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A compilation of notes

by Cliff Lui. All rights


expressly reserved,
including copyright. All
pecuniary loss disclaimed.

2007 PCLL

Follows the Syllabus


The notes are created from
syllabus notes, cases and
Court rules, so they are
almost guaranteed to
follow exam guidelines!

Checked for Accuracy


Compiled in a period of
three months, these notes
have been checked for
accuracy amongst primary,
secondary and tertiary
sources!

Tried and Tested


Cliff has taken these notes
into the examination hall,
used them and walked out
of the examination hall in
one piece. Surely these
notes are tried and tested!

Civil procedure Cliffnotes

Civil Litigation Service of Writ Cliffnotes!

Cliff Lui

Civil Litigation Preliminary Issues Cliffnotes


A.

Describing the Parties: O.15

1.

Plaintiffs

(a)

Plaintiffs may be joined if there is a common question of law or fact or where the
claim arises from the same series of transactions: O.15 r.4(1).

(b)

Plaintiffs must be joined with any people jointly entitled to the claim unless the court
grants leave.
(i)

Joint claims include joint bank accounts, property holders.

(ii)

If the other person does not wish to be joined, he must be joined as a


defendant. This is so he is bound by the results of the litigation: O.15 r.4(2).

2.
(a)

Partners, however, can be compelled to be joined as plaintiffs without


their consent, but will be entitled to seek indemnity from the other
partners as to costs !Kao, Lee & Yip 2002.

Defendants
Plaintiff entitle to issue proceedings against only some of all defendants jointly liable
for a claim: O.15 r.4(3).
(i)

Where the claim is in contract, however, the defendant may apply to the
court for the case to be stayed pending joinder of those jointly liable: O.15 r.
4(3). That is a discretionary power and might not be exercised where the
other partner can not be found etc.

B.

Legal Aid

1.

Ordinary Legal Aid Scheme

(a)

(b)

Criteria
(i)

$162,300

(ii)

Reasonable grounds for taking or defending proceedings.

Scope
(i)

traffic accident claims

(ii)

breach of contract

(iii)

professional negligence

(iv)

landlord and tenant disputes

(v)

industrial accidents

(vi)

matrimonial cases

(vii)

immigration matters

(viii)

Seamens / employees wages and severance pay


Page 1 of 3

Civil Litigation Service of Writ Cliffnotes!

(c)

Cliff Lui

(ix)

employees compensation

(x)

Mental Health Review Tribunal cases

(xi)

Coroners inquests involving interests of public justice

Fees and Contributions


(i)

Actual contribution to be paid depends on probable cost of proceedings. Full


amount is paid if estimated costs exceed contribution payable.
Finances

Rate

Contribution

0-20,000

20,001-40,000

1000

40,001-60,000

2000

60,001-80,000

5%

3,000-4,000

80,001-100,000

10%

8,000-10,000

100,001-120,000

15%

15,000-18,000

120,001-144,000

20%

24,000-28,000

144,001-162,300

25%

36,000-40,575

(ii)
2.
(a)

(b)

(c)

Supplementary Scheme
Criteria
(i)

$162,301 !$450,800

(ii)

Reasonable grounds for taking or defending proceedings.

(iii)

Claims likely to exceed $60,000. Any amount if claimed under Employees


Compensation Ordinance.

Scope
(i)

Personal injury, death

(ii)

Medical / dental negligence

(iii)

Professional negligence

Fees and Contributions


(i)

$1,000 non-refundable application fee.

(ii)

Upon acceptance of legal aid, applicants are required to pay an interim


contribution of $40,575.

(iii)

If the proceedings are unsuccessful, the interim contribution paid will be


used towards the payment of legal costs incurred for his claim and will not
be refunded unless there is a surplus after payment of such costs.

Page 2 of 3

Civil Litigation Service of Writ Cliffnotes!

3.

Cliff Lui

(iv)

If the proceedings are successful, 10% of the damages recovered will be


deducted and paid into the Supplementary Legal Aid Fund.

(v)

If the case is settled before a barrister is instructed for the trial, 6% of the
damages recovered will instead be deducted. In addition, the applicant will
also be required to pay all legal costs expended on his behalf (including costs
which cannot be recovered from the opposite party) out of the damages
recovered. However, the total sum deducted will be reduced by the
application fee and interim contribution already paid.

Application Procedure

(a)

Apply at Hong Kong or Kowloon office.

(b)

On the day of interview, the applicant should bring along all documents relating to his
case and his means (for example, bank books, salary slips, rent receipts, mortgage
repayment schedule, salaries tax assessment, proof of Comprehensive Social Security
Assistance (CSSA), etc.).

(c)

During the interview, the applicant will be means tested. He will also be asked to give
a statement concerning his case so that the Department can determine its merits (the
merits test). In most cases both the statement taking and means assessment can be
done on the same day.

(d)

In some cases, it may be necessary to obtain additional information from third parties
such as other government departments or public bodies for the purpose of determining
the merits of his case. Once all the information has been collected, the lawyer in
charge of his case will decide whether legal aid should be granted.

(e)

When the applicant is granted legal aid, he should read all the terms of the offer very
carefully, especially the part concerning the amount of his contribution and the
Director of Legal Aids First Charge. If the terms are acceptable, he must sign and date
the form and return it to the Legal Aid Department within 14 days.

(f)

If he accepts the offer of legal aid, he will be issued with a Legal Aid Certificate which
confirms that he has been granted legal aid.

(g)

Once he has been granted legal aid, he must not talk to the opposite party or their
representative about the case or accept money in settlement of his claim without first
consulting the lawyer assigned to represent him and notifying the Director of Legal
Aid.

~~~

Page 3 of 3

Civil Litigation Service, Default Judgment Cliffnotes!

Cliff Lui

Civil Litigation Service of Writ Cliffnotes


A.

Service of Writ

1.

General methods of service: O.10


Personal service, service by registered post and service by letterbox insertion

(a)

(b)

Personal Service: O.65 r.2 and Goggs v Lord Huntingtower 1884.


(i)

Satisfied that he has found the right man;

(ii)

Hand or leave copy of writ with him, or throw it down in his presence.

(iii)

If he does not take it, he should tell him what it contains and leave it within
his control as possible.

Registered post / letterbox insertion: O.10 r.1(2), (3)


(i)

D must be physically within the jurisdiction at the time the writ was
posted / inserted and must have been within the jurisdiction when he knew of
the writ !Barclays Bank v Hahn 1989 HL.

(ii)

Service by either of these still requires notice by D to be effective


!Forward v West Sussex County Council 1995 CA.

(iii)

Registered post to: usual address or address last known by P. Either is OK.
No best-endeavour checks need to be made !Law Kwok Hung 1999.

(iv)

Insertion of sealed writ through letterbox of such address.

(v)

Deemed date of service is the 7th day after the sending of the writ by
registered post or insertion through the letterbox. That is unless the contrary
can be shown.

(vi)

(c)

The contrary may be shown by P, e.g. Where P shows D knew of the


writ on some other date, or if D shows that he never knew of the writ.

Proving such a method of service requires the deponent to state on


affidavit that it is his opinion that the writ will have come to the knowledge
of D within 7 days of posting the writ; and that the writ has not been
returned to the plaintiff: O.10 r.3.

Other Modes of Service


(i)

Solicitors indorsement and acceptance on behalf of his client: O.10 r.1(4).

(ii)

Acknowledgement of service by D is deemed good service on date of


acknowledgement unless the contrary is shown: O.10 r.1(5).

(iii)

Agent of overseas principal: O.10 r.2

Ex parte application, contract within jurisdiction;

Individual or corporations registered office within jurisdiction;

Agents authority not determined or he is still in business relations with


principal;

Court may authorise service of writ on agent instead of its principal.


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Civil Litigation Service, Default Judgment Cliffnotes!

(iv)

Writ must limit time within which PD must acknowledge service.

Copy must be sent by post to actual defendant outside jurisdiction.

Service of Writ pursuant to Contract: O.10 r.3

Contract may specify how process may be served on a defendant


whether within or out of jurisdiction.

All you have to do is follow the provisions of the contract.

(v)

Writ served out of jurisdiction not deemed served on D unless O.11 is


complied with.

(vi)

Service on Limited Company: s.356, Companies Ordinance

(vii)

Cliff Lui

Writ may be serve by leaving it or sending it by post to the registered


office of the company.

Deemed effected at the time in which the writ would have been
delivered in the ordinary course of post: s.8 Interpretation and General
Clauses Ordinance.

No knowledge is necessary and service on vacant premises is valid


Ho Kwok Wah v Group Jewellery Arts 2000.

Service on Partnership: O.81 r.3

Modes
- Personally on any one of the partners;
- Personally on person having control or management of the
partnership business, at principal place of business within
jurisdiction;
Not agent because partnership business cannot be carried out on

agents premises !Baillie v Goodwin 1886.


- Registered post (O.10 r.1(2)) to firm at principal place of business
within the jurisdiction.
- Any other method agreed between the parties: Kenneth Allison v
AE Limehouse & Co. 1992 HL. In that case, service of the
plaintiffs writ on the partner's personal assistant with the partner's
express authorisation constituted valid service. Lord Goff said it
was more like estoppel by convention.

Whether or not any member is out of the jurisdiction.

Service shall be deemed 7 days after writ is sent to the firm unless the
contrary is shown.

Affidavit proving due service must state:


- In the plaintiffs opinion, the writ would have come to the
knowledge of one of the persons mentioned above within 7 days
and the writ has not been returned as undelivered.

If the plaintiff knows that the partnership has dissolved, he must serve
on every person within jurisdiction sought to be made liable.

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Civil Litigation Service, Default Judgment Cliffnotes!

(d)

(e)

Cliff Lui

Notice must state whether the recipient is a partner or person with


management and control, otherwise the recipient is deemed to be a
partner.

Note that for enforcement on personal assets of a partner, personal


service on him is necessary: O.81 r.5 but if no service was effected, P
can apply to the court for leave to do so O.81 r.5(4).

Substituted Service: O.65 r.4


(i)

Court an make an order for substituted service if you can show that it is
impracticable to serve a person personally.

(ii)

Such service usually involves newspaper advertisement, but must be a way


that will probably bring the writ to the attention of the intended recipient.

(iii)

Affidavit must contain:

Steps taken to locate and serve in the usual way;

Inquiries;

Proposed method of substituted service.

Service outside jurisdiction: Order 11


(i)

Leave required both for issuing writ under O.6 and for service under O.11.

(ii)

Three steps, supported by affidavit !Seaconsar v Bank Markazi 1994:

(iii)

Jurisdiction :: Whether P has a good arguable case that his case falls
within one of the heads listed under O.11 r.1(1)(a)-(p) (facts showing
that case somehow relates to HK).

Merits :: Whether Ps evidence discloses a serious issue to be tried, no


need for strong prima facie case.

Discretion :: Whether court should exercise discretion (esp. forum


conveniens) to grant leave.

Application by affidavit stating above.

B.

Default Judgment

1.

Judgment for Default of Notice of Intention to Defend: Order 13


Sought only for non-equitable relief.
Where relief is sought against more than 1 defendant, default judgment against one
may, render the claim against the other nugatory, if the basis for the two actions are
inconsistent.
In Bonus Garment v Karl Rieker 1997 PC, The plaintiff sued the 1st defendant for
breach of contract as principal and, in the alternative, the 2nd defendant in damages for
breach of warranty of authority as agent. Majority in the Court of Appeal held
following Morel Bros Co Ltd v Earl of Westmoreland 1903, that the entry of default
judgment by the plaintiff against the 2nd defendant barred the plaintiff from proceeding
against the 1st defendant, the causes of action being in the alternative and inconsistent

Page 3 of 6

Civil Litigation Service, Default Judgment Cliffnotes!

Cliff Lui

with each other. The Privy Council reversed this on the facts only, finding that there
was no inconsistent case between the two.
(a)

(b)

(c)

Liquidated Demand: O.13 r.1


(i)

Where claim is for liquidated demand and D fails to notify P of intention to


defend, P may, after [14 days after service of writ, including day of service,
being the set time for acknowledging writs] enter final judgment for the
amount claimed and proceed against any other defendant: O.13 r.1.
For more on prescribed time, see O.12 r.5. Note that writ is not deemed
served until 7 days after posting for mailed writs: O.10 r.1 above.

(ii)

Costs are as per Part I, Schedule 2, O.62, being fixed and very low ~$505.

Unliquidated Damages Claim: O.13 r.2


(i)

The difference for unliquidated claims is that no final judgment may be


entered. Only interlocutory judgment may be entered for damages to be
assessed as well as costs. Reserves right to proceed against other defendants.

(ii)

After getting interlocutory judgment, O.37 is followed (open court, service


of notice 7 days before hearing, discovery, expert reports) before a Master.

(iii)

Where default judgment is only obtained against some of the defendants,


damages will be assessed at trial: O.37 r.3.

Claim for detention of goods: O.13 r.3


(i)

(d)

get interlocutory judgment for delivery of the goods or their value to be


assessed and costs;

by affidavit, apply by summons for judgment against D for delivery


without option to pay equivalent value.

Plaintiff may, after D does not give notice to defend after time and on
producing an affidavit / certificate by his solicitor saying that he is not
claiming under O.88 r.1, enter judgment for possession and costs.

Mixed claims of any of the above: O.13 r.6


(i)

(f)

Claim for possession of land: O.13 r.4


(i)

(e)

Plaintiff may, after D does not give notice to defend after time:

As per above

Other claims, including equitable claims: O.13 r.6


(i)

Plaintiff may, after prescribed time and upon filing statement of claim and
affidavit proving due service of writ on D: Proceed with action as if
defendant had given notice to defend.

(ii)

If something happens such that P does not have to proceed anymore, P may
enter judgment against D for costs. E.g. where D paid money into court after
being served.

Page 4 of 6

Civil Litigation Service, Default Judgment Cliffnotes!

2.
(a)

Entering of Judgment
Proof of service of writ: O.13 r.7
(i)

(b)

3.
(a)

Judgment cannot be entered against D unless:

D has acknowledged service;

Affidavit is filed by P proving due service on D; or

P produces writ indorsed by Ds solicitors with statement that they


accept service on Ds behalf.

Writ returned after Judgment: O.13 r.7


(i)

If the writ is returned undelivered after judgment, the plaintiff should


immediately request for the judgment to be set aside; or apply to the court
for directions !see also Fok Chun-hung v Lo Yuk-shi 1995 CA where
judgment, regularly obtained was treated as irregularly obtained after the
plaintiff did nothing after receiving an undelivered writ after judgment.

(ii)

Application is by affidavit and shall take place ex parte, stating facts on


which the application is founded and any directions sought. Court may:

Set aside judgment (maybe with payment into court);

Treat writ as duly served, if e.g., alleged irregularity is unsupported by


evidence or trivial;

or any other thing.

Judgment in default of Pleadings


Default of Defence: O.19 r.2
(i)

(b)

Cliff Lui

Defence is due 14 days after service of statement of claim: O.18 r.2.

Additional requirements: O.19 r.8A


(i)

To get default judgment under O.19, you have to give notice that you are
going to do so to a defendant who has given notice of intention to defend or
defend on counterclaim.

(ii)

The time limit is 2 days before entering judgment. It does not have to be
given after default, however !Ho Yuen Tsan v Hop Wing Transportation
1996.

(iii)

Service on his solicitor.

(iv)

These requirements are dispensed with if the court had made an order to
extend the time for service of the defence; or if the defendant is not legally
represented and did not state an address at which he can be served.

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Civil Litigation Service, Default Judgment Cliffnotes!

C.
!

Cliff Lui

Setting Aside Default Judgment: O.13 r.9 and O.19 r.9


Court may set aside any judgment on terms as it thinks just

1.

Regular Judgment

(a)

Setting aside regular judgment usually occurs on some compassionate ground and is
discretionary.

(b)

Practice requires an affidavit stating that the defendant has a real likelihood that he
would succeed on the facts if the judgment is set aside Park Kit Investment v Cheung
Wan Ping 1999 CA.

(c)

Costs: setting aside regular judgment D pay costs in any event. If the court
considers that P should not have resisted the application, it might order costs to D in
the cause.

2.
(a)

(b)

D.

Irregular Judgment
Court has no discretion and must set it aside, save with respect to terms "Po Kwong
Marble Factory 1996 CA.
(i)

Factors include prospects of success and conduct of the parties.

(ii)

Condition might be that money is to be paid into court.

Costs: setting aside irregular judgment "P pay costs in any event.

Timeline of proceedings

(a)

P issues writ (may be served within 12 months)

(b)

P serves writ

(c)

D files acknowledgment of service within 14 days of being served writ. Including day
of service.

(d)

P must file statement of claim within 14 days D has acknowledged service.

(e)

D files defence within 14 days of the time limited for giving notice of intention to
defend (as above), or when the full statement of claim is served, whichever is the later.
Usually, the statement of claim is served later.

(f)

P must reply within 14 days of receiving the defence and can submit his defence to any
counterclaim within 14 days of receiving the same.

(g)

Pleadings close 14 days

~~~

Page 6 of 6

Civil Litigation Summary Judgment and Interim Payment Cliffnotes!

Cliff Lui

Civil Litigation Summary Judgment and


Interim Payment Cliffnotes
A.

Order 14 Summary Judgment


A useful procedure to save time and costs if defendant has no arguable defence.
Usually used for bills of exchange (treated as cash so set off and counterclaims are not
matters to prevent SJ !Yuen Chak Construction v Tak Son Contractors 1997.
However, sufficiency of consideration and misrepresentation/fraud might be a case for
cheques !Tong Nai Kan v Cheung King Fung. Dishonoured guarantees are also
eminently suitable for summary judgment where primary facts are not in doubt !Bank
of Credit and Commerce HK v Quadrutec Hotel Management 1996.

1.

Application Procedure: O.14 r.1

(a)

Possible for counterclaims: O.14 r.5.

(b)

Statement of claim already served on defendant, who has replied with A/S: r.1.

(c)

Plaintiff may apply for judgment on grounds that defendant has no defence to part or
whole of the claim sought. See Macmillan Publishers v Thomas Reed Publishers 1993
where court upheld that part of a claim can still use summary judgment if clearly
stated in the summons.

(d)

Applies to any action except:


(i)

Libel, slander, malicious prosecution, false imprisonment, admiralty.

(ii)

Any fraud allegation.

Fraud means that in the narrow Derry v Peek sense !<case name>.

False statement knowingly given.


Excludes fraud on the minority.

False accounting might be pursued under breach of resulting and


constructive trust instead of fraud per se to bypass the rule !Pacific
Electric Wire & Cable v Texan Management 2007.

This is because the above claims are subjective and necessitate the use of witnesses.
(iii)

Any specific performance dealing with property and mortgage actions with
under O.86 and O.88.

(e)

Rare for negligence actions and only invoked where liability is absolutely not in issue
or no defence for liability !Wong Tai v Tang Wing Keung 2003. Even conviction is a
matter of weight unsuitable for determination in summary judgment.

(f)

Summary judgment possible for declarations and specific performance if clear case
!Leco Instruments (UK) v Land Pyrometers 1982; Verrall v Great Yarmouth BC 1981.
(i)

(g)

No SJ, if there remains a triable issue as to whether the defendants own


conduct relates to the plaintiffs sought relief !Baillieu v FCC HK 2007.

Default judgment against one defendant not a bar against summary judgment against
another where there is joint and several liability (s.5, Civil Liability (Contribution)
Ordinance, Cap. 377).
Page 1 of 7

Civil Litigation Summary Judgment and Interim Payment Cliffnotes!

(i)

(h)

2.
(a)

Cliff Lui

Joint and several liability can be established vs. multiple defendants it there
are supporting contemporaneous documents despite no signing of an actual
agreement !Asia Television v Mak Chi Kin 2006.

Summary judgment for certain relief must be pleaded or claim will be dismissed
!Chang Man v Ma Shou Yung 2002 where plaintiff wanted to remove the defendant as
administrator of an estate but pleadings only stated that he wanted to revoke the grant
of letters of administration. Court held pleadings had to be amended. Plaintiff cannot
argue by another way to side-step defective pleadings.
Manner in which application under r.1 must be made: O.14 r.2
Supporting Affidavit Requirements:
(i)

Verify facts pleaded and relied on in claim.


thus the defendant is justly and truly indebted to the plaintiff in the sum of
$[] for goods supplied on [] and were so indebted at the commencement of
this action as particularised and appearing in the statement of claim in this
action. "

(ii)

State belief that there is no defence, save that which relates to quantum.
I verily believe that there is no defence to this action. "

If the plaintiff knows that there might be a defence but states that there is
none, that is an abuse of the court and the SJ may be struck out !M. Pocock
v A.D.A.C. 1952.

(b)

(c)

(iii)

Belief ought state sources or grounds thereof.

(iv)

Service on D #10 clear days before return date.

(v)

Made by plaintiff or authorised persons with personal knowledge.

Solicitors should not make affidavit because the matters affirmed


should be within the plaintiffs own personal knowledge !Mutual Luck
Investment v Chiu Yim Man 1999 where the court held that the plaintiff
should not escape the sanctions of criminal law (perjury) by having
someone else make the affirmation for them.

Multiple affirmations can make up for gaps in the facts.

Summons and interim payment


(i)

Alternative relief e.g. under O.14A or interim payment under O.29 may be
granted.

(ii)

Interim payment may be granted for actions in damages, debt or other sum.

(iii)

Interim payment generally granted if conditional leave to defend results


!British Commonwealth Holdings v Quadrex Holdings 1989.

(iv)

Interim payment inconsistent with unconditional leave.

Delay
(i)

Delay between filing of statement of claim and summons not necessarily


fatal, but requires explanation Resona Bank v Lam Sie 2004

Plaintiff explained delay, referring to actions brought by the plaintiff


against other customers.
Page 2 of 7

Civil Litigation Summary Judgment and Interim Payment Cliffnotes!

(ii)

3.
(a)

(b)

(c)

Cliff Lui

Court allowed SJ despite delay to save trial time.

Delay will not bar otherwise meritorious application !Morrison, Son &
Jones v Yui Wing Construction 1989.

Manner of Defence
D may object to SJ by affirmation: O.14 r.4. The affirmation requires:
(i)

Personal knowledge of the particulars of the defence. General denials do not


suffice !Murjani v Bank of India 1990.

(ii)

Onus is on the defendant Bank of India.

(iii)

Hearsay admissible if sources are stated.

(iv)

Should not be inconsistent with documentary exhibits.

(v)

Triable issue can be the identity of the defendant.

(vi)

Defence not pleaded but supported by contemporaneous documents is


allowed !Oldham, Li & Nie v Wong Lun Chooi 2006.

(vii)

Service 3 days before callover hearing.

Reyes Framework:
(i)

What are the material facts relied on by D?

(ii)

If those facts are proved at trial,, could they support a defence as a matter of
law and logic?

(iii)

If those facts are capable of constituting a defence at trial, are any incapable
of belief because of physical impossibility?

(iv)

If the facts are incomplete, is it because of the defendants failure to give


particulars or are they outside the defendants control?

(v)

Does the plaintiffs claim make sense as a matter of law and fact?

Arguable Defence
(i)

On an SJ application, the defendant has the burden to show that there is a


triable issue or an arguable defence.

(ii)

Very low threshold: defendants case has to be almost incredible or


practically moonshine by reason of its implausibility or inconsistency with
the documents !Murjani v Bank of India 1990. O.14 applications are only
for clear cases.

(iii)

If the defendant cannot point to a specific issue which ought to be tried


but shows that there are circumstances that ought to be investigated,
that is enough.

The defendants assertions must be believable against so much of the


background of the case that is beyond reasonable dispute !Re Safe
Rich Industries 1994.

Shadowy defence: the court should order payment into court as condition
with the leave to defend.

Page 3 of 7

Civil Litigation Summary Judgment and Interim Payment Cliffnotes!

Cliff Lui

Impecuniosity can be argued, but the defendant must provide frank and
full disclosure that payment is absolutely impossible (not merely
difficult).
- Borrowing from relatives, etc. will be considered Unic v Entus
Developments.

4.
(a)

(b)

5.

Court will not impose condition that a defendant is unable to


comply with as that would be the same as reusing him leave to defend
altogether Wu Cho Mei t/a Mui Far Chung Restaurant v Wang Siau
Yu 1994.

Results of Summary Judgment


Judgment for plaintiff: O.14 r.3
(i)

Judgment for the plaintiff unless court dismisses action or defendant satisfied
the court: O.14 r.3(1).

(ii)

Court may stay execution of any judgment until after trial of any
counterclaim:
O.14 r.3(2).

Leave to defend: O.14 r.4


(i)

Defendant may show cause against SJ by affidavit.

(ii)

Unconditional leave or conditional leave by giving of security.

(iii)

Court may order defendant or officer showing cause to produce any


document or be examined on oath.

(iv)

Even if defence is shadowy, court should give leave to defend, albeit with
interim payment.

Timeline

(a)

P serves writ and statement of claim: O.14 r.1 above;

(b)

D acknowledges service and gives notice of intention to defend (else just get default
judgment) (O.14 r.1 above);
(i)

Defence served out of time does not preclude SJ, but there is no further
indulgence after a successful application for a speedy trial.

(c)

Summons before a Master (unless judge is necessary, e.g. for injunctions) or where it
is likely that there will be an appeal against the Masters decision in any event and it
would be more expedient to have the matter heard by a judge: O.32 r.12.

(d)

Summons must be supported by affidavit: O.14 r.2, see above.

(e)

Summons should be returnable before the Master. First hearing is 15 minute


callover.
(i)

If contested, Master will give directions for filing of evidence and will give
estimate of amount of time required for adjourned hearing.

Page 4 of 7

Civil Litigation Summary Judgment and Interim Payment Cliffnotes!

(ii)

Cliff Lui

If not contested, Master can give judgment unless there is a defect in the
plaintiffs case.

(f)

Plaintiff should prove due service of the summons and supporting affidavit in case
defendant does not appear.

(g)

If foregoing is not satisfied by plaintiff, summons for summary judgment will be


dismissed although defects and omissions might be cured by a subsequent affirmation .
The court will then look at the overall merits of the claim.
Judgment

(h)

APPEAL: If order is not granted, plaintiff can adduce new evidence !Asia Television.

(i)

Plaintiff reserves right to proceed with residue of action: O.14 r.8.

(j)

If claim is for delivery up of a specific chattel and SJ is for the plaintiff, the court has
power to order the defendant to deliver up the chattel without the option to pay the
equivalent value thereof: O.14 r.9.

6.
(a)

Costs
Common Scenarios
(i)

Judgment for plaintiff: costs of application to plaintiff.

(ii)

Conditional leave to defend: costs in the cause.

If D does not comply with conditions, costs to the plaintiff.

(iii)

Unconditional leave to defend: costs in the cause.

(iv)

If case is not within order or if plaintiff knew defendant had a proper


defence, court may dismiss application with costs to defendant forthwith:
O.14 r.7.

(b)

Successful plaintiff entitled only to fixed costs in accordance with Part II of the Second
Schedule of Order 62 unless order for taxation of costs is expressly made !Cobalt
Industrial v Kin Sun Electronics 1997. The costs recoverable are very low ~$650.

(c)

In a High Court action where P accepts Ds payment into court under O.22 pursuant to
a statutory construction of O.62 r.10(2), 9(1), the plaintiff is entitled to be taxed on the
High Court scale even if the accepted payment was within the District Court monetary
jurisdiction !Wellegant Development v Fine Telecom 2007.
That will obiter still be the case where the claim and damages sought was trivial, etc.

B.

Order 14A Summary Judgment

1.

Applicable Law: O.14A r.1


(1)

Court may, upon the application of any party or of its own motion,
determine any question of law or construction of any document
at any time where the matter is suitable for termination without
a full trial; and
such determination will finally determine the entire matter
therein.

Page 5 of 7

Civil Litigation Summary Judgment and Interim Payment Cliffnotes!

(2)

Court may then dismiss the cause or make any order.

(3)

Court will not do this unless the parties either;

Have had an opportunity to be heard on the issue; or

Had consented to an order or judgment on such determination.

(4)

2.

Cliff Lui

Executable by a Master.

Manner in which application should be made under Rule 1

(a)

Application may be made by summons, motion or orally in the course of any


interlocutory application.

(b)

Requirements
(i)

D has given notice of intention to defend.

(ii)

The determination of the question of law will determine the entire cause or
matter Shell Hong Kong v Yeung Wai Man Kiu Yip 2003.

Questions of law can be determined without a full trial since the court
is not in any worse position than a trial judge.

(iii)

Parties have been heard as to their position on the question of law or they
consent to such a determination.

(iv)

Question of law to be stated clearly and precisely. No ambiguity is allowed.


Facts used must be proven or admitted and cannot be hypothetical.

All relevant facts must be before the court. Especially in a case where
implied terms are involved. The circumstances and background need to
be determined by trial !Ng Chun Kwong v First Star Development
2007.

C.

Interim Payment: O.29 rr.9-12

1.

Generally

(a)

Interim payment means a payment on account of any damages, debt or other sum,
excluding costs, which the defendant may be held liable to pay to the plaintiff.

(b)

It is to help the plaintiff who is suffering from financial difficulties from the time of
application until trial !Yeung Sek Sung v Cheung For Ming 1991.

(c)

Whilst an issue of fact might debar an SJ application, interim payment may still be
granted. That is why where SJ fails, resulting in conditional leave to defend, the
condition is usually interim payment. Where unconditional leave results, no interim
payment should be ordered.

(d)

Best suited for debt or damages cases.

Page 6 of 7

Civil Litigation Summary Judgment and Interim Payment Cliffnotes!

2.
(a)

(b)

Cliff Lui

Procedure
Application under O.29 r.10
(i)

P may apply any time after service of writ on D, after time for
acknowledgement of service has expired.

(ii)

Application may be made by summons for O.14 (Summary Judgment) or


Order 86 (Specific Performance SJ), or by summons.

(iii)

Supporting affidavit:

Verify amount of relevant damages, debt or other sum.

Exhibit documentary evidence relied on.

(iv)

Serve summons, affidavit and supporting documents !10 clear days before
return day.

(v)

Second application possible without leave.

Order under O.29 r.11


(i)

Court needs to be satisfied that:

Defendant has admitted liability; or

Plaintiff has obtained judgement for damages to be assessed; or

If action proceeded to trial, plaintiff would obtain judgment for


substantial damages against the defendant

in order to order D to make a reasonable interim payment not exceeding the


claimed sum the court thinks will likely be rewarded after taking
contributory negligence and any set off and counterclaim which the
defendant is entitled to rely.
(ii)

(iii)

Other scenarios, under O.29 r.12:

Obtained order for account and for any amount certified due;

D liable for use and occupation for land in such an action;

In any event D would have to pay a substantial sum related to anything


to P.

Where personal injury action, no order is to be made unless (O.29 r.11):

Driver is insured;

Public authority;

Person with ability to pay.


~~~

Page 7 of 7

Civil Litigation Security for Costs, Prohibition Orders Cliffnotes!

Cliff Lui

Civil Litigation Security for Costs and


Prohibition Orders Cliffnotes
A.

Security for Costs: O.23


For the benefit of the defendant, security of costs discourages frivolous claims and
promotes settlement. Despite the requirements, it is a fully discretionary exercise.

1.

Law: O.23 r.1

(a)

Court will exercise discretion.

(b)

Requirements
(i)

Plaintiff ordinarily out of the jurisdiction; or

Persons not habitually living within the jurisdiction.

Company ordinarily out of jurisdiction if its central management and


control is outside HK !Charter View Holdings v Corona Investments
1997.
- Provisions of objects clause; place of incorporation; where real
trade takes place; where books are kept; where administration is
carried out; where directors meet; where chief office / company
secretary is; where most significant assets are.

(ii)

Usually no security for costs where fixed assets in HK (AG v Vianini


Lavori SPA 1991) or where co-plaintiff is in HK !DHormusgee v
Gray 1882.

Plaintiff is actually a nominal plaintiff suing for the benefit of some other
person AND there is reason to believe that the nominal plaintiff will be
unable to pay the defendants costs; or

Person who has assigned the fruits of the action may be a nominal
plaintiff !Semler v Murphy 1968.

(iii)

The plaintiffs address is not or is incorrectly stated in the writ or other


originating process. Plaintiff to show innocent omission; or

(iv)

Plaintiff has changed address with view to evade consequences of


litigation.

(v)

Plaintiffs claim is not to be stifled by order for security !Lauria v Le


Salon Orient 1996. In that case, the plaintiff, ordinarily resident outside HK,
was injured on the premises of the defendant. P sued on occupiers liability
and the judge held that P had a good chance of success. D asked for security
and P argued that his claim would be stifled as he was impecunious.

Factors that P has to show:


- Whether P has other financial resources with which to continue the
claim e.g. friends relatives How P manages to pay his current
legal costs is relevant.
- Ps prospects of success.
- Whether Ps impecuniosity was caused by D.
Page 1 of 6

Civil Litigation Security for Costs, Prohibition Orders Cliffnotes!

Cliff Lui

- Legal aid: money usable upon when certificate is granted. Since


money of legal aid is within the jurisdiction, it would be wrong to
order security for costs incurred after the date the certificate was
granted.
(c)

Further criteria under s.357, Companies Ordinance:


(i)

Plaintiff is limited company. Note that overseas companies are not


companies for the purpose of the Companies Ordinance;

(ii)

Credible testimony that plaintiff will be unable to pay defendant his costs
if successful in defence.

Matters considered: Wing Hing Provision v Hanjin Shipping 1998.


- Plaintiff to satisfy court that an order for security would stifle its
claim and result in injustice.
- Court will conduct balancing exercise to see who would be more
inconvenienced prospects of success will be weighed prima facie.
If the plaintiff has a genuine claim, the courts will not want to stifle
it.
- Injustice to the plaintiff will be decided against the full factual
matrix. Esp. whether he can borrow from third parties. If he can,
then he wont be stifled.
- Oppressive application?
- Whether plaintiffs impecuniosity due to plaintiffs acts?
- Delay.

2.

Application Procedure

(a)

Demand for security by letter and which is refused.

(b)

Any person in the position of defendant to apply only (or plaintiff being
counterclaimed against) in the Court of First Instance: O.23 r.1(3).

(c)

At any time (but delay will be taken into account !Henrik Andersen v Huang Kuang
1997, since costs spent after the point when security should have been ordered will
have been wasted.).

(d)

Summons supported by affidavit stating the above requirements and draft bill of costs.

(e)

Master will then fix the amount and give directions on the mode and time for security
to be given. The proceedings are also usually stayed until security is given !Lam Fei
Hong v Wong Kam Fong 1999.

(f)

D can re-apply many times but there must be a material change in circumstance
between each !Henrik Andersen. There, the material changes were: a significant
prolonging of the case; defence witness exceptionally good .

3.

Amount of Security

(a)

Extend to costs already incurred and future costs !Henrik Andersen v Huang Kuang
1997.

(b)

Calculated usually on a party-and-party basis, not indemnity basis !Cal-Trade v


Mindo Community Trading 1982. Lawyers costs should not be unreasonable.
Page 2 of 6

Civil Litigation Security for Costs, Prohibition Orders Cliffnotes!

Cliff Lui

(c)

Any amount may be ordered between substantial and nominal as the court things just.

(d)

A draft bill of costs will usually be filed with he affidavit.

4.
(a)
5.

Manner of Undertaking
Payment into court (common), solicitors undertaking, bank guarantee.
Default / Dismissal / Appeal of action

(a)

If P defaults in payment, there may be an Unless Order to give security within a


limited time else the action may be dismissed.

(b)

Inherent jurisdiction to dismiss where:

(c)

B.

(i)

Action not being pursued with diligence;

(ii)

No reasonable prospect that security will be paid;

(iii)

Time limit has been disregarded.

If an application is made and refused, it should be appealed. A second application will


only be valid where there is a material change in the facts, which is for the applicant to
establish !Skytruck International v Lau Nai Keung 2004.

Prohibition Orders: Order 44 and s.21B, HCO


See more about post-judgment prohibition orders in Enforcement.
According to O.44A r.2, a prohibition order is applied for ex parte to prohibit a debtor
from leaving Hong Kong.

1.
(a)

Procedure
Pre-action Application: O.44A r.1
(i)

Judge may order prohibition even if the plaintiff has not commenced his
action.

(ii)

Application requires:

(iii)

(b)

Draft writ;

Undertaking to judge to issue writ on the next day;

Draft affidavit;

Draft order in form: Appendix A, Form 106.

Judge will approve draft order as he thinks fit.

That signed order, together with solicitors undertaking that the sealed
order will be produced the next day, should be served to the
Immigration Department; police and 4 copies to the Bailiff..

The Immigration Department will require the details of the debtors


travel document to place him on the stop list.

Pre-judgment Application: s.21B(1)(c), High Court Ordinance


(i)

Court can make an order stopping a person from leaving HK to help enforce
or secure a civil claim for:
Page 3 of 6

Civil Litigation Security for Costs, Prohibition Orders Cliffnotes!

Payment of money / damages; or

Delivery of any property; or

Any other act.

Cliff Lui

(ii)

A civil claim shall be given the widest meaning !Bunker Holdings v Asia
Pacific Seafood Management 2005 in which any other act was held to
include committals for contempt.

(iii)

Required documents:

(iv)

Writ;

Affidavit in support;

Draft order in form: Appendix A, Form 106.

Necessary Considerations: s.21B(3), HCO !"#$%&

Good cause of action; and

Nexus (person against whom the order is sought)


- Person incurred liability in HK while in HK; or
- Carries on business in HK; or
Means his own, personal business !Chase Bank International

v Carlos Shalon Sultan Abadi 1986.


- Is ordinarily resident in HK.

(c)

Person is about to leave HK and will therefore obstruct or delay the


obtaining or enforcement of judgment (supplemented by Bank of India
v Murjani Industries 1989 CA).

Post-judgment Application: s.21B(1)(a), (c)


(i)

(ii)

Court can prohibit D from leaving HK to enforce / secure a judgment for

The payment of a specified sum; or

The payment of an mount to be assessed; or

Requiring D to deliver any property; or

Any other act.

Considerations: s.21B(2), HCO

(iii)

Person is about to leave Hong Kong and will therefore obstruct or delay
the satisfaction of judgment.

Required documents:

Writ;

Affidavit in support;

Draft order in form: Appendix A, Form 106.

Page 4 of 6

Civil Litigation Security for Costs, Prohibition Orders Cliffnotes!

2.

Cliff Lui

Ex parte nature

(a)

Continuing obligation of full and frank disclosure.

(b)

Court may discharge PO if it was made without such full disclosure !Auto Treasure v
Pyramid International 1992.

3.

Making and Serving Prohibition Order: O.44A

(a)

Court will make an order in Form No.106, Appendix A: O.44A r.3.

(b)

Order needs to be served on Director of Immigration, Commissioner of Police, and,


if possible, the judgment debtor.

4.

(i)

If JD cannot be found, court should be notified at time of application or


whenever the fact arises.

(ii)

JC should not keep the order up their sleeve and use it to threaten the JD in
pending negotiations !Auto-Treasure v Pyramid International 1992. JCs
must serve JD personally immediately if he can be found.

Duration and Cancellation: s.21B(5), HCO

(a)

Order lasts 1 month, renewable twice for a maximum period of 3 months.

(b)

After 3 months, P needs to re-apply.

(c)

The renewals can go on until P has exhausted all remedies against D.

(d)

P may serve the Director of Immigration and file with the Registrar a notice to cancel
the order and must do so if the order is no longer required.

5.

Contravention: s.21B(7), (8), HCO

(a)

Under (7), arrest by the immigration, police or bailiff is possible.

(b)

Under (8), the person shall be brought to court on the day after the arrest and the court
may:

(c)
6.

(i)

Examine or imprison him;

(ii)

Discharge him with or without conditions.

D contravenes the order when he even attempts to leave the jurisdiction, though
catching him may be difficult !Sino Wood Investment v Wong Kam Ying 2006 CFA.
Discharge under O.44A r.4

(a)

Apply with 2 clear days notice to judgment creditor.

(b)

Judgment debtor himself needs to be present.

(c)

If the judgment one for money, the court will assess the amount due to the judgment
creditor and may discharge the order or examine the judgment debtor as under O.49B.

(d)

Where a debtor for money, not a judgment debtor


(i)

Consents to judgment being entered against him; or

(ii)

Satisfied the court that he has a substantial defence to the claim; or

(iii)

Consents both in respect of different parts of the claim

Page 5 of 6

Civil Litigation Security for Costs, Prohibition Orders Cliffnotes!

Cliff Lui

The court will discharge the order and give judgment accordingly and order
examination for the remaining parts of the claim as under O.49B.
(e)
7.
(a)

The court may otherwise discharge the Prohibition Order according to such conditions
as it thinks fit.
Compensation to Debtor if Wrongful Order: O.44A r.5
If the court thinks the order was applied for
(i)

on insufficient grounds;

(ii)

Was not caused to lapse by the plaintiff as soon as reasonably possible after
it was no longer required

It may award the debtor reasonable compensation for his loss according to its
jurisdiction.
That will bar the debtor from proceedings against the plaintiff for extra damages.
~~~

Page 6 of 6

Civil Litigation Discovery Cliffnotes !

Cliff Lui

Civil Litigation Discovery Cliffnotes


A.

The Law of Discovery

1.

How do Discovery Obligations Arise?

(a)

Automatic Discovery (O.24 r.1, 2):


(i)

(ii)

Parties to actions begun by writ must give discovery of any relevant matters
within 14 days pleadings close: O.24 r.2.

Pleadings close 14 days after the reply or defence to counterclaim:


O.18 r.20.

Total realistic time is 28 days after last pleading is served.

Relevant matters do not include admitted matters.

There is generally no automatic discovery of documents arising out of


accidents on land, unless the court otherwise orders: O.24 r.2(2).

(b)

Automatic discovery will engage upon documents relating to special


damages only as well as police reports / sketches, etc.: O.25 r.8(1).

Court Order for (O.24 r.3):


(i)

Further and better particulars: O.24 r.3;

(ii)

Specific discovery: O.24 r.7.

(c)

Request from other side to produce for inspection copies of documents referred to in
served documents: O.24 r.10.

(d)

Continuing obligation when new documents come into light !Vernon v Bosley 1997.
(i)

(e)
"

These are set out in a Supplemental List of Documents.

District Court: O.23A, 24 RDC.


* Documents mean any written matter and includes records, tapes and email.

2.

Making Discovery

(a)

Parties prepare and exchange list of documents: O.24 r.5.

(b)

Defendants entitled to co-defendants lists: O.24 r.6.

(c)

List of Documents in Form 26, Appendix A:

Page 1 of 8

Civil Litigation Discovery Cliffnotes !

Cliff Lui

1. The Plaintiff has in his possession, custody or power documents relating to the
matter in question in PART 1 of SCHEDULE 1.
2. The Plaintiff objects to producing the documents in PART 2 of SCHEDULE 1
because: [ legal advice or litigation privilege ].
3. The Plaintiff had, but not now, in his possession, custody or power documents
enumerated in SCHEDULE 2.
4. Of those documents in Schedule 2, those numbered [] in that schedule were last
in the Plaintiffs possession, custody or power on [] and the remainder on [].
They have been [] and are now in the possession of [].
5. No one has or ever had, in his possession, custody or power, any document
relating to the matter in question other than those enumerated in the above
Schedules.
(d)

Sets of documents having the same nature may be bundled together.

(e)

Kind of privilege must be stated.

(f)

Where discovery is made pursuant to a court order, the disclosing party might be asked
to verify its list of documents by affidavit (e.g. previous default).
(i)

3.

Affidavit must be as per Form 27, Appendix A: O.24 r.5(3).

Inspecting Documents

(a)

List of Documents may contain a Notice to Inspect, stating a time and place where
the other party can inspect the documents: O.24 r.9.

(b)

Person inspecting is entitled to copies if he pays reasonable charges: O.24 r.11A.

(c)

If a party fails to produce documents for inspection or provide copies, the counterparty
may request inspection under O.24 r.11.

(d)

4.

(i)

Onus on requested party to show that the documents are not: (i) relevant; (ii)
within his possession, custody or power; or (iii)

(ii)

Onus will be on requesting party to show that the order is necessary for
disposing fairly of the matter or for saving costs: O.24 r.13.

A party is also entitled to request copies of documents referred to in the counterpartys


documents: O.24 r.10.

Threshold for discovering documents


Relevance, within possession, custody or power, and privilege.

(a)

Relevance: O.24 r.1


(i)

Relevant matters do not include matters already admitted.

(ii)

Peruvian Guano test is very wide:

Documents that tend to prove or disprove a matter in issue;

Documents that might enable the other party to advance his own case
or damage the counterpartys case; and
Page 2 of 8

Civil Litigation Discovery Cliffnotes !

(b)

Documents which would lead to a train of enquiry which might have


either of those two consequences.

(iii)

Issue must be one determined by pleadings !Pauls Model Art GMBH & Co.
KG v U.T. 2005.

(iv)

Party cannot make something relevant merely by putting it in the pleadings.


It has to be actually relevant to the substance of the case !Pauls Model Art,
referring to Allington Investments v First Pacific Bancshares Holdings 1995.
Discovery is not required of documents which relate to irrelevant allegations
in pleadings which even if substantiated cannot affect the result of the action.

(v)

A party can redact (censor) irrelevant portions of an otherwise irrelevant


document, but must state the reason for each redaction !Guess v Lee Seckmon 1989 CA.

Possession, custody or power:


(i)

Applies to previous or current possession, custody or power.

(ii)

Physical control and right to take possession of

(iii)

Legal right to call for the document or control over the entity or individual
holding it !Sun Yuet Tai v British American Tobacco 1999 CA. These are
questions of fact.

(c)

Cliff Lui

Excludes any rights under the Privacy Data Protection Ordinance


Lonhro v Shell Petroleum 1980 because those are only rights to see and
correct.

Privilege:
(i)

Privileged documents have to be disclosed as to existence only, but not as to


contents in Part 2 of Schedule 1.

(ii)

Can be waived.

Where counterparty inspects privileged documents:


- Normally, where a party sees a particular document referred to in
the other sides list without privilege being claimed, and is later
allowed inspection of that document, he is allowed to assume that
privilege has been waived.
- That is the case unless the other party had obtained inspection of a
privileged document by fraud !Guinness Peat Properties 1987 CA.

(iii)

Grounds

Legal advice privilege


- Confidential communications between solicitor and client in
professional capacity that came into being for the purpose of
giving or obtaining legal advice.
- Litigation need not be contemplated.
- Includes advice as to course of action in the relevant legal context
!Three Rivers District Council v Bank of England 2004 HL. In that
case, the HL differentiated between employees responsible for
communicating with the legal advisors and those who were not.
Page 3 of 8

Civil Litigation Discovery Cliffnotes !

Cliff Lui

Litigation privilege
- Communication between client and third party
- When litigation was reasonably in prospect and
- Dominant purpose (intention of author or person under whose
direction, whether particular or general it was brought into
existence) was to obtain legal advice / assist in litigation !
Waugh v British Railways 1980 HL.
Guinness Peat: where intention was derived from the person

asking for the document.


Test: reasons of equal importance !dominance.

Protection from self / spousal incrimination: s.65(1)(a) Evidence


Ordinance.
- Risk apparent to court and appreciated by himself.
- Must be claimed on affidavit by person himself.
- Excepted offence: IP infringement: s.44A HCO.

(iv)

(v)

5.

Public interest immunity: O.24 r.15.

Confidentiality not a bar.

Controlled discovery to lawyers, experts, etc.

Confidentiality undertakings for e.g. trade secrets !Atari v Philips


1988.!

Without prejudice documents inadmissible as evidence in trial.

Must still be disclosed in Part 2 of Schedule 1 !Gross Fortune v Set


Win 1999 CA.

Usually not an issue because both sides will have had seen it.

Inadequate List of Documents!


Get more discovery, apply for specific discovery or strike out!

(a)

(b)

Further and better discovery: O.24 r.3:


(i)

Used where: (i) no list; (ii) list clearly inadequate, where order will be for
service of a further and better list of documents by some specified date.

(ii)

Where discovery is not automatic, e.g. originating summons.

(iii)

Order may require defaulting party to verify the better list by affidavit.

(iv)

Usually combined with order under O.24 r.7 as below.

Specific Discovery: O.24 r.7:


(i)

Failure to produce a particular document or class of documents.

(ii)

Applicant files affidavit in support and must believe that the documents in
question:

Exist;
Page 4 of 8

Civil Litigation Discovery Cliffnotes !

(c)

(d)

(a)

Are relevant to the matters in question; and

Are in the other sides possession, custody or power.

Burden on applicant to satisfy above on prima facie basis !Full Range


Electronics 1997.

(iv)

Applicant also has to satisfy court that it is necessary for disposing fairly of
the matter or for saving costs.

(v)

Applicant should seek an order for the other side to state on affidavit whether
it has or ever had in his custody, possession or power, the documents in
question.

Strike Out: O.24.16:


(i)

Extreme cases of default, e.g. fair trial no longer possible !Pang Po King v
Celestial Securities 2002.

(ii)

Contempt is possible.

Limitations on further and specific discovery


Court will not order discovery where:

Refusing party shows that it is not necessary for disposing fairly of


the matter of for saving costs.

Fishing expedition where requesting party is seeking discovery merely


in the hope of finding some claim or some defence to raise !Cathay
Pacific v Cathay Pacific Flight Attendants Union 1996 CA.

No substantial evidential materiality !O Company v M Company


1996.

Oppressive !AG v Wellcome Foundation 1992, more below.

Discovery from Non-parties


Not generally possible unless called as witnesses and issued with a subpena duces
tecum requiring production of documents: O.38 r.14.
(i)

(ii)
(b)

(iii)

(i)

6.

Cliff Lui

If non-party objects, requesting party needs to show:

Documents exist;

Relevant and admissible

Necessary to dispose fairly of the case; and

No fishing expedition !Brisilver Investments v Wong Fat Tso 1999.

*Position is to change around 2009 due to Civil Justice Reforms.

Personal injuries and death


(i)

Pre-action discovery only against likely parties, see below.

(ii)

During proceedings, on application under s.42, HCO, any party can compel
anyone likely to have or to have had in his possession, custody or power,
relevant documents, to disclose whether he has them and to produce them to
the requesting partys lawyers or experts.
Page 5 of 8

Civil Litigation Discovery Cliffnotes !

(iii)

(iv)

Cliff Lui

Application under O.24 r.7A by originating summons and supporting


affidavit:

Specify documents sought;

Identify issue to which documents relate;

Show documents to likely be in the non-partys possession, custody or


power: O.24 r.7A(3).

Norwich Pharmacal l1980 HL rules:

Independent discovery against third parties who, through no fault of


their own, facilitated in the tortious acts of others.
- Only prima facie case necessary.

Third party required to disclose identity of wrongdoer and other


information (e.g. bank accounts and destination of funds transferred).

Discovery only where information sought is necessary for claimant to


bring claim against tortfeasor. Remedy of last resort !Mitsui v Nexen
Petroleum UK 2005. Other methods should be tried first.

Cannot be oppressive !AG v Wellcome Foundation 1992 where


Custom and Excise was asked to arrange and produce tens of thousands
of documents for discovery.
- Whether providing the information would inconvenience the
disclosing party to an extent which cannot be compensated in costs.

7.

Pre-action Discovery

(a)

Not generally possible.1

(b)

Personal injuries and death, prospective party


(i)

(c)

Apply to court under s.41, HCO by originating summons and supporting


affidavit: O.24 r.7A:

State why applicant and respondent likely to be parties in personal


injury proceedings;

Identify documents sought;

Identify issues to which documents relate; and

Show documents likely to be in prospective partys possession,


custody or power.

Non-PI cases under Norwich Pharmacal 1980 HL:


(i)

See 6(b)(iii) above.

Will soon change under Civil Justice Reforms, extending pre-action discovery to all cases. Applicant will
have to show: (i) that he is a likely future party; (ii) that the requestee is a likely future party; (iii) that
documents sought are in possession, etc.; (iv) that documents are directly relevant to likely issues to be
raised.
1

Direct relevance is if evidence will likely be relied upon or is adverse to either partys case. The wide Peruvian
Guano test will not apply.
Page 6 of 8

Civil Litigation Discovery Cliffnotes !

8.

Cliff Lui

Use of Discovered Documents (Implied Undertaking)

(a)

Litigants impliedly undertake not to use info obtained for any collateral purpose other
than those necessary for the conduct of the action !Anex Elextrical v Kingsland
International 1998; Shun Kai Finance v Japan Leasing 2000 CA.

(b)

Exception: implied undertaking does not apply to documents referred to in a partys


pleadings, witness statements, affidavits and those produced under O.24 r.10 !Shun
Kai Finance.

(c)

Breach !contempt.

(d)

Release: O.24 r.14A:

9.

(i)

With counterparty consent;

(ii)

With leave of court; and

(iii)

Any document referred to in open court.

Advise client about:

(a)

Existence of broad scope of discovery obligation.

(b)

Scope includes both documents that support and go against the clients case.

(c)

Expense of discovery, encourage settlement.

(d)

Continuing nature of discovery.

(e)

All records must be preserved.

(f)

Creation of new, prejudicial records should be prevented.

(g)

Implied undertaking.

(h)

Solicitor duties:
(i)

Ensure proper discovery has been given by client.

(ii)

Ensure opponents list is complete and any claims of privilege are proper.

(iii)

Cease to act if client refuses discovery obligations.

B.

Interrogatories

1.

General

(a)

Way to discover facts, as opposed to documents.

(b)

Serve written questions to other party about facts within other partys knowledge and
which are relevant.

(c)

Answering party to respond on affidavit.

(d)

Obtain admissions on precise points, narrow issues, reduce costs, and encourage
settlement.

Page 7 of 8

Civil Litigation Discovery Cliffnotes !

2.

Cliff Lui

Scope: O.26 r.1:

(a)

Relevant

(b)

Necessary either: (i) for fair disposal of matter; or (ii) for saving costs.

3.
(a)

(b)

Procedure
High Court
(i)

Can be served twice without court order: O.26 r.3(1).


Third time requires leave: O.26 r.1(2).

(ii)

Leave required if service on government: O.26 r.3(3).

(iii)

After discovery and exchange of witness statements !Zhu Kuan Co. v


Brickell 1995.

(iv)

Interrogatory requirements (O.26 r.2):


Time to respond, which must "28 days after service;

Name of party, officer or member who is to answer;

Where body, name of officer / member on whom it shall be served.

(v)

Response within stated time limit unless servee applies to court: O.26 r.2(2),
3(2).

(vi)

Answer on affidavit: O.26 r.2(2).

District Court
(i)

4.

Leave required, made by summonses with proposed interrogatories attached.

Objection

(a)

Application to set aside / vary interrogatories must be made within 14 days of service:
O.26 r.3(2).

(b)

Interrogatories disallowed by court where:

(c)
5.

(i)

Questions irrelevant / fishing interrogatories, e.g. where interrogatories are


designed to establish an unpleaded cause of action;

(ii)

Not necessary for disposing fairly of matter or for saving costs;

(iii)

Oppressive, i.e. where it places disproportionate burden on answering party.

Privilege !answer interrogatory with privilege and grounds.


Refusal to Answer

(a)

Request further and better particulars of interrogatories: O.26 r.5(3).

(b)

Apply to court for order compelling other side to answer on affidavit or oral
examination: O.26 r.5(2).

(c)

Apply for action to be dismissed or defence be struck out: O.26 r.6(1).

(d)

Where interrogatories were ordered by court, contempt: O.26 r.7.


~~~
Page 8 of 8

Civil Litigation Injunctions, Marevas and Anton Pillers Cliffnotes !

Cliff Lui

Civil Litigation Injunctions Cliffnotes


A.

Introduction

1.

Definition and Powers

(a)

Equitable remedy under s.21L, HCO and s.52B, DCO:


(1) The Court of First Instance may by order (whether interlocutory or
final) grant an injunction in all cases in which it appears to the Court
of First Instance to be just or convenient to do so.
(2) Any such order may be made either unconditionally or on such terms
and conditions as the Court thinks just.

(b)

Only judges can grant injunctions: O.32 r.11(1)(d) unless the parties agree otherwise.

(c)

Prohibitory (common) / mandatory (rare)

(d)

No injunction against non-parties to an action !Mercedes-Benz AG v Leiduck 1996


PC.

2.

(i)

Transaction occurred outside HK. Defendant was registered in HK.

(ii)

Held: Court has no power to make orders against persons outside its
territorial jurisdiction unless authorised by statute. The only way here was
overseas service of documents, which does not include injunctions. The
respondent was not brought before the court by any valid means.

Classification
Interim Order

~ 2 days effect.

Interlocutory Injunction Commencement of proceedings until judgment.

3.
(a)

B.

Permanent Injunction

Obtained after full evidence assessment, usually after trial.

Quia timet Injunction

Injunction obtained before any harm is caused !Morris v


Redland Bricks 1970.

Example
An (ex parte / inter partes) interlocutory prohibitory injunction requiring the
defendant to stop placing any thing, inclusive of the defendants vehicle with
registration number AA 1234, on or at the plaintiffs car park space at 123 University
Road, Flat A, car park space 1.

Permanent injunctions

(a)

Discretionary relief. Court may still refuse the plaintiff an injunction as its relief and
be left with damages and or other relief as its only remedy.

(b)

Matters that may affect the Courts discretion in whether to grant an injunction,
permanent or interlocutory, include:
(i)

Where relief would instead be properly compensated by damages.

Page 1 of 10

Civil Litigation Injunctions, Marevas and Anton Pillers Cliffnotes !

(ii)

~estoppel where the plaintiff knows that the act is being done, is aware
of the legal rights involved yet gives the respondent the idea that he
would not do anything Armstrong v Sheppard & Short 1959.

Laches.

(v)

Where there is evidence that the plaintiff have been protecting their
secrets by deplorable means and hence do not come with clean hands
to the court to protect those secrets Hubbard v Vosper 1972.

Acquiescence.

(iv)

One does not obtain an injunction to restrain wrongs for which


damages are the proper remedy, in particular where the wrongs have
ceased and there is no likelihood of its recurring Proctor v Bayley
1889.

Unacceptable behaviour, fraud or dishonest conduct.

(iii)

Unreasonable inaction by the plaintiff after the infringement of its


right(s) had already taken place. Normally the length of delay is the
greatest factor to be considered and is a common defence Legg v
ILEA 1972.

Trivial infringement of plaintiffs rights.

Where there is no injury to a landowner and the plaintiff may obtain


nominal damages, the Court considered on those facts the case as a
petty contest Behrens v Richards 1905, or with mandatory
injunctions where it would mean involving substantial expense and
inconvenience which is out of proportion Sharp v Harrison 1922.

However, a final mandatory injunction may be sought where there is


encroachment on the property of the plaintiff by a defendant pursuant
to the deed of mutual covenant of the property. Even where a plaintiff
has given consent to occupation, such consent is at best a bare licence
which is terminable at will. Opposing such an order where the merits
of the plaintiffs case is overwhelming, there might be an award of
indemnity costs against the defendant !Fan Tony v Incorporated
Owners of Kung Lok Building 2006.

C.

Interlocutory Injunctions

1.

Introduction

(a)

(b)

Cliff Lui

Interlocutory proceedings:
(i)

No trial of merits

(ii)

No full discovery / inspection of documents

(iii)

No full pleadings

(iv)

No need to prove any case

Maintain status quo.

Page 2 of 10

Civil Litigation Injunctions, Marevas and Anton Pillers Cliffnotes !

2.
(a)

(b)

Cliff Lui

Law
O.29 r.1
(i)

Injunctions do not have to be pleaded and may be made by any party at any
time.

(ii)

Ex parte application by affidavit allowed if case is urgent, otherwise, must


apply by summons or motion.

(iii)

Application before writ not allowed unless case is urgent. If issue before
writ, writ must be immediately issued.

American Cyanimid Company v Ethicon 1975 HL


(i)

Serious issue to be tried. (not frivolous or vexatious)

(ii)

Damages inadequate remedy for applicant !Fellowes & Son v Fisher 1976
where it was held that injunction should not be granted if there is only
financial loss even if it is not capable of precise calculation.

Irreparable damage occurs with property, reputation, things with a life


expectancy (businesses, patents, etc.).

(iii)

Damage to respondent reparable?

(iv)

If damage to both seem irreparable, balance of convenience?

(v)

(vi)

If there is no arguable defence and the plaintiffs injunction claim was


justified, this step is not necessary !Yeko Trading v Chow Sai Cheong
2000.

Undertaking as to damages.

PD.[]

Fortification may be ordered even if it wasnt asked for by the


respondents !Elegant Jump v Tribune Bridge 2000.

Allows court to grant injunction without going into the merits of the
case !Wah Nam Holdings v Excel Noble Development 2000. If an
injunction is ex parte, material non-disclosure of applicants financials
may render injunction nugatory.

Evidence that P has the means to support his undertaking may be vital
to the case where all other factors are finely balanced and where
substantial damages may be ordered !Andy Lau v Hang Seng Bank
2000.

*Relative strength of parties cases (last resort / main issue / consent).

Only occurs if all else appears equal since the court is only looking at
affidavit evidence !Entec Pollution Control v Abacus Mouldings 1992
CA; or

If the grant / refusal of injunction will dispose of the action Zheng Lie
Lie v Prosperfield Ventures No.1 2003; or
- Subject of injunction was also subject of LPP;
- In this matter the trial of this matter will not occur and that for
all intents and purposes my determination as to whether this
Page 3 of 10

Civil Litigation Injunctions, Marevas and Anton Pillers Cliffnotes !

Cliff Lui

injunction should continue will have the effect of deciding the issue.
If I continue the injunction, the defendants will not be able to use
the document. If I refuse to grant the injunction, the plaintiffs will
be deprived of their plea of privilege.

(c)

Where there is (i) no real dispute as to the facts; (ii) there is agreement
to hear the application as a trial to the action; and (iii) to make the final
order !The Incorporated Owners of Viking Garden v Golden Brains
1991.

Exceptions to American Cyanimid:


(i)

Where grant / refusal of interlocutory injunction would determine the


action !Zheng Lie Lie.

(ii)

Where cause of action is based on express restrictive covenants, because


the respondents promise should be upheld once a serious issue to be tried is
established.

Injunction will be granted unless the clause is prima facie invalid


!Fellowes & Son. Some factors to determine validity (Nordenfeldt v
Maxim Nordenfeldt 1984):
- Covenants in restraint of trade are prima facie unenforceable but are
enforceable if they are reasonable with reference to the interests of
the parties and of the public.
- A covenant may lawfully prohibit a former servant from accepting
employment with a competitor so as to be likely to destroy the
employers trading secrets and connections by a misuse of his
knowledge such, provided that the covenant is no more than is
reasonable to protect the legitimate interests of the former
employer.
- Covenant must be reasonable in the duration, as to the geographical
area of its operation and as to the restraint it imposes on the
employee in respect of the type of prohibited activities Susan
Buchanan v Janesville 1981.

Onus on the employer to establish validity / reasonableness.

In many cases, the balance of convenience would be in favour of the


defendant because his livelihood is at stake whereas the plaintiff would
just lose a few clients.

No mandatory injunction of employment contracts !Beacon College v


Yiu Man Hau 2001.

(iii)

Where cause of action based on restraint of trade, length of delay to trial is


a factor !Lansing Linde v Kerr 1991. If restraint of trade clause
unreasonable at trial, plaintiff may be held liable on its undertaking !Ho
Wing Cheong v Graham Margot 1990.

(iv)

Where cause of action based on defamation and defence is justification /


truth, injunctions are not usually granted because it would infringe upon free
speech !Holley v Smyth 1998.

Page 4 of 10

Civil Litigation Injunctions, Marevas and Anton Pillers Cliffnotes !

(d)

3.
(a)

Cliff Lui

Mandatory Injunctions!
(i)

Rare and exceptional !Pfizer v Ultrasound Holdings 1999.

(ii)

Strong prima facie case required TKI v New Happy 1995 CA.

(iii)

Take the course of lower risk of injustice !Films Rover International v


Cannon Film Sales 1987.

Procedure (inter partes application)


Practice Direction 5.3
1.1 Friday is summons day. Return dates for all summonses for
interlocutory injunctions and those ex parte will be Friday
mornings 10:00.
2.1 Court Clerk will mark the next summons day for all
injunction applications if 2 clear days notice can be given to
the respondent.
2.2 Return date for ex parte injunctions granted less than 2
clear days before a summons day will be the 2nd summons day
following the grant.

Best to file on Tuesday.


(b)

Person with equitable interest may apply for interlocutory injunction but cannot obtain
final order until he joins the legal owners !Takmay Industrial v Wah Sang Industrial
1979.

(c)

Permanent injunctions must be pleaded as a form of relief.

(d)

Documents required, file by TUESDAY

4.
(a)

(i)

Writ

(ii)

Summons

(iii)

Affidavit in support

(iv)

Skeleton argument: PD 5.4, 4.2

(v)

Draft order (optional)

Procedure (ex parte application)


Full and frank disclosure. Else order may be set aside without considering merits to
deprive the plaintiff of any benefits he may have obtained though of that duty
!Kensington Income Tax Commissioners 1917.
(i)

If no full disclosure, costs against applicant forthwith and on an indemnity


basis.

(ii)

Applicant must make sufficient enquiries prior to the application.

(iii)

Continuing duty to disclose any material change of circumstances while


proceedings remain ex parte !Hanjin Shipping v Grand King Shipping
1998.

(iv)

Material facts are all material matters necessary to enable the judge to
properly exercise his discretion.

(v)

Good results of injunction not sufficient to justify lack of disclosure.


Page 5 of 10

Civil Litigation Injunctions, Marevas and Anton Pillers Cliffnotes !

(vi)
(b)

Cliff Lui

Simply copying large amounts of documents is insufficient !Rever (AMA)


Salon v Kong Wai For 2001.

Practice Direction 11.1 Ex parte and general applications


1.(a) Applications should normally be made on affidavit to a
judge.
4. ! In all applications ex parte for the grant, continuance or
discharge of interim or interlocutory injunctions, the papers
(including draft order) should be delivered to the court in good
time.
5.! Usually the issue of a writ or originating summons and the
swearing of an affidavit in support of an ex parte application
for injunction is required before the application is made
(O.29 r.1).
11. The affidavit in support should contain a clear and concise
statement:
(a)

facts giving rise to the claim;

(b)

facts giving rise to the claim for injunction;

(c) facts justifying the application ex parte; this should


include any details of any notice given to the defendant or
the reasons for giving none;
(d) of any answer either asserted by the defendant or which
he is likely to assert, either to the claim in the action or
to the claim for interlocutory relief;
(e) of any facts known to the applicant which might lead
the court not to grant the relief sought or not to grant it
ex parte; and
(f)

of the precise relief sought.

12. !The application should be accompanied by a skeleton argument


setting out precisely and succinctly how it is said that the
case:
(a)

meets the requirements for the order sought; and

13.! The skeleton argument must be served on the counterparty


together with the order and evidence.
14.! Applicants for ex parte relief should prepare and lodge with
the papers relating to the application a draft minute of the
order sought. Such minute should specify the precise relief which
the court is asked to grant. Undertakings include:
(a)

to give an undertaking in damages;

(b) to notify the defendant of the terms of the order


forthwith by appropriate means;
(c) in Mareva injunctions, to pay the reasonable costs and
expense incurred in complying with the order by any third
party to whom notice of the order is given;
(d) if proceedings have not been issued, to issue them
forthwith;
Page 6 of 10

Civil Litigation Injunctions, Marevas and Anton Pillers Cliffnotes !

Cliff Lui

(e) if a draft affidavit has not been sworn, or where the


facts have been placed before the Court orally, to procure
the swearing of the affidavit or the verification on
affidavit of the facts outlined orally to the Court.
15.! The order should, as a general rule, contain provision:
(a) for the defendant to apply on notice for discharge or
variation of the order;

(c)

D.
(a)

(c)

for the costs to be reserved.

(i)

Issue of a writ;

(ii)

Affidavit in support;

(iii)

Skeleton argument;

(iv)

Draft order;

(v)

* as a matter of practice, a draft summons for a return date hearing.

Consequential Matters
Duration of injunction

(ii)

(c)

for a return date, of an inter partes hearing; and

Required Documents:

(i)

(b)

(b)

inter partes :

From issue of order until further order or judgment.

May be varied after application is made with liberty to apply; material


change in circumstances; or where order was made on erroneous view
of the law !Regent Oil v JT Leavesley 1966 or where defendant offers
undertakings.

ex partes:

From issue of order

Until successful ex parte discharge application !London City Agency


JCD v Lee 1970. Successful application by one defendant normally sets
other co-defendants free !RD Harbottle (Mercantile) v National
Westminster Bank 1978.

Costs
(i)

Inter partes injunction: winners costs in the cause.

(ii)

Successful ex parte injunction: costs reserved, determined later.

(iii)

Successfully opposed ex parte application: costs to defendant !Pickwick


Intl Ink v Multiple Sound Distributors 1972.

(iv)

If infringement to plaintiffs rights trivial and defendant had offered


reasonable settlement terms, costs may be awarded to defendants despite
having proved liability Wealthy Plus v Lai Man Ho 2001.

Breach of injunction is contempt of court: O.52.


Page 7 of 10

Civil Litigation Injunctions, Marevas and Anton Pillers Cliffnotes !

E.

Mareva (Freezing) Injunctions

1.

General

Cliff Lui

(a)

S.21L, HCO and s.52B, DCO: restrain any party from removing from the jurisdiction
any asset located within the courts jurisdiction.

(b)

Seizure of assets preserves them for the JC but does not give them preference over any
particular creditor! The Mareva 1980 CA.

(c)

Mareva should not prevent D from carrying on business as usual and should not
impede him in his defence Derby & Co. V Weldon 1989.

2.

Procedure

(a)

Any time ex parte application due to need for speed and secrecy.

(b)

Affidavit requirements:
(i)

Good arguable case, cf. serious issue to be tried !Nicekind Holdings v Yim
Wai Ning 2000.

(ii)

Court has jurisdiction (sums and main basis of action within HK).

(iii)

Certain or approximate sums.

(iv)

D must have assets within the jurisdiction.

(c)

If Worldwide Mareva, insufficient assets in HK but enough outside


!International Connex Holdings v Wealth Resources Enterprises 2006.

(v)

Balance of convenience.

(vi)

Full and frank disclosure.

(vii)

Risk of dissipation, (evasiveness, fraud, nature of assets, defendant


characteristics).

(viii)

Willing to give undertaking.

Precluding factors:
(i)

No good arguable case;

(ii)

Material non-disclosure;

(iii)

Insufficient risk of asset dissipation;

(iv)

Sums < $300,000.

(v)

Delay

(d)

Amount frozen equal to prima facie justifiable claim !Z v A-Z and AA-LL 1982.

(e)

Other ancillary orders possible include discovery, delivery up of assets, etc. !CBC
United Kingdom v Lambert 1983.
(i)

Yau Chiu Wah v Gold Chief Investment 2002:

Court has jurisdiction to order cross-examination of a deponent on any


affidavit or affirmation made by him in compliance with an order for
discovery under a Mareva injunction.

Page 8 of 10

Civil Litigation Injunctions, Marevas and Anton Pillers Cliffnotes !

(f)

(g)

Cliff Lui

Order for cross-examination is to enable a Mareva injunction to be


made more effective. This is also the justification for an order for
discovery as an ancillary order to a Mareva injunction.

Service:
(i)

On defendant; and

(ii)

Third parties holdings defendants assets, incl. banks. Notice must also be
given to notify them of the details and their right to vary the order in as
much detail as possible Guinness Peat Aviation 1992.

Practice Directions 11.1, 11.2


(i)

3.
(a)

Effect
Takes effect when pronounced on each of the defendants assets it covers and everyone
with knowledge of it must do what the reasonably can to preserve them otherwise they
will be in contempt, especially if they assist in dissipation.

F.

Anton Piller (Search) Order

1.

General

(a)

Court has inherent jurisdiction to require the defendant to permit the plaintiff to enter
the premises and remove and detain items pursuant to orders.

(b)

The defendant must grant permission. The plaintiff cannot force their way in.

(c)

Alternative under O.29 r.2:

2.
(a)

(b)

(i)

Search and detention of any property, but with inter partes and with notice to
the defendant.

(ii)

Not a good alternative. Anton Piller is an ex parte mandatory order with risk
of being found in contempt if defendant refuses.

Law
Affidavit requirements Ng Chun Fai v Tamco Electrical and Electronics 1993:
(i)

Strong prima facie case; also of the following factors:

(ii)

Actual potential damage to plaintiff;

(iii)

Risk of destruction or removal of major evidence before inter partes


application.

(iv)

Potential harm of execution must be reasonably proportional to the object


of the order, e.g. where trading stock and commercial documents are seized.

(v)

Full and frank disclosure.

(vi)

Undertaking as to damages.

AP Order may be applied for multiple times, e.g. once for hard copies and once for
soft copies of documents !Centaline Property Agency v HK Property Services 2005.

Page 9 of 10

Civil Litigation Injunctions, Marevas and Anton Pillers Cliffnotes !

(c)

3.

Since the plaintiff may apply ex parte, defendant may discharge order by urgent
application with notice to the plaintiff. Ex parte discharge may also be possible
!Hallmark Cards v Image Arts 1977.
Draft Order (PD 11.2)

(a)

Plaintiff has no right to enter unless defendant allows.

(b)

If defendant does not allow, he may be in breach of the order.

(c)

Defendant may seek legal advice.

(d)

Mandatory terms Columbia Picture Industries v Robinson 1989:

(e)
4.
(a)

Cliff Lui

(i)

Execution by the named solicitors;

(ii)

The number of persons accompanying them and their capacity;

(iii)

The premises to be searched clearly identified

(iv)

Once copies are taken, originals ought to be returned to the owner;

(v)

No material should be taken unless clearly covered by the terms of the order;

(vi)

Seized material of which the ownership is in dispute should be retained by


the plaintiffs solicitors pending trial;

The order should be executed under a supervising solicitor with experience.


Interim Orders (property)
Order 29:
r.2: detention, custody, preservation or inspection of property;
r.3: taking of samples, making of observations, conducting experiments;
r.6: recovery of property subject to lien;
r.7A: inspection, photographing, preservation, custody, detention of property,
taking of samples, conducting experiments before action.

5.
(a)

Costs
To be reserved.
~~~

Page 10 of 10

Civil Litigation Settlement Cliffnotes !

Cliff Lui

Civil Litigation Settlement Cliffnotes


A.

Procedure

1.

Lay Negotiation

(a)

Lay persons, sui juris, may conduct negotiations.

(b)

Advise clients to make terms of settlement:


(i)

without prejudice; and

(ii)

subject to contract

to avoid ambiguous terms being construed against your client.


2.
(a)

(b)
3.

Lawyer Negotiation
Authority
(i)

Actual !express / implied authority given by client.

(ii)

Ostensible !lawyers have ostensible authority that binds their clients even if
they might not have actual authority!!Waugh v Clifford & Son 1982 CA.

Lawyers should get the actual authority of clients before conducting negotiations to
avoid being sued.
Without-Prejudice Letters

(a)

These letters contain settlement negotiations, and to encourage settlement between the
parties, are generally inadmissible as evidence. If they do not contain any bona-fide
intention to settle, they are liable to be disclosed.

(b)

Exceptions where (Unilever v Proctor & Gamble 2000 CA):

4.
(a)

(i)

Compromise / settlement is disputed. Letters may be studied to see if a


compromise was actually reached.

(ii)

Fraud, misrepresentation and other vitiating factors alleged. Court will study
them to ascertain their effect.

(iii)

Estoppel.

(iv)

Cloak for unambiguous perjury, blackmail, etc.

(v)

Delay, acquiescence needs to be explained

Negotiation by Disabled Persons (under-18, mental patient): O.80 rr.10, 11


Approval of settlement before proceedings have begun: O.80 r.11.
(i)

Application by originating summons in Form 10, Appendix A, requiring:

Approval of court for settlement;

Directions of court for dealing with money agreed to be paid;

Attached with relevant documents including birth certificate, medical


reports, counsels advice, full settlement terms, affidavit of solicitor
setting out position on liability and damages material for the courts
consideration. Memorandum desired if not settled at the door of the
court Ablan v Skanska-Shui On-Balfour Beatty Joint Venture 2000.
Page 1 of 8

Civil Litigation Settlement Cliffnotes !

(ii)
(b)

Cliff Lui

Acknowledgement of service to be returned.

Approval of settlement at any time: O.80 r.10.


(i)

Where money is claimed in any proceedings on behalf of a person under


disability, any settlement must be approved by the court.

(ii)

Application by interlocutory summons.

(iii)

No agreement is binding until court approval is obtained!!Dietz v Lennig


Chemicals 1969.

(iv)

Court requires explanation as to how the proposed settlement had been


arrived at and why the court should approve it.

(v)

Memorandum by main solicitor setting out position on liability and


damages, attaching latest medical reports and counsels advice.

If at door of court, then inter partes hearing would be sufficient.

If settlement made before trial, apply to the Master; else if settlement made
after trial, apply to the Judge or Master.

(c)

If approval is not granted, Master must give directions for appropriate next step.
Appeal is possible to a Judge in chambers.

(d)

Ablan v Skanska-Shui On-Balfour Beatty Joint Venture 2000

(e)

(f)

(i)

Court will not rubber-stamp a settlement. Parties should be prepared to


explain why the court should approve it.

(ii)

If settlement before writ, court approval should be sought by originating


summons setting out material particulars, including counsels advice and
other documents.

(iii)

If settlement after writ and if time permits, court approval should be sought
by interlocutory summons in the specified form.

(iv)

Counsels advice should not be served on the other party.

(v)

If settlement was reached shortly before trial, if settlement is not approved,


parties must be prepared to continue.

PD 18.1 and attached note


(i)

Practitioners must identify infants and other persons under a disability.


Failure to do so could result in a negligence suit. They may do so my
marking the file infant or patient as the case may be.

(ii)

Practitioner in neglect bears the costs resulting from his neglect.

(iii)

Court will not release money even if subject to a first charge by the DLA
until all costs have been quantified. This is to ensure that the claimants
money is not held without interest and to enable the court to ascertain what
the real sum for the benefit of the claimant is.

Costs
(i)

Proper order is on a common fund basis !PD 18.1, 17.5.

(ii)

If a solicitor does not expect he can get his costs from the defendants, he can
charge against a plaintiffs awarded damages, costs and disbursements, he
must produce for approval at the hearing a statement of the maximum
amount of such costs and disbursements and must justify them.
Page 2 of 8

Civil Litigation Settlement Cliffnotes !

Cliff Lui

There is to be no approval unless the court can be told with reasonable


accuracy the maximum amount sought to be deducted from the plaintiffs
damages.
(g)

Mentally Disabled Persons


(i)

(ii)

(iii)

Part II Proceedings Re CK 2006 p.29

Generally not necessary absent special circumstances (substantial


award). A next friend is obliged to act by a solicitor, who has a duty to
protect the interests of the MIP.

Of course, after the case, the solicitor ceases to act and the courts
powers over the next friend are limited.

Committee Re CK 2006 p.30

Court can exercise tighter control in terms of selecting and removing


members.

Committee owes a legal duty to the Court to account for the affairs and
properties administered.

Court may direct proceedings against former committees to recover


loss by reason of mismanagement.

May not be cost effective.

Use of Monies Received !Re YCK 2004, also see settleemnt sum, below.

(iv)

Costs

(h)

Lawyers acting for a person under disability have a duty to consider


whether reasonable measures are in place to safeguard the misuse of
monies received for the benefit of that person. Instructions from the
next friend cannot override the lawyers personal duty owed to the
person under disability. When a lawyer detects some possible conflict
of interest between a next friend and a PUD, he should consider
bringing the matter to the attention of the court and if necessary,
applications should be made under Part II of the MHO.
Where Part II proceedings or a committee is appropriate, the defendant
bears the costs Sin Kam Hei 2004.

What Happens to the Settlement Sum?


(i)

It is paid into court. A large amount of it remains in court to be invested by


the Registrar as suitors funds.

(ii)

Applications for future payments out of the fund have to be made to the
Registrar.

(iii)

Plaintiff minor gets full access to the funds upon reaching 18 years.

Page 3 of 8

Civil Litigation Settlement Cliffnotes !

B.

Cliff Lui

Devices for Provoking Settlement


Generally, some pressure needs to be exerted.

1.

Payment into court

(a)

A payment into court is an offer to settle without admitting liability.

(b)

The fact of payment-in must not be disclosed to the court until the issue of quantum
and liability have been decided !O.22 r.7(1).

(c)

(i)

It might influence the courts decision on liability.

(ii)

In a split trial, where costs are being decided for the issue of liability,
payment-in may be mentioned, but not the amount !O.22 r.7(2).

Payment Procedure !O.22 r.1:


(i)

In any action for debt or damages, D may at any time pay into court a sum
of money in satisfaction of a cause of action claimed by the plaintiff.

(d)

(ii)

On making any payment into court under this rule, and on increasing any
such payment already made, D must give notice in Form No.!23 in Appendix
A to all parties; and P must, within 3 days after receiving the notice, send
the defendant a written acknowledgment of its receipt.

(iii)

A notice of payment may not be withdrawn or amended without the leave of


the Court which may be granted on just terms.

Acceptance Procedure
(i)

(ii)

Before trial, payment-in may be accepted within 14 days of receipt of notice


O.22 r.3(1).

Leave for late acceptance usually given so long as P pays all of Ds


costs incurred after payment-in.

If substantial change in the risks of the case in favour of D occur, leave


for late acceptance may not be given. P should not be granted extra
time just because his case has become worse.

If interim payment after trial but before judgment or summing up to a jury,


P has 2 days O.22 r.3(2).

(e)

If the action includes claims for e.g. equitable relief, those should be
abandoned if P wants automatic rights to his costs under O.62 r.10(2).
This is because acceptance of payment-in only extinguishes the debt
and damages claims.

No leave for late acceptance without consent of D.

Effect of Acceptance:
(i)

All further proceedings to which the acceptance relates are stayed:


O.22 r.3(4), (5).

(ii)

Excludes, e.g. injunctive relief. P can still pursue those claims.

Costs

P is automatically entitled to costs up to notice accepting payment-in if


irrelevant claims are abandoned:!O.62 r.10(2).

Page 4 of 8

Civil Litigation Settlement Cliffnotes !

Cliff Lui

- If P does not abandon non-monetary claims, he loses entitlement to


taxed costs automatically !Associated Engineers v Lo Chee Pui
2002 CA. This is because accepting payment-in in full satisfaction
of the cause would amount to discontinuance without leave, which
under O.21 r.2, can only be done within 14 days of service of
defence on P.

(f)

If accepted payment-in < $50,000 in district court claim, then costs


should be taxed on the DC scale Cho Ho Kuen 2001.

If accepted payment-in < $1,000,000 in high court claim, then the


courts has discretion in setting the scale of costs, which would normally
be determined by the amount accepted !Wong Lan 2007, conflicting
with Wellegant 2007.

Effect of Non-acceptance
(i)

payment-in > award then


Costs before payment-in P
Costs after payment-in D
else if payment-in < award then
"
Costs P
if

"
"

(ii)
2.

Need to include the interest on the principal sum up to the date of payment in
determining whether the payment exceeds the award !O.22 r.1(8).

Calderbank Offers (CBO)

(a)

Calderbank offers are promises to pay the counterparty with costs consequences if the
parties go to trial.

(b)

They are made without prejudice save as to costs but the nature of the letter will be
considered in its entirety !The National Commercial Bank Ltd. 2000.

(c)

They cannot be relied on by a defendant if the costs position could be protected by


payment into court !O.22 r.14(2) and O.62 r.5(d), e.g. a monetary claim. A plaintiff,
however, may rely on a CBO. Cf. open letters below. This is also because payment
into court proves the ability of the settlor to pay.

(d)

Costs
(i)

CBO shall be taken into account when questions as to costs arise !O.62 r.
5(d).

if

CBO > award (and P ought reasonably have accepted the proposal)

then

"
"

Costs before offer date P


Costs after offer date D
else if payment-in < award then
"
Costs P

(ii)

The court has a discretion !Luk Kwan Hung Nelson v Victory Mark
Investment 2004 where it was suggested that the proper question is
whether the offeree ought reasonably have accepted the proposal.

Notwithstanding an ineffective CBO, if the awarded sum was within the


Small Claims jurisdiction and the case was blatantly brought in the District
Court, costs may be awarded on the Tribunal scale Cheung Yu Tin v Ho
Hon Ka 2006 CA where a CBO was ruled ineffective because of the proviso
Page 5 of 8

Civil Litigation Settlement Cliffnotes !

Cliff Lui

and because it was reasonable for P to refuse it. There, the costs of the action
had not been dealt with in the CBO. Advice: better to include costs on the
appropriate scale, interest, taxation fees together with the principal.
(a)

Open Offers
(i)

Choy Bing Wing 1998 ! the only way in which D can protect his position
is by means of an open, as distinct from a without prejudice offer.

An open, non-confidential letter would escape the problem where a


CBO would be ineffective under O.22 r.14 because the claim is
monetary and a payment into court is otherwise necessary.

C.

Settlement by Agreement

1.

Without Court Order

(a)

2.
(a)

(b)

(c)

Lam Fung Ying v Ho Tung Sing 1993


(i)

Oral settlement between solicitors;


Ps solicitors sent draft letter enclosing Consent Summons;
D fired his solicitors and denied solicitors authority to settle;
P unsuccessful in obtaining order from Master to enforce settlement;
Chose to continue proceedings by seeking further and better particulars;
Later started fresh proceedings to sue on settlement agreement.

(ii)

Held: Election by P when seeking F&BP, settlement abandoned. Estoppel by


representation.

With Court Order: O.42 r.5


Consent Judgment for P
(i)

In favour of P on terms agreed between the parties (assume jurisdiction).

(ii)

If monetary judgment, either settlement or larger sum + stay of proceedings


as long as D complies with settlement terms, see C3(a)(i) .

(iii)

If P is injured, he simply enforces judgment by direct execution.

Consent Order for


(i)

Dismissal: P cannot pursue action in fresh proceedings. Can only sue on


settlement agreement.

(ii)

Discontinuance / Withdrawal: end original proceedings, but no bar to fresh


action on same cause of action, unless settlement agreement itself discharges
original action.

(iii)

Stay: Proceedings are asleep and may be lifted in exceptional circumstances.

Procedure
(i)

Within O.42 r.5A !no leave required, order need only be deposited with the
registrar.

(ii)

Outside O.42 r.5A (BB p.531-2) !take out Consent Summons for leave.

Page 6 of 8

Civil Litigation Settlement Cliffnotes !

3.
(a)

Example
Green v Rozen 1955
(i)

(ii)

(iii)

(iv)

(v)

(b)

Cliff Lui

Terms: agreement by D to pay specified sum of money by specified


instalments on specified dates.

Order: give judgment for total amount agreed to be paid with a stay of
execution so long as instalments are paid in accordance with the terms
agreed.

Injured party proceeds to levy execution.

Terms: less straightforward terms.

Order: D (maybe also P) shall do the things they have respectively


engaged themselves to do.

The Plaintiff do; the Defendant do0

Apply to the court to enforce the order.

Terms: Tomlin Order.

Order: and the plaintiff and defendant having agreed to the terms
set forth in the schedule hereto, it is ordered that all further proceedings
be stayed except for the purpose of carrying such terms into effect.
Liberty to apply as to carrying such terms into effect.

Injured party may raise contentions against the enforcement of the


order.

Terms:

Order: consent order staying all further proceedings in the action on the
terms agreed on counsels briefs.

Akin to discontinuance.

Terms:

Order: none.

New agreement between the parties supersedes the original cause of


action. Anyone injured on the new agreement must seek the courts
assistance afresh.

Assignment FE
(i)

Terms: consent judgment to be enforced unless $3M is paid by the


designated time and the said customers are not solicited for the stated period.

(ii)

Order: consent judgment for P

Page 7 of 8

Civil Litigation Settlement Cliffnotes !

D.
(a)

Agreeing Settlement Terms


Parties will stick closely to the enforceable terms of settlement.
(i)

(b)

(c)

(a)

Where goods are required to be returned in good condition, they must be so


returned !Kai Fung Engineering v Plasteel HK 1983.

Potential Claims
(i)

To be safe, settlement terms should preclude the plaintiff from suing another
in the same matter, because if P does so, that other person might seek a
contribution from you under s.3(3) of the Civil Liability (Contribution)
Ordinance.

(ii)

Alternatively, you can have P indemnify you for any contribution claims that
might be launched against you.

Costs
(i)

E.

Cliff Lui

See who should bear the costs of the proceedings.

Court Notification
If case has been set down for trial, if settlement is likely or occurs, the Court Registry
should be informed !O.34 r.8(2), (3), PD 18.1 section B memorandum.

Page 8 of 8

Civil Litigation Enforcement Cliffnotes!

Cliff Lui

Civil Litigation Enforcement Cliffnotes


A.

Introduction

1.

Effective Date of Judgment

(a)

Judgment effective when pronounced. Reasons may be given later: O.42 r.3(3).

(b)

Judgment unenforceable until formally drawn up and entered: O.46 r.6(4)(a)(i).

(c)

Court may order immediate execution when giving judgment: O.45 r.14.

2.
(a)

3.

Service of Judgment
Service not necessary for enforcement unless:
(i)

order mandatory; or

(ii)

Enforcement sought by way of sequestration or committal (contempt):


O.45!r.7.

Limitation Periods

(a)

Action taken on judgment: 12 years: s.4(4), Limitation Ordinance. (Does not apply to
enforcement by execution National Westminster Bank v Powney 1990). Interest on
judgment debt cannot be recovered after 6 years.

(b)

Enforcement by execution: 6 years, with leave required later: O.46 r.2(1)(a).


(i)

In UK, lapse of 6 years is enough to refuse leave.

(ii)

In HK, because fresh action may be taken for judgment within 12 years,
courts might just grant leave to avoid wasting time.

B.

Methods of Enforcement

1.

Judgment / order for payment of money

(a)

2.
(a)

O.45 r.1(1) enforcement by:


(i)

Writ of fieri facias;

(ii)

Garnishee proceedings;

(iii)

Charging order;

(iv)

Appointment of receiver;

(v)

Sequestration / committal order.

Judgment / order for payment of money into court


O.45 r.1(2) enforcement by:
(i)

Appointment of receiver;

(ii)

Sequestration / committal order.

Page 1 of 12

Civil Litigation Enforcement Cliffnotes!

3.
(a)

4.

Cliff Lui

Judgment for possession of land


O.45 r.3 enforcement by:
(i)

Writ of possession;

(ii)

Sequestration / committal order.

Judgment for delivery of goods

(a)

O.45 r.4(1) where judgment does not give defendant option to substitute goods with
value:

(b)

O.45 r.4(2) judgment may provide option to discharge by paying assessed value of
goods:

5.
(a)

(i)

Writ of (specific) delivery to recover goods on their assessed value (specific


if ordered upon application by summons);

(ii)

Writ of sequestration.

Judgment to do / abstain from doing any act


O.45 r.5 enforcement by sequestration / committal order.

C.

Post-judgment Provisional Remedies

1.

Post-judgment Mareva Injunction

(a)

Power under:
(i)

s.21L(1), High Court Ordinance

(ii)

s.52(1), District Court Ordinance

(b)

Establish real risk that judgment debtor will dispose of assets to avoid execution
!Steward Chartering v C&O Managements 1980. No need to establish merits.

(c)

See Mareva Injunctions generally

2.
(a)

(b)

(c)

Post-judgment Prohibition Order


Jurisdiction:
(i)

s.21B(1), HCO;

(ii)

s.52E(1), DCO.

Court may only make prohibition orders for the following judgments (s.21B(1)
HCO):
(i)

Judgment for payment of unliquidated sum;

(ii)

Judgment requiring delivery of any property / performance of any act;

(iii)

Judgment for liquidated sum.

Person against whom order is sought must s.21B(1) HCO):


(i)

Have incurred liability while in HK;

(ii)

Carry on on business in HK;


Page 2 of 12

Civil Litigation Enforcement Cliffnotes!

(iii)
(d)

Cliff Lui

Be ordinarily resident in HK.

For (b)(i) and (ii), the following must be satisfied (s.21B(2)):


(i)

Probable cause for believing that JD is about to leave HK, whether


temporarily or permanently (HBZ Finance v Glory Products); and

(ii)

That for the above reason, judgment is likely to be obstructed or delayed.

The above do not apply strictly to (b)(iii), but common law requires that purpose of s.
21B to be satisfied, i.e. that prohibition would not be granted unless judgment would
be impeded for want of a prohibition order !AVCO Financial Services (Asia) v Topma
Electronics 1999 CA.
(e)

(f)

Procedure
(i)

Ex-parte application by affidavit under O.44A r.2.

(ii)

Master has jurisdiction: O.32 r.11(1).

(iii)

Continuous duty of full and frank disclosure !Auto Treasure v Pyramid


International (a firm) 1992 where [].

(iv)

Order subject to discretionary conditions, e.g. that order shall cease to have
effect when JD satisfied judgment: s.21B(4)(b), HCO.

(v)

Prescribed form: App A, Form 106.

Service and Duration


(i)

(g)

(h)

Service of sealed draft order to (s.21B(6), HCO):

Director of Immigration;

Commissioner of Police;

Judgment debtor, if he can be found.

(ii)

Practical arrangements Law Society Circular 98-185(PA) and


00-241(PA):

(iii)

Duration:

1 month, extendable twice for max. 3 months !s.21B(5), HCO and


s.52B(5), DCO.

After 3 months, fresh order may be granted if appropriate !HK


Industrial and Commercial Bank v Wong Siu Leung 1986 CA.

Effect
(i)

All attempts and actual success to leave HK are breaches of PO and is


contempt of court !Sino Wood Investment v Wong Kam Yin 2006 CFA.

(ii)

Arrest by any police / immigration officer or bailiff: s.21B(7), HCO;


s.52E(7), DCO.

Discharge
(i)

Usually occurs by consent once JD has paid.

(ii)

Alternative discharge under O.44A r.4.

Page 3 of 12

Civil Litigation Enforcement Cliffnotes!

D.

Oral Examination

1.

Introduction

Cliff Lui

(a)

Generally to question about debts owing to the company and what assets the person
has to satisfy judgment.

(b)

If body corporate, O.48 only.

(c)

If individual, both O.48 and O.49B possible.

2.

Comparison
Order 48 (corporate)

Order 49B

Ordered for difficulty with enforcement


of any judgment.

Ordered for judgments for liquidated


sums only.

Examination of current and past officers. Examination of the individual JD.


No provision for arrest of JD prior to or
on failure to attend examination.

JD may be arrested prior to examination


if reasonable cause to believe that he
will not comply with EO !r.1(1)(b).
Also arrest on failure to attend !r.1(3).

3.

No provision for PO prior to


examination.

Provision for PO prior to examination


!r.1(2).

Scope restricted to asking what debts are


owed and what property or other assets
he has to satisfy judgment, including
receivables (Bloomsbury International v
Nouvelle Foods 2005).

Wider scope. JD obliged to fully disclose


of all assets, income, expenditure and
disposal of that.

Discovery limited to books or


documents in the possession of the JD
and relevant to the scope above.

Discovery may be ordered by court of


any documents.

No provision for examination of JD on


oath.

JD examined under oath.

Adjourned hearing: no imprisonment, no


PO.

Adjourned hearing: imprisonment under


r.1A(3)(b) or PO under r.1A(3)(a).

Procedure

(a)

Ex parte application by affidavit against party only.

(b)

Sealed copy of order with penal notice and appointment time served on JD.

(c)

Initial hearing (call-over): standard directions for disclosure of documents etc. and date
fixed for examination.

(d)

Hearing for examination of JD or its officers.

Page 4 of 12

Civil Litigation Enforcement Cliffnotes!

4.
(a)

(b)

Scope
O.48 r.1(1) (corporate), cross examination of the most severe kind !Republic of
Costa Rica v Stromsbrg 1880 CA.
(i)

Whether any debts owing to JD;

(ii)

Whether JD has assets or other means (receivables, choses in action, etc.) to


satisfy judgment !McCormack v National Australian Bank 1992; and
Bloomsbury International v Nouvelle Foods 2005.

(iii)

JC may not examine JD simply to get material for future litigation against
others or against JD in an unrelated matter !Bloomsbury.

(iv)

Books relating to the above and belonging to the JD only may be pursued for
discovery Chung Fai Engineering (a firm) v Maxwell Engineering 2001.

O.49B r.1A(2) (individuals)


(i)

5.
(a)

Imprisonment

(ii)

E.
"

Full disclosure of all assets, liabilities, income / expenditure and disposal of


the same.

What happens afterwards?


(i)

(b)

Cliff Lui

Under O.49B r.1B(1), the court may order the imprisonment of the debtor for
3 months if satisfied either that the JD (not company officers under O.48
!Hua Chiao Commercial Bank v Alpha Plus International Development
2001):

Was able to satisfy the judgment in whole or in part;

Had disposed of its assets with a view to avoid the judgment debt; or

Had wilfully failed to make full disclosure or answer questions put to


him.

The burden of proof is that beyond reasonable doubt !Bank of India v


Murjani 1991.

Payment by Instalments
(i)

Under O.49B r.1B(2), the court may order the JD to satisfy judgment by
instalments if it can.

(ii)

If JD defaults, JC can apply with 2 clear days notice for imprisonment of


the JD under O.49B r.1B(3)(a).

Writs of Execution
Writs of Fieri Facias; writs for possession; writs of delivery and sequestration.

1.
(a)

Writ of Fieri Facias (common)


Generally
(i)

Writ requires bailiff to seize goods, chattels and other property sufficient to
satisfy judgment together with interest and execution costs. Property liable to
be attached and sold include (s.21D(1), HCO):
Page 5 of 12

Civil Litigation Enforcement Cliffnotes!

(b)

(a)

Belonging to JD or held on trust for him.

(iii)

If debtor fails to make payment, goods will be sold by public auction. Any
surplus will go back to the JD.

Procedure
(i)

Form !App A, Forms 53-54, 56-57 and 63.

(ii)

Prerequisite documents / materials:

Praecipe (request) for issue of writ

3 copies of writ, duly completed

Sealed copy of judgment

Filing fee

Deposit to cover bailiffs travelling expenses

Security guard fees

Writ is issued on sealing by Registrar: O.46 r.6(1). Once issued, JC collects


writ and delivers it to the Chief Bailiff.

Third Party Interests


Where a third party claims the seized goods or their proceeds under O.17 r.1,
the bailiff may apply by interpleader to see who is entitled to the proceeds to
sale.

Stay of Writs of FiFa.


(i)

2.

Land, goods, money, cheques, bills of exchange, notes, shares in nonprivate companies, all property

No power to seize shares in private companies. Rare for land seizure


(O.47 r.7). Allowance for tools of trade and bedding up to a value of $10,000
(s.21D(1), HCO; s.68B, DCO).

(i)

(d)

(ii)

(iii)
(c)

Cliff Lui

Under O.47 r.1, FiFa Writs can be stayed if

it would be unjust to use the draconian seizure methods; or

The JD is unable from any cause to pay the money.

Writ of Possession - enforcing judgment for land


Procedure !O.45 r.3(1)(a)
(i)

Form: App A, Form 66, 66A

(ii)

Leave of court required except where:

(iii)

Judgment or order is a mortgagee action to which O.88 applies; or

Possession is against trespassers under O.113.

Application for leave is made ex parte by affidavit: O.47 3.3(3), PD 16.4.


Affidavit is to show that:

Notice of the proceedings in both English and Chinese addressed to all


persons in actual occupation of the land had been posted for 3
successive days upon the main door of the premises; and
Page 6 of 12

Civil Litigation Enforcement Cliffnotes!

(iv)
(b)

Another 4 days had elapsed from that time, i.e. a total of 7 days
minimum.

May be applied together with FiFa Writ.

Execution
(i)

(ii)

3.

Cliff Lui

Bailiff executes and has duty to deliver complete and vacant possession to
JC.

1st visit: post Notice to Quit;

2nd visit: situational review;

3rd visit: break open door with locksmith.

For abandoned premises, bailiff may execute on first visit provided that JC
had signed pro-forma indemnity undertaking !Law Soc Circular 06-599
(PA).

Writ for Delivery of Goods (O.45 r.4)

4.

Writ of Sequestration and Committal Proceedings for Contempt


A writ of sequestration is against the property of a JD.
Committal proceedings is against the person of a JD.

(a)

(b)

(c)

Procedure
(i)

Main application under O.45 r.5.

(ii)

Notice of penal consequences necessary under r.7.

(iii)

Personal service of judgment to be enforced.

(iv)

Proof beyond reasonable doubt.

Judgments within scope of Contempt Proceedings


(i)

Mandatory orders (acts within specified time);

(ii)

Prohibitory orders (acts JD must have refrained from doing).

Mens Rea
(i)

Not necessary to prove intention to disobey order Kao Lee & Yip v Donald
Koo 2006 CA. P only needs to prove beyond reasonable doubt that:

contemptor knew of facts giving rise to the contempt; and

disobedience was not merely accidental.


- Where accident is claimed by D, particulars must be given.
- There is no trivial breach. It is a binary result.

(ii)
(d)

Bona fides in reliance on legal advice not defence!!Kao, Lee & Yip.

Incorporated Contemptor: O.45 r.5


(i)

Officers are liable for contempt under sequestration or committal under


O.45 r.5(b)(ii) or (iii) respectively.

Page 7 of 12

Civil Litigation Enforcement Cliffnotes!

(ii)

Aiding and abetting contempt possible but more difficult to prove !Nicolas
Pappadis v Chan Shing Sheung 1989; Excel Noble Development v Nam Wah
Group 2001.

(iii)

Officers not absolutely liable, and are only liable for acts that they could
reasonably take or prevent Excel Noble.

(iv)

(e)

Cliff Lui

Officer to be fully aware of terms of order with which co. must comply;

Officer must have known those when he had power to secure


compliance; and

Officer should have been aware of the consequences if he did not


enforce compliance - that steps may be taken against him personally.

Punishment

Sequestration against company property

Sequestration against officer property

Committal (fine) against company

Committal (fine or imprisonment) against officers.

Procedure Generally: O.45 r.7


(i)

Original judgment / order endorsed with penal notice (i.e. consequences of


failure to obey) in the form per O.45 r.7(4).

(ii)

Personal service on JD. Not strict, service may still be effective if the
judgment was one that restrained the JD from doing something and the JD
was present when the order was made; or if he was notified of the terms of
the order by telephone, telegram, etc.: O.45 r.7(6), If other service is made,
then the JD should also be notified of the consequences of failing to comply
!Citybase Property Management v Kam 2003.

Court can dispense with personal service !O.45 r.7(7), as well as the
penal notice if there were some factors that indicated that the
contemptor had knowledge !Excel Noble.
No evidence that director was unaware of the documents which were
placed in his letterbox.

(f)

Procedure and effect, Sequestration:


(i)

Apply to judge by motion for leave: O.45 r.5(1)(b) and O.46 r.5(1).

(ii)

Notice of motion must state the grounds of the application together with a
copy of the supporting affidavit: O.46 r.5(2).

(iii)

Open court hearing: O.46 r.5(4).

(iv)

Addressed not to bailiff but to 4 sequestrators nominated by the JC.

(v)

Form: App A, Form 67.

(vi)

Sequestrators duty to enter the contemptors property and take possession


of / detain all real and personal property until the contemptor has purged his
contempt. Sequestered property cannot be sold without leave.

Page 8 of 12

Civil Litigation Enforcement Cliffnotes!

(g)

5.

Cliff Lui

Procedure, Committal:
(i)

Ex parte application for leave supported by a statement setting out the


contemptors particulars and grounds with facts verified by affidavit: O.52 r.
2(2).

(ii)

Usually determined on the papers: O.52 r.2(4).

(iii)

Leave granted, order for committal made by motion to a judge. The notice
of motion, accompanied by the earlier statement and affidavit in support
must be served personally on the JD but such requirement may be dispensed
with: O.52 r.3.

(iv)

Open court hearing: O.52 r.6.

Writs in aid of execution

6.

Garnishee Proceedings: O.49

(a)

Court orders a third person garnishee to pay the JC using a debt that it owes to the JD.
E.g. bank deposits (subject to set-off) are actually debts owed to the depositor.

(b)

Conditions: O.49 r.1(1)


Subject to the courts absolute discretion.
(i)

JD owes JC at least $1,000.

(ii)

The garnishee owes a debt to the JD.

(iii)
(c)

(d)

(e)

Debt does not include any transfer of monies that justice demands to
be returned !Chung Fai Engineering v Maxwell 2003.

Garnishee within jurisdiction.

Bank debts
(i)

Moneys paid in after order nisi not subject to garnishee order


Heppenstall v Jackson 1939.

(ii)

Account held jointly by JD with another cannot be attached by garnishee


proceedings !Hischorn v Evans 1938 CA.

Foreign Debts
(i)

Foreign debts are usually not made the subject of a garnishee order.

(ii)

That is because the foreign garnishee might not be absolved of its liability
towards the foreign plaintiff where global organisations are concerned.

(iii)

So a court might still make the order if it can be shown that the garnishee
would be discharged of its liability to the JD. However, there is yet to be
such a case !Societ Eram Shipping v Campagnie Intenatioanle de
Navigation 2003 HL.

Debts that cannot be subject of a garnishee order


(i)

Wages due to employees: s.66 Employment Ordinance.

(ii)

Non-government pensions: s.12 Pensions Ordinance.

(iii)

Overdrafts subject to set-off and money paid in after order, per above
Page 9 of 12

Civil Litigation Enforcement Cliffnotes!

(f)

Cliff Lui

Procedure
(i)

Application for an order nisi;

Ex parte application by affidavit stating (O.49 r.2):


- Name, last known address of debtor; judgment to be enforced and
amount unpaid at time of application; belief that garnishee is within
the jurisdiction and is indebted to the JD together with sources;
name and address of branch at which debtors account is believed to
be held.

File affidavit together with draft order at the Registry. Place with a
Master who will determine whether he will grant a garnishee order nisi
and specify a time and place for further consideration of the matter and
attaching the debt specified in the order.

Service of order nisi (O.49 r.3(1))


- Order nisi must be served on the garnishee personally at least 15
days before the date appointed for further consideration of the
matter.
- Order nisi must be served on the JD at least 7 days after being
served on the garnishee and at least 7 days before inter partes
hearing.

Effect of order nisi


- Upon service, the order charges / freezes the debt, preventing the
garnishee from using it to pay the JD or to any other person.
Gailbraith 1910 HL; Karaha Bodas 2005.

(ii)

Inter partes hearing for court to see whether to make order absolute.

Summary determination of garnishee disputes liability

Substantial trial if substantial issue: O.49 r.5.

Court has discretion to decline this equitable remedy if it would result


in injustice of prejudice to some person other than the JD. Burden is on
JD to show the court why the order nisi should not be made absolute
!Rooke v HV Construction Services 1998 CA.
- A factor to be considered is whether the JD is insolvent or likely to
become insolvent. This is because the effect of an order absolute
may give preference to the JC over other unsecured creditors
!Roberts Petroleum v Bernhard Kenny 1983 HL.

(iii)

Effect of order absolute

JC gets equitable charge over the attached property over third parties.

You cannot escape garnishees by waiving dividends made at director


meetings.

Garnishee becomes liable to pay the JC the amount owed by the JD


including garnishee costs: O.49 r1(1).

Enforcement of failure to pay same as any order for payment of money:


O.49 r.4(2).
Page 10 of 12

Civil Litigation Enforcement Cliffnotes!

7.

Cliff Lui

Charging Order: O.50

(a)

The court can put a charge on specified property to enforce the payment of money
under a judgment: s.20(1), HCO; s.52A, DCO.

(b)

What may be charged:

(c)

(i)

Land; securities; funds in court; interest in property.

(ii)

JD must have some beneficial interest in the property. ***

Application Procedure
(i)

(d)

(e)

Ex parte application by affidavit: O.50 r.1(3)(a)-(d):

Identify judgment / order sought to be enforced;

State name of JD and all creditors of his;

Give full particulars of interest sought to be charged;

Verify that such interest is beneficially owned by JD.

(ii)

Master will grant order nisi if satisfied that there is sufficient cause for the
order. Time and date will be specified for the inter partes hearing and a
charge will be imposed on the specified property until that date.

(iii)

Form: App A Form 75.

Service
(i)

Copies of order and affidavit in support must be served on the judgment


debtor, etc. (O.50 r.2).

(ii)

7 days before inter partes hearing: O.50 rr.2(1)(a), (3).

(iii)

Special requirements for charging securities.

Making Order Absolute


(i)

Discretionary power to consider all circumstances of a case: s.20(3), HCO:

Personal circumstances of JD;

Whether any creditor would be unduly prejudiced.


- E.g. Insolvency Wardley v Aik San Realty 1985;
- Over-securing a debt !Chan Miu Cheung v Prague Enterprises
1985.

(ii)

JD to show why order nisi should not be made absolute.

(iii)

Charging order in Form: App A Form 76.

(iv)

Secures judgment debt and interest payable !Ezekiel v Orakpo 1977 CA.

(v)

~ equitable charge so JC may enforce the order by applying to the court for
sale of the charged property or by appointing a receiver.

(vi)

Land and Shares

Charging orders on land should be registered at the Lands Registry:


s.20B(2), HCO.

Page 11 of 12

Civil Litigation Enforcement Cliffnotes

(f)

Copy of order including stop notice needs to be served on the person


specified in O.50 r2(1)(b) as may be appropriate: O.50 r.5(3). Including
the company and keeper of the register for onshore listed companies.

A stop notice can be issued under O.50 r.11. This requires 14 days prior
notice to the JC that the charged shares are to be dealt with. In the
meantime, the JC can apply for a stop order under O.50 r.15 to prohibit
any transfer.

Enforcement by Sale
(i)

8.

Cliff Lui

The JC may apply for an order for the sale of the charged property by
separate proceedings under O.88.

Equitable Execution !Receivership: s.21L(1) HCO, O.51, O.30

(a)

This is an equitable remedy that is useful when a body has substantial future income
which needs to be properly managed by a receiver.

(b)

Very costly!

(c)

Law
(i)

A receiver may be appointed in any case where it is just and convenient to do


so: s.21L(1), HCO, s.52B(5), DCO, O.30 r.1.

(ii)

A receiver may be appointed for a debt which is due to the JD in the future
!Soinco SACI v Novokuznetsk Aluminium Plant 1997; Karaha Bodas
Company 2004.

(d)

Application may be made without leave by summons or upon motion to a Master.

(e)

The Receiver
(i)

Receiver applies the incoming debt towards the judgment debt.

(ii)

Receiver entitled to remuneration based on scale fee or professional charges:


O.30 r.3.

(iii)

Receiver must submit accounts to any parties at any time as the court directs:
O.30 r.5(1).
~~~

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