Hong Kong Regulations

THE RULES OF THE HIGH COURT - ORDER 11

SERVICE OF PROCESS, ETC., OUT OF THE JURISDICTION

Caution: This is a past version. See the current version here.

1. Principal cases in which service of writ out of jurisdiction is permissible
(O. 11, r. 1)

(1) Provided that the writ is not a writ to which paragraph (2) of this rule
applies, service of a writ out of the jurisdiction is permissible with the
leave of the Court if in the action begun by the writ- (L.N. 363 of 1990)

   (a)  relief is sought against a person domiciled or ordinarily resident
        within the jurisdiction;

   (b)  an injunction is sought ordering the defendant to do or refrain from
        doing anything within the jurisdiction (whether or not damages are
        also claimed in respect of a failure to do or the doing of that
        thing);

   (c)  the claim is brought against a person duly served within or out of the
        jurisdiction and a person out of the jurisdiction is a necessary or
        proper party thereto;

   (d)  the claim is brought to enforce, rescind, dissolve, annul or otherwise
        affect a contract, or to recover damages or obtain other relief in
        respect of the breach of a contract, being (in either case) a contract
        which-

        (i)    was made within the jurisdiction, or

        (ii)   was made by or through an agent trading or residing within the
               jurisdiction on behalf of a principal trading or residing out
               of the jurisdiction, or

        (iii)  is by its terms, or by implication, governed by Hong Kong law,
               or

        (iv)   contains a term to the effect that the Court of First Instance
               shall have jurisdiction to hear and determine any action in
               respect of the contract; (25 of 1998 s. 2)

   (e)  the claim is brought in respect of a breach committed within the
        jurisdiction of a contract made within or out of the jurisdiction, and
        irrespective of the fact, if such be the case, that the breach was
        preceded or accompanied by a breach committed out of the jurisdiction
        that rendered impossible the performance of so much of the contract as
        ought to have been performed within the jurisdiction;

   (f)  the claim is founded on a tort and the damage was sustained, or
        resulted from an act committed, within the jurisdiction;

   (g)  the whole subject-matter of the action is land situate within the
        jurisdiction (with or without rents or profits) or the perpetuation of
        testimony relating to land so situate;

   (h)  the claim is brought to construe, rectify, set aside or enforce an
        act, deed, will, contract, obligation or liability affecting land
        situate within the jurisdiction;

   (i)  the claim is made for a debt secured on immovable property or is made
        to assert, declare or determine proprietary or possessory rights, or
        rights of security, in or over movable property, or to obtain
        authority to dispose of movable property, situate within the
        jurisdiction;

   (j)  the claim is brought to execute the trusts of a written instrument
        being trusts that ought to be executed according to Hong Kong law and
        of which the person to be served with the writ is a trustee, or for
        any relief or remedy which might be obtained in any such action;

   (k)  the claim is made for the administration of the estate of a person who
        died domiciled within the jurisdiction or for any relief or remedy
        which might be obtained in any such action;

   (l)  the claim is brought in a probate action within the meaning of Order
        76;

   (m)  the claim is brought to enforce any judgment or arbitral award;

   (n)  the claim is brought under the Carriage by Air Ordinance ( Cap  500).
        (13 of 1997 s. 20)

   (o)  (Repealed L.N. 296 of 1996)

   (oa) the claim is made under the Mutual Legal Assistance in Criminal
        Matters Ordinance ( Cap 525); (87 of 1997 s. 36)

   (p)  the claim is brought for money had and received or for an account or
        other relief against the defendant as constructive trustee, and the
        defendant's alleged liability arises out of acts committed, whether by
        him or otherwise, within the jurisdiction. (L.N. 404 of 1991)

(2) Service of a writ out of the jurisdiction is permissible without the leave
of the Court provided that each claim made by the writ is-

   (b)  a claim which by virtue of any written law the Court of First Instance
        has power to hear and determine notwithstanding that the person
        against whom the claim is made is not within the jurisdiction of
        the Court or that the wrongful act, neglect or default giving rise to
        the claim did not take place within its jurisdiction. (25 of 1998 s.
        2)

(3) Where a writ is to be served out of the jurisdiction under paragraph (2),
the time to be inserted in the writ within which the defendant served
therewith must acknowledge service shall-

   (c)  be limited in accordance with the practice adopted under rule 4(4).
        (HK)(4) This rule shall not apply to a writ-

   (a)  to enforce a claim for damage, loss of life or personal injury arising
        out of-

        (i)    a collision between ships;

        (ii)   the carrying out of or omission to carry out a manoeuvre in the
               case of one or more of 2 or more ships; or

        (iii)  non-compliance, on the part of one or more of 2 or more ships,
               with the regulations made under section 93, 100 or 107 of the
               Merchant Shipping (Safety) Ordinance ( Cap 369);

   (b)  for the limitation of liability in a limitation action as defined in
        Order 75, rule 1(2); or

   (c)  to enforce a claim under section 1 of the Merchant Shipping (Oil
        Pollution) Act 1971 (1971 c. 59 U.K.) or section 4 of the Merchant
        Shipping Act 1974 (1974 c. 43 U.K.)⊕. (L.N. 363 of 1990)

4. Application for, and grant of, leave to serve writ out of jurisdiction (O.
11, r. 4)

(1) An application for the grant of leave under rule 1(l) must be supported by
an affidavit stating-

   (a)  the grounds on which the application is made;

   (b)  that in the deponent's belief the plaintiff has a good cause of
        action;

   (c)  in what place the defendant is, or probably may be found; and

   (d)  where the application is made under rule 1(1)(c), the grounds for the
        deponent's belief that there is between the plaintiff and the person
        on whom a writ has been served a real issue which the plaintiff may
        reasonably ask the Court to try.

(2) No such leave shall be granted unless it shall be made sufficiently to
appear to the Court that the case is a proper one for service out of the
jurisdiction under this Order.

(4) An order granting under rule 1 leave to serve a writ out of the
jurisdiction must limit a time within which the defendant to be served must
acknowledge service.

5. Service of writ out of jurisdiction: general (O. 11, r. 5)

(1) Subject to the following provisions of this rule, Order 10, rule 1(l), (4)
and (5) and (6) and Order 65, rule 4, shall apply in relation to the service
of a writ notwithstanding that the writ is to be served out of the
jurisdiction, save that the accompanying form of acknowledgment of service
shall be modified in such manner as may be appropriate.

(2) Nothing in this rule, rule 5A or any order or direction of the  Court made
by virtue of it shall authorize or require the doing of anything in a country
or place in which service is to be effected which is contrary to the law of
that country or place. (L.N. 39 of 1999)

(3) A writ which is to be served out of the jurisdiction-

   (a)  need not be served personally on the person required to be served so
        long as it is served on him in accordance with the law of the country
        or place in which service is effected; and

   (b)  need not be served by the plaintiff or his agent if it is served by a
        method provided for by rule 5A, rule 6 or rule 7. (L.N. 39 of 1999)

(5) An official certificate stating that a writ as regards which rule 5A or
rule 6 has been complied with, has been served on a person personally, or in
accordance with the law of the country or place in which service was effected,
on a specified date, being a certificate-

   (a)  by a British consular authority in that country or place, or

   (b)  by the government or judicial authorities of that country or place, or

   (c)  by any other authority designated in respect of that country or place
        under the Hague Convention, shall be evidence of the facts so stated.
        (L.N. 39 of 1999)

(6) An official certificate by the Chief Secretary for Administration stating
that a writ has been duly served on a specified date in accordance with a
request made under rule 7 shall be evidence of that fact. (L.N. 362 of 1997)

(7) A document purporting to be such a certificate as is mentioned in
paragraph (5) or (6) shall, until the contrary is proved, be deemed to be such
a certificate.

(8) In this rule and rule 6 "the Hague Convention" means the Convention on the
service abroad of judicial or extra-judicial documents in civil or commercial
matters signed at The Hague on 15 November 1965.

5A. Service of writ in the Mainland of China through judicial authorities (O.
11, r. 5A)

(1) Where in accordance with these rules, a writ is to be served on a person
to be served in the Mainland of China, the writ shall be served through the
judicial authorities of the Mainland of China.

(2) A person who wishes to serve a writ under paragraph (1) must lodge in the
Registry a request for such service, together with 2 copies of the writ and 2
additional copies thereof for the person to be served.

(3) The request lodged under paragraph (2) must contain-

   (a)  the full name and address of the person to be served;

   (b)  a description of the nature of proceedings; and

   (c)  if a particular method of service by the judicial authorities of the
        Mainland of China is desired by the person making the request, an
        indication of that particular method.

(4) Every copy of a writ lodged under paragraph (2) must be in Chinese or
accompanied by a Chinese translation.

(5) Every translation lodged under paragraph (4) must be certified by the
person making it to be a correct translation; and the certificate must contain
a statement of that person's full name, of his address and of his
qualifications for making the translation.

(6) Documents duly lodged under paragraph (2) shall be sent by the Registrar
to the judicial authorities of the Mainland of China with a request that they
arrange for the writ to be served or, where a particular method of service is
indicated under paragraph (3)(c), to be served by that method. (L.N. 39 of
1999)

6. Service of writ abroad through foreign governments, judicial authorities
and British consuls (O. 11, r. 6)

(1) Save where a writ is to be served pursuant to paragraph (2A) this rule
does not apply to service in- (HK)(a) The United Kingdom of Great Britain,
Northern Ireland, the Channel Islands and the Isle of Man;

   (b)  any independent Commonwealth country; (HK)(c) any British
        protectorate; (HK)(d) any British colony;

   (e)  the Republic of Ireland.

(2) Where in accordance with these rules a writ is to be served on a defendant
in any country with respect to which there subsists a Civil Procedure
Convention (other than the Hague Convention) providing for service in that
country of process of the Court, the writ may be served-

   (a)  through the judicial authorities of that country; or

   (b)  through a British consular authority in that country (subject to any
        provision of the convention as to the nationality of persons who may
        be so served).

(2A) Where in accordance with these rules, a writ is to be served on a
defendant in any country which is a party to the Hague Convention, the writ
may be served-

   (a)  through the authority designated under the Convention in respect of
        that country; or

   (b)  if the law of that country permits-

        (i)    through the judicial authorities of that country, or

        (ii)   through a British consular authority in that country.

(3) Where in accordance with these rules a writ is to be served on a defendant
in any country with respect to which there does not subsist a Civil Procedure
Convention providing for service in that country of process of the Court of
First Instance, the writ may be served- (25 of 1998 s. 2)

   (a)  through the government of that country, where that government is
        willing to effect service; or

   (b)  through a British consular authority in that country, except where
        service through such an authority is contrary to the law of that
        country.

(4) A person who wishes to serve a writ by a method specified in paragraph
(2), (2A) or (3) must lodge in the Registry a request for service of the writ
by that method, together with a copy of the writ and an additional copy
thereof for each person to be served.

(5) Every copy of a writ lodged under paragraph (4) must be accompanied by a
translation of the writ in the official language of the country in which
service is to be effected or, if there is more than one official language of
that country, in any one of those languages which is appropriate to the place
in that country where service is to be effected: Provided that this paragraph
shall not apply in relation to a copy of a writ which is to be served in a
country the official language of which is, or the official languages of which
include, English, or is to be served in any country by a British consular
authority on a British subject, unless the service is to be effected under
paragraph (2) and the Civil Procedure Convention with respect to that country
expressly requires the copy to be accompanied by a translation.

(6) Every translation lodged under paragraph (5) must be certified by the
person making it to be a correct translation; and the certificate must contain
a statement of that person's full name, of his address and of his
qualification for making the translation.

(7) Documents duly lodged under paragraph (4) shall be sent by the Registrar
to the Chief Secretary for Administration with a request that he arrange for
the writ to be served by the method indicated in the request lodged under
paragraph (4) or, where alternative methods are so indicated, by such one of
those methods as is most convenient. (L.N. 362 of 1997)

7. Service of process on a foreign State (O. 11, r. 7)

(1) Subject to paragraph (4) where a person to whom leave has been granted
under rule 1 to serve a writ on a State, as defined in section 14 of the State
Immunity Act 1978 (1978 c. 33 U.K.), wishes to have the writ served on that
State, he must lodge in the Registry-

   (a)  a request for service to be arranged by the Chief Secretary for
        Administration; and (L.N. 362 of 1997)

   (b)  a copy of the writ; and

   (c)  except where the official language of the State is, or the official
        languages of that party include, English, a translation of the writ in
        the official language or one of the official languages of the State.

(2) Rule 6(6) shall apply in relation to a translation lodged under paragraph
(1) of this rule as it applies in relation to a translation lodged under
paragraph (5) of that rule.

(3) Documents duly lodged under this rule shall be sent by the Registrar to
the Chief Secretary for Administration with a request that the Chief Secretary
for Administration arrange for the writ to be served on the State or the
government in question, as the case may be. (L.N. 362 of 1997)

(4) Where section 12(6) of the State Immunity Act 1978 (1978 c. 33 U.K.)
applies and the State has agreed to a method of service other than that
provided by the preceding paragraphs, the writ may be served either by the
method agreed or in accordance with the preceding paragraphs of this rule.

7A. Service of writ in certain actions under Carriage by Air Ordinance (O. 11,
r. 7A)

(HK)(1) Where a person to whom leave has been granted under rule 1 to serve a
writ on a High Contracting Party certified under section 4 of Carriage by Air
Ordinance ( Cap 500), being a writ beginning an action to enforce a claim in
respect of carriage undertaken by that Party, wishes to have the writ served
on that Party, he must lodge in the Registry- (13 of 1997 s. 20)

   (a)  a request for service to be arranged by the Chief Secretary for
        Administration; and

   (b)  a copy of the writ; and

   (c)  except where the official language of the High Contracting Party is,
        or the official languages of that Party include, English, a
        translation of the writ in the official language or one of the
        official languages of the High Contracting Party.

(2) Rule 6(6) shall apply in relation to a translation lodged under paragraph
(1) of this rule as it applies in relation to a translation lodged under
paragraph (5) of that rule.

(3) Documents duly lodged under this rule shall be sent by the Registrar to
the Chief Secretary for Administration with a request that the Chief Secretary
for Administration arrange for the writ to be served on the High Contracting
Party. (L.N. 362 of 1997)

8. Undertaking to pay expenses of service by the Chief Secretary for
Administration (O. 11, r. 8)

Every request lodged under rule 6(4), rule 7 or rule 7A must contain an
undertaking by the person making the request to be responsible personally for
all expenses incurred by the Chief Secretary for Administration in respect of
the service requested and, on receiving due notification of the amount of
those expenses, to pay that amount to the Treasury and to produce a receipt
for the payment to the Registrar. (L.N. 362 of 1997)

8A. Undertaking to pay expenses of service by the Registrar (O. 11, r. 8A)

Every request lodged under rule 5A must contain an undertaking by the person
making the request to be responsible personally for all expenses incurred by
the Registrar in respect of the service requested and, on receiving due
notification of the amount of those expenses, to pay that amount to the
Treasury and to produce a receipt for the payment to the Registrar. (L.N. 39
of 1999)

9. Service of originating summons, petition, notice of motion, etc. (O. 11, r.
9)

(1) Subject to Order 73, rule 7, rule 1 of this Order shall apply to the
service out of the jurisdiction of an originating summons, notice of motion or
petition as it applies to service of a writ.

(4) Subject to Order 73, rule 7, service out of the jurisdiction of any
summons, notice or order issued, given or made in any proceedings is
permissible with the leave of the Court, but leave shall not be required for
such service in any proceedings in which the writ, originating  summons,
motion or petition may by these rules or under any written law be served out
of the jurisdiction without leave.

(5) Rule 4(1), (2) and (3) shall, so far as applicable, apply in relation to
an application for the grant of leave under this rule as they apply in
relation to an application for the grant of leave under rule 1.

(6) An order granting under this rule leave to serve out of the jurisdiction
an originating summons must limit a time within which the defendant to be
served with the summons must acknowledge service.

(7) Rules 5, 5A, 6, 8 and 8A shall apply in relation to any document for the
service of which out of the jurisdiction leave has been granted under this
rule as they apply in relation to a writ. (L.N. 39 of 1999) (Enacted 1988)
___________________________________________________________________________
___ Note: ⊕ Please also see following-

   (a)  in relation to the Merchant Shipping Act 1894, Part 3 of Schedule 5 to
        Cap 415 and s. 1 of Schedule 2 to Cap 508;

   (b)  in relation to the Merchant Shipping Acts 1894 to 1979, s. 117 of
        Cap 281, s. 103 of Cap 415 and s. 142 of Cap 478. "the Hague
        Convention"