    of the High Court and notes from the Hong Kong Civil

    Procedure) at least 48 hours before hearing (excluding

    Saturdays, Sundays and general holidays).

     (3) Each party should inform the Judges clerk and the other

    party / parties in writing of the court documents, other than

    the subject summons and the affidavits filed in support of

    and in opposition to the summons, which will be referred to.

     (4) The skeleton arguments should clearly identify the issues

    and should be as brief as possible, in most cases no more

    than 2 pages.

Part C

    (1) Contested Interlocutory Summonses Listed for

    Directions Before a Master

14. As for contested interlocutory summonses listed for directions

    before a Master, where the parties agree on the disposal or on the

    directions for the substantive hearing of the summons, to secure a

    vacation of the hearing and dispensation of the parties attendance, a

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    consent summons should be sent to the Masters clerk no later than

    2:30 p.m. the day before the hearing.

15. To save the waiting time in Court for parties who reach an

    agreement on the disposal or on the directions for the substantive hearing

    of the summons but not sufficiently in advance to vacate the hearing, the

    Master will exercise his discretion to hear such cases ahead of other cases

    listed for the same time provided the parties produce to the Masters clerk

    a signed self-contained consent summons setting out the order or

    directions to be made 15 minutes before the hearing.

16. Where a matter has been set down for special chambers

    hearing before a Master but parties wish subsequently to adjourn it to a

    Judge, parties should apply to the Court in good time with reasons, in any

    case not less than 14 days before the return date for the special chambers

    hearing. Parties may not be able to recover the costs of adjournment if

    any application for hearing before a Judge is made less than 14 days

    before the return date.

17. If the parties legal representatives take the view that the

    original allotted time for the hearing is insufficient, they should notify the

    Court as soon as possible in good time before the hearing so that

    appropriate arrangement can be made.

Part D

    (1) Disposal of an Interlocutory Summons by a Master on

    the Papers

18. Where a Master considers it appropriate to dispose of an

    interlocutory summons on the papers pursuant to Order 32, rule 11A, he

    may give directions for the filing of affidavits and / or skeleton arguments

    and set the date (the order date) for disposal of the summons.

19. Parties should not file further evidence without leave of the

    Court. Any affidavit or skeleton arguments filed without leave of the

    Court will be expunged and the same will not be considered.

20. A party who intends to seek summary assessment of costs

    should enclose a statement of costs with his skeleton arguments.

     - 10 -

    21. Parties should endeavour to agree between themselves

    extension of time for filing of affidavits or skeleton arguments but such

    agreement should not impinge on the order date.

22. Any application for extension of time must be made promptly.

    An application that has the effect of vacating the order date will not be

    entertained except for compelling reasons.

23. On the order date, appearance of the parties is not required.

    The Master may:

    (1) make an order on the summons and notify the parties

    accordingly;

    (2) adjourn to a date for oral argument with regard to the whole or

    part of the summons.

24. The following classes of summons are generally considered

    appropriate for disposal on the papers:

    (1) Determination of the time and rate of payment under

    Order 13A;

    (2) Request for Further and Better Particulars;

    (3) Security for costs;

    (4) Summary judgment under Orders 14 and 86;

    (5) Interim payment;

    (6) Setting aside a default judgment;

    (7) Amendment (without argument on questions of limitation);

    and

    (8) Case management summons.

This list is not exhaustive.

25. If a party considers it inappropriate to dispose of the summons

    on the papers after the Master has given directions pursuant to

    paragraph 18 above, he should apply and state his reasons in writing for

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