Following our March 2017 article on Jonathan Lu & Ors v Paul Chan Mo-Po and Frieda Hui, in which the Court of Appeal gave guidance on the qualified privilege defence and the meaning of malice in defamation actions, this article aims to provide our readers with an overview of the procedural steps to be followed after leave to appeal to the Court of Final Appeal (final leave) has been granted, as in the Jonathan Lu case. The procedural steps to be followed by the parties can be found in the Hong Kong Court of Final Appeal Rules, Cap 484A (HKCFAR) and Practice Direction 2.3.
In Jonathan Lu & Ors v. Paul Chan Mo-Po and Frieda Hui, final leave to appeal was granted on 1 September 2017 (FACV 13 of 2017) and the hearing of the appeal has been fixed for 6 and 7 March 2018.
Notice of Appeal
Within 7 days after final leave had been granted, the Appellant is required to file and serve a Notice of Appeal. An affidavit of service should also be filed within 7 days after service.
Appearance by the Respondent
The Respondent who wishes to oppose the appeal should file and serve an Appearance within 14 days after the day of service on him of the Notice of Appeal.
Unless a party has previously filed his Case, no party can be heard by the Court of Final Appeal. Unless otherwise agreed by the parties or by direction of the Court, the Appellant must file and serve 6 copies of his Case within 35 days after the day of filing his Notice of Appeal.
Again, unless otherwise agreed by the parties or by direction of the Court, the Respondent must file and serve 6 copies of his Case within 28 days after the date of receipt by him of the Appellant’s Case.
A Supplemental Case (in particular, by the Appellant after seeing the Respondent’s Case) may also be filed. Where this is required, the party must obtain leave from the Registrar and not later than 14 days before the date fixed for the hearing of the appeal, file and serve on all parties 6 copies of the Supplemental Case. The Supplemental Case may include only (a) further explanation of or argument with respect to a matter or contention already included in that party’s Case; or (b) a response to a matter raised in another party’s Case.
Once the parties’ Cases have been filed, the parties must then prepare the Record in accordance with the HKCFAR which consists of Part A (documents generated after the completion of the hearing in the court below) and Part B (documents necessary to be laid before the Court of Final Appeal on the hearing of the appeal).
The Appellant must file and serve 6 copies of Part A within 14 days after the day of granting final leave. The Appellant must send a copy of the proposed index for Part B to the Respondent for his approval no later than 7 days after the day the Respondent’s Case is filed. The Parties can object to the inclusion of documents in Part B in accordance with Rule 35 of the HKCFAR.
Where the parties agree on the contents of Part B, or in any event no later than 45 days before the hearing of the appeal, the Appellant must submit a copy of the proposed Part B to the Registrar for his approval. The Appellant must file and serve Part B as soon as the Registrar approves, or in any event no later than 28 days before the hearing of the appeal.
List of Authorities
Finally, each party must file a list of the authorities he proposes to cite at the hearing not less than 21 days before the date appointed for the hearing.
In light of the above procedural steps, there is a fair amount of work to be carried out by the respective parties before the substantive hearing in March 2018. Stay tuned for further developments on the appeal.