Hong Kong Civil Procedure 20210107 PDF

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Hong Kong Civil Procedure 20211107Originated summons – asking someone to come to courtOnly concern writ of summonsServing – deliver to the opponents Service must be service to the defendant within 12 months If you don’t manage to do that, the court may extend it unless a good reason be served I must...

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Hong Kong Civil Procedure 20211107 Originated summons – asking someone to come to court Only concern writ of summons Serving – deliver to the opponents Service must be service to the defendant within 12 months If you don’t manage to do that, the court may extend it unless a good reason be served I must commence the action within limitation period Once limitation period expired, you cannot issue the write What if I issued the write, the limitation period is expired, you can only extend the validity, unless you show a good reason Show good reasons, then court will look into other things, whether there is prejudice in the other side if I extended beyond the limitation period Do I have good reason to extend, the court then will look at the prejudice of the other side General indorsement – one paragraph what the claim is Specific indorsed writ – detail claim. Claimant decides to issue general indorsed writ or specific indorsed writ. Need to file a statement of claim in a month or so. If no time, usually issue general indorsed writ Must file a statement of claim, the option is whether I do it at the beginning or wait until later Depends on the time, facts and the costs that are available to choose what writ to issue Relief claim is damaged of the contract Order 6 rule 2 RHC/RDC – need to state the nature of the claim and the relief I issue the writ, the write attached the statement, order 13A - allows the defendant to admit the claim if he doesn’t want to attest it Write of summons need to state who the parties are If I am a natural person, I will go to the solicitor, the solicitor will act for me Someone under 18, ill, mental disability, disabled in terms of age, or capacity, these people must make a claim by his friends or guardian. These friend or guardian must act by solicitor Sole proprietor – including Trading name in writ

A partnership business – i.e. law firms, different people coming together to operate a business, if you are a suing the partnership, i.e. ABC and Co as the law firm, or identify all the partners and the firm, or only the partners only If you are suing in the name of a partnership, you can list everybody’s name or you can sue the name of the firm Body corporate/ company – you can sue the company only. If you are suing a company, in the proceedings, if the court gives you leave, court gives you permissions, if you are a company, you just act by solicitor If the company goes to court, there must be a solicitor represent them Why? If a company sues, and chooses to commence proceedings in court, it must the fee of the solicitor, the court said if you pursue proceedings, without even forking out someone, to pay your solicitor, unfair of the other parties in the litigation. If you can’t come up you’re your own legal feeds, how do you expect you have sincerity of the case… Joinder of Parties Join everyone action together i.e. massive traffic accident, can join all of them, avoid different conclusions based on the same facts in relation to the defendant – joint liability for one act, if you chose to sue one not the other, the court said you can’t do this, the court can stop your action, unless you are suing everyone who are potentially involved

Joinder of causes of action If you are suing the person in one thing, you can join them together in relation to Question 2 In relation to the proceedings – the originating process is the writ of summons The way the proceedings are served may differ Service on Natural People B is within the jurisdiction – he is in Hong Kong, if he is a natural person, we can serve by personal service Affidavit – swear that you have send it to defendant by personal service Serviced by Registered Post/ Insertion through Letterbox Order 10 rule 1(3) RHC/RDC Order 3 Rule 2 (5) – if you serve my registration post or letter box, the 7 days after which you have sent it or inserted in the letterbox

If we post it today, we count 7 days tomorrow, in this occasion, we count weekend too because we ignored Order 3 Rule 2(5) If you served today, Jan 7, 2021, the deemed date of service is Jan 14, 2021 Deemed date of service only applied to writ served by register post or submit to the letterbox Barclays Bank of Swaziland Ltd v Hahn When the writ is served, I wasn’t in the jurisdiction at the time. The plaintiff argued, I inserted the letter into the letterbox and follow all the procedures When the letter is inserted, he is not in the jurisdiction, the actual knowledge, the actual service, in this case, we don’t apply 7 days rule. The actual service is when the defendant in the jurisdiction, when he has the actual notice of this, at 5:30 when he called the care taker. House of Lord said no, the phrase unless the contrary is shown denotes the actual knowledge, if you have actual knowledge of the writ is served, by that time 5:30 you are within the jurisdiction Therefore, deemed date of service doesn’t apply, but the writ is served If you serviced the writ within the jurisdiction, and the defendant is the in the jurisdiction, unless the contrary is shown – show that the defendant knows the writ is existed Service on Limited Companies Follow Companies Ordinance Served the writ Send it by post or leave in the company’s registered office, this deemed as proper service according to s.827, this service will be effective Service on Partnerships Can sue them individually – serve the writ like natural person, post or letterbox Or sue them the firm – follow Order 81 rule 3, go to the principal place in Hong Kong and search of the person who is in charge of that place, or registered post Doesn’t matter if one or two persons is not in Hong Kong at the time, does not affect the effectiveness of service Enforcement on Individuals Partners Order 81 rule 5(3) RHC/ RDC But later on, when you want enforce the writ to individual partner, when you are enforcing a writ against individual partners, you need ensure these requirements Service out of the jurisdiction Send the writ to foreign lawyers and the foreign lawyer will serve the writ for us Substituted service

For substituted service we need to show whatever method you proposed will reach the knowledge of the defendant If you have the email address, and you know it’s a valid email address, you will tell the court that I will email the defendant Or you know somebody of the defendant, which can draw the attention of the defendant Newspaper can do as well Acknowledgement of Service Just a form attached to the writ Once the writ is service, after 14 days later you must file an AOS If the other side did not turn up, you will win If we go back to order 3 rule 2, 14 days does it include specify days. Saturdays and Sundays are counted Order 3 said if I am counting from today, I should count tomorrow, unless the rule say in contrary Order 12 is an exception of order 3, from the rule of counting from tomorrow You count the date of service as well, if we serve today, this is Jan 7, 2021, 14 days later, is Jan 20, 2021. Including the date of service including Jan 7, 2021 this is an exception to order 3 which is an expectation of order 3. Because this is more than 7 days, so Saturdays, Sundays, and public holidays will count What if it falls under Sunday, the deadline will extend to the next day the court will open, i.e Monday If you AOS is due when the court is closed, it will be due in the next court open day, the deadline will be extended to the next day the court opened You need to indicate whether you will contest the proceedings, are you going to admit the claim or contest Defendant’s dispute of the court’s jurisdiction Order 12 rule 8 RHC/RDC He will still AOS, and dispute the court jurisdiction Even though you have AOS, it doesn’t mean treated to the jurisdiction Once you have served the writ, you will go to pleadings Pleadings Pleadings are documents Different party will have different documents Statement of claim is the first document to tell the other side what their claim is General indorsement is not a pleading counterclaim – defendants documents Reply – plaintiffs’ documents

When we are drafting the pleadings, it gives the court ideas what the case is about, and what the issues are i.e. whether there is a contract, what are the damages once we found out what the issues are, we will go to discovery, parties give the documents to each other, decide the disputes, we will file witness or expert evidence all these things are taken to trial and your counsel based on what you say your case is and what evidence you prove your case. Pleadings being the first step is so important, you then shape these steps afterwards ADS v Wheelock Marden Bokhary – set out the functions of pleadings Pleadings – inform the opponents...