Hong Kong Regulations

THE RULES OF THE HIGH COURT - ORDER 13

FAILURE TO GIVE NOTICE OF INTENTION TO DEFEND

(Past version on 30/06/1997).

Adaptation amendments retroactively made - see 25 of 1998 s. 2 1. Claim for
liquidated demand (O. 13, r. 1)

(1) Where a writ is indorsed with a claim against a defendant for a liquidated
demand only, then, if that defendant fails to give notice of 
intention to defend, the plaintiff may, after the prescribed time, enter final
judgment against that defendant for a sum not exceeding that claimed by the
writ in respect of the demand and for costs, and proceed with the  action
against the other defendants, if any. (See App. A, Form 39)

(2) A claim shall not be prevented from being treated for the purposes of this
rule as a claim for a liquidated demand by reason only that part of the claim
is for interest under section 48 of the Ordinance at a rate which is not
higher than that payable on judgment debts at the date of the writ.

2. Claim for unliquidated damages (O. 13, r. 2)

Where a writ is indorsed with a claim against a defendant for unliquidated
damages only, then, if that defendant fails to give notice of intention to 
defend, the plaintiff may, after the prescribed time, enter interlocutory
judgment against that defendant for damages to be assessed and costs, and
proceed with the action against the other defendants, if any. (See App. A.
Form 40)

3. Claim for detention of goods (O. 13, r. 3)

(1) Where a writ is indorsed with a claim against a defendant relating to the
detention of goods only, then, if that defendant fails to give
notice of intention to defend the plaintiff may, after the prescribed  time
and subject to Order 42, rule 1A-

   (a)  at his option enter either-

        (i)    interlocutory judgment against that defendant for delivery of
               the goods or their value to be assessed and costs; or

        (ii)   interlocutory judgment for the value of the goods to be
               assessed and costs; or

   (b)  apply by summons for judgment against that defendant for delivery of
        the goods without giving him the alternative of paying their assessed
        value, and in any case proceed with the action against the other
        defendants, if any. (See App. A Form 41)

(2) A summons under paragraph (1)(b) must be supported by affidavit and
notwithstanding Order 65, rule 9, the summons and a copy of the affidavit must
be served on the defendant against whom judgment is sought.

4. Claim for possession of land (O. 13, r. 4)

(1) Where a writ is indorsed with a claim against a defendant for possession
of land only, then, if that defendant fails to give notice of 
intention to defend the plaintiff may, after the prescribed time, and on
producing a certificate by his solicitor, or (if he sues in person) an
affidavit, stating that he is not claiming any relief in the action of the
nature specified in Order 88, rule 1, enter judgment for possession of the
land as against that defendant and costs, and proceed with the action against
the other defendants, if any. (See App. A Form 42)

(5) Where there is more than one defendant, judgment entered under this rule
shall not be enforced against any defendant unless and until judgment for
possession of the land has been entered against all the defendants.

5. Mixed claims (O. 13, r. 5)

Where a writ issued against any defendant is indorsed with two or more of the
claims mentioned in the foregoing rules, and no other claim, then, if that
defendant fails to give notice of intention to defend, the plaintiff may,
after the prescribed time, enter against that defendant such judgment in
respect of any such claim as he would be entitled to enter under those rules
if that were the only claim indorsed on the writ and proceed with the action
against the other defendants, if any.

6. Other claims (O. 13, r. 6)

(1) Where a writ is indorsed with a claim of a description not mentioned in
rules 1 to 4, then, if any defendant fails to give notice of 
intention to defend, the plaintiff may, after the prescribed time and, if that
defendant has not acknowledged service, upon filing an affidavit proving due
service of the writ on him and, where the statement of claim was not indorsed
on or served with the writ, upon serving a statement of  claim on him, proceed
with the action as if that defendant had given notice of intention to defend.

(2) Where a writ issued against a defendant is indorsed as aforesaid, but by
reason of the defendant's satisfying the claim or complying with the demands
thereof or any other like reason it has become unnecessary for the plaintiff
to proceed with the action, then, if the defendant fails to give
notice of intention to defend, the plaintiff may, after the prescribed time,
enter judgment against that defendant for costs.

(3) (Repealed L.N. 99 of 1993)

6A. Prescribed time (O. 13, r. 6A)

In the foregoing rules of this Order "the prescribed time" (訂明的時限)
in relation to a writ issued against a defendant means the time limited for
the defendant to acknowledge service of the writ or, if within that time the
defendant has returned to the Registry an acknowledgment of service containing
a statement to the effect that he does not intend to contest the proceedings,
the date on which the acknowledgment was received at the Registry.

7. Proof of service of writ (O. 13, r. 7)

(1) Judgment shall not be entered against a defendant under this Order unless-

   (a)  the defendant has acknowledged service on him of the writ; or

   (b)  an affidavit is filed by or on behalf of the plaintiff proving due
        service of the writ on the defendant; or

   (c)  the plaintiff produces the writ indorsed by the defendant's solicitor
        with a statement that he accepts service of the writ on the
        defendant's behalf.

(2) Where, in an action begun by writ, an application is made to the Court for
an order affecting a party who has failed to give notice of 
intention to defend, the Court hearing the application may require to be
satisfied in such manner as it thinks fit that the party failed to give such
notice.

(3) Where, after judgment has been entered under this Order against a
defendant purporting to have been served by post under Order 10, rule 1(2)(a),
the copy of the writ sent to the defendant is returned to the plaintiff
through the post undelivered to the addressee, the plaintiff shall, before
taking any step or further step in the action or the enforcement of the
judgment, either-

   (a)  make a request for the judgment to be set aside on the ground that the
        writ has not been duly served, or

   (b)  apply to the Court for directions.

(4) A request under paragraph (3)(a) shall be made by producing to an officer
of the Registry and leaving with him for filing, an affidavit stating the
relevant facts, and thereupon the judgment shall be set aside and the entry of
the judgment and of any proceedings for its enforcement made in the book kept
in the Registry for that purpose shall be marked accordingly.

(5) An application under paragraph (3)(b) shall be made ex parte by affidavit
stating the facts on which the application is founded and any order or
direction sought, and on the application the Court may-

   (a)  set aside the judgment; or

   (b)  direct that, notwithstanding the return of the copy of the writ, it
        shall be treated as having been duly served; or

   (c)  make such other order and give such other direction as the
        circumstances may require.

7A. Judgment against a State (O. 13, r. 7A)

(1) Where the defendant is a State, as defined in section 14 of the
State Immunity Act 1978 (1978 c. 33 U.K.) ("the Act"), the plaintiff shall not
be entitled to enter judgment under this Order except with the leave of
the Court.

(2) An application for leave to enter judgment shall be supported by an
affidavit-

   (a)  stating the grounds of the application,

   (b)  verifying the facts relied on as excepting the State from the immunity
        conferred by section 1 of the Act, and

   (c)  verifying that the writ has been served by being transmitted to the
        Chief Secretary for Administration and by him to the Foreign and
        Commonwealth Office for onward transmission to the State concerned, or
        in such other manner as may have been agreed to by the State, and that
        the time for acknowledging service, as extended by section 12(2) of
        the Act

(by two months) where applicable, has expired. (L.N. 362 of 1997)

(3) The application may be made ex parte but the Court hearing the application
may direct a summons to be issued and served on that State, for which purpose
such a direction shall include leave to serve the summons and a copy of the
affidavit out of the jurisdiction.

(4) Unless the Court otherwise directs, an affidavit for the purposes of this
rule may contain statements of information or belief with the sources and
grounds thereof, and the grant of leave to enter judgment under this Order
shall include leave to serve out of the jurisdiction-

   (a)  a copy of the judgment, and

   (b)  a copy of the affidavit, where not already served.

(5) The procedure for effecting service out of the jurisdiction pursuant to
leave granted in accordance with the rule shall be the same as for the service
of the writ under Order 11, rule 7(1), except where section 12(6) of the Act
applies and an alternative method of service has been agreed,

8. Stay of execution on default judgment (O. 13, r. 8)

Where judgment for a debt or liquidated demand is entered under this Order
against a defendant who has returned to the Registry an acknowledgment of
service containing a statement to the effect that, although he does not intend
to contest the proceedings, he intends to apply for a stay of execution of the
judgment by writ of fieri facias, execution of the judgment by such a writ
shall be stayed for a period of 14 days from the acknowledgment of service
and, if within that time the defendant issues and serves on the plaintiff a
summons for such a stay supported by an affidavit in accordance with Order 47,
rule 1, the stay imposed by this rule shall continue until the summons is
heard or otherwise disposed of, unless the Court after giving the parties an
opportunity of being heard otherwise directs.

9. Setting aside judgment (O. 13, r. 9)

Without prejudice to rule 7(3) and (4), the Court may, on such terms as it
thinks just, set aside or vary any judgment entered in pursuance of this
Order. (Enacted 1988)