|
|
Practice Directions |
PART I – CONSTRUCTION AND ARBITRATION LIST
1. To facilitate the disposal of specialised classes of civil action, there is established a “Construction and Arbitration List”.
2. The classes of action within the Construction and Arbitration List shall include those concerning the following matters, namely:
(b) building or other construction work;
(c) claims by and against engineers, archtects, surveyors and other professional persons or bodies specialising in practice related to the construction industry; and
(d) applications under the Arbitration Ordinance (Cap.341) and O.73, Rules of the High Court.
3. (a) There shall be a judge in charge of the Construction and Arbitration List.
(b) References to the Judge shall be references to the judge for the time being in charge of the Construction and Arbitration List.
(c) The Judge shall have control of the actions in the Construction and Arbitration List and of interlocutory applications therein and may make such directions and orders regulating the conduct and trial of an action as he thinks fit.
(d) The Judge may issue general directions for the better regulation of the Construction and Arbitration List and for this purpose may in particular invite the formation of a consultative committee of legal practitioners.
(e) The powers of the Judge shall, when necessary, be exercisable by another judge.
4. The Construction and Arbitration List will operate in the following manner:
(b) The Judge may, of his own motion, or on the application of any party to the action, order—
(ii) that an action pending elsewhere in the High Court (other than in another specialist List) be placed in the Construction and Arbitration List.
PART II – INTERLOCUTORY SUMMONSES
5. For all contested interlocutory summonses listed for one hour or more, the following directions will henceforth apply:
(ii) the grounds upon which the order is sought;
(iii) the evidence relied upon with paragraph and page references where appropriate;
(iv) the relevant rules of the Rules of the High Court;
(v) paragraph numbers of notes relied upon in the Annual Practice;
(vi) whether the rule in Hong Kong is identical to that in England; and
(vii) the authorities to be cited with
references to passages
relied upon. Copies of unreported cases must be annexed (photocopies of reported cases may
be annexed).
(ii) which part of the evidence is relied upon if different to the references in the applicant's skeleton;
(iii) whether any other rules of the Rules of the High Court are to be referred to or relied upon and if so whether the rule in Hong Kong is identical to that in England;
(iv) whether any other notes in the Annual Practice are to be referred to;
(v) which additional cases (if any) are being referred to with details of the actual passages relied upon. Copies of any unreported cases should be attached to this document [photocopies of reported cases may also be attached to this document]; and
(vi) if any order save that being sought by the other party is being put forward then it should be so stated in full with reasons why it is more appropriate than the order being sought including any authorities relied upon.
6. In all cases, the court should be provided with a chronology of events and a dramatis personae not later than 48 hours before the hearing. This should be prepared jointly but if this is not possible it shall be the duty of the applicant to prepare the same. If the chronology is lengthy then it should, if at all possible, be provided also on disc.
7. Practitioners are reminded of the Practice Direction relating to Interlocutory Applications to the Judge in chambers, Affidavits and Authorities.
8. For applications listed for less than one hour it is left to practitioners to decide whether the court will be assisted by compliance with any or all of the above directions.
PART III – STANDARD DIRECTIONS FOR TRIALS9. Not later than two clear days before the hearing of the summons for directions both parties shall serve on the clerk to the Construction and Arbitration List Judge a completed information sheet in the form set out in App.A hereto.
10. The following are standard directions which the court will make in most cases. These directions must be followed although the court will consider deviating from them in appropriate case
(a) Signed statements of factual witnesses be exchanged under O.38 r.2A together with Evidence Ordinance notices (if any) not later than [DATE].
Unless otherwise ordered each statement to stand as the evidence in chef of the witness at trial.
(b) (i) Provisional experts' reports shall be exchanged on a without prejudice basis not later than [DATE].
(ii) Unless otherwise ordered such reports to be confined to issues of ...
(iii) Within .... days of exchange of provisional reports the experts of like or similar discipline shall meet on a without prejudice basis and pursuant to O.38 r.38 of the Rules of the High Court identify those parts of their evidence which are in issue and prepare a joint report indicating those parts of their evidence on which they are, and those parts on which they are not, in agreement.
(iv) Within 21 days of the meeting of experts signed reports shall be exchanged.
(v) If experts' reports cannot be agreed by the parties, the parties to be at liberty to call expert witnesses at the trial limited to ... for each party and to experts whose reports have been exchanged in accordance with this direction. Supplementary reports, if any, to be exchanged not later than before the start of the trial.
(c) Not less than 10 days before the commencement of the trial the parties do serve on the court the following agreed documents, namely (i) a chronology of basic events, (ii) a dramatis personae, and (iii) a list of issues to be decided. If this cannot be agreed, then each side shall prepare their own versions and serve them on the court.(d) The parties are encouraged to serve on the court, and each other, not less than seven days before the hearing, written opening statements and written legal submissions, without prejudice to any reasonable amplification. If one party is acting in person then only the represented party is encouraged to prepare such statements or submissions. The parties are also encouraged to serve on the court and each other written closing submissions voluntarily or in accordance with directions made by the court. All written material served on the court, including the documents referred to in (c) above should also, if at all possible, be provided on disc.
(e) The action to be set down forthwith but not to be listed for hearing before [DATE].
(f) Paginated trial bundles with indexes to be agreed not later than three weeks before the trial date and lodged with the court not less than seven days before the start of the trial.
(g) In all cases a core bundle be agreed and served on the court not less than seven days before the start of the trial.
(h) A signed pre-trial checklist in the form set out in app. B to be lodged by each party with the clerk to the Construction and Arbitration List Judge not later than two months before the fixed date.
(i) This summons for directions be restored for further directions not later than [DATE].
OR
This summons be restored for a pre-trial review [ ] weeks before the fixed date. The summons shall not be restored until at least one of the parties has completed the pre-trial check list. It is essential that counsel appearing at the trial shall attend at the restored summons for directions or pre-trial review. This must be borne in mind when fixing dates. The court will be prepared to sit at 9.00 a.m. to assist in this regard.
(j) Save as varied by the preceding directions or further order the practice and procedure set out in the GUIDE TO COMMERCIAL COURT PRACTICE should be noted [see the notes to O.72 in the Annual Practice].
(k) Costs in cause; liberty to restore.
(l) If default is made by either party with regard to any of the above directions the court may direct the parties to appear and explain the default whereupon the court may make such further directions as are necessary for the just, economical and expeditious disposal of the action.
NOTE: The periods set out herein may require adjustment where there is shorter than usual lead time to the trial.
AT THE SUMMONS FOR DIRECTIONS THE COURT SHALL BE INFORMED WHETHER ANY AND IF SO WHAT ATTEMPTS HAVE BEEN MADE TO RESOLVE THE DISPUTE OR ANY PART OF IT BY MEDIATION. THIS REQUIREMENT DOES NOT ENTAIL DISCLOSING THE DETAILS OF ANY MEDIATION, ONLY THE FACT OF IT HAVING TAKEN PLACE.
PART IV – INTERLOCUTORY APPLICATIONS UNDER THE ARBITRATION ORDINANCE
11. All interlocutory applications made under the provisions of the Arbitration Ordinance, Cap.341 shall be made by summons to the judge in charge of the Construction and Arbitration List, whether or not the action in which such application is made is in that List.
12. This Practice Direction consolidates and supersedes the Practice Directions now appearing at pages 8.4, 8.6, 8.7, 8.8, 8.9, 8.10, 8.11, 8.12 and 8.14.
13. This Practice Direction shall take effect on 1 February 1999.
Dated this 31st day of December 1998.
(Andrew Li)
Chief Justice
APPENDIX A
Construction and Arbitration Judge: Information for the summons for directions
See O.25 r.1 and section XII of the Guide to
Commercial
Court Practice. [Notes to 0.72 in Annual Practice]
[-SHORT TITLE OF ACTION-FOLIO NUMBER-]
[-PARTY LODGING FORM-]
[-NAME OF SOLICITOR AND COUNSEL-]
[-NATURE OF ACTION-]
Discovery
1. (a) Have discovery and inspection been completed?
(b) If not, what is outstanding?
Interrogatories
2. (a) Are any interrogatories outstanding? If so, what?
(b) Do you intend to serve any interrogatories before the exchange of witness statements?
Particulars
3. (a) Are any requests for further and better particulars of your pleadings outstanding? If so, will the particulars be delivered before the hearing of the summons?
(b) Have you had all the particulars you require? If not, have you requested them? Will you be making an application?
Amendments
4. (a) Do you intend to amend your pleadings or serve any further pleading?
(b) If so, when?
(c) Can you now make any additional admissions?
(d) Are all the parties on the record still effective?
(e) Are you intending to apply to add any parties?
Issues
5. (a) Please provide a succinct list of issues in the case.
(b) Are any of them capable of resolution by agreement?
(c) Are any of the issues in the action suitable for trial as preliminary issues? (See section XIII of the Guide.)
(d) Are there any additional matters arising from third party or similar proceedings?
Factual witnesses
6. (a) How many witnesses of fact do you currently intend to call?
(b) Are you prepared to give their names? If not, please explain why?
(c) By what date can you serve their signed statements, and Evidence Ordinance notice if any?(d) Will any interpreters be involved? If so what language/dialect.
Expert evidence7. (a) On what topics/issues may expert evidence be required?
(b) How many experts? Can you presently identify them?
(c) By what date can you serve their written reports?
(d) Is there scope for agreement; would a meeting of experts pursuant to O.38 r.38(3) be useful?
(e) Will oral expert evidence at the trial be likely?
(f) Will further directions about expert evidence be desirable?
Trial
8. (a) What is your present estimate of the length of trial: max/min?
(b) What is the earliest date that you believe you can be ready for trial?
9. Would a pre-trial review be likely to be helpful?
10. Is there any way in which the court can assist the parties to resolve their dispute without the need for a trial/full trial?
11. Have the lay clients received a copy of the notes from the court recommending mediation?
12. Have the parties attempted a mediation procedure? If not, is it suggested that they should attempt a mediation under the Hong Kong International Arbitration Centre’s rules? Would they like the court to assist in the appointment of a mediator or to appoint a mediator?
13. Have the parties been given details of the costs incurred to date and an indication of the fees likely to be incurred if this matter goes to a full hearing?
[-SIGNATURE OF THE SOLICITOR-DATE-]
NOTE: THIS INFORMATION SHEET MUST BE LODGED WITH THE CLERK OF THE CONSTRUCTION AND ARBITRATION LIST JUDGE NOT LATER THAN TWO CLEAR DAYS BEFORE THE RETURN DATE FOR THE SUMMONS FOR DIRECTIONS.
A COPY SHOULD AT THE SAME TIME BE SUPPLIED TO EACH OTHER PARTY.
APPENDIX B
see section XVIII of the Guide to Commercial CourtConstruction and Arbitration List: Pre-trial check-list
[-SHORT TITLE OF ACTION-FOLIO NUMBER-]
[-TRIAL DATE-]
[-PARTY LODGING CHECK-LIST-]
[-NAME OF SOLICITOR-]
[-NAME(S) OF COUNSEL FOR TRIAL (if known)-]
Setting down
1. Has the action been set down
Pleadings
2. (a) Do you intend to make any amendment to your pleading?
(b) If so, when?
Interrogatories
3. (a) Are any interrogatories outstanding?
(b) If so, when served and upon whom?
Evidence
4. (a) Have all orders in relation to expert, factual and hearsay evidence been complied with? If not, specify what remains outstanding.
(b) Do you intend to serve/seek leave to serve/any further report or statement? If so, when and what report or statement?
(c) Have all other orders in relation to oral evidence been complied with?
(d) Do you require any further leave or orders in relation to evidence? If so, please specify and say when you will apply.
5. (a) What witnesses of fact do you intend to call? [-NAMES-]
(b) What expert witnesses do you intend to call? [-NAMES-]
(c) Will any witness require an interpreter? If so, which witness and what language/ dialect?
Documents
6. (a) Have all orders in relation to discovery been complied with?
(b) If not, what orders are outstanding?
(c) Do you intend to apply for any further orders relating to discovery?
(d) If so, what and when?
7. Will you not later than three weeks before the fixed date have prepared agreed paginated bundles of fully legible documents for the use of counsel and the court including witness statements exchanged under O.38 r.2A of the Rules of the High Court? (See section XVI of the Guide to Commercial Court Practice.)
Pre-trial review
8. (a) Has a pre-trial review been ordered?
(b) If so, when is it to take place?
(c) If not, would it be useful to have one?
Length of trial
9. What are counsel's estimates of the minimum and maximum lengths of the trial? [The answer to question 9 should ordinarily be supported by an estimate of length signed by the counsel to be instructed.]
[-SIGNATURE OF THE SOLICITOR-DATE-]
NOTE: THIS CHECK-LIST MUST BE LODGED WITH THE CLERK OF THE CONSTRUCTION AND ARBITRATION LIST JUDGE NOT LATER THAN TWO MONTHS BEFORE THE FIXED DATE WITH COPIES TO THE OTHER PARTIES.