In the first of a four part monthly series on the Civil Justice Reform, we look at the new ‘underlying objectives’, changes to the requirements for pleadings, and the new system of cases management. The Civil Justice Reform is due to roll out in Hong Kong on 2 April 2009.
The inclusion of an underlying objective in the rules is revolutionary in Hong Kong and of central relevance to the way in which the rules will be implemented and interpreted. The underlying objectives incorporate the court’s duty to actively manage cases, and the parties’ duty to help the court to do so.
The underlying objectives, outlined in a new Order 1A, aim to:
- increase the cost-effectiveness of the proceedings;
- ensure that a case is dealt with as expeditiously as is reasonably practicable;
- promote a sense of reasonable proportion and procedural economy in the conduct of proceedings;
- ensure fairness between the parties;
- facilitate settlement of disputes; and
- ensure that the resources of the court are distributed fairly.
Further, active case management powers aim to:
- encourage co-operation and the use of alternative dispute resolution (ADR);
- identify the issues in a dispute at an early stage;
- fix timetables and control the progress of the case;
- deal with case management without the need for the parties to attend court (i.e. more applications dealt with on paper); and
- give directions to ensure that the trial of a case proceeds quickly and efficiently.
As might be expected, the rules are clearly geared towards management of smaller cases involving individuals, rather than large scale commercial litigation. It is unclear what changes will result from the addition of the underlying objective to case management in larger more complex cases.
Active case management by the court means that the parties will no longer dictate the timetable. This is a major shift in the dynamics of litigation and its ramifications are uncertain. Good case management will result in speedier and more economical resolution of disputes. Poor or arbitrary case management may, somewhat ironically, increase costs. For example, if masters and judges are initially unrealistic in the timetables they set, this may lead to increased costs either because it may be necessary to return to court at a later stage and seek an extension, or because a larger team may be required on the case to ensure compliance with the court directions.
In addition, the new case management powers increase discretionary decision making by judges, which may result in inconsistency and uncertainty in predicting the outcome of applications, at least for a while.
Pleadings to be verified by statements of truth
The rules seek to prevent parties making allegations they may not be able to justify by requiring all pleadings, witness statement and experts reports to be verified by a statement of truth (Order 41A). The statement will confirm the party’s belief that the facts contained in the document are true. It will have to be signed by the maker of the document or his lawyer, or in the case of a corporation, a person in a ‘senior position’ in the body (such as a director, secretary or other similar officer) or its lawyer.
The requirement for a statement of truth codifies what is currently good practice. Formalizing the requirements will however inevitably concentrate the mind of the maker and any subsequent attempt to change the facts will raise issues about the original statement of truth.
The sanction for verifying a false statement of truth is contempt. This is of course a serious remedy, but in practice is likely to be little used or ultimately ineffective. Proving contempt is never easy (the criminal burden of proof applies) and obtaining an order for committal to prison or even a fine from a civil judge is rare. A more immediate and potentially more effective remedy may be for the court to exercise its case management powers to impose a costs sanction for failure to comply with a rule.
Substantive defences are required
In a limited period available, the defendant must produce a detailed defence - a simple denial will not be sufficient (Order 18). The defendant must set out why he denies allegations. Similarly, if the defendant disagrees with a version of events in the statement of claim or counterclaim, he must set out his own account of the facts.
There will be less opportunity than before for a defendant to stall or hide behind a bare denial of the allegation. A defendant will have to formulate and reveal his defence from the outset of the case. It is intended that this greater openness will facilitate resolution or an early settlement.
The new requirements for statements of truth and substantive defences are likely to force parties to focus and identify the issues at play at an early stage of proceedings. This is likely to result in the front-loading of costs, although it may promote early settlement in some cases. In addition, the new rules give the plaintiff what some may see as an unfair advantage because, except in cases where there are limitation problems, the plaintiff can take his time to prepare his case. The defendant will then be faced with a strict timetable laid down by the court. The corollary of course is that the well prepared plaintiff will be able to take full advantage of the new rules to seek to obtain an early result.
As outlined above, active case management is an integral part of the Civil Justice Reform. The new case management procedure is outlined in Order 25 and should be read in conjunction with the underlying objectives in Order 1A. In particular, to avoid the objective of ensuring that a case is dealt with “as expeditiously as is reasonably practicable” being frustrated, the new system makes the important innovation of requiring the court to fix a pre-trial review (where one is required) or trial date or trial period, shortly after the close of pleadings.
Each party must complete a questionnaire
As the first stage in the new case management procedure, within 28 days after the close of pleadings each party must complete, file and serve on all other parties a ‘Timetabling Questionnaire’ providing information about the case and proposing draft directions. The parties are encouraged to agree directions. However, where this is not possible, each party should set out their proposals in their respective questionnaires, and the plaintiff should issue a case management summons (which replaces the old summons for directions).
In the past if a party chose to give limited information to the court, this had few implications. This should no longer be possible under the new system. The court may make an adverse costs order if a party refuses to cooperate and as a result any unnecessary hearing takes place.
Court determined timetable
Upon receipt of the questionnaires, the court will determine a timetable, taking into account the needs of the particular case, and the reasonable request of the parties. The timetable will fix immutable “milestone dates” for the major steps, such as the case management conferences, pre-trial reviews and the trial dates or periods. Only in the most exceptional circumstances will a milestone date be changed.
This new system of fixing timetables with firm milestone dates at an early stage of the proceedings will attempt to reduce the scope for delaying tactics, unnecessary applications and deter parties from pursuing marginal or pointless issues. However, the court will only fix the milestone dates once a questionnaire has been filed by one or both parties after the close of pleadings. This was a deliberate policy decision: the Chief Justice’s working party on Civil Justice Reform concluded that it was wrong to force litigation on parties after the close of pleadings if they decided not to proceed at that stage. As a result there is still a possibility of cases “going to sleep” at an early stage under the new system.
Attendance at pre-trial milestone hearings
The case management conference and pre-trial review must be dealt with by the legal representative responsible for the case, or in any event, by a legal representative familiar with the case who is able to provide the court with the information it is likely to need. The legal representative attending the application must also have sufficient authority to deal with any issues likely to arise. Solicitors will therefore have to confer with their client in some detail as to the future handling of the case.
One effect of the changes may be an increase in solicitor advocacy. It is likely to be the solicitor with responsibility for the case, rather than a barrister instructed intermittently, who will have the detailed knowledge of the issues and the practical considerations in the case and therefore be in the best position to deal with these hearings.
A more interventionist judiciary?
It is likely that we will see a more interventionist judiciary, although the approach to, and success of, case management, is likely to vary from judge to judge and master to master. Furthermore, effective case management will depend on judges and masters being given sufficient time to read into a case in advance to enable them to be in a position to grip the issues at the directions hearing.