Hong Kong Regulations

THE RULES OF THE HIGH COURT - ORDER 12

ACKNOWLEDGMENT OF SERVICE OF WRIT OR ORIGINATING SUMMONS

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

Adaptation amendments retroactively made - see 25 of 1998 s. 2 1. Mode of
acknowledging service (O. 12, r. 1)

(1) Subject to paragraph (2) and to Order 80, rule 2, a defendant to an action
begun by writ may (whether or not he is sued as a trustee or personal
representative or in any other representative capacity) acknowledge service of
the writ and defend the action by a solicitor or in person.

(2) The defendant to such an action who is a body corporate may acknowledge
service of the writ and give notice of intention to defend the  action either
by a solicitor or by a person duly authorized to act on the defendant's behalf
but, except as expressly provided by or under any enactment or where leave is
given under paragraph (2A) for such defendant to be represented by one of its
directors, such defendant may not take any further step in the action
otherwise than by a solicitor.

(2A)(a) An application by a body corporate for leave to be represented by one
of its directors shall be made ex parte to a Registrar and supported by an
affidavit, made by the director and filed with the application, stating and
verifying the reasons why leave should be given for the body corporate to be
represented by the director, and in particular setting out such facts and
matters as demonstrate that the body corporate could not, for lack of
resources or other good reasons, otherwise be heard in the proceeding. (L.N.
103 of 1994)

   (b)  The relevant resolution of the board of the body corporate authorizing
        the director to appear on its behalf if leave is granted shall be
        exhibited to the affidavit.

(2B) No appeal shall lie from an order of the Registrar under paragraph (2A)
giving or refusing leave.

(2C) Leave given by a Registrar under paragraph (2A) may be revoked by
the Court at any time.

(2D) No appeal shall lie from an order of the Court revoking leave given by a
Registrar.

(3) Service of a writ may be acknowledged by properly completing an
acknowledgment of service as defined by rule 3 and handing it in at, or
sending it by post to, the Registry.

(4) If two or more defendants to an action acknowledge service by the same
solicitor and at the same time, only one acknowledgment of service need be
completed and delivered for those defendants.

(5) The date on which service is acknowledged is the date on which the
acknowledgment of service is received at the Registry.

3. Acknowledgment of service (O. 12, r. 3)

(1) An acknowledgment of service must be in Form No. 14 or 15 in Appendix A,
whichever is appropriate, and except as provided in rule 1(2), must be signed
by the solicitor acting for the defendant specified in the acknowledgment or,
if the defendant is acting in person, by that defendant.

(2) An acknowledgment of service must specify-

   (a)  in the case of a defendant acknowledging service in person, the
        address of his place of residence and, if his place of residence is
        not within the jurisdiction or if he has no place of residence, the
        address of a place within the jurisdiction at or to which documents
        for him may be delivered or sent, and

   (b)  in the case of a defendant acknowledging service by a solicitor, a
        business address to which may be added a numbered box at a
        document exchange of his solicitor within the jurisdiction; and where
        the defendant acknowledges service in person the address within the
        jurisdiction specified under sub-paragraph (a) shall be his address
        for service, but otherwise his solicitor's business address shall be
        his address for service. In relation to a body corporate the
        references in sub-paragraph (a) to the defendant's place of residence
        shall be construed as references to the defendant's registered or
        principal office.

(3) Where the defendant acknowledges service by a solicitor who is acting as
agent for another solicitor having a place of business within the
jurisdiction, the acknowledgment of service must state that the first-named
solicitor so acts and must also state the name and address of that other
solicitor.

(4) If an acknowledgment of service does not specify the defendant's address
for service or the Court is satisfied that any address specified in the
acknowledgment for service is not genuine, the Court may on application by the
plaintiff set aside the acknowledgment or order the defendant to give an
address or, as the case may be, a genuine address for service and may in any
case direct that the acknowledgment shall nevertheless have effect for the
purpose of Order 10, rule 1(5), and Order 65, rule 9.

4. Procedure on receipt of acknowledgment of service (O. 12, r. 4)

On receiving an acknowledgment of service an officer of the Registry must-

   (a)  affix to the acknowledgment an official stamp showing the date on
        which he received it;

   (b)  enter the acknowledgment in the cause book with a note showing, if it
        be the case, that the defendant has indicated in the acknowledgment an
        intention to contest the proceedings or to apply for a stay of
        execution in respect of any judgment obtained against him in the
        proceedings;

   (c)  make a copy of the acknowledgment, having affixed to it an official
        stamp showing the date on which he received the acknowledgment, and
        send by post to the plaintiff or, as the case may be, his solicitor at
        the plaintiff's address for service.

5. Time limited for acknowledging service (O. 12, r. 5)

References in these rules to the time limited for acknowledging service are
references-

   (a)  in the case of a writ served within the jurisdiction, to fourteen days
        after service of the writ (including the day of service) or, where
        that time has been extended by or by virtue of these rules, to that
        time as so extended; and

   (b)  in the case of a writ served out of the jurisdiction, to the time
        limited under Order 10, rule 2(2), Order 11, rule 1(3), or Order 11,
        rule 4(4), or, where that time has been extended as aforesaid, to that
        time as so extended.

6. Late acknowledgment of service (O. 12, r. 6)

(1) Except with the leave of the Court, a defendant may not give
notice of intention to defend in an action after judgment has been obtained
therein.

(2) Except as provided by paragraph (1) nothing in these rules or any writ or
order thereunder shall be construed as precluding a defendant from
acknowledging service in an action after the time limited for so doing, but if
a defendant acknowledges service after that time, he shall not, unless
the Court otherwise orders, be entitled to serve a defence or do any other act
later than if he had acknowledged service within that time.

7. Acknowledgment not to constitute waiver (O. 12, r. 7)

The acknowledgment by a defendant of service of a writ shall not be treated as
a waiver by him of any irregularity in the writ or service thereof or in any
order giving leave to serve the writ or extending the validity of the writ for
the purpose of service.

8. Dispute as to jurisdiction (O. 12, r. 8)

(1) A defendant who wishes to dispute the jurisdiction of the court in the
proceedings by reason of any such irregularity as is mentioned in rule 7 or on
any other ground shall give notice of intention to defend the proceedings and
shall, within the time limited for service of a defence, apply to the Court
for-

   (a)  an order setting aside the writ or service of the writ on him, or

   (b)  an order declaring that the writ has not been duly served on him, or

   (c)  the discharge of any order giving leave to serve the writ on him out
        of the jurisdiction, or

   (d)  the discharge of any order extending the validity of the writ for the
        purpose of service, or

   (e)  the protection or release of any property of the defendant seized or
        threatened with seizure in the proceedings, or

   (f)  the discharge of any order made to prevent any dealing with any
        property of the defendant, or

   (g)  a declaration that in the circumstances of the case the court has no
        jurisdiction over the defendant in respect of the subject-matter of
        the claim or the relief or remedy sought in the action, or

   (h)  such other relief as may be appropriate.

(3) An application under paragraph (1) must be made-

(a) in an Admiralty action in rem, by motion;

   (c)  in any other action, by summons or motion, and the notice of motion or
        summons must state the grounds of the application.

(4) An application under paragraph (1) must be supported by an affidavit
verifying the facts on which the application is based and a copy of the
affidavit must be served with the notice of motion or summons by which the
application is made.

(5) Upon hearing an application under paragraph (1), the Court, if it does not
dispose of the matter in dispute, may give such directions for its disposal as
may be appropriate, including directions for the trial thereof as a
preliminary issue.

(6) A defendant who makes an application under paragraph (1) shall not be
treated as having submitted to the jurisdiction of the court by reason of his
having given notice of intention to defend the action; and if the Court makes
no order on the application or dismisses it, the notice shall cease to have
effect, but the defendant may, subject to rule 6(1), lodge a further
acknowledgment of service and in that case paragraph (7) shall apply as if the
defendant had not made any such application.

(7) Except where the defendant makes an application in accordance with
paragraph (1), the acknowledgment by a defendant of service of a writ shall,
unless the acknowledgment is withdrawn by leave of the Court under Order 21,
rule 1, be treated as a submission by the defendant to the jurisdiction of
the Court in the proceedings.

8A. Application by defendant where writ not served (O. 12, r. 8A)

(1) Any person named as a defendant in a writ which has not been served on him
may serve on the plaintiff a notice requiring him within a specified period
not less than 14 days after service of the notice either to serve the writ on
the defendant or to discontinue the action as against him.

(2) Where the plaintiff fails to comply with a notice under paragraph (1)
within the time specified the Court may, on the application of the defendant
by summons, order the action to be dismissed or make such other order as it
thinks fit.

(3) A summons under paragraph (2) shall be supported by an affidavit verifying
the facts on which the application is based and stating that the defendant
intends to contest the proceedings and a copy of the affidavit must be served
with the summons.

(4) Where the plaintiff serves the writ in compliance with a notice under
paragraph (1) or with an order under paragraph (2) the defendant must
acknowledge service within the time limited for so doing.

9. Acknowledgment of service of originating summons (O. 12, r. 9)

(1) Each defendant named in and served with an originating summons

(other than an ex parte originating summons or an originating summons under
Order 113 or an application under Order 121) must acknowledge service of the
summons as if it were a writ.

(3) The foregoing rules of this Order shall apply in relation to an
originating summons (other than an ex parte originating summons or an
originating summons under Order 113 or an application under Order 121) as they
apply to a writ except that after the word "extended" wherever it occurs in
rule 5(a), there shall be inserted the words "or abridged" and for the
reference in rule 5(b) to Order 11, rules 1(3) and 4(4), there shall be
substituted a reference to Order 11, rule 9(6). (L.N. 119 of 1998)

10. Acknowledgment of service to be treated as entry of appearance (O. 12, r.
10)

For the purpose of any enactment referring expressly or impliedly to the entry
of appearance as a procedure provided by rules of court for responding to a
writ or other process issuing out of the Court of First Instance, or of any
rule of law, the acknowledgment of service of the writ or other process in
accordance with these rules shall be treated as the entry of an appearance to
it, and related expressions shall be construed accordingly.

(25 of 1998 s. 2) (Enacted 1988)