Hong Kong Regulations

THE RULES OF THE DISTRICT COURT - ORDER 28

ORIGINATING SUMMONS PROCEDURE

1. Application (O. 28, r. 1)

The provisions of this Order apply to all originating summonses subject, in
the case of originating summonses of any particular class, to any special
provisions relating to originating summonses of that class made by these Rules
or by or under any written law; and subject as aforesaid, Order 32, rule 5,
shall apply in relation to originating summonses as they apply in relation to
other summonses.

1A. Affidavit evidence (O. 28, r. 1A)

(1) In any cause or matter begun by originating summons (not being an ex parte
summons) the plaintiff must, before the expiration of 14 days after the
defendant has acknowledged service, or, if there are 2 or more defendants, at
least one of them has acknowledged service, file with the  Court the affidavit
evidence on which he intends to rely.

(2) In the case of an ex parte summons the applicant must file his affidavit
evidence not less than 4 clear days before the day fixed for the hearing.

(3) Copies of the affidavit evidence filed in the Court under paragraph (1)
must be served by the plaintiff on the defendant, or, if there are 2 or more
defendants, on each defendant, before the expiration of 14 days after service
has been acknowledged by that defendant.

(4) Where a defendant who has acknowledged service wishes to adduce affidavit
evidence he must within 28 days after service on him of copies of the
plaintiff's affidavit evidence under paragraph (3) file his own affidavit
evidence in the Court and serve copies thereof on the plaintiff and on any
other defendant who is affected thereby.

(5) A plaintiff on whom a copy of a defendant's affidavit evidence has been
served under paragraph (4) may within 14 days of such service file in
the Court further affidavit evidence in reply and shall in that event serve
copies thereof on that defendant.

(6) No other affidavit shall be received in evidence without the leave of
the Court.

(7) Where an affidavit is required to be served by one party on another party
it shall be served without prior charge.

(8) The provisions of this rule apply subject to any direction by the Court to
the contrary.

(9) In this rule references to affidavits and copies of affidavits include
references to exhibits to affidavits and copies of such exhibits.

2. Fixing time for attendance of parties
before Court (O. 28, r. 2)

(1) In the case of an originating summons which is in Form No. 8 in Appendix A
the plaintiff must, within one month of the expiry of the time within which
copies of affidavit evidence may be served under rule 1A, obtain an
appointment for the attendance of the parties before the Court sitting in
chambers for the hearing of the summons, and a day and time for their
attendance shall be fixed by a notice (in Form No. 12 in Appendix A) sealed
with the seal of the Court.

(2) A day and time for the attendance of the parties before the  Court for the
hearing of an originating summons which is in Form No. 10 in Appendix A, or
for the hearing of an ex parte originating summons, may be fixed on the
application of the plaintiff or applicant, as the case may be and in the case
of a summons which is required to be served, the time limited for
acknowledging service shall, where appropriate, be abridged so as to expire on
the next day but one before the day so fixed, and the time limits for lodging
affidavits under rule 1A(2) and (3) shall, where appropriate, be abridged so
as to expire, respectively, on the fifth day before, and the next day but one
before, the day so fixed.

(3) Where a plaintiff fails to apply for an appointment under paragraph (1),
any defendant may, with the leave of the Court, obtain an appointment in
accordance with that paragraph provided that he has acknowledged service of
the originating summons.

3. Notice of hearing (O. 28, r. 3)

(1) Not less than 14 days before the day fixed under rule 2 for the attendance
of the parties before the Court for the hearing of an originating summons
which is in Form No. 8 in Appendix A, the party on whose application the day
was fixed must serve a copy of the notice fixing it on every other party.

(2) Not less than 4 clear days before the day fixed under rule 2 for the
hearing of an originating summons which is in Form No. 10 in Appendix A, the
plaintiff must serve the summons on every defendant or, if any defendant has
already been served with the summons, must serve on that defendant notice of
the day fixed for the hearing.

(3) Where notice in Form No. 12 in Appendix A is served in accordance with
paragraph (1), such notice shall specify what orders or directions the party
serving the notice intends to seek at the hearing, and any party served with
such notice who wishes to seek different orders or directions must, not less
than 7 days before the hearing, serve on every other party a notice specifying
the other orders and directions he intends to seek.

(4) If the hearing of an originating summons which is in Form No. 8 or 10 in
Appendix A is adjourned and any party to the proceedings desires to apply at
the resumed hearing for any order or direction not previously asked for, he
must, not less than 7 days before the resumed hearing of the summons, serve on
every other party a notice specifying those orders and directions.

(5) Where a party is required by any provision of this rule or rule
5(2) to serve a notice or a copy of a notice on "every other party" he must-

   (a)  where he is the plaintiff, serve it on every defendant who has
        acknowledged service of the originating summons; and

   (b)  where he is a defendant, serve it on the plaintiff and on every other
        defendant affected thereby.

4. Directions, etc., by Court (O. 28, r. 4)

(1) The Court by whom an originating summons is heard may, if the liability of
the defendant to the plaintiff in respect of any claim made by the plaintiff
is established, make such order in favour of the plaintiff as the nature of
the case may require, but where the Court makes an order under this paragraph
against a defendant who does not appear at the hearing, the order may be
varied or revoked by a subsequent order of the Court on such terms as it
thinks just.

(2) In any case where the Court does not dispose of any originating  summons
altogether at a hearing or order the cause or matter begun by it to be
transferred to the Court of First Instance or some other court or makes an
order under rule 8, the Court shall give such directions as to the further
conduct of the proceedings as it thinks best adapted to secure the just,
expeditious and economical disposal thereof.

(3) Without prejudice to the generality of paragraph (2), the Court shall, at
as early a stage of the proceedings on the summons as appears to it to be
practicable, consider whether there is or may be a dispute as to fact and
whether the just, expeditious and economical disposal of the proceedings can
accordingly best be secured by hearing the summons on oral evidence or mainly
on oral evidence and, if it thinks fit, may order that no further evidence
shall be filed and that the summons shall be heard on oral evidence or partly
on oral evidence and partly on affidavit evidence, with or without
cross-examination of any of the deponents, as it may direct.

(4) Without prejudice to the generality of paragraph (2), and subject to
paragraph (3), the Court may give directions as to the filing of evidence and
as to the attendance of deponents for cross-examination and any directions
which it could give on a directions hearing under Order 23A if the cause or
matter had been begun by writ and the summons were a summons for directions
under that Order.

(5) The Court may at any stage of the proceedings order that any affidavit, or
any particulars of any claim, defence or other matters stated in any
affidavit, shall stand as pleadings or that points of claim, defence or reply
be delivered and stand as pleadings.

5. Adjournment of summons (O. 28, r. 5)

(1) The hearing of the summons by the Court may (if necessary) be adjourned
from time to time, either generally or to a particular date, as may be
appropriate, and the powers of the Court under rule 4 may be exercised at any
resumed hearing.

(2) If the hearing of the summons is adjourned generally, any party may
restore it to the list on 14 days' notice to every other party and rule 3(4)
shall apply in relation to any such adjourned hearing.

6. Applications affecting party who has failed
to acknowledge service (O. 28, r. 6)

Where in a cause or matter begun by originating summons an application is made
to the Court for an order affecting a party who has failed to acknowledge
service of the summons, the Court hearing the application may require to be
satisfied in such manner as it thinks fit that the party has so failed.

7. Counterclaim by defendant (O. 28, r. 7)

(1) A defendant to an action begun by originating summons who has acknowledged
service of the summons and who alleges that he has any claim or is entitled to
any relief or remedy against the plaintiff in respect of any matter (whenever
and however arising) may make a counterclaim in the action in respect of that
matter instead of bringing a separate action.

(2) A defendant who wishes to make a counterclaim under this rule must at the
first or any resumed hearing of the originating summons by the  Court but, in
any case, at as early a stage in the proceedings as is practicable, inform
the Court of the nature of his claim and, without  prejudice to the powers of
the Court under paragraph (3), the claim shall be made in such manner as
the Court may direct under rule 4 or 8.

(3) If it appears on the application of a plaintiff against whom a
counterclaim is made under this rule that the subject-matter of the
counterclaim ought for any reason to be disposed of by a separate action,
the Court may order the counterclaim to be struck out or may order it to be
tried separately or make such other order as may be expedient.

8. Continuation of proceedings as if cause or
matter begun by writ (O. 28, r. 8)

(1) Where, in the case of a cause or matter begun by originating  summons, it
appears to the Court at any stage of the proceedings that the proceedings
should for any reason be continued as if the cause or matter had been begun by
writ, it may order the proceedings to continue as if the cause or matter had
been so begun and may, in particular, order that any affidavits shall stand as
pleadings, with or without liberty to any of the parties to add thereto or to
apply for particulars thereof.

(2) Where the Court decides to make such an order, Order 23A, rules 9 to 13,
shall apply as if the Court were conducting a directions hearing under that
Order.

(3) This rule applies notwithstanding that the cause or matter in question
could not have been begun by writ.

(4) Any reference in these Rules to an action begun by writ shall, unless the
context otherwise requires, be construed as including a reference to a cause
or matter proceedings in which are ordered under this rule to continue as if
the cause or matter had been so begun.

9. Order for hearing or trial (O. 28, r. 9)

(1) Except where the Court disposes of a cause or matter begun by
originating summons in chambers or orders it to be transferred to the  Court
of First Instance or some other court or makes an order in relation to it
under rule 8 or some other provision of these Rules, the Court shall, on being
satisfied that the cause or matter is ready for determination, make such order
as to the hearing or trial of the cause or matter as may be appropriate.

(4) Order 33, rule 4(2) and Order 34, rules 1 to 8, shall apply in relation to
a cause or matter begun by originating summons and to an order made therein
under this rule as they apply in relation to an action begun by writ and to an
order made therein under the said rule 4 and shall have effect accordingly
with any necessary modifications and with the further modification that for
references therein to a pre-trial review there shall be substituted references
to the first or any resumed hearing of the originating summons by the Court.

10. Failure to prosecute proceedings
with despatch (O. 28, r. 10)

(1) If the plaintiff in a cause or matter begun by originating  summons makes
default in complying with any order or direction of the  Court as to the
conduct of the proceedings, or if the Court is satisfied that the plaintiff in
a cause or matter so begun is not prosecuting the proceedings with due
despatch, the Court may order the cause or matter to be dismissed or may make
such other order as may be just.

(2) Paragraph (1) shall, with any necessary modifications, apply in relation
to a defendant by whom a counterclaim is made under rule 7 as it applies in
relation to a plaintiff.

(3) Where, by virtue of an order made under rule 8, proceedings in a cause or
matter begun by originating summons are to continue as if the cause or matter
had been begun by writ, the foregoing provisions of this rule shall not apply
in relation to the cause or matter after the making of the order.

11. Abatement, etc., of action (O. 28, r. 11)

Order 34, rule 9, shall apply in relation to an action begun by
originating summons as it applies in relation to an action begun by writ.