Hong Kong Ordinances

LIMITATION ORDINANCE - SECT 35

New claims in pending actions: rules of court

(1) For the purposes of this Ordinance, any new claim made in the course of
any action shall be deemed to be a separate action and to have been commenced-

   (a)  in the case of a new claim made in or by way of third party 
        proceedings, on the date on which those proceedings were commenced;
        and

   (b)  in the case of any other new claim, on the same date as the original
        action.

(2) In this section a new claim means any claim by way of set-off or
counterclaim, and any claim involving either-

   (a)  the addition or substitution of a new cause of action; or

   (b)  the addition or substitution of a new party,
and "third party proceedings" (第三方法律程序) means any proceedings
brought in the course of any action by any party to the action against a
person not previously a party to the action, other than proceedings brought by
joining any such person as defendant to any claim already made in the original
action by the party bringing the proceedings.

(3) Except as provided by section 30 or by rules of court, the  court shall
not allow a new claim within subsection (1)(b), other than an original set-off
or counterclaim, to be made in the course of any action after the expiry of
any time limit under this Ordinance which would affect a new action to enforce
that claim.

(4) For the purposes of subsection (3), a claim is an original set-off or an
original counterclaim if it is a claim made by way of set-off or (as the case
may be) by way of counterclaim by a party who has not previously made any
claim in the action.

(5) Rules of court may provide for allowing a new claim to which subsection
(3) applies to be made as there mentioned, but only if the conditions
specified in subsection (6) are satisfied, and subject to any further
restrictions the rules may impose.

(6) The conditions referred to in subsection (5) are-

   (a)  in the case of a claim involving a new cause of action, if the new
        cause of action arises out of the same facts or substantially the same
        facts as a cause of action in respect of which relief has already been
        claimed in the action by the party applying for leave to make the
        amendment; and

   (b)  in the case of a claim involving a new party, if the addition or
        substitution of the new party is necessary for the determination of
        the original action.

(7) The addition or substitution of a new party shall not be regarded for the
purposes of subsection (6)(b) as necessary for the determination of the
original action unless either-

   (a)  the new party is substituted for a party whose name was given in any
        claim made in the original action in mistake for the new party's name;
        or

   (b)  any claim already made in the original action cannot be maintained by
        or against an existing party unless the new party is joined or
        substituted as plaintiff or defendant in that action.

(8) Subject to subsection (5), rules of court may provide for allowing a party
to any action to claim relief in a new capacity in respect of a new cause of
action notwithstanding that he had no title to make that claim at the date of
the commencement of the action.

(9) Subsection (8) shall not be taken as prejudicing the power of rules of
court to provide for allowing a party to claim relief in a new capacity
without adding or substituting a new cause of action.

(10) Subsections (3) to (9) shall apply in relation to a new claim made in the
course of third party proceedings as if those proceedings were the original
action, and subject to such other modifications as may be prescribed by rules
of court in any case or class of case.

(11) The power to make rules of court under section 54 of the Supreme Court
Ordinance ( Cap 4) shall include power to make rules of court for the purposes
of this section.

(12) Rules of court made before the commencement of the Limitation (Amendment)
Ordinance 1984 (58 of 1984) which would have been validly made had this
section been in operation when they were made shall have effect as from the
commencement of the Limitation (Amendment) Ordinance 1984 (58 of 1984) as if
made by virtue of this section. (Replaced 58 of 1984 s. 2) [cf. 1980 c. 58 s.
35 U.K.]

"third party proceedings" (第三方法律程序)