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
This is an application by the plaintiff for leave to appeal against an order made by the Honourable Mr. Justice Yam on 12 January 2010, in which the Honourable Mr. Justice Yam brought forward a quantum hearing originally fixed on 15 September 2010 to 18 January 2010.
In the present case, the plaintiff commenced proceedings against the defendant and claimed damages for personal injuries. Parties agreed that there would be a split trial of liability and quantum. The trial on liability took place in December 2008 before the Honourable Mr. Justice Yam, and the judgment was handed down on 9 January 2009.
Following various adjournments, the assessment of damages was fixed on 15 September 2010. On 12 January 2010, however, the Honourable Mr. Justice ordered that the quantum hearing be brought forward to 18 January 2010.
The defendant appealed against the order of the Honourable Mr. Justice Yam. The Court of Appeal set aside the order, and said that while Civil Justice Reform was designed to improve the administration of justice, the court “must also act with due consideration for the parties and their legal representatives” and “given the difficulties which Ms Lau has indicated, the short notice in this case is not acceptable”.
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] 21 CJRA.
This is an application for leave to appeal against the judgment of the Honour Judge Lok dated 21 August 2009. This case involved a bitter litigation between a firm of solicitors and its former client.
The plaintiff commenced an action against the defendant in October 2001 for unpaid legal fees. The trial took place in March 2009. It lasted for five days, and was attended by two Senior Counsels. On 21 August 2009, the Honour Judge Lok handed down his judgment. He granted judgment for the plaintiff for the outstanding legal fee in the amount of HK$71,449.95, together with costs.
In his judgment, the Honour Judge Lok commented that “it is regrettable that the parties have not had the good sense of trying to resolve their dispute by a more cost-effective means. The costs of this case over 9 years far outweigh the amount at stake, and yet the parties have chosen the most expensive way to resolve their dispute“.
The case, however, was not put to rest by the judgment of the Honour Judge Lok. The defendant applied to the Court of Appeal for leave to appeal. Such an application was dismissed by the Honourable Mr. Justice Rogers VP. The Honourable Mr. Justice Rogers VP commented that “this is clearly the sort of litigation which the Civil Justice Reform was designed to prevent“.
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] 21 CJRA.
In this case, following on from a judgment and a costs order nisi in favour of the defendant, the defendant made an application for a wasted costs order under ss 52A(4) to (7) of the High Court Ordinance (Cap.4), being provisions incorporated as part of the Civil Justice Reform.
The provisions confer on the court the power to make a wasted costs order on the whole or any part of any costs incurred by a party as a result of an improper or unreasonable act or omission; or any undue delay or other misconduct or default, on the part of any legal representative conducting litigation on behalf of a party. Sub-section 52A(5) expressly provides that the court shall, in addition to all other relevant circumstances, take into account the interest that there be fearless advocacy under the adversarial system of justice.
A two-stage process is involved in such an application. At the first stage the applicant has to satisfy the court that it has evidence before it which, if unanswered, would be likely to lead to a wasted costs order being made; and that the wasted costs order proceedings are justified notwithstanding the likely costs involved. It was alleged that the plaintiff’s solicitors were at fault in continuing to prosecute the action once it should have been obvious to them that it was bound to fail.
While accepting that there was a prima facie case that the solicitors were negligent or incompetent in the conduct of the proceedings, the Honourable Mr Justice Harris held that it was not a sufficient ground to make a wasted costs order, absent something that went beyond the presentation of a hopeless case and involved lending assistance to an abuse of process or improper time wasting.
Contrary to the English counterpart provision, the definition of “wasted costs” in the Hong Kong provisions does not include costs incurred by a party as a result of any negligent act on the part of the legal representative. It was held that the omission of negligence from the Hong Kong provisions was not inadvertent, and that conduct which could generally be described as unreasonable did not automatically engage the wasted costs section. It was also ruled that advancing a hopeless case did not justify the imposition of a wasted costs order. The assessment of what amounts to unreasonable conduct in the context of wasted costs orders requires a consideration of how the courts have characterised such behaviour in the past.
In dismissing the defendant’s application, the Honourable Mr Justice Harris concluded that:
“An error of judgment by solicitors or failure to apply any judgment at all to a case for which they are responsible, which renders a weak case hopeless is in my view not the type of conduct, which section 52A address.”
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] 20 CJRA.
This case illustrates how the Judiciary will be more prepared to bear in mind the underlying objectives of the Civil Justice Reform, one of which being that costs should not be incurred unless they are necessary, when granting leave for parties to adduce expert evidence.
This matter related to a claim by the plaintiff for damages for personal injuries suffered in a traffic accident. Judgment on liability was entered and the only remaining issue was the quantum of damages. The plaintiff sought leave to adduce expert evidence of a rehabilitation consultant to show that home care services, as opposed to nursing home care, was reasonable so that damages would be sought along that line.
Master Roy Yu granted leave to the plaintiff to have a rehabilitation expert to comment on the resources required for home care services, and highlighted the importance of the parties identifying precisely the issues to which the expert evidence will relate.
Practice Direction 5.2 on case management requires the party adducing expert evidence to, inter alia, identify the issue to which the expert evidence will relate. Such an approach allows the expert to focus on the issues, and hence reduce the time incurred in preparing reports, which is in line with the spirit of the Civil Justice Reform that costs should not be incurred unless they are necessary. Whilst Master Yu acknowledged that the said Practice Direction is not applicable to personal injury cases, he emphasised that the rationale behind it should be borrowed in personal injury cases, especially for non-medical reports.
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] 20 CJRA.
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.
This case relates to a summons issued by Hawkins Development Limited (the “Company“), purportedly under O. 62 r. 9A (Rules of the High Court (Cap.4A – Sub. Leg.)), for an order that the amount paid into court by the petitioner as security for costs be paid out to the Company in part satisfaction of the costs payable by the petitioner following the dismissal of a winding up petition.
The petitioner argued that the court had no jurisdiction to make an interim payment of costs in proceedings that were not interlocutory application. The petitioner contended that the inherent jurisdiction of the court was confined to making good procedural lacunae.
The Honourable Madam Justice Kwan disagreed. She examined the new O. 62 r. 9A and O. 62 r. 21 under the Civil Justice Reform, and held that a procedural lacuna existed – “the power to make provisional summary assessments under rule 9A applies only to interlocutory applications, and there is no power under rules 21 to 21C to make an interim payment of costs which in the opinion of the court approximates the costs that would be allowed on taxation at the provisional taxation or a taxation hearing”. The Honourable Madam Justice Kwan exercised her inherent jurisdiction and ordered an interim payment of costs to the Company.
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.
In this case, the court considered the new O.22 r.24 (Rules of the High Court (Cap.4A – Sub. Leg.)) and the court’s general discretion as regards litigation costs.
In awarding an indemnity costs order and ordering interest to be calculated at three per cent above the judgment rate, the court stated that “it is obvious the new rules encourage the parties to settle their litigation sooner rather than later“. This case provides helpful guidance on the interpretation of O.22 r.24.
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.
“No other legal development in Hong Kong in recent years has attracted so much widespread interest … as mediation. This handbook is the only one to deal with such an important topic in such depth and breadth … the provisions of real cases and examples are particularly illuminating … [an] excellent work”.
Following the Practice Direction on 31st January 2010 mediation will be at the forefront of all dispute resolution and litigation. Parties that do not resort to mediation may face adverse cost consequences. Even where the mediation is not successful it is likely to have had the positive effect of reducing the conflict and the issues between the parties.
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