Hong Kong Regulations

THE RULES OF THE HIGH COURT - ORDER 5

MODE OF BEGINNING CIVIL PROCEEDINGS IN THE COURT OF FIRST INSTANCE

(Past version on 01/07/1997).
(Past version on 30/06/1997).

MODE OF BEGINNING CIVIL PROCEEDINGS IN THE COURT OF FIRST INSTANCE

(25 of 1998 s. 2)

1. Mode of beginning civil proceedings (O. 5, r. 1)

Subject to the provisions of any written law and of these rules, civil
proceedings in the Court of First Instance may be begun by writ,
originating summons, originating motion or petition.

(25 of 1998 s. 2)

2. Proceedings which must be begun by writ (O. 5, r. 2)

Subject to any provision of any written law, or of these rules, by virtue of
which any proceedings are expressly required to be begun otherwise than by
writ, the following proceedings must, notwithstanding anything in rule 4, be
begun by writ, that is to say, proceedings-

   (a)  in which a claim is made by the plaintiff for any relief or remedy for
        any tort, other than trespass to land;

   (b)  in which a claim made by the plaintiff is based on an allegation of
        fraud;

   (c)  in which a claim is made by the plaintiff for damages for breach of
        duty (whether the duty exists by virtue of a contract or of a
        provision made by or under any written law, or independently of any
        contract or any such provision), where the damages claimed consist of
        or include damages in respect of the death of any person or in respect
        of personal injuries to any person or in respect of damage to any
        property;

   (d)  in which a claim is made by the plaintiff in respect of the
        infringement of a patent.

3. Proceedings which must be begun by originating summons (O. 5, r. 3)

Proceedings by which an application is to be made to the Court of First
Instance or a judge thereof under any written law must be begun by
originating summons except where by these rules or by or under any written 
law the application in question is expressly required or authorized to be made
by some other means. This rule does not apply to an application made in
pending proceedings.

(25 of 1998 s. 2)

4. Proceedings which may be begun by writ or originating summons (O. 5, r. 4)

(1) Except in the case of proceedings which by these rules or by or under any
written law are required to be begun by writ or originating  summons or are
required or authorized to be begun by originating motion or petition,
proceedings may be begun either by writ or by originating  summons as the
plaintiff considers appropriate.

(2) Proceedings-

   (a)  in which the sole or principal question at issue is, or is likely to
        be, one of the construction of any written law or of any instrument
        made under any written law or of any deed, will, contract or other
        document, or some other question of law, or

   (b)  in which there is unlikely to be any substantial dispute of fact, are
        appropriate to be begun by originating summons unless the plaintiff
        intends in those proceedings to apply for judgment under Order 14 or
        Order 86 or for any other reason considers the proceedings more
        appropriate to be begun by writ.

5. Proceedings to be begun by motion or petition (O. 5, r. 5)

Proceedings may be begun by originating motion or petition if, but only if, by
these rules or by or under any written law the proceedings in question are
required or authorized to be so begun.

6. Right to sue in person (O. 5, r. 6)

(1) Subject to paragraph (2) and to Order 80, rule 2, any person

(whether or not he sues as a trustee or personal representative, or in any
other representative capacity) may begin and carry on proceedings in the High
Court by a solicitor or in person. (25 of 1998 s. 2)

(2) A body corporate may not begin or carry on any such proceedings in
the Court otherwise than by a solicitor except-

   (a)  as expressly provided by or under any enactment; or

   (b)  where leave is given under paragraph (3) for it to be represented by
        one of its directors.

(3) (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. (L.N. 99 of 1993; L.N. 108 of 2002)

   (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.

(4) No appeal shall lie from an order of the Registrar under paragraph (3)
giving or refusing leave.

(5) Leave given by a Registrar under paragraph (3) may be revoked by the Court
at any time.

(6) No appeal shall lie from an order of the Court revoking leave given by a
Registrar. (Enacted 1988)