Hong Kong Civil Procedure 20210119 PDF

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Hong Kong Civil Procedure 20210119Different basis of costsParty party basis - Not a luxury - What is necessary for him to conduct the litigation - Even though a party wins the case, they won’t get all the costs back. - Only what is necessary or proper - May only get 60% of the cost, tax down 30 - 40...

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Hong Kong Civil Procedure 20210119 Different basis of costs Party party basis - Not a luxury - What is necessary for him to conduct the litigation - Even though a party wins the case, they won’t get all the costs back. - Only what is necessary or proper - May only get 60% of the cost, tax down 30 - 40% Common fund basis - Applies to cases where the winner of the costs has special feature - Apply to person who has disability - i.e the victim of the traffic accident, want to award him in a more generous way, he is out of pocket less - can get back 70-80% of his costs Indemnity basis - get back a lot - all costs are allowed unless unreasonable - expect get back 90% of its costs - usually in respect of cases that indemnity basis is ordered, usually there is contractual basis of indemnity cost - forfeit mortgage case on the piece of land or property – when you sign mortgage with the bank usually the documents have harsh term regarding costs. This kind of case will be ordered in indemnity basis. - After CJR, the court will order in indemnity basis, i.e. contempt to the court case - Or the conduct of the party is so bad, so will warrant indemnity basis - Unreasonable delaying things, incorporative will face indemnity order Ma So So v Chin Yu Lun - One party fabricated the case, and alleged one of the solicitors help client fabricated the case - They wanted to enforce the court order Negotiation through lawyers - Take instruction of your authority - Ostensible authority is up to the limit which you will have received from your client Negotiation by the lay clients - Clients can settle matter themselves - But client does not know what they agreed can be legally agreed for formalized - Kwan Siu Man Joshua – what they have agreed is in oral, the parties should be agreed in writing cannot agreed orally, so the settlement is not binding Exceptions to the WP rule

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When the court decided the case, you can share the conversation with the judge I was agreed to 30million in negotiation, but they don’t accept, and we spent another 5 months and eventually you offer 30million award. Do you want to consider the amount of award? Without prejudice, we reserve the right to show the without prejudice conversation to the court, to see if the judge can offer a generous award

Mediation Unreasonable refusal to mediate - refusing party loss at trial - Award higher costs to the other party - refusing party wins at trial - Disallow my costs or prevent me from recovering some Mediation – relevant provisions - mediation is filed by the client and signed by the solicitor - if you agreed to mediate, the case will stay, means nothing happen, we will file a mediation notice, and then your opponent will file a respond. If both agreed, then will file a mediation minute to court and tell how to mediate - the minimum is to agree to mediate at least one session - mediator to assist the cases, iron out the differences, they are expert, cannot decide who win or who loss Sanctioned offers and sanctioned payment Order 22 - allow more flexible approach after CJR Sanctioned payments - you do not when you will win - litigation risk, unlikely the solicitor will tell you, you will 100% win - need to factor in litigation risk and costs of litigation - this amount can be related to the whole claim and state this amount is related to the interest. - Maybe the defendant made a realistic judgement, and may go down the price of the mobile phone - You have to pay the money in - Relates to money claim only Consequences of non-acceptance - Plaintiff refused to accept my offer 3 million. If at trial, you fail to do better, the award less than 3 million, or loss totally. Expanding so much cost. The court may disallow part of or any interest payable on the award on the day you could accept the sanction payment without leave. - Not only can the court order the defendant to get the costs back but also can order in indemnity basis and interest attach to those cost and in enhance rate Documenting settlements – not examined

Enforcement - Only talk about what enforcement is available Writ of fi fa -

Do worry how to do it For goods or chattels own by the judgement debtor, essentially anything All the expensive things If you know the address of the judgment debtor, as long as the things belong to the judgement debtor, you can attach Up to 10 thousand dollars Or if you can go to my office and attach my equipment, tools of trades up to 10 thousand i.e. photocopier, if it is leased, or a car, I am still paying it in higher purchase agreement, you cannot attach it

Garnishee Proceedings - think about a debt owe to the judgement debtor - I am an employee of hku, every month, hku will owe me one month salary, can you garnishee hku? No, you cannot garnishee wages or pensions. - You can garnishee my bank account - You can wait til my pay day, once the salary is paid into my account, you can garnishee my bank accounts - Mostly used in bank accounts - Bank is the debtor, when you deposit money in bank, the bank is actually owing you money, so you can garnishee bank accounts Charging order - If you have a piece of land or property or funds in court, you will use charging order - Once you executed or obtained a charging order, it is just an equitable charge - Once you charge the property you won’t get the money back - You will register in land registry - If that property is heavily charge, you will not get anything Writ of sequestration - Put person in jail Appeals – not examined...