The Rules
of
the
High
Court
[1 May
1988]
(Format changes—E.R. 1 of 2018)
Editorial Note:
The title of these Rules was amended from “The Rules of the Supreme Court” to
“The Rules of the High Court” — see 25 of 1998 s. 2
(adaptation amendments retroactively made).
Preliminary
Order
1
Citation,
Application, Interpretation
and
Forms
2.
Application (O. 1, r.
2)
(1)
Subject to the following provisions of this rule, these rules shall have
effect in relation to all proceedings in the High Court.
(2)
These rules shall not have effect in relation to proceedings of the kinds
specified in the first column of the following Table (being proceedings in
respect of which rules may be made under the enactments specified in the second
column of that
Table)—
|
Table
|
||
|
Proceedings
|
Enactments
|
|
|
1.
|
Bankruptcy proceedings.
|
Bankruptcy Ordinance (Cap. 6), section
113.
|
|
2.
|
Proceeding relating to the winding-up of companies.
|
Companies (Winding Up and Miscellaneous Provisions) Ordinance
(Cap. 32), section
296.
(28 of 2012 ss. 912 & 920) |
|
2A.
|
Proceedings relating
to remedies for unfair prejudice to members’ interests.
|
|
|
3.
|
Non-contentious or common form probate proceedings.
|
Probate
and Administration Ordinance (Cap. 10), section
72.
|
|
4.
|
Proceedings in the Court when acting as a Prize Court.
|
Prize
Courts Act 1894, section
3.
|
|
5.
|
(Repealed 81 of 1997 s. 59) |
|
|
6.
|
Matrimonial proceedings.
|
Matrimonial Causes Ordinance (Cap. 179), sections
10 and 54;
Matrimonial Proceedings and Property Ordinance (Cap. 192), section
32.
|
|
7.
|
Adoption proceedings.
|
|
|
8.
|
Proceedings under the
Domestic and Cohabitation Relationships Violence Ordinance (Cap. 189).
|
|
(3)
These rules shall not have effect in relation to any criminal proceedings
other than any criminal proceedings to which Order 53, Order 59, Order 62, Order
70, Order 115, Order 115A, Order 116, Order 117, Order 117A, Order 118 or Order
119 applies.
(4)
In the case of the proceedings mentioned in paragraphs (2) and (3), nothing
in those paragraphs shall be taken as affecting any provision of any rules
(whether made under the Ordinance or any other Ordinance) by virtue of which the
Rules of the High Court (Cap. 4 sub. leg. A) or any
provisions thereof are applied in relation to any of those
proceedings.
(5)
These rules do not have effect in relation to an election petition lodged
under an enactment specified in the first column of the following Table, except
to the extent that the practice and procedure of the High Court are applied to
that election petition by virtue of an enactment specified in the second column
of the Table—
Table
|
1.
|
Legislative Council
(Election Petition) Rules (Cap. 542 sub. leg. F), rule
2.
|
|
|
2.
|
District Councils Ordinance (Cap. 547), Part V.
|
District Councils
(Election Petition) Rules (Cap. 547 sub. leg. C), rule
2.
|
|
3.
|
Chief Executive
Election (Election Petition) Rules (Cap. 569 sub. leg. E), section
3.
|
|
|
4.
|
Rural Representative
(Election Petition) Rules (Cap. 576 sub. leg. B), section
2.
|
3.
Application of Interpretation and General
Clauses Ordinance (O. 1, r.
3)
The Interpretation and General Clauses Ordinance (Cap.
1) shall apply for the interpretation of these rules as it applies to
subsidiary legislation made after the commencement of that
Ordinance.
4.
Definitions (O. 1, r.
4)
(1)
In these rules, unless the context otherwise requires, the following
expressions have the meanings hereby respectively assigned to them,
namely—
Amendment
Rules
2008
(《2008年修訂規則
》) means the Rules of the High
Court (Amendment) Rules 2008
(L.N. 152 of 2008);
an
action for personal
injuries
(就人身傷害而提出的訴訟
) means an action in which
there is a claim for damages in respect of personal injuries to the plaintiff or
any other person or in respect of a person’s death, and
personal
injuries
(人身傷害
) includes any disease and any
impairment of a person’s physical or mental condition;bailiff
(執達主任
) means a bailiff of the Court and
any person lawfully authorized to execute the process of the Court;
cause
book
(訟案登記冊
) means the book or other record
kept in the Registry in which the letter and number of, and other details
relating to, a cause or matter are entered;
Full
Bench
(合議庭
) means a Bench consisting of 2 or
more Judges of the Court of First Instance;
judgment
rate
(判定利率
) means the rate of interest
determined by the Chief Justice under section 49(1)(b) of the Ordinance;
master
(聆案官
) means a master of the High Court
and includes the Registrar of the High Court and a Senior Deputy Registrar,
Deputy Registrar or Assistant Registrar of the High Court;
notice
of intention to
defend
(擬抗辯通知書
) means an acknowledgment of
service containing a statement to the effect that the person by whom or on whose
behalf it is signed intends to contest the proceedings to which the
acknowledgment relates;originating
summons
(原訴傳票
) means every summons other than a
summons in a pending cause or matter;pleading
(狀書
) does not include a petition, summons
or preliminary act;practice
direction
(實務指示
) means—(a)
a direction issued by the Chief Justice as to the practice and
procedure of the Court; or
(b)
a direction issued by a specialist judge for his specialist list;
probate
action
(遺囑認證訴訟
) has the meaning assigned to it
by Order 76;receiver
(接管人
) includes a manager or
consignee;Registrar
(司法常務官
) means the Registrar of the High
Court; and includes a Senior Deputy Registrar, Deputy Registrar or Assistant
Registrar of the High Court;
vacation
(休庭期
) means the interval between sittings
of the High Court as prescribed by Order 64;
writ
(令狀
) means a writ of summons;(2)
In these rules, unless the context otherwise requires,
the
Court
(法院
、法庭
) means the Court of First Instance or any one or more of the judges
thereof whether sitting in court or in chambers or the Registrar or any master
but the foregoing provision shall not be taken as affecting any provision of
these rules and, in particular, Order 32, rule 11 by virtue of which
the authority and jurisdiction of the Registrar is defined and regulated.
(3)
In these rules unless the context otherwise requires, any reference to
acknowledging service of a document or giving notice of intention to defend any
proceedings is a reference to lodging in the Registry an acknowledgment of
service of that document or, as the case may be, a notice of intention to defend
those
proceedings.
5.
Construction of references to Orders,
rules, etc. (O. 1, r.
5)
(1)
Unless the context otherwise requires, any reference in these rules to a
specified Order, rule or Appendix is a reference to that Order or rule of, or
that Appendix to, these rules and any reference to a specified rule, paragraph
or sub-paragraph is a reference to that rule of the Order, that paragraph of the
rule, or that sub-paragraph of the paragraph, in which the reference
occurs.
(2)
Any reference in these rules to anything done under a rule of these rules
includes a reference to the same thing done before the commencement of that rule
under any corresponding rule of court ceasing to have effect on the commencement
of that rule.
(3)
Except where the context otherwise requires, any reference in these rules
to any written law shall be construed as a reference to that written law as
amended, extended or applied by or under any other written
law.
6.
Construction of references to action, etc.
for possession of land (O. 1, r.
6)
Except where the context otherwise requires, references in these rules to an
action or claim for the possession of land shall be construed as including
references to proceedings against the Government for an order declaring that the
plaintiff is entitled as against the Government to the land or to the possession
thereof.
7A.
Construction of references to
Registrar (O. 1, r.
7A)
Wherever
the word “Registrar” appears in these rules and forms there may be substituted the
word “Master” when and where
appropriate.
9.
Forms (O. 1, r.
9)
(1)
The forms in the Appendices shall be used where applicable with such
variations as the circumstances of the particular case
require.
10.
Rules not to exclude conduct of
business by post (O. 1, r.
10)
Nothing in these rules shall prejudice any power to regulate the practice of
the Court by giving directions enabling any business or class of business to be
conducted by post.
Order
1A
Objectives
1.
Underlying objectives (O. 1A, r.
1)
The underlying objectives of these rules are—
(a)
to increase the cost-effectiveness of any practice and procedure to be
followed in relation to proceedings before the Court;
(b)
to ensure that a case is dealt with as expeditiously as is reasonably
practicable;
(c)
to promote a sense of reasonable proportion and procedural economy in the
conduct of proceedings;
(d)
to ensure fairness between the parties;
(e)
to facilitate the settlement of disputes; and
(f)
to ensure that the resources of the Court are distributed
fairly.
2.
Application by the Court of
underlying
objectives (O. 1A, r.
2)
(1)
The Court shall seek to give effect to the underlying objectives of these
rules when it—
(a)
exercises any of its powers (whether under its inherent jurisdiction or
given to it by these rules or otherwise); or
(b)
interprets any of these rules or a practice direction.
(2)
In giving effect to the underlying objectives of these rules, the Court
shall always recognize that the primary aim in exercising the powers of the
Court is to secure the just resolution of disputes in accordance with the
substantive rights of the
parties.
3.
Duty of the parties and their
legal
representatives (O. 1A, r.
3)
The parties to any proceedings and their legal representatives shall assist the
Court to further the underlying objectives of these
rules.
4.
Court’s duty to manage
cases
(O. 1A, r.
4)
(1)
The Court shall further the underlying objectives of these rules by
actively managing cases.
(2)
Active case management includes—
(a)
encouraging the parties to co-operate with each other in the conduct of
the proceedings;
(b)
identifying the issues at an early stage;
(c)
deciding promptly which issues need full investigation and trial and
accordingly disposing summarily of the others;
(d)
deciding the order in which the issues are to be resolved;
(e)
encouraging the parties to use an alternative dispute resolution
procedure if the Court considers that appropriate, and facilitating the use
of such a procedure;
(f)
helping the parties to settle the whole or part of the case;
(g)
fixing timetables or otherwise controlling the progress of the
case;
(h)
considering whether the likely benefits of taking a particular step
justify the cost of taking it;
(i)
dealing with as many aspects of the case as practicable on the same
occasion;
(j)
dealing with the case without the parties needing to attend at
court;
(k)
making use of technology; and
(l)
giving directions to ensure that the trial of a case proceeds quickly
and efficiently.
Order
1B
Case
Management
Powers
1.
Court’s general powers
of
management (O. 1B, r.
1)
(1)
The list of powers in this rule is in addition to and not in substitution
for any powers given to the Court by any other rule or practice direction or by
any other enactment or any powers it may otherwise have.
(2)
Except where these rules provide otherwise, the Court may by order—
(a)
extend or shorten the time for compliance with any rule, court order or
practice direction (even if an application for extension is made after the
time for compliance has expired);
(b)
adjourn or bring forward a hearing;
(c)
require a party or a party’s legal representative to attend the
Court;
(d)
direct that part of any proceedings (such as a counterclaim) be dealt
with as separate proceedings;
(e)
stay the whole or part of any proceedings or judgment either generally
or until a specified date or event;
(f)
consolidate proceedings;
(g)
try two or more claims on the same occasion;
(h)
direct a separate trial of any issue;
(i)
decide the order in which issues are to be tried;
(j)
exclude an issue from consideration;
(k)
dismiss or give judgment on a claim after a decision on a preliminary
issue;
(l)
take any other step or make any other order for the purpose of managing
the case and furthering the underlying objectives set out in Order
1A.
(3)
When the Court makes an order, it may—
(a)
make it subject to conditions, including a condition to pay a sum of
money into court; and
(b)
specify the consequences of failure to comply with the order or a
condition.
(4)
Where a party pays money into court following an order under paragraph (3),
the money is security for any sum payable by that party to any other party in
the
proceedings.
2.
Court’s power to make order of its
own
motion (O. 1B, r.
2)
(1)
Except where a rule or some other enactment provides otherwise, the Court
may exercise its powers on an application or of its own motion.
(2)
Where the Court proposes to make an order of its own motion—
(a)
it may give any person likely to be affected by the order an
opportunity to make representations; and
(b)
where it does so, it shall specify the time by and the manner in which
the representations must be made.
(3)
Where the Court proposes—
(a)
to make an order of its own motion; and
(b)
to hold a hearing to decide whether to make the order,
it shall give each party likely to be affected by the order at least 3
days’ notice of the hearing.
(4)
The Court may make an order of its own motion, without hearing the parties
or giving them an opportunity to make representations.
(5)
Where the Court has made an order under paragraph (4)—
(a)
a party affected by the order may apply to have it set aside, varied or
stayed; and
(b)
the order must contain a statement of the right to make such an
application.
(6)
An application under paragraph (5)(a) must be made—
(a)
within such period as may be specified by the Court; or
(b)
if the Court does not specify a period, not more than 14 days after the
date on which notice of the order was sent to the party making the
application.
3.
Court’s power to give
procedural
directions by way of order
nisi
(O. 1B, r.
3)
(1)
Where the Court considers that it is necessary or desirable to give a
direction on the procedure of the Court and that the direction is unlikely to be
objected to by the parties, it may of its own motion and without hearing the
parties, give the direction by way of an order nisi.
(2)
The order nisi becomes absolute 14 days after the order is made unless a
party has applied to the Court for varying the order.
Order
2
Effect
of
Non-compliance
1.
Non-compliance with Rules (O. 2, r.
1)
(1)
Where, in beginning or purporting to begin any proceedings or at any stage
in the course of or in connection with any proceedings, there has, by reason of
any thing done or left undone, been a failure to comply with the requirements of
these rules, whether in respect of time, place, manner, form or content or in
any other respect, the failure shall be treated as an irregularity and shall not
nullify the proceedings, any step taken in the proceedings, or any document,
judgment or order therein.
(2)
Subject to paragraph (3), the Court may, on the ground that there has been
such failure as is mentioned in paragraph (1), and on such terms as to costs or
otherwise as it thinks just, set aside either wholly or in part the proceedings
in which the failure occurred, any step taken in those proceedings or any
document, judgment or order therein or exercise its powers under these rules to
allow such amendments (if any) to be made and to make such order (if any)
dealing with the proceedings generally as it thinks fit.
(3)
The Court shall not wholly set aside any proceedings or the writ or other
originating process by which they were begun on the ground that the proceedings
ought to have begun by an originating process other than the one employed, but
shall instead give directions for the continuation of the proceedings in an
appropriate manner.
2.
Application to set aside for irregularity (O. 2, r.
2)
(1)
An application to set aside for irregularity any proceedings, any step
taken in any proceedings or any document, judgment or order therein shall not be
allowed unless it is made within a reasonable time and before the party applying
has taken any fresh step after becoming aware of the irregularity.
(2)
An application under this rule may be made by
summons
and the grounds of objection must be stated in the
summons.
3.
Non-compliance with rules
and
court orders (O. 2, r.
3)
(1)
The Court may order a party to pay a sum of money into court if that party
has, without good reason, failed to comply with a rule or court order.
(2)
When exercising its power under paragraph (1), the Court shall have regard
to—
(a)
the amount in dispute; and
(b)
the costs which the parties have incurred or which they may
incur.
(3)
Where a party pays money into court following an order under paragraph (1),
the money is security for any sum payable by that party to any other party in
the proceedings.
4.
Sanctions have effect unless
defaulting
party obtains relief (O. 2, r.
4)
Where a party has failed to comply with a rule or court order, any sanction for
failure to comply imposed by the rule or court order has effect unless the party in
default applies to the Court for and obtains relief from the sanction within 14 days
of the failure.
5.
Relief from sanctions (O. 2, r.
5)
(1)
On an application for relief from any sanction imposed for a failure to
comply with any rule or court order, the Court shall consider all the
circumstances including—
(a)
the interests of the administration of justice;
(b)
whether the application for relief has been made promptly;
(c)
whether the failure to comply was intentional;
(d)
whether there is a good explanation for the failure to
comply;
(e)
the extent to which the party in default has complied with other rules
and court orders;
(f)
whether the failure to comply was caused by the party in default or his
legal representative;
(g)
in the case where the party in default is not legally represented,
whether he was unaware of the rule or court order, or if he was aware of it,
whether he was able to comply with it without legal assistance;
(h)
whether the trial date or the likely trial date can still be met if
relief is granted;
(i)
the effect which the failure to comply had on each party; and
(j)
the effect which the granting of relief would have on each
party.
(2)
An application for relief must be supported by evidence.
Order
3
Time
1.
Month
(月) means calendar month (O. 3, r. 1)Without prejudice to section 3 of the Interpretation and General
Clauses Ordinance (Cap. 1) in its application to these
rules, the word
month
(月
), where it occurs
in any judgment, order, direction or other document forming part of any proceedings
in the High Court, means a calendar month unless the context otherwise
requires.2.
Reckoning periods of time (O. 3, r.
2)
(1)
Any period of time fixed by these rules or by any judgment, order or
direction for doing any act shall be reckoned in accordance with the following
provisions of this rule.
(2)
Where the act is required to be done within a specified period after or
from a specified date, the period begins immediately after that date.
(3)
Where the act is required to be done within or not less than a specified
period before a specified date, the period ends immediately before that
date.
(4)
Where the act is required to be done a specified number of clear days
before or after a specified date, at least that number of days must intervene
between the day on which the act is done and that date.
(5)
Where, apart from this paragraph, the period in question, being a period of
7 days or less, would include a
specified
day,
that day shall be excluded.
(6)
In this rule—
specified day
(指明日子
)
means—(a)
a Saturday;
(b)
a general holiday;
(c)
a gale warning day as defined by section 71(2) of the
Interpretation and General Clauses Ordinance (Cap.
1);
(d)
a black rainstorm warning day as defined by that section;
or
(e)
(if the act in question is required to be done at an office of the
Court) another day on which the office is closed.
3.
Summer Vacation excluded from time for
service, etc., of pleadings (O. 3, r.
3)
Unless the Court otherwise directs, the period of the Summer Vacation shall be
excluded in reckoning any period prescribed by these rules or by any order or
direction for serving, filing or amending any
pleading.
4.
Time expires on
day
on which office is closed (O. 3, r.
4)
(1)
Where the time prescribed by these rules, or by any judgment, order or
direction, for doing any act at an office of the Court expires on a
specified
day,
and by reason thereof that act cannot be done on that day, the act shall be in
time if done on the next day on which that office is open.
(2)
In this rule—
specified day
(指明日子
), in
relation to an office of the Court, means—(a)
a Saturday;
(b)
a general holiday;
(c)
a gale warning day as defined by section 71(2) of the
Interpretation and General Clauses Ordinance (Cap.
1);
(d)
a black rainstorm warning day as defined by that section;
or
(e)
another day on which the office is closed.
5.
Extensions, etc., of time (O. 3, r.
5)
(1)
The Court may, on such terms as it thinks just, by order extend or abridge
the period within which a person is required or authorized by these rules, or by
any judgment, order or direction, to do any act in any proceedings.
(2)
The Court may extend any such period as is referred to in paragraph (1)
although the application for extension is not made until after the expiration of
that period.
(3)
The period within which a person is required by these rules, or by any
order or direction, to serve, file or amend any pleading or other document may
be extended by consent (given in writing) without an order of the Court being
made for that purpose.
(4)
In this rule references to the Court shall be construed as including
references to the Court of Appeal and a single judge of that
Court.
6.
Notice of intention to proceed
after year’s delay (O. 3, r.
6)
Where a year or more has elapsed since the last proceeding in a cause or matter,
the party who desires to proceed must give to every other party not less than one
month’s notice of his intention to
proceed.
A summons on which no order was made is not a proceeding for the purposes of
this rule.
Commencement
and Progress
of
Proceedings
Order
4
Assignment, Transfer
and Consolidation
of
Proceedings
2.
Companies (O. 4, r.
2)
Where an order has been made by the Court for the winding-up of a company, all
proceedings in chambers in any action against that company at the instance or on
behalf of debenture holders shall be dealt with by an officer of the Court of First
Instance who is a registrar within the meaning of any rules for the time being in
force relating to the winding-up of companies.
9.
Consolidation, etc., of causes or matters (O. 4, r.
9)
(1)
Where two or more causes or matters are pending, then, if it appears to the
Court—
(a)
that some common question of law or fact arises in both or all of them,
or
(b)
that the rights to relief claimed therein are in respect of or arise
out of the same transaction or series of transactions, or
(c)
that for some other reason it is desirable to make an order under this
rule,
the Court may order those causes or matters to be consolidated on such
terms as it thinks just or may order them to be tried at the same time, or one
immediately after another, or may order any of them to be stayed until after the
determination of any other of them.
(2)
Where the Court makes an order under paragraph (1) that two or more causes
or matters are to be tried at the same time but no order is made for those
causes or matters to be consolidated, then, a party to one of those causes or
matters may be treated as if it were a party to any of those other causes or
matters for the purpose of making an order for costs against him or in his
favour.
Order
5
Mode
of
Beginning
Civil Proceedings
in
the Court
of
First
Instance
1.
Mode of beginning civil proceedings (O. 5, r.
1)
Subject to the provisions of any written law and of these rules, civil
proceedings in the Court of First Instance may be begun by writ or originating
summons.
2-3.
(Repealed L.N. 152 of
2008)
4.
Proceedings which may be begun by writ or
originating summons (O. 5, r.
4)
(1)
Except in the case of proceedings which under any written law are required
or authorized to be begun by a specific form of originating process, proceedings
may be begun either by writ or by originating summons as the plaintiff considers
appropriate.
(2)
Proceedings—
(a)
in which the sole or principal question at issue is, or is likely to
be, one of the construction of any written law or of any instrument made
under any written law or of any deed, will, contract or other document, or
some other question of law, or
(b)
in which there is unlikely to be any substantial dispute of
fact,
are appropriate to be begun by originating summons unless the plaintiff
intends in those proceedings to apply for judgment under Order 14 or Order 86 or
for any other reason considers the proceedings more appropriate to be begun by
writ.
5.
Proceedings to be begun by motion
or petition (O. 5, r.
5)
Proceedings may be begun by originating motion or petition if, but only if,
under any written law the proceedings in question are required or authorized to be
so begun.
6.
Right to sue in person (O. 5, r.
6)
(1)
Subject to paragraph (2) and to Order 80, rule 2, any person
(whether or not he sues as a trustee or personal representative, or in any other
representative capacity) may begin and carry on proceedings in the High Court by
a solicitor or in person.
(2)
A body corporate may not begin or carry on any such proceedings in the Court
otherwise than by a solicitor except—
(a)
as expressly provided by or under any enactment; or
(b)
where leave is given under paragraph (3) for it to be represented by
one of its directors.
(3)
(a)
An application by a body corporate for leave to be represented by one
of its directors shall be made ex parte to a Registrar and supported by an
affidavit, made by the director and filed with the application, stating and
verifying the reasons why leave should be given for the body corporate to be
represented by the director.
(b)
The relevant resolution of the board of the body corporate authorizing
the director to appear on its behalf if leave is granted shall be exhibited
to the affidavit.
(4)
No appeal shall lie from an order of the Registrar under paragraph (3)
giving or refusing leave.
(5)
Leave given by a Registrar under paragraph (3) may be revoked by the Court
at any time.
(6)
No appeal shall lie from an order of the Court revoking leave given by a
Registrar.
7.
Transitional provision relating to
rule
16 of Amendment Rules
2008
(O. 5, r.
7)
Any civil proceedings begun by originating motion or petition before the
commencement*
of the Amendment Rules 2008 and pending immediately before the
commencement may be continued and disposed of as if rule 16 of the
Amendment Rules 2008 had not been made.
Editorial Note:
*
Commencement date: 2 April 2009.
Order
6
Writs
of
Summons:
General
Provisions
1.
Form of Writ, etc. (O. 6, r.
1)
Every writ must be in Form No. 1 in Appendix
A.
2.
Indorsement of claim (O. 6, r.
2)
(1)
Before a writ is issued it must be indorsed—
(a)
with a statement of claim or, if the statement of claim is not indorsed
on the writ, with a concise statement of the nature of the claim made or the
relief or remedy required in the action begun thereby;
(b)
where the claim made by the plaintiff is for a debt or liquidated
demand only, with a statement of the amount claimed in respect of the debt
or demand and for costs and also with a statement that further proceedings
will be stayed if, within the time limited for acknowledging service, the
defendant pays the amount so claimed to the plaintiff, his solicitor or
agent; and
(c)
where the only remedy that the plaintiff is seeking is the payment of
money, with a statement that the defendant may make an admission in
accordance with Order 13A within the period fixed for service of his
defence.
3.
Indorsement as to capacity (O. 6, r.
3)
Before a writ is issued it must be indorsed—
(a)
where the plaintiff sues in a representative capacity, with a statement of
the capacity in which he sues;
(b)
where a defendant is sued in a representative capacity, with a statement of
the capacity in which he is
sued.
5.
Indorsement as to solicitor and address (O. 6, r.
5)
(1)
Before a writ is issued it must be indorsed—
(a)
where the plaintiff sues by a solicitor, with the plaintiff’s address
and the solicitor’s name or firm and a business address of his within the
jurisdiction and also (if the solicitor is the agent of another) the name or
firm and business address of his principal;
(b)
where the plaintiff sues in person, with the address of his place of
residence and, if his place of residence is not within the jurisdiction or
if he has no place of residence, the address of a place within the
jurisdiction at or to which documents for him may be delivered or
sent.
(2)
The address for service of a plaintiff shall be—
(a)
where he sues by a solicitor, the business address to which may be
added a numbered box at a document exchange of the solicitor indorsed on the
writ;
(b)
where he sues in person, the address within the jurisdiction indorsed
on the writ.
(3)
Where a solicitor’s name is indorsed on a writ, he must, if any defendant
who has been served with or who has acknowledged service of the writ requests
him in writing so to do, declare in writing whether the writ was issued by him
or with his authority or privity.
(4)
If a solicitor whose name is indorsed on a writ declares in writing that
the writ was not issued by him or with his authority or privity, the Court may
on the application of any defendant who has been served with or who has
acknowledged service of the writ, stay all proceedings in the action begun by
the
writ.
6.
Concurrent writ (O. 6, r.
6)
(1)
One or more concurrent writs may, at the request of the plaintiff, be
issued at the time when the original writ is issued or at any time thereafter
before the original writ ceases to be valid.
(2)
Without prejudice to the generality of paragraph (1), a writ for service
within the jurisdiction may be issued as a concurrent writ with one which is to
be served out of the jurisdiction and a writ which is to be served out of the
jurisdiction may be issued as a concurrent writ with one for service within the
jurisdiction.
(3)
A concurrent writ is a true copy of the original writ with such differences
only (if any) as are necessary having regard to the purpose for which the writ
is
issued.
7.
Issue of writ (O. 6, r.
7)
(1)
No writ which is to be served out of the jurisdiction shall be issued
without the leave of the Court:
Provided that if every claim
made by a writ is one which by virtue of any written law the Court of First
Instance has power to hear and determine notwithstanding that the person
against whom the claim is made is not within the jurisdiction of the Court
or that the wrongful act, neglect or default giving rise to the claim did
not take place within its jurisdiction, the foregoing provision shall not
apply to the writ.
(3)
Issue of a writ takes place upon its being sealed by an officer of the
Registry.
(4)
The officer by whom a concurrent writ is sealed must mark it as a
concurrent writ with an official stamp.
(5)
No writ shall be sealed unless at the time of the tender thereof for
sealing the person tendering it leaves at the office at which it is tendered a
copy thereof signed, where the plaintiff sues in person, by him or, where he
does not so sue, by or on behalf of his
solicitor.
8.
Duration and renewal of writ (O. 6, r.
8)
(1)
For the purpose of service, a writ (other than a concurrent writ) is valid
in the first instance for twelve months beginning with the date of its issue and
a concurrent writ is valid in the first instance for the period of validity of
the original writ which is unexpired at the date of issue of the concurrent
writ.
(2)
Where a writ has not been served on a defendant, the Court may by order
extend the validity of the writ from time to time for such period, not exceeding
twelve months at any one time, beginning with the day next following that on
which it would otherwise expire, as may be specified in the order, if an
application for extension is made to the Court before that day or such later day
(if any) as the Court may allow.
(3)
Before a writ, the validity of which has been extended under this rule, is
served, it must be marked with an official stamp showing the period for which
the validity of the writ has been so extended.
(4)
Where the validity of a writ is extended by order made under this rule, the
order shall operate in relation to any other writ (whether original or
concurrent) issued in the same action which has not been served so as to extend
the validity of that other writ until the expiration of the period specified in
the order.
Order
7
Originating
Summons:
General
Provisions
1.
Application (O. 7, r.
1)
The provisions of this Order apply to all originating summonses subject, in the
case of originating summonses of any particular class, to any special provisions
relating to originating summonses of that class made by these rules or by or under
any written
law.
2.
Form of summons, etc. (O. 7, r.
2)
(1)
Every originating summons (other than an ex parte summons) shall be in Form
No. 8 or, if so authorized or required, in Form No. 10 in Appendix A, and every
ex parte originating summons shall be in Form No. 11 in Appendix A.
(1A)
Form No. 8 in Appendix A is to be used in all cases except where another
form is prescribed under a written law or there is no party on whom the summons
is to be served.
(1B)
Form No. 10 in Appendix A is to be used if it is prescribed under a written law.
(1C)
Form No. 11 in Appendix A is to be used if there is no party on whom the
summons is to be served.
(2)
The party taking out an originating summons (other than an ex parte
summons) shall be described as a plaintiff, and the other parties shall be
described as defendants.
(3)
3.
Contents of summons (O. 7, r.
3)
(1)
Every originating summons must include a statement of the questions on
which the plaintiff seeks the determination or direction of the Court of First
Instance or, as the case may be, a concise statement of the relief or remedy
claimed in the proceedings begun by the originating summons with sufficient
particulars to identify the cause or causes of action in respect of which the
plaintiff claims that relief or remedy.
4.
Concurrent summons (O. 7, r.
4)
Order 6, rule 6, shall apply in relation to an originating summons
as it applies in relation to a
writ.
5.
Issue of summons (O. 7, r.
5)
(1)
An originating summons shall be issued out of the Registry.
(3)
Order 6, rule 7 (except paragraph (2)), shall apply in relation
to an originating summons as it applies in relation to a
writ.
6.
Duration and renewal of summons (O. 7, r.
6)
Order 6, rule 8, shall apply in relation to an originating summons
as it applies in relation to a
writ.
7.
Ex parte originating
summons
(O. 7, r.
7)
(1)
Rules 2(1) and (1C),
3(1),
and
5(1)
shall, so far as applicable, apply to ex parte originating summonses; but, save
as aforesaid, the foregoing rules of this Order shall not apply to ex parte
originating summonses.
(2)
Order 6, rule 7(3) and (5), shall, with the necessary
modifications, apply in relation to an ex parte originating summons as they
apply in relation to a writ.
Order
8
Originating
and
other
Motions:
General
Provisions
1.
Application (O. 8, r.
1)
The provisions of this Order apply to all motions required or authorized under
a written law, subject to any provisions relating to any class of motion made by
that written law or any other written law.
2.
Notice of motion (O. 8, r.
2)
(1)
Except where an application by motion may properly be made ex parte, no
motion shall be made without previous notice to the parties affected thereby,
but the Court, if satisfied that the delay caused by proceeding in the ordinary
way would or might entail irreparable or serious mischief, may make an order ex
parte on such terms as to costs or otherwise, and subject to such undertaking,
if any, as it thinks just; and any party affected by such order may apply to the
Court to set it aside.
(2)
Unless the Court gives leave to the contrary, there must be at least 2
clear days between the service of notice of a motion and the day named in the
notice for hearing the
motion.
3.
Form and issue of notice of motion
(O. 8, r.
3)
(1)
The notice of an originating motion must be in Form No. 13 in Appendix A and
the notice of any other motion in Form No. 38 in that
Appendix.
Where leave has been given under rule 2(2) to serve short
notice of motion, that fact must be stated in the notice.
(2)
The notice of a motion must include a concise statement of the nature of
the claim made or the relief or remedy required.
(3)
Order 6, rule 5, shall, with the necessary modifications, apply
in relation to notice of an originating motion as it applies in relation to a
writ.
(4)
The notice of an originating motion by which proceedings are begun must be
issued out of the Registry.
(6)
Issue of the notice of an originating motion takes place upon its being
sealed by an officer of the
Registry.
4.
Service of notice of motion with writ, etc. (O. 8, r.
4)
Notice of a motion to be made in an action may be served by the plaintiff on
the defendant with the writ of summons or originating summons or at any time after
service of such writ or summons, whether or not the defendant has acknowledged
service in the
action.
5.
Adjournment of hearing (O. 8, r.
5)
The hearing of any motion may be adjourned from time to time on such terms, if
any, as the Court thinks
fit.
6.
Transitional provision relating
to
originating and other
motions
(O. 8, r.
6)
Where, immediately before the
commencement*
of the Amendment Rules 2008, an application, request or appeal by motion
or originating motion made under a provision amended by Part 5 of the
Amendment Rules 2008 is pending, then the application, request or appeal
is to be determined as if that provision had not been so amended.
Editorial Note:
* Commencement
date:
2 April 2009.
Order
9
Petitions:
General
Provisions
1.
Application (O. 9, r.
1)
The provisions of this Order apply to all petitions required or authorized
under a written law, subject to any provisions relating to any class of petition
made by that written law or any other written law.
2.
Contents of petition (O. 9, r.
2)
(1)
Every petition must include a concise statement of the nature of the claim
made or the relief or remedy required in the proceedings begun
thereby.
(2)
Every petition must include at the end thereof a statement of the names of
the persons, if any, required to be served therewith or, if no person is
required to be served, a statement to that effect.
(3)
Order 6, rule 5, shall, with the necessary modifications, apply
in relation to a petition as it applies in relation to a
writ.
3.
Presentation of petition (O. 9, r.
3)
A petition may be presented by leaving it at the
Registry.
4.
Fixing time for hearing petition (O. 9, r.
4)
(1)
A day and time for the hearing of a petition which is required to be heard
shall be fixed by the Registrar.
(2)
Unless the Court otherwise directs, a petition which is required to be
served on any person must be served on him not less than seven days before the
day fixed for the hearing of the
petition.
5.
Certain applications not to be
made by petition (O. 9, r.
5)
No application in any cause or matter may be made by
petition.
6.
Right to defend in person (O. 9, r.
6)
(1)
Subject to paragraph (2) and to Order 80, rule 2, a respondent
to proceedings begun by petition may (whether or not he is sued as a trustee or
personal representative or in any other representative capacity) defend the
proceedings by a solicitor or in person.
(2)
Where the respondent to such proceedings is a body corporate, except as
expressly provided by or under any enactment or where leave is given under
paragraph (3) for such respondent to be represented by one of its directors,
such respondent may not take any step in the proceedings otherwise than by a
solicitor.
(3)
(a)
An application by a body corporate for leave to be represented by one
of its directors shall be made ex parte to a Registrar and supported by an
affidavit, made by the director and filed with the application, stating and
verifying the reasons why leave should be given for the body corporate to be
represented by the director.
(b)
The relevant resolution of the board of the body corporate authorizing
the director to appear on its behalf if leave is granted shall be exhibited
to the affidavit.
(4)
No appeal shall lie from an order of the Registrar under paragraph (3)
giving or refusing leave.
(5)
The Court may at any time revoke the leave given by a Registrar under
paragraph (3).
(6)
No appeal shall lie from an order of the Court revoking leave given by a
Registrar.
Order
10
Service
of
Originating
Process:
General
Provisions
1.
General provisions (O. 10, r.
1)
(1)
A writ must be served personally on each defendant by the plaintiff or his
agent.
(2)
A writ for service on a defendant within the jurisdiction may, instead of
being served personally on him, be served—
(a)
by sending a copy of the writ by registered post to the defendant at
his usual or last known address, or
(b)
if there is a letter box for that address, by inserting through the letter box a copy of the writ enclosed in a sealed envelope addressed to the defendant.
(3)
Where a writ is served in accordance with paragraph (2)—
(a)
the date of service shall, unless the contrary is shown, be deemed to
be the seventh day (ignoring Order 3, rule 2(5)) after the date
on which the copy was sent to, or as the case may be, inserted through the
letter box for, the address in question;
(b)
any affidavit proving due service of the writ must contain a statement
to the effect that—
(i)
in the opinion of the deponent (or, if the deponent is the
plaintiff’s solicitor or an employee of that solicitor, in the opinion
of the plaintiff) the copy of the writ, if sent to, or as the case may
be, inserted through the letter box for, the address in question, will
have come to the knowledge of the defendant within 7 days thereafter;
and
(ii)
in the case of service by post, the copy of the writ has not been
returned to the plaintiff through the post undelivered to the
addressee.
(4)
Where a defendant’s solicitor indorses on the writ a statement that he
accepts service of the writ on behalf of that defendant, the writ shall be
deemed to have been duly served on that defendant and to have been so served on
the date on which the indorsement was made.
(5)
Subject to Order 12, rule 7, where a writ is not duly served on
a defendant but he acknowledges service of it, the writ shall be deemed, unless
the contrary is shown, to have been duly served on him and to have been so
served on the date on which he acknowledges service.
(6)
Every copy of a writ for service on a defendant shall be sealed with the seal of the High Court and shall be accompanied by a form of acknowledgment of service in Form No. 14 in Appendix A in which the title of the action and its number have been entered.
(7)
This rule shall have effect subject to the provisions of any Ordinance and
these rules and in particular to any enactment which provides for the manner in
which documents may be served on bodies
corporate.
2.
Service of writ on agent of overseas
principal (O. 10, r.
2)
(1)
Where the Court is satisfied on an ex parte application that—
(a)
a contract has been entered into within the jurisdiction with or
through an agent who is either an individual residing or carrying on
business within the jurisdiction or a body corporate having a registered
office or a place of business within the jurisdiction, and
(b)
the principal for whom the agent was acting was at the time the
contract was entered into and is at the time of the application neither such
an individual nor such a body corporate, and
(c)
at the time of the application either the agent’s authority has not
been determined or he is still in business relations with his
principal,
the Court may authorize service of a writ beginning an action relating to
the contract to be effected on the agent instead of the principal.
(2)
An order under this rule authorizing service of a writ on a defendant’s
agent must limit a time within which the defendant must acknowledge
service.
(3)
Where an order is made under this rule authorizing service of a writ on a
defendant’s agent, a copy of the order and of the writ must be sent by post to
the defendant at his address out of the
jurisdiction.
3.
Service of writ in pursuance of contract (O. 10, r.
3)
(1)
Where—
(a)
a contract contains a term to the effect that the Court of First Instance shall have jurisdiction to hear and determine any action in respect of a contract or, apart from any such term, the Court of First Instance has jurisdiction to hear and determine any such action, and
(b)
the contract provides that, in the event of any action in respect of
the contract being begun, the process by which it is begun may be served on
the defendant, or on such other person on his behalf as may be specified in
the contract, in such manner, or at such place (whether within or out of the
jurisdiction), as may be so specified,
then, if an action in respect of the contract is begun in the Court and
the writ by which it is begun is served in accordance with the contract, the
writ shall, subject to paragraph (2), be deemed to have been duly served on the
defendant.
(2)
A writ which is served out of the jurisdiction in accordance with a
contract shall not be deemed to have been duly served on the defendant by virtue
of paragraph (1) unless leave to serve the writ out of the jurisdiction has been
granted under Order 11, rule 1(1) or service of the writ is permitted
without leave under Order 11, rule
1(2).
4.
Service of writ in certain actions for possession
of premises or land (O. 10, r.
4)
(1)
Where a writ is indorsed with a claim for the recovery, or delivery of
possession, of premises or land, the Court may—
(a)
if satisfied on an ex parte application that no person appears to be in
possession of the premises or land and that service cannot be otherwise
effected on any defendant, authorize service on that defendant to be
effected by affixing a copy of the writ to some conspicuous part of the
premises or land;
(b)
if satisfied on such an application that no person appears to be in
possession of the premises or land and that service could not otherwise have
been effected on any defendant, order that service already effected by
affixing a copy of the writ to some conspicuous part of the premises or land
shall be treated as good service on that defendant.
(2)
Where a writ is indorsed with a claim for the recovery, or delivery of
possession, of premises or land, in addition to, and not in substitution for any
other mode of service, a copy of the writ shall be posted in a conspicuous place
on or at the entrance to the premises or land recovery or possession of which is claimed.
5.
Service of originating summons, notice of
motion, or petition (O. 10, r.
5)
(1)
The foregoing rules of this Order shall apply, with any necessary modifications, in relation to an originating summons (other than ex parte originating summons or an originating summons under Order 113) as they apply in relation to a writ, except that an acknowledgment of service of an originating summons shall be in Form No. 15 or 15A in Appendix A, whichever is appropriate.
(2)
Rule 1(1), (2), (3) and (4) shall apply, with any necessary
modifications, in relation to a notice of an originating motion and a petition
as they apply in relation to a writ.
Order
11
Service
of
Process,
etc.,
out
of the
Jurisdiction
1.
Principal cases in which service of writ out
of jurisdiction is permissible (O. 11, r.
1)
(1)
Provided that the writ is not a writ to which paragraph (2) of this rule
applies, service of a writ out of the jurisdiction is permissible with the leave
of the Court if in the action begun by the writ—
(a)
relief is sought against a person domiciled or ordinarily resident
within the jurisdiction;
(b)
an injunction is sought ordering the defendant to do or refrain from
doing anything within the jurisdiction (whether or not damages are also
claimed in respect of a failure to do or the doing of that thing);
(c)
the claim is brought against a person duly served within or out of the
jurisdiction and a person out of the jurisdiction is a necessary or proper
party thereto;
(d)
the claim is brought to enforce, rescind, dissolve, annul or otherwise
affect a contract, or to recover damages or obtain other relief in respect
of the breach of a contract, being (in either case) a contract
which—
(i)
was made within the jurisdiction, or
(ii)
was made by or through an agent trading or residing within the
jurisdiction on behalf of a principal trading or residing out of the
jurisdiction, or
(iii)
is by its terms, or by implication, governed by Hong Kong law,
or
(iv)
contains a term to the effect that the Court of First Instance
shall have jurisdiction to hear and determine any action in respect of
the contract;
(e)
the claim is brought in respect of a breach committed within the
jurisdiction of a contract made within or out of the jurisdiction, and
irrespective of the fact, if such be the case, that the breach was preceded
or accompanied by a breach committed out of the jurisdiction that rendered
impossible the performance of so much of the contract as ought to have been
performed within the jurisdiction;
(f)
the claim is founded on a tort and the damage was sustained, or
resulted from an act committed, within the jurisdiction;
(g)
the whole subject-matter of the action is land situate within the
jurisdiction (with or without rents or profits) or the perpetuation of
testimony relating to land so situate;
(h)
the claim is brought to construe, rectify, set aside or enforce an act,
deed, will, contract, obligation or liability affecting land situate within
the jurisdiction;
(i)
the claim is made for a debt secured on immovable property or is made
to assert, declare or determine proprietary or possessory rights, or rights
of security, in or over movable property, or to obtain authority to dispose
of movable property, situate within the jurisdiction;
(j)
the claim is brought to execute the trusts of a written instrument
being trusts that ought to be executed according to Hong Kong law and of
which the person to be served with the writ is a trustee, or for any relief
or remedy which might be obtained in any such action;
(k)
the claim is made for the administration of the estate of a person who
died domiciled within the jurisdiction or for any relief or remedy which
might be obtained in any such action;
(l)
the claim is brought in a probate action within the meaning of Order
76;
(m)
the claim is brought to enforce any judgment or arbitral
award;
(n)
the claim is brought under the Carriage by Air Ordinance (Cap. 500);
(o)
(Repealed L.N. 296 of
1996)
(oa)
the claim is made under the Mutual Legal Assistance in Criminal Matters
Ordinance (Cap. 525);
(ob)
the claim is for an order for the costs of and incidental to a dispute
under section 52B(2) of the Ordinance;
(oc)
the claim is for interim relief or appointment of a receiver under
section 21M(1) of the Ordinance;
(od)
the claim is for a costs order under section 52A(2) of the
Ordinance against a person who is not a party to the relevant proceedings;
(p)
the claim is brought for money had and received or for an account or
other relief against the defendant as constructive trustee, and the
defendant’s alleged liability arises out of acts committed, whether by him
or otherwise, within the jurisdiction.
(2)
Service of a writ out of the jurisdiction is permissible without the leave
of the Court provided that each claim made by the writ is—
(b)
a claim which by virtue of any written law the Court of First Instance
has power to hear and determine notwithstanding that the person against whom
the claim is made is not within the jurisdiction of the Court or that the
wrongful act, neglect or default giving rise to the claim did not take place
within its jurisdiction.
(3)
Where a writ is to be served out of the jurisdiction under paragraph (2),
the time to be inserted in the writ within which the defendant served therewith
must acknowledge service shall—
(c)
be limited in accordance with the practice adopted under rule
4(4).
(4)
This rule shall not apply to a writ—
(a)
to enforce a claim for damage, loss of life or personal injury arising
out of—
(i)
a collision between ships;
(ii)
the carrying out of or omission to carry out a manoeuvre in the
case of one or more of 2 or more ships; or
(iii)
non-compliance, on the part of one or more of 2 or more ships, with
the regulations made under section 93, 100 or
107 of the Merchant Shipping (Safety) Ordinance (Cap. 369);
(b)
for the limitation of liability in a limitation action as defined in
Order 75, rule 1(2); or
Editorial Note:
| * | Please also see following— | |
| (a) | in relation to the Merchant Shipping Act 1894, Part 3 of Schedule 5 to Cap. 415 and s. 1 of Schedule 2 to Cap. 508; | |
| (b) | in relation to the Merchant Shipping Acts 1894 to 1979, s. 117 of Cap. 281, s. 103 of Cap. 415 and s. 142 of Cap. 478. | |
4.
Application for, and grant of, leave to serve
writ out of jurisdiction (O. 11, r.
4)
(1)
An application for the grant of leave under rule 1(l) must be
supported by an affidavit stating—
(a)
the grounds on which the application is made;
(b)
that in the deponent’s belief the plaintiff has a good cause of
action;
(c)
in what place the defendant is, or probably may be found; and
(d)
where the application is made under rule 1(1)(c), the
grounds for the deponent’s belief that there is between the plaintiff and
the person on whom a writ has been served a real issue which the plaintiff
may reasonably ask the Court to try.
(2)
No such leave shall be granted unless it shall be made sufficiently to
appear to the Court that the case is a proper one for service out of the
jurisdiction under this Order.
(4)
An order granting under rule 1 leave to serve a writ out of the
jurisdiction must limit a time within which the defendant to be served must
acknowledge
service.
5.
Service of writ out of jurisdiction: general
(O. 11, r.
5)
(1)
Subject to the following provisions of this rule, Order 10, rule
1(l), (4) and (5) and (6) and Order 65, rule 4, shall apply
in relation to the service of a writ notwithstanding that the writ is to be
served out of the jurisdiction, save that the accompanying form of
acknowledgment of service shall be modified in such manner as may be
appropriate.
(2)
Nothing in this rule, rule 5A or any order or direction of the
Court made by virtue of it shall authorize or require the doing of anything in a
country or place in which service is to be effected which is contrary to the law
of that country or place.
(3)
A writ which is to be served out of the jurisdiction—
(a)
need not be served personally on the person required to be served so
long as it is served on him in accordance with the law of the country or
place in which service is effected; and
(5)
An official certificate stating that a writ as regards which rule
5A or rule 6 has been complied with, has been served on a
person personally, or in accordance with the law of the country or place in
which service was effected, on a specified date, being a certificate—
(a)
by a British consular authority in that country or place, or
(b)
by the government or judicial authorities of that country or place,
or
(c)
by any other authority designated in respect of that country or place
under the Hague Convention,
shall be evidence of the facts so stated.
(6)
An official certificate by the Chief Secretary for Administration stating
that a writ has been duly served on a specified date in accordance with a
request made under rule 7 shall be evidence of that fact.
(7)
A document purporting to be such a certificate as is mentioned in paragraph
(5) or (6) shall, until the contrary is proved, be deemed to be such a
certificate.
(8)
In this rule and rule 6
the
Hague
Convention
means the Convention on the service abroad of judicial or extra-judicial
documents in civil or commercial matters signed at The Hague on 15 November
1965.5A.
Service of writ in the Mainland
or
Macao
through judicial authorities (O. 11, r. 5A)
(1)
Where in accordance with these rules, a writ is to be served on a person
in the
Mainland or Macao, the writ must be served through the judicial authorities of
the Mainland or Macao, as the case may be.
(2)
A person who wishes to serve a writ under paragraph (1) must lodge in the
Registry a request for such service, together with 2 copies of the writ and 2
additional copies thereof for the person to be served.
(3)
The request lodged under paragraph (2) must contain—
(a)
the full name and address of the person to be served;
(b)
a description of the nature of proceedings; and
(c)
if a particular method of service by the
relevant
judicial authorities is desired by the person making the
request, an indication of that particular method.
(4)
Every copy of a writ lodged under paragraph (2) must be in Chinese or
accompanied by a Chinese translation.
(5)
Every translation lodged under paragraph (4) must be certified by the
person making it to be a correct translation; and the certificate must contain a
statement of that person’s full name, of his address and of his qualifications
for making the translation.
(6)
Documents duly lodged under paragraph (2) shall be sent by the Registrar to
the
relevant
judicial authorities with a request that they arrange for the
writ to be served or, where a particular method of service is indicated under
paragraph (3)(c), to be served by that method.
(7)
In this rule—
6.
Service of writ abroad through foreign governments,
judicial authorities and British consuls (O. 11, r.
6)
(1)
Save where a writ is to be served pursuant to paragraph (2A) this rule does
not apply to service in—
(a)
The United Kingdom of Great Britain, Northern Ireland, the Channel
Islands and the Isle of Man;
(b)
any independent Commonwealth country;
(c)
any British protectorate;
(d)
any British colony;
(e)
the Republic of Ireland.
(2)
Where in accordance with these rules a writ is to be served on a defendant
in any country with respect to which there subsists a Civil Procedure Convention
(other than the Hague Convention) providing for service in that country of
process of the Court, the writ may be served—
(a)
through the judicial authorities of that country; or
(b)
through a British consular authority in that country (subject to any
provision of the convention as to the nationality of persons who may be so
served).
(2A)
Where in accordance with these rules, a writ is to be served on a defendant
in any country which is a party to the Hague Convention, the writ may be
served—
(a)
through the authority designated under the Convention in respect of
that country; or
(b)
if the law of that country permits—
(i)
through the judicial authorities of that country, or
(ii)
through a British consular authority in that country.
(3)
Where in accordance with these rules a writ is to be served on a defendant
in any country with respect to which there does not subsist a Civil Procedure
Convention providing for service in that country of process of the Court of
First Instance, the writ may be served—
(a)
through the government of that country, where that government is
willing to effect service; or
(b)
through a British consular authority in that country, except where
service through such an authority is contrary to the law of that
country.
(4)
A person who wishes to serve a writ by a method specified in paragraph (2),
(2A) or (3) must lodge in the Registry a request for service of the writ by that
method, together with a copy of the writ and an additional copy thereof for each
person to be served.
(5)
Every copy of a writ lodged under paragraph (4) must be accompanied by a
translation of the writ in the official language of the country in which
service is to be effected or, if there is more than one official language of
that country, in any one of those languages which is appropriate to the
place in that country where service is to be effected:
Provided that this
paragraph shall not apply in relation to a copy of a writ which is to be
served in a country the official language of which is, or the official
languages of which include, English, or is to be served in any country by a
British consular authority on a British subject, unless the service is to be
effected under paragraph (2) and the Civil Procedure Convention with respect
to that country expressly requires the copy to be accompanied by a
translation.
(6)
Every translation lodged under paragraph (5) must be certified by the
person making it to be a correct translation; and the certificate must contain a
statement of that person’s full name, of his address and of his qualification
for making the translation.
(7)
Documents duly lodged under paragraph (4) shall be sent by the Registrar to
the Chief Secretary for Administration with a request that he arrange for the
writ to be served by the method indicated in the request lodged under paragraph
(4) or, where alternative methods are so indicated, by such one of those methods
as is most convenient.
7.
Service of process on a foreign State
(O. 11, r.
7)
(1)
Subject to paragraph (4) where a person to whom leave has been granted under
rule 1 to serve a writ on a State, as defined in section
14 of the State Immunity Act 1978 (1978 c. 33 U.K.), wishes to have
the writ served on that State, he must lodge in the Registry—
(a)
a request for service to be arranged by the Chief Secretary for
Administration; and
(b)
a copy of the writ; and
(c)
except where the official language of the State is, or the official
languages of that party include, English, a translation of the writ in the
official language or one of the official languages of the State.
(2)
Rule 6(6) shall apply in relation to a translation lodged under
paragraph (1) of this rule as it applies in relation to a translation lodged
under paragraph (5) of that rule.
(3)
Documents duly lodged under this rule shall be sent by the Registrar to the
Chief Secretary for Administration with a request that the Chief Secretary for
Administration arrange for the writ to be served on the State or the government
in question, as the case may be.
(4)
Where section 12(6) of the State Immunity Act 1978 (1978 c. 33
U.K.) applies and the State has agreed to a method of service other than that
provided by the preceding paragraphs, the writ may be served either by the
method agreed or in accordance with the preceding paragraphs of this
rule.
7A.
Service of writ in certain actions under Carriage
by Air Ordinance (O. 11, r.
7A)
(1)
Where a person to whom leave has been granted under rule 1 to
serve a writ on a High Contracting Party or State Party, as may be appropriate,
within the meaning of section 2(1) of Carriage by Air Ordinance (Cap. 500), being a writ beginning an action to
enforce a claim in respect of carriage undertaken by that Party, wishes to have
the writ served on that Party, he must lodge in the Registry—
(a)
a request for service to be arranged by the Chief Secretary for
Administration; and
(b)
a copy of the writ; and
(c)
except where the official language of the High Contracting Party or
State Party, as may be appropriate, is, or the official languages of that
Party include, English, a translation of the writ in the official language
or one of the official languages of that Party.
(2)
Rule 6(6) shall apply in relation to a translation lodged under
paragraph (1) of this rule as it applies in relation to a translation lodged
under paragraph (5) of that rule.
(3)
Documents duly lodged under this rule shall be sent by the Registrar to the
Chief Secretary for Administration with a request that the Chief Secretary for
Administration arrange for the writ to be served on the High Contracting Party
or State
Party,
as may be appropriate.
8.
Undertaking to pay expenses of service by the
Chief Secretary for Administration (O. 11, r.
8)
Every request lodged under rule 6(4), rule 7 or rule
7A must contain an undertaking by the person making the request to be
responsible personally for all expenses incurred by the Chief Secretary for
Administration in respect of the service requested and, on receiving due
notification of the amount of those expenses, to pay that amount to the Treasury and
to produce a receipt for the payment to the Registrar.
8A.
Undertaking to pay expenses of
service by the Registrar
(O. 11, r.
8A)
Every request lodged under rule 5A must contain an undertaking by
the person making the request to be responsible personally for all expenses incurred
by the Registrar in respect of the service requested and, on receiving due
notification of the amount of those expenses, to pay that amount to the Treasury and
to produce a receipt for the payment to the Registrar.
9.
Service of originating summons, petition, notice of
motion, etc. (O. 11, r.
9)
(1)
(4)
Subject to
paragraph
(4A) and Order 73, rule 7, service out of the
jurisdiction of any summons, notice or order issued, given or made in any
proceedings is permissible with the leave of the Court, but leave shall not be
required for such service in any proceedings in which the writ, originating
summons, motion or petition may by these rules or under any written law be
served out of the jurisdiction without leave.
(4A)
Service out of the jurisdiction of any originating summons or summons
issued under Order 121, rule 2 is permissible without the leave of
the Court.
(5)
(6)
An order granting under this rule leave to serve out of the jurisdiction an
originating summons must limit a time within which the defendant to be served
with the summons must acknowledge service.
Order
12
Acknowledgment
of
Service
of Writ
or
Originating
Summons
1.
Mode of acknowledging service (O. 12, r.
1)
(1)
Subject to paragraph (2) and to Order 80, rule 2, a defendant to
an action begun by writ may (whether or not he is sued as a trustee or personal
representative or in any other representative capacity) acknowledge service of
the writ and defend the action by a solicitor or in person.
(2)
The defendant to such an action who is a body corporate may acknowledge
service of the writ and give notice of intention to defend the action either by
a solicitor or by a person duly authorized to act on the defendant’s behalf but,
except as expressly provided by or under any enactment or where leave is given
under paragraph (2A) for such defendant to be represented by one of its
directors, such defendant may not take any further step in the action otherwise
than by a solicitor.
(2A)
(a)
An application by a body corporate for leave to be represented by one of
its directors shall be made ex parte to a Registrar and supported by an
affidavit, made by the director and filed with the application, stating and
verifying the reasons why leave should be given for the body corporate to be
represented by the director.
(b)
The relevant resolution of the board of the body corporate authorizing
the director to appear on its behalf if leave is granted shall be exhibited
to the affidavit.
(2B)
No appeal shall lie from an order of the Registrar under paragraph (2A)
giving or refusing leave.
(2C)
Leave given by a Registrar under paragraph (2A) may be revoked by the Court
at any time.
(2D)
No appeal shall lie from an order of the Court revoking leave given by a
Registrar.
(3)
Service of a writ may be acknowledged by properly completing an
acknowledgment of service as defined by rule 3 and handing it in at,
or sending it by post to, the Registry.
(4)
If two or more defendants to an action acknowledge service by the same
solicitor and at the same time, only one acknowledgment of service need be
completed and delivered for those defendants.
(5)
The date on which service is acknowledged is the date on which the
acknowledgment of service is received at the
Registry.
3.
Acknowledgment of service (O. 12, r.
3)
(1)
An acknowledgment of service must be in Form No. 14, 15 or 15A in Appendix
A, whichever is appropriate, and except as provided in rule 1(2),
must be signed by the solicitor acting for the defendant specified in the
acknowledgment or, if the defendant is acting in person, by that
defendant.
(2)
An acknowledgment of service must specify—
(a)
in the case of a defendant acknowledging service in person, the address
of his place of residence and, if his place of residence is not within the
jurisdiction or if he has no place of residence, the address of a place
within the jurisdiction at or to which documents for him may be delivered or
sent, and
(b)
in the case of a defendant acknowledging service by a solicitor, a
business address to which may be added a numbered box at a document exchange
of his solicitor within the jurisdiction;
and where the defendant acknowledges service in person the address within
the jurisdiction specified under sub-paragraph (a) shall be his address for
service, but otherwise his solicitor’s business address shall be his address for
service.
In relation to a body corporate the references in sub-paragraph (a) to
the defendant’s place of residence shall be construed as references to the
defendant’s registered or principal office.
(3)
Where the defendant acknowledges service by a solicitor who is acting as
agent for another solicitor having a place of business within the jurisdiction,
the acknowledgment of service must state that the first-named solicitor so acts
and must also state the name and address of that other solicitor.
(4)
If an acknowledgment of service does not specify the defendant’s address
for service or the Court is satisfied that any address specified in the
acknowledgment for service is not genuine, the Court may on application by the
plaintiff set aside the acknowledgment or order the defendant to give an address
or, as the case may be, a genuine address for service and may in any case direct
that the acknowledgment shall nevertheless have effect for the purpose of Order
10, rule 1(5), and Order 65, rule
9.
4.
Procedure on receipt of acknowledgment
of service (O. 12, r.
4)
On receiving an acknowledgment of service an officer of the Registry
must—
(a)
affix to the acknowledgment an official stamp showing the date on which he
received it;
(b)
enter the acknowledgment in the cause book with a note showing, if it be
the case, that the defendant has indicated in the acknowledgment an intention to
contest the proceedings or to apply for a stay of execution in respect of any
judgment obtained against him in the proceedings;
(c)
make a copy of the acknowledgment, having affixed to it an official stamp
showing the date on which he received the acknowledgment, and send by post to
the plaintiff or, as the case may be, his solicitor at the plaintiff’s address
for
service.
5.
Time limited for acknowledging service (O. 12, r.
5)
References in these rules to the time limited for acknowledging service are
references—
(a)
in the case of a writ served within the jurisdiction, to fourteen days
after service of the writ (including the day of service) or, where that time has
been extended by or by virtue of these rules, to that time as so extended;
and
6.
Late acknowledgment of service (O. 12, r.
6)
(1)
Except with the leave of the Court, a defendant may not give notice of
intention to defend in an action after judgment has been obtained
therein.
(2)
Except as provided by paragraph (1) nothing in these rules or any writ or
order thereunder shall be construed as precluding a defendant from acknowledging
service in an action after the time limited for so doing, but if a defendant
acknowledges service after that time, he shall not, unless the Court otherwise
orders, be entitled to serve a defence or do any other act later than if he had
acknowledged service within that
time.
7.
Acknowledgment not to constitute waiver (O. 12, r.
7)
The acknowledgment by a defendant of service of a writ shall not be treated as
a waiver by him of any irregularity in the writ or service thereof or in any order
giving leave to serve the writ or extending the validity of the writ for the purpose
of service.
8.
Dispute as to jurisdiction (O. 12, r.
8)
(1)
A defendant who wishes to dispute the jurisdiction of the court in the
proceedings by reason of any such irregularity as is mentioned in rule
7 or on any other ground shall give notice of intention to defend the
proceedings and shall, within the time limited for service of a defence, apply
to the Court for—
(a)
an order setting aside the writ or service of the writ on him,
or
(b)
an order declaring that the writ has not been duly served on him,
or
(c)
the discharge of any order giving leave to serve the writ on him out of
the jurisdiction, or
(d)
the discharge of any order extending the validity of the writ for the
purpose of service, or
(e)
the protection or release of any property of the defendant seized or
threatened with seizure in the proceedings, or
(f)
the discharge of any order made to prevent any dealing with any
property of the defendant, or
(g)
a declaration that in the circumstances of the case the court has no
jurisdiction over the defendant in respect of the subject-matter of the
claim or the relief or remedy sought in the action, or
(ga)
an order staying the proceedings, or
(h)
such other relief as may be appropriate.
(2)
A defendant who wishes to argue that the Court should not exercise its
jurisdiction in the proceedings on one or more of the grounds specified in
paragraph (2A) or on any other ground shall also give notice of intention to
defend the proceedings and shall, within the time limited for service of a
defence, apply to the Court for—
(a)
a declaration that in the circumstances of the case the Court should
not exercise any jurisdiction it may have, or
(b)
an order staying the proceedings, or
(c)
such other relief as may be appropriate, including the relief specified
in paragraph (1)(e) or (f).
(2A)
The grounds specified for the purposes of paragraph (2) are that—
(a)
considering the best interests and convenience of the parties to the
proceedings and the witnesses in the proceedings, the proceedings should be
conducted in another court,
(b)
the defendant is entitled to rely on an agreement to which the
plaintiff is a party, excluding the jurisdiction of the Court, and
(c)
in respect of the same cause of action to which the proceedings relate,
there are other proceedings pending between the defendant and the plaintiff
in another court.
(3)
An application under paragraph (1) or (2) must be made by summons and the
summons must state the grounds of the application.
(4)
An application under paragraph (1) or (2) must be supported by an affidavit
verifying the facts on which the application is based and a copy of the
affidavit must be served with the summons by which the application is
made.
(5)
Upon hearing an application under paragraph (1) or (2), the Court, if it
does not dispose of the matter in dispute, may give such directions for its
disposal as may be appropriate, including directions for the trial thereof as a
preliminary issue.
(6)
A defendant who makes an application under paragraph (1) or (2) shall not
be treated as having submitted to the jurisdiction of the court by reason of his
having given notice of intention to defend the action; but if the Court makes no
order on the application or dismisses it, the notice shall stand unless
otherwise directed by the Court and the defendant shall be treated as having
given notice of intention to defend the action.
(6A)
If the Court makes no order on an application under paragraph (1) or (2) or
dismisses it, it may give such directions as may be appropriate for service of a
defence and the further conduct of the proceedings.
(7)
Except where the defendant makes an application in accordance with
paragraph (1) or (2), the acknowledgment by a defendant of service of a writ
shall, unless the acknowledgment is withdrawn by leave of the Court under Order
21, rule 1, be treated as a submission by the defendant to the
jurisdiction of the Court in the proceedings.
8A.
Application by defendant where
writ not served (O. 12, r.
8A)
(1)
Any person named as a defendant in a writ which has not been served on him
may serve on the plaintiff a notice requiring him within a specified period not
less than 14 days after service of the notice either to serve the writ on the
defendant or to discontinue the action as against him.
(2)
Where the plaintiff fails to comply with a notice under paragraph (1)
within the time specified the Court may, on the application of the defendant by
summons, order the action to be dismissed or make such other order as it thinks
fit.
(3)
A summons under paragraph (2) shall be supported by an affidavit verifying
the facts on which the application is based and stating that the defendant
intends to contest the proceedings and a copy of the affidavit must be served
with the summons.
(4)
Where the plaintiff serves the writ in compliance with a notice under
paragraph (1) or with an order under paragraph (2) the defendant must
acknowledge service within the time limited for so
doing.
9.
Acknowledgment of service of originating
summons (O. 12, r.
9)
(1)
Each defendant named in and served with an originating summons (other than
an ex parte originating summons or an originating summons under Order 113 or an
application under Order 121) must acknowledge service of the summons as if it
were a writ.
(3)
The foregoing rules of this Order shall apply in relation to an originating
summons (other than an ex parte originating summons or an originating summons
under Order 113 or an application under Order 121) as they apply to a writ
except that after the word “extended” wherever it occurs in rule
5(a), there shall be inserted the words “or abridged” and for the
reference in rule 5(b) to Order 11, rules 1(3) and
4(4), there shall be substituted a reference to Order 11,
rule 9(6).
10.
Acknowledgment of service to be treated
as entry of appearance (O. 12, r.
10)
For the purpose of any enactment referring expressly or impliedly to the entry
of appearance as a procedure provided by rules of court for responding to a writ or
other process issuing out of the Court of First Instance, or of any rule of law, the
acknowledgment of service of the writ or other process in accordance with these
rules shall be treated as the entry of an appearance to it, and related expressions
shall be construed accordingly.
11.
Transitional provision relating to rule 86
of
Amendment Rules 2008 (O. 12, r.
11)
Where an application under rule 8(1) is pending immediately before
the
commencement*
of the Amendment Rules 2008, then the application is to be determined as
if rule 86 of the Amendment Rules 2008 had not been
made.
Editorial Note:
*
Commencement
date:
2 April 2009.
Order
13
Failure to
give Notice
of Intention
to
Defend
1.
Claim for liquidated demand (O. 13, r.
1)
(1)
Where a writ is indorsed with a claim against a defendant for a liquidated
demand only, then, if that defendant fails to give notice of intention to
defend, the plaintiff may, after the prescribed time, enter final judgment
against that defendant for a sum not exceeding that claimed by the writ in
respect of the demand and for costs, and proceed with the action against the
other defendants, if any. (See
App. A, Form 39)
(2)
A claim shall not be prevented from being treated for the purposes of this
rule as a claim for a liquidated demand by reason only that part of the claim is
for interest under section 48 of the Ordinance at a rate which is not
higher than that payable on judgment debts at the date of the
writ.
2.
Claim for unliquidated damages (O. 13, r.
2)
Where a writ is indorsed with a claim against a defendant for unliquidated
damages only, then, if that defendant fails to give notice of intention to defend,
the plaintiff may, after the prescribed time, enter interlocutory judgment against
that defendant for damages to be assessed and costs, and proceed with the action
against the other defendants, if any. (See
App. A. Form
40)
3.
Claim for detention of goods (O. 13, r.
3)
(1)
Where a writ is indorsed with a claim against a defendant relating to the
detention of goods only, then, if that defendant fails to give notice of
intention to defend the plaintiff may, after the prescribed time and subject to
Order 42, rule 1A—
(a)
at his option enter either—
(i)
interlocutory judgment against that defendant for delivery of the
goods or their value to be assessed and costs; or
(ii)
interlocutory judgment for the value of the goods to be assessed
and costs; or
(b)
apply by summons for judgment against that defendant for delivery of
the goods without giving him the alternative of paying their assessed
value,
and in any case proceed with the action against the other defendants, if
any. (See
App. A Form 41)
4.
Claim for possession of land (O. 13, r.
4)
(1)
Where a writ is indorsed with a claim against a defendant for possession of
land only, then, if that defendant fails to give notice of intention to defend
the plaintiff may, after the prescribed time, and on producing a certificate by
his solicitor, or (if he sues in person) an affidavit, stating that he is not
claiming any relief in the action of the nature specified in Order 88, rule
1, enter judgment for possession of the land as against that defendant
and costs, and proceed with the action against the other defendants, if
any. (See
App. A Form 42)
(5)
Where there is more than one defendant, judgment entered under this rule
shall not be enforced against any defendant unless and until judgment for
possession of the land has been entered against all the
defendants.
5.
Mixed claims (O. 13, r.
5)
Where a writ issued against any defendant is indorsed with two or more of the
claims mentioned in the foregoing rules, and no other claim, then, if that defendant
fails to give notice of intention to defend, the plaintiff may, after the prescribed
time, enter against that defendant such judgment in respect of any such claim as he
would be entitled to enter under those rules if that were the only claim indorsed on
the writ and proceed with the action against the other defendants, if
any.
6.
Other claims (O. 13, r.
6)
(1)
Where a writ is indorsed with a claim of a description not mentioned in
rules 1 to 4, then, if any defendant fails to give notice of
intention to defend, the plaintiff may, after the prescribed time and, if that
defendant has not acknowledged service, upon filing an affidavit proving due
service of the writ on him and, where the statement of claim was not indorsed on
or served with the writ, upon serving a statement of claim on him, proceed with
the action as if that defendant had given notice of intention to
defend.
(2)
Where a writ issued against a defendant is indorsed as aforesaid, but by
reason of the defendant’s satisfying the claim or complying with the demands
thereof or any other like reason it has become unnecessary for the plaintiff to
proceed with the action, then, if the defendant fails to give notice of
intention to defend, the plaintiff may, after the prescribed time, enter
judgment against that defendant for costs.
(3)
(Repealed L.N. 99 of
1993)
6A.
Prescribed time (O. 13, r.
6A)
In the foregoing rules of this Order
the
prescribed
time
(訂明的時限
) in relation to a writ issued against
a defendant means the time limited for the defendant to acknowledge service of the
writ or, if within that time the defendant has returned to the Registry an
acknowledgment of service containing a statement to the effect that he does not
intend to contest the proceedings, the date on which the acknowledgment was received
at the
Registry.7.
Proof of service of writ (O. 13, r.
7)
(1)
Judgment shall not be entered against a defendant under this Order
unless—
(a)
the defendant has acknowledged service on him of the writ; or
(b)
an affidavit is filed by or on behalf of the plaintiff proving due
service of the writ on the defendant; or
(c)
the plaintiff produces the writ indorsed by the defendant’s solicitor
with a statement that he accepts service of the writ on the defendant’s
behalf.
(2)
Where, in an action begun by writ, an application is made to the Court for
an order affecting a party who has failed to give notice of intention to defend,
the Court hearing the application may require to be satisfied in such manner as
it thinks fit that the party failed to give such notice.
(3)
Where, after judgment has been entered under this Order against a defendant
purporting to have been served by post under Order 10, rule 1(2)(a),
the copy of the writ sent to the defendant is returned to the plaintiff through
the post undelivered to the addressee, the plaintiff shall, before taking any
step or further step in the action or the enforcement of the judgment,
either—
(a)
make a request for the judgment to be set aside on the ground that the
writ has not been duly served, or
(b)
apply to the Court for directions.
(4)
A request under paragraph (3)(a) shall be made by producing to
an officer of the Registry and leaving with him for filing, an affidavit stating
the relevant facts, and thereupon the judgment shall be set aside and the entry
of the judgment and of any proceedings for its enforcement made in the book kept
in the Registry for that purpose shall be marked accordingly.
(5)
An application under paragraph (3)(b) shall be made ex parte by
affidavit stating the facts on which the application is founded and any order or
direction sought, and on the application the Court may—
(a)
set aside the judgment; or
(b)
direct that, notwithstanding the return of the copy of the writ, it
shall be treated as having been duly served; or
(c)
make such other order and give such other direction as the
circumstances may
require.
7A.
Judgment against a State (O. 13, r.
7A)
(1)
Where the defendant is a State, as defined in section 14 of the
State Immunity Act 1978 (1978 c. 33 U.K.)
(the
Act),
the plaintiff shall not be entitled to enter judgment under this Order except
with the leave of the Court.
(2)
An application for leave to enter judgment shall be supported by an
affidavit—
(a)
stating the grounds of the application,
(b)
verifying the facts relied on as excepting the State from the immunity
conferred by section 1 of the Act, and
(c)
verifying that the writ has been served by being transmitted to the
Chief Secretary for Administration and by him to the Foreign and
Commonwealth Office for onward transmission to the State concerned, or in
such other manner as may have been agreed to by the State, and that the time
for acknowledging service, as extended by section 12(2) of the
Act (by two months) where applicable, has expired.
(3)
The application may be made ex parte but the Court hearing the application
may direct a summons to be issued and served on that State, for which purpose
such a direction shall include leave to serve the summons and a copy of the
affidavit out of the jurisdiction.
(4)
Unless the Court otherwise directs, an affidavit for the purposes of this
rule may contain statements of information or belief with the sources and
grounds thereof, and the grant of leave to enter judgment under this Order shall
include leave to serve out of the jurisdiction—
(a)
a copy of the judgment, and
(b)
a copy of the affidavit, where not already served.
(5)
The procedure for effecting service out of the jurisdiction pursuant to
leave granted in accordance with the rule shall be the same as for the service
of the writ under Order 11, rule 7(1), except where section
12(6) of the Act applies and an alternative method of service has been
agreed.
8.
Stay of execution on default judgment
(O.
13, r.
8)
Where judgment for a debt or liquidated demand is entered under this Order
against a defendant who has returned to the Registry an acknowledgment of service
containing a statement to the effect that, although he does not intend to contest
the proceedings, he intends to apply for a stay of execution of the judgment by writ
of fieri facias, execution of the judgment by such a writ shall be stayed for a
period of 14 days from the acknowledgment of service and, if within that time the
defendant issues and serves on the plaintiff a summons for such a stay supported by
an affidavit in accordance with Order 47, rule 1, the stay imposed by
this rule shall continue until the summons is heard or otherwise disposed of, unless
the Court after giving the parties an opportunity of being heard otherwise
directs.
9.
Setting aside judgment (O. 13, r.
9)
Without prejudice to rule 7(3) and (4), the Court may, on such terms
as it thinks just, set aside or vary any judgment entered in pursuance of this
Order.
Order
13A
Admissions
in Claims
for Payment
of
Money
1.
Interpretation (O. 13A, r.
1)
(1)
In this Order—
claim
(申索
) means—(a)
where in an action the plaintiff makes only one claim, that claim;
and
(b)
where in an action the plaintiff makes more than one claim, all the
claims in the action.
(2)
For the purposes of rules 6(1)(b) and 7(1)(b), the
amount of a claim is treated as unliquidated if the claim consists of a claim
for a liquidated amount of money and a claim for an unliquidated amount of
money.
2.
Making an admission (O. 13A, r.
2)
(1)
Where the only remedy that a plaintiff is seeking is the payment of money,
the defendant may make an admission in accordance with—
(a)
rule 4 (admission of whole of claim for liquidated amount of
money);
(b)
rule 5 (admission of part of claim for liquidated amount of
money);
(c)
rule 6 (admission of liability to pay whole of claim for
unliquidated amount of money); or
(d)
rule 7 (admission of liability to pay claim for unliquidated
amount of money where defendant offers a sum in satisfaction of the
claim).
(2)
Where the defendant makes an admission as mentioned in paragraph (1), the
plaintiff may enter judgment except where—
(a)
the defendant is a person under disability; or
(3)
The Court may allow a party to amend or withdraw an admission if the Court
considers it just to do so having regard to all the circumstances of the
case.
(4)
3.
Period for making
admission
(O. 13A, r.
3)
(1)
(a)
where the defendant is served with a writ, the period fixed by or under
these rules for service of his defence;
(b)
where the defendant is served with an originating summons, the period
fixed by or under these rules for filing of his affidavit evidence;
and
(c)
in any other case, 14 days after service of the originating
process.
(2)
(a)
after the expiry of the period for filing it specified in paragraph
(1)(a) if the plaintiff has not obtained a default judgment
under Order 13 or 19; and
(3)
If the defendant files an admission under paragraph (2), this Order applies
as if he had made the admission specified in paragraph (1)(a) or (b),
as the case may
be.
4.
Admission of whole of claim
for
liquidated amount of
money
(O. 13A, r.
4)
(1)
This rule applies where—
(a)
the only remedy that the plaintiff is seeking is the payment of a
liquidated amount of money; and
(b)
the defendant admits the whole of the claim.
(2)
The defendant may admit the claim by—
(a)
filing in the Registry an admission in Form No. 16 in Appendix A;
and
(b)
serving a copy of the admission on the plaintiff.
(3)
The plaintiff may obtain judgment by filing in the Registry a request in
Form No. 16A in Appendix A and, if he does so—
(a)
where the defendant has not requested time to pay, paragraphs (5), (6)
and (7) apply;
(b)
where the defendant has requested time to pay, rule 9
applies.
(4)
If the plaintiff does not file a request for judgment within 14 days after
the copy of the admission is served on him, the claim is stayed until he files
the request.
(5)
The plaintiff may specify in his request for judgment—
(a)
the date by which the whole of the judgment debt is to be paid;
or
(b)
the times and rate at which it is to be paid by instalments.
(6)
Upon receipt of the request for judgment, the Court shall enter
judgment.
(7)
Judgment shall be for the amount of the claim (less any payments made) and
costs to be paid—
(a)
by the date or at the times and rate specified in the request for
judgment; or
(b)
if none is specified,
immediately.
5.
Admission of part of claim
for
liquidated amount of
money
(O. 13A, r.
5)
(1)
This rule applies where—
(a)
the only remedy that the plaintiff is seeking is the payment of a
liquidated amount of money; and
(b)
the defendant admits part of the claim in satisfaction of the whole
claim.
(2)
The defendant may admit part of the claim by—
(a)
filing in the Registry an admission in Form No. 16 in Appendix A;
and
(b)
serving a copy of the admission on the plaintiff.
(3)
Within 14 days after the copy of the admission is served on him, the
plaintiff shall—
(a)
file in the Registry a notice in Form No. 16B in Appendix A, stating
that—
(i)
he accepts the amount admitted in satisfaction of the whole
claim;
(ii)
he does not accept the amount admitted by the defendant and wishes
the proceedings to continue; or
(iii)
if the defendant has requested time to pay, he accepts the amount
admitted in satisfaction of the whole claim, but not the defendant’s
proposals as to payment; and
(b)
serve a copy of the notice on the defendant.
(4)
If the plaintiff does not file the notice in accordance with paragraph (3),
the whole claim is stayed until he files the notice.
(5)
If the plaintiff accepts the amount admitted in satisfaction of the whole
claim, he may obtain judgment by filing in the Registry a request in Form No.
16B in Appendix A and, if he does so—
(a)
where the defendant has not requested time to pay, paragraphs (6), (7)
and (8) apply;
(b)
where the defendant has requested time to pay, rule 9
applies.
(6)
The plaintiff may specify in his request for judgment—
(a)
the date by which the whole of the judgment debt is to be paid;
or
(b)
the times and rate at which it is to be paid by instalments.
(7)
Upon receipt of the request for judgment, the Court shall enter
judgment.
(8)
Judgment shall be for the amount admitted (less any payments made) and costs
to be paid—
(a)
by the date or at the times and rate specified in the request for
judgment; or
(b)
if none is specified,
immediately.
6.
Admission of liability to pay
whole
of claim for unliquidated
amount
of money (O. 13A, r.
6)
(1)
This rule applies where—
(a)
the only remedy that the plaintiff is seeking is the payment of
money;
(b)
the amount of the claim is unliquidated; and
(c)
the defendant admits liability but does not offer to pay a liquidated
amount of money in satisfaction of the claim.
(2)
The defendant may admit the claim by—
(a)
filing in the Registry an admission in Form No. 16C in Appendix A;
and
(b)
serving a copy of the admission on the plaintiff.
(3)
The plaintiff may obtain judgment by filing in the Registry a request in
Form No. 16D in Appendix A.
(4)
If the plaintiff does not file a request for judgment within 14 days after
the copy of the admission is served on him, the claim is stayed until he files
the request.
(5)
Upon receipt of the request for judgment, the Court shall enter
judgment.
(6)
Judgment shall be for an amount to be decided by the Court and
costs.
7.
Admission of liability to pay
claim
for unliquidated amount of
money
where defendant offers a sum
in
satisfaction of the
claim
(O. 13A, r.
7)
(1)
This rule applies where—
(a)
the only remedy that the plaintiff is seeking is the payment of
money;
(b)
the amount of the claim is unliquidated; and
(c)
the defendant—
(i)
admits liability; and
(ii)
offers to pay a liquidated amount of money in satisfaction of the
claim.
(2)
The defendant may admit the claim by—
(a)
filing in the Registry an admission in Form No. 16C in Appendix A;
and
(b)
serving a copy of the admission on the plaintiff.
(3)
Within 14 days after the copy of the admission is served on him, the
plaintiff shall—
(a)
file in the Registry a notice in Form No. 16E in Appendix A, stating
whether or not he accepts the amount in satisfaction of the claim;
and
(b)
serve a copy of the notice on the defendant.
(4)
If the plaintiff does not file the notice in accordance with paragraph (3),
the claim is stayed until he files the notice.
(5)
If the plaintiff accepts the offer he may obtain judgment by filing in the
Registry a request in Form No. 16E in Appendix A and if he does so—
(a)
where the defendant has not requested time to pay, paragraphs (6), (7)
and (8) apply;
(b)
where the defendant has requested time to pay, rule 9
applies.
(6)
The plaintiff may specify in his request for judgment—
(a)
the date by which the whole of the judgment debt is to be paid;
or
(b)
the times and rate at which it is to be paid by instalments.
(7)
Upon receipt of the request for judgment, the Court shall enter
judgment.
(8)
Judgment shall be for the amount offered by the defendant (less any payments
made) and costs to be paid—
(a)
by the date or at the times and rate specified in the request for
judgment; or
(b)
if none is specified, immediately.
(9)
If the plaintiff does not accept the amount offered by the defendant, he
may obtain judgment by filing in the Registry a request in Form No. 16E in
Appendix A.
(10)
Judgment under paragraph (9) shall be for an amount to be decided by the
Court and
costs.
8.
Power of Court to give
directions
(O. 13A, r.
8)
9.
Request for time to
pay
(O. 13A, r.
9)
(2)
A request for time to pay is a proposal about the date of payment or a
proposal to pay by instalments at the times and rate specified in the
request.
(3)
The defendant’s request for time to pay must be filed with his
admission.
(4)
If the plaintiff accepts the defendant’s request for time to pay, he may
obtain judgment by filing in the Registry a request for judgment in Form No.
16A, 16B or 16E (as the case may be) in Appendix A.
(5)
Upon receipt of the request for judgment, the Court shall enter
judgment.
(6)
Judgment shall be—
(a)
where rule 4 applies, for the amount of the claim (less any
payments made) and costs;
(b)
where rule 5 applies, for the amount admitted (less any
payments made) and costs; or
(c)
where rule 7 applies, for the amount offered by the
defendant (less any payments made) and costs,
and (in all cases) shall be for payment by the date or at the times and
rate specified in the defendant’s request for time to pay.
(7)
Where judgment is for payment by instalments at the times and rate
specified in the defendant’s request for time to pay, then unless the Court
otherwise orders and subject to paragraph (8), execution of the judgment is
stayed pending payment.
(8)
If the defendant fails to pay an instalment or part of an instalment in
accordance with the judgment, the stay of execution pursuant to paragraph (7)
immediately ceases and the plaintiff may enforce the payment of the whole amount
adjudged to be paid or the whole of any unpaid
balance.
10.
Determination of rate of
payment
by Court (O. 13A, r.
10)
(1)
This rule applies where the defendant makes a request for time to pay under
rule 9.
(2)
If the plaintiff does not accept the defendant’s proposal for payment, he
shall file in the Registry a notice in Form No. 16A, 16B or 16E (as the case may
be) in Appendix A.
(3)
When the Court receives the plaintiff’s notice, it shall enter judgment for
the amount admitted (less any payments made) to be paid by the date or at the
times and rate of payment determined by the Court.
(4)
Where the Court is to determine the date or the times and rate of payment,
it—
(a)
may do so without a hearing; but
(b)
shall consider—
(i)
the information set out in the defendant’s admission filed in the
Registry;
(ii)
the reasons why the plaintiff does not accept the defendant’s
proposal for payment; and
(iii)
all other relevant matters.
(5)
If there is to be a hearing to determine the date or the times and rate of
payment, the Court shall give each party at least 7 days’ notice of the
hearing.
11.
Right of
re-determination
(O. 13A, r.
11)
(1)
Where the Court has determined the date or the times and rate of payment
under rule 10(4) without a hearing, either party may apply for the
decision to be re-determined by the Court.
(2)
An application for re-determination must be made within 14 days after the
applicant is served with notice of the
determination.
12.
Interest (O. 13A, r.
12)
(1)
Judgment under rule 4, 5 or 7 must include
the amount of interest claimed to the date of judgment if—
(a)
the plaintiff is seeking interest and he has stated in the endorsement
of the writ or the statement of claim or the originating summons that he is
doing so—
(i)
under the terms of a contract;
(ii)
under a specified enactment; or
(iii)
on some other specified basis;
(b)
where interest is claimed under section 48 of the Ordinance,
the rate is no higher than the rate of interest payable on judgment debts at
the date when the writ or the originating summons was issued; and
(c)
the plaintiff’s request for judgment includes a calculation of the
interest claimed for the period from the date up to which interest was
stated to be calculated in the statement of claim or the originating summons
to the date of the request for judgment.
13.
Form for admission to be served
with
writ or originating
summons
(O. 13A, r.
13)
(1)
This rule applies where the only remedy that the plaintiff is seeking is
the payment of money, whether or not the amount is liquidated.
(2)
Where a writ of summons, an originating summons or any other originating
process is served on a defendant, it must be accompanied by—
(a)
if the amount of money which the plaintiff is seeking is liquidated, a
copy of Form No. 16 in Appendix A for admitting the claim; and
(b)
if the amount of money which the plaintiff is seeking is unliquidated,
a copy of Form No. 16C in Appendix A for admitting the
claim.
14.
Application
(O. 13A, r.
14)
(1)
This Order (other than rule 13) applies in relation to a writ of
summons, an originating summons or any other originating process served before
the
commencement*
of this Order if—
(a)
in the case of a writ of summons, the plaintiff has not obtained a
default judgment under Order 13 or 19;
(b)
in the case of an originating summons, the admission is filed and
served before the date or the period fixed under Order 28, rule
2; and
(c)
in the case of any other originating process, the period specified in
rule 3(1)(c) for filing and serving an admission under
rule 4, 5, 6 or 7 has not
expired.
(2)
This Order applies in relation to a counterclaim with the necessary
modifications as if—
(a)
a reference to a claim or statement of claim were a reference to a
counterclaim;
(b)
a reference to a plaintiff were a reference to the party making the
counterclaim; and
(c)
a reference to a defendant were a reference to the defendant to the
counterclaim.
(3)
Where a defendant has made a claim against a person not already a party to
the action under Order 16, rule 1 or 8, this Order applies
in relation to that claim and any other claim made under Order 16, rule
9 with the necessary modifications as if—
(a)
a reference to a plaintiff were a reference to the person who makes the
claim; and
(b)
a reference to a defendant were a reference to the person against whom
the claim is made.
Editorial Note:
*
Commencement
date:
2 April 2009.
Order
14
Summary
Judgment
1.
Application by plaintiff for summary
judgment
(O. 14, r.
1)
(1)
Where in an action to which this rule applies a statement of claim has been
served on a defendant and that defendant has given notice of intention to defend
the action, the plaintiff may, on the ground that that defendant has no defence
to a claim included in the writ, or to a particular part of such a claim, or has
no defence to such a claim or part except as to the amount of any damages
claimed, apply to the Court for judgment against that defendant.
(2)
Subject to paragraph (3) this rule applies to every action begun by writ
other than—
(a)
an action which includes a claim by the plaintiff for libel, slander,
malicious prosecution, false imprisonment or
seduction;
or
(b)
(Repealed L.N. 170 of
2021)
(c)
an Admiralty action in rem.
(3)
This Order shall not apply to an action to which Order 86 or Order 88
applies.
2.
Manner in which application under
rule 1 must be made (O. 14, r.
2)
(1)
An application under rule 1 must be made by summons supported by
an affidavit verifying the facts on which the claim, or the part of a claim, to
which the application relates is based and stating that in the deponent’s belief
there is no defence to that claim or part, as the case may be, or no defence
except as to the amount of any damages claimed.
(2)
Unless the Court otherwise directs, an affidavit for the purposes of this
rule may contain statements of information or belief with the sources and
grounds thereof.
(3)
The summons, a copy of the affidavit in support and of any exhibits
referred to therein must be served on the defendant not less than 10 clear days
before the return
day.
3.
Judgment for plaintiff (O. 14, r.
3)
(1)
Unless on the hearing of an application under rule 1 either the
Court dismisses the application or the defendant satisfies the Court with
respect to the claim, or the part of a claim, to which the application relates
that there is an issue or question in dispute which ought to be tried or that
there ought for some other reason to be a trial of that claim or part, the Court
may give such judgment for the plaintiff against that defendant on that claim or
part as may be just having regard to the nature of the remedy or relief
claimed. (See
App. A Form 44)
(2)
The Court may by order, and subject to such conditions, if any, as may be
just, stay execution of any judgment given against a defendant under this rule
until after the trial of any counterclaim made or raised by the defendant in the
action.
4.
Leave to defend (O. 14, r.
4)
(1)
A defendant may show cause against an application under rule 1
by affidavit or otherwise to the satisfaction of the Court.
(2)
Rule 2(2) applies for the purposes of this rule as it applies
for the purposes of that rule.
(3)
The Court may give a defendant against whom such an application is made
leave to defend the action with respect to the claim, or the part of a claim, to
which the application relates either unconditionally or on such terms as to
giving security or time or mode of trial or otherwise as it thinks
fit.
(4)
On the hearing of such an application the Court may order a defendant
showing cause or, where that defendant is a body corporate, any director,
manager, secretary or other similar officer thereof, or any person purporting to
act in any such capacity—
(a)
to produce any document;
(b)
if it appears to the Court that there are special circumstances which
make it desirable that he should do so, to attend and be examined on
oath.
5.
Application for summary judgment
on counterclaim (O. 14, r.
5)
(1)
Where a defendant to an action begun by writ has served a counterclaim on
the plaintiff, then, subject to paragraph (3), the defendant may, on the ground
that the plaintiff has no defence to a claim made in the counterclaim, or to a
particular part of such a claim, apply to the Court for judgment against the
plaintiff on that claim or part.
(2)
Rules 2, 3 and 4 shall apply in relation to
an application under this rule as they apply in relation to an application under
rule 1 but with the following modifications, that is to
say—
(a)
references to the plaintiff and defendant shall be construed as
references to the defendant and plaintiff respectively;
(b)
the words in rule 3 (2) “any counterclaim made or raised by
the defendant in” shall be omitted; and
(c)
the reference in rule 4(3) to the action shall be construed
as a reference to the counterclaim to which the application under this rule
relates.
(3)
This rule shall not apply to a counterclaim which includes any such claim
as is referred to in rule
1(2).
6.
Directions (O. 14, r.
6)
(1)
Where the Court—
(a)
orders that a defendant or a plaintiff have leave (whether conditional
or unconditional) to defend an action or counterclaim, as the case may be,
with respect to a claim or a part of a claim, or
(b)
gives judgment for a plaintiff or a defendant on a claim or part of a
claim but also orders that execution of the judgment be stayed pending the
trial of a counterclaim or of the action, as the case may be,
the Court shall give directions as to the further conduct of the action,
and Order 25, rules 2 to 7, shall, with the omission of so much of
rule 7(1) as requires parties to serve a notice specifying the
orders and directions which they require and with any other necessary
modifications, apply as if the application under rule 1 of this Order
or rule 5 thereof, as the case may be, on which the order was made
were a case management summons.
(2)
In particular, and if the parties consent, the Court may direct that the
claim in question and any other claim in the action be tried by a master under
the provisions of these rules relating to the trial of causes or matters or
questions or issues by
masters.
7.
Costs (O. 14, r.
7)
(1)
If the plaintiff makes an application under rule 1 where the
case is not within this Order or if it appears to the Court that the plaintiff
knew that the defendant relied on a contention which would entitle him to
unconditional leave to defend, then, without prejudice to Order 62 and in
particular to rule 4(1) thereof, the Court may dismiss the
application with costs and may require the costs to be paid by him
forthwith.
8.
Right to proceed with residue of action
or counterclaim (O. 14, r.
8)
(1)
Where on an application under rule 1 the plaintiff obtains
judgment on a claim or a part of a claim against any defendant, he may proceed
with the action as respects any other claim or as respects the remainder of the
claim or against any other defendant.
(2)
Where on an application under rule 5 a defendant obtains
judgment on a claim or part of a claim made in a counterclaim against the
plaintiff, he may proceed with the counterclaim as respects any other claim or
as respects the remainder of the claim or against any other defendant to the
counterclaim.
9.
Judgment for delivery up of chattel (O. 14, r.
9)
Where the claim to which an application under rule 1 or rule
5 relates is for the delivery up of a specific chattel and the Court gives
judgment under this Order for the applicant, it shall have the same power to order
the party against whom judgment is given to deliver up the chattel without giving
him an option to retain it on paying the assessed value thereof as if the judgment
had been given after
trial.
10.
Relief against forfeiture (O. 14, r.
10)
A tenant shall have the same right to apply for relief after judgment for
possession of land on the ground of forfeiture for non-payment of rent has been
given under this Order as if the judgment had been given after
trial.
11.
Setting aside judgment (O. 14, r.
11)
12.
Transitional provision relating to Rules of the High Court (Amendment) Rules
2021 (O. 14, r. 12)
This Order as in force immediately before the Rules of the High Court
(Amendment) Rules
2021
(L.N. 170 of
2021)
come into operation on 1 December 2021 continues to apply in relation to an
application under rule 1 or 5 that is pending immediately before that
date as if rule 3 of those Rules had not been made.
Order
14A
Disposal
of Case
on Point
of
Law
1.
Determination of questions of law
or construction (O. 14A, r.
1)
(1)
The Court may upon the application of a party or of its own motion determine
any question of law or construction of any document arising in any cause or
matter at any stage of the proceedings where it appears to the Court
that—
(a)
such question is suitable for determination without a full trial of the
action; and
(b)
such determination will finally determine (subject only to any possible
appeal) the entire cause or matter or any claim or issue therein.
(2)
Upon such determination the Court may dismiss the cause or matter or make
such order or judgment as it thinks just.
(3)
The Court shall not determine any question under this Order unless the
parties have either—
(a)
had an opportunity of being heard on the question; or
(b)
consented to an order or judgment on such determination.
(4)
The jurisdiction of the Court under this Order may be exercised by a
master.
(5)
Nothing in this Order shall limit the powers of the Court under Order 18,
rule 19 or any other provision of these
rules.
Order
15
Causes
of
Action, Counterclaims
and
Parties
1.
Joinder of causes of action (O. 15, r.
1)
(1)
Subject to rule 5(1), a plaintiff may in one action claim relief against the same defendant in respect of more than one cause of action—
(a)
if the plaintiff claims, and the defendant is alleged to be liable, in the same capacity in respect of all the causes of action, or
(b)
if the plaintiff claims or the defendant is alleged to be liable in the capacity of executor or administrator of an estate in respect of one or more of the causes of action and in his personal capacity but with reference to the same estate in respect of all the others, or
(c)
with the leave of the Court.
(2)
An application for leave under this rule must be made ex parte by affidavit
before the issue of the writ or originating summons, as the case may be, and the
affidavit must state the grounds of the
application.
2.
Counterclaim against plaintiff (O. 15, r.
2)
(1)
Subject to rule 5(2), a defendant in any action who alleges that he has any claim or is entitled to any relief or remedy against a plaintiff in the action in respect of any matter (whenever and however arising) may, instead of bringing a separate action, make a counterclaim in respect of that matter; and where he does so he must add the counterclaim to his defence.
(2)
Rule 1 shall apply in relation to a counterclaim as if the counterclaim were a separate action and as if the person making the counterclaim were the plaintiff and the person against whom it is made a defendant.
(3)
A counterclaim may be proceeded with notwithstanding that judgment is given for the plaintiff in the action or that the action is stayed, discontinued or dismissed.
(4)
Where a defendant establishes a counterclaim against the claim of the
plaintiff and there is a balance in favour of one of the parties, the Court may
give judgment for the balance, so, however, that this provision shall not be
taken as affecting the Court’s discretion with respect to
costs.
3.
Counterclaim against additional parties (O. 15, r.
3)
(1)
Where a defendant to an action who makes a counter-claim against the plaintiff alleges that any other person (whether or not a party to the action) is liable to him along with the plaintiff in respect of the subject-matter of the counterclaim, or claims against such other person any relief relating to or connected with the original subject-matter of the action, then, subject to rule 5(2), he may join that other person as a party against whom the counter-claim is made.
(2)
Where a defendant joins a person as a party against whom he makes a
counterclaim, he must add that person’s name to the title of the action and
serve on him a copy of the counterclaim and, in
the
case of a person who is not already a party to the action, the defendant must
issue the counterclaim out of the Registry and serve on the person concerned a
sealed copy of the counterclaim together with a form of acknowledgment of
service in Form No. 14 in Appendix A (with such modifications as the
circumstances may require) and a copy of the writ or originating summons by
which the action was begun and of all other pleadings served in the action; and
a person on whom a copy of a counterclaim is served under this paragraph shall,
if he is not already a party to the action, become a party to it as from the
time of service with the same rights in respect of his defence to the
counterclaim and otherwise as if he had been duly sued in the ordinary way by
the party making the counterclaim.
(3)
A defendant who is required by paragraph (2) to serve a copy of the counterclaim made by him on any person who before service is already a party to the action must do so within the period within which, by virtue of Order 18, rule 2, he must serve on the plaintiff the defence to which the counterclaim is added.
(4)
The appropriate office for issuing and acknowledging service of a counterclaim against a person who is not already a party to the action is the Registry.
(5)
Where by virtue of paragraph (2) a copy of a counterclaim is required to be served on a person who is not already a party to the action, the following provisions of these rules, namely, Order 6, rule 7(3) and (5), Order 10, Order 11, Orders 12 and 13 and Order 75, rule 4, shall, subject to the last foregoing paragraph, apply in relation to the counterclaim and the proceedings arising from it as if—
(a)
the counterclaim were a writ and the proceedings arising from it in an action; and
(b)
the party making the counterclaim were a plaintiff and the party against whom it is made a defendant in that action.
(5A)
Where by virtue of paragraph (2) a copy of a counterclaim is required to be served on any person other than the plaintiff, who before service is already a party to the action, the provisions of Order 14, rule 5 shall apply in relation to the counterclaim and the proceedings arising therefrom, as if the party against whom the counterclaim is made were the plaintiff in the action.
(6)
A copy of a counterclaim required to be served on a person who is not already a party to the action must be indorsed with a notice, in Form No. 17 in Appendix A, addressed to that person.
4.
Joinder of parties (O. 15, r.
4)
(1)
Subject to rule 5(1), two or more persons may be joined together in one action as plaintiffs or as defendants with the leave of the Court or where—
(a)
if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions, and
(b)
all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions.
(2)
Where the plaintiff in any action claims any relief to which any other
person is entitled jointly with him, all persons so entitled must, subject to
the provisions of any written law and unless the Court gives leave to the
contrary, be parties to the action and any of them who does not consent to being
joined as a plaintiff must, subject to any order made by the Court on an
application for leave under this paragraph, be made a
defendant.
This paragraph shall not apply to a probate action.
(3)
Where relief is claimed in an action against a defendant who is jointly
liable with some other person and also severally liable, that other person need
not be made a defendant to the action; but where persons are jointly, but not
severally, liable under a contract and relief is claimed against some but not
all of those persons in an action in respect of that contract, the Court may, on
the application of any defendant to the action, by order stay proceedings in the
action until the other persons so liable are added as defendants.
5.
Court may order separate trials, etc. (O. 15, r.
5)
(1)
If claims in respect of two or more causes of action are included by a plaintiff in the same action or by a defendant in a counterclaim, or if two or more plaintiffs or defendants are parties to the same action, and it appears to the Court that the joinder of causes of action or of parties, as the case may be, may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trials or make such other order as may be expedient.
(2)
If it appears on the application of any party against whom a counterclaim
is made that the subject-matter of the counterclaim ought for any reason to be
disposed of by a separate action, the Court may order the counterclaim to be
struck out or may order it to be tried separately or make such other order as
may be
expedient.
6.
Misjoinder and nonjoinder of parties (O. 15, r.
6)
(1)
No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party; and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.
(2)
Subject to the provision of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application—
(a)
order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;
(b)
order any of the following persons to be added as a party, namely—
(i)
any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or
(ii)
any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.
(3)
An application by any person for an order under paragraph (2) adding him as a party must, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute in the cause or matter or, as the case may be, the question or issue to be determined as between him and any party to the cause or matter.
(4)
No person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorized.
(5)
No person shall be added or substituted as a party after the expiry of any relevant period of limitation unless either—
(a)
the relevant period was current at the date when proceedings were commenced and it is necessary for the determination of the action that the new party should be added, or substituted; or
(b)
the relevant period arises under the provisions of section 27
or 28 of the Limitation Ordinance (Cap.
347) and the Court directs that those provisions should not apply
to the action by or against the new party.
In this paragraph
any
relevant period of
limitation
(任何有關的時效期
) means a time limit under
the Limitation Ordinance (Cap.
347).(6)
The addition or substitution of a new party shall be treated as necessary for the purposes of paragraph (5)(a) if, and only if, the Court is satisfied that—
(a)
the new party is a necessary party to the action in that property is vested in him at law or in equity and the plaintiff’s claim in respect of an equitable interest in that property is liable to be defeated unless the new party is joined, or
(b)
the relevant cause of action is vested in the new party and the plaintiff jointly but not severally, or
(c)
the new party is the Secretary for Justice and the proceedings should have been brought by relator proceedings in his name, or
(d)
the new party is a company in which the plaintiff is a shareholder and on whose behalf the plaintiff is suing to enforce a right vested in the company, or
(e)
the new party is sued jointly with the defendant and is not also liable
severally with him and failure to join the new party might render the claim
unenforceable.
6A.
Proceedings by and against estates (O. 15, r.
6A)
(1)
Where any person against whom an action would have lain has died but the cause of action survives, the action may, if no grant of probate or administration has been made, be brought against the estate of the deceased.
(2)
Without prejudice to the generality of paragraph (1), an action brought against “the personal representatives of A.B. deceased” shall be treated, for the purposes of that paragraph, as having been brought against his estate.
(3)
An action purporting to have been commenced by or against a person shall be treated, if he was dead at its commencement and the cause of action survives, as having been commenced by his estate or against it in accordance with paragraph (1) as the case may be, whether or not a grant of probate or administration was made before its commencement.
(4)
In any such action as is referred to in paragraph (1) or (3)—
(a)
the plaintiff shall, and the defendant, the personal representatives of the deceased or any person interested in the deceased’s estate may, during the period of validity for service of the writ or originating summons, apply to the Court for an order appointing a person to represent the deceased’s estate for the purpose of the proceedings or, if a grant of probate or administration has been made, for an order that the personal representative of the deceased be made a party of the proceedings, and in either case for an order that the proceedings be carried on by or against the person so appointed or, as the case may be, by or against the personal representative, as if he had been substituted for the estate;
(b)
the Court may, at any stage of the proceedings and on such terms as it thinks just and either of its own motion or on application, make any such order as is mentioned in sub-paragraph (a) and allow such amendments (if any) to be made and make such other order as the Court thinks necessary in order to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon.
(5)
Before making an order under paragraph (4) the Court may require notice to be given to any insurer of the deceased who has an interest in the proceedings and to such (if any) of the persons having an interest in the estate as it thinks fit.
(5A)
Where an order is made under paragraph (4) at the instance of a plaintiff appointing the Official Solicitor to represent the deceased’s estate, the appointment shall be limited to his accepting service of the writ or originating summons by which the action was begun unless, either on making such an order or on a subsequent application, the Court, with the consent of the Official Solicitor, directs that the appointment shall extend to taking further steps in the proceedings.
(6)
Where an order is made under paragraph (4), rules 7(4) and 8(3) and (4) shall apply as if the order had been made under rule 7 on the application of the plaintiff.
(7)
Where no grant of probate or administration has been made, any judgment or
order given or made in the proceedings shall bind the estate to the same extent
as it would have been bound if a grant had been made and a personal
representative of the deceased had been a party to the proceedings.
7.
Change of parties by reason of death, etc.
(O. 15, r.
7)
(1)
Where a party to an action dies or becomes bankrupt but the cause of action survives, the action shall not abate by reason of the death or bankruptcy.
(2)
Where at any stage of the proceedings in any cause or matter the interest or
liability of any party is assigned or transmitted to or devolves upon some other
person, the Court may, if it thinks it necessary in order to ensure that all
matters in dispute in the cause or matter may be effectually and completely
determined and adjudicated upon, order that other person to be made a party to
the cause or matter and the proceedings to be carried on as if he had been
substituted for the first mentioned
party.
An application for an order under this paragraph may be made ex
parte.
(3)
An order may be made under this rule for a person to be made a party to a cause or matter notwithstanding that he is already a party to it on the other side of the record, or on the same side but in a different capacity; but—
(a)
if he is already a party on the other side, the order shall be treated as containing a direction that he shall cease to be a party on that other side, and
(b)
if he is already a party on the same side but in another capacity, the order may contain a direction that he shall cease to be a party in that other capacity.
(4)
The person on whose application an order is made under this rule must procure the order to be noted in the cause book, and after the order has been so noted that person must, unless the Court otherwise directs, serve the order on every other person who is a party to the cause or matter or who becomes or ceases to be a party by virtue of the order and serve with the order on any person who becomes a defendant a copy of the writ or originating summons by which the cause or matter was begun and of all other pleadings served in the proceedings and a form of acknowledgment of service in Form No. 14 or 15 in Appendix A, whichever is appropriate.
(5)
Any application to the Court by a person served with an order made ex parte
under this rule for the discharge or variation of the order must be made within
14 days after the service of the order on that
person.
8.
(1)
Where an order is made under rule 6 the writ by which the action in question was begun must be amended accordingly and must be indorsed with—
(a)
a reference to the order in pursuance of which the amendment is made, and
(b)
the date on which the amendment is made;
and the amendment must be made within such period as may be specified in the order or, if no period is so specified, within 14 days after the making of the order.
(2)
Where by an order under rule 6 a person is to be made a defendant, the rules as to service of a writ of summons shall apply accordingly to service of the amended writ on him, but before serving the writ on him the person on whose application the order was made must procure the order to be noted in the cause book.
(2A)
Together with the writ of summons served under paragraph (2) shall be served a copy of all other pleadings served in the action.
(3)
Where by an order under rule 6 or 7 a person is to be made a defendant, the rules as to acknowledgment of service shall apply accordingly to acknowledgment of service by him subject, in the case of a person to be made a defendant by an order under rule 7, to the modification that the time limited for acknowledging service shall begin with the date on which the order is served on him under rule 7(4) or, if the order is not required to be served on him, with the date on which the order is noted in the cause book.
(4)
Where by an order under rule 6 or 7 a person is to be added as a party or is to be made a party in substitution for some other party, that person shall not become a party until—
(a)
where the order is made under rule 6, the writ has been amended in relation to him under this rule and (if he is a defendant) has been served on him, or
(b)
and where by virtue of the foregoing provision a person becomes a party in substitution for some other party, all things done in the course of the proceedings before the making of the order shall have effect in relation to the new party as they had in relation to the old except that acknowledgment of service by the old party shall not dispense with acknowledgment of service by the new.
(5)
The foregoing provisions of this rule shall apply in relation to an action
begun by originating summons as they apply in relation to an action begun by
writ.
9.
Failure to proceed after death of party
(O. 15, r.
9)
(1)
If after the death of a plaintiff or defendant in any action the cause of action survives, but no order under rule 7 is made substituting as plaintiff any person in whom the cause of action vests or, as the case may be, the personal representatives of the deceased defendant, the defendant or, as the case may be, those representatives may apply to the Court for an order that unless the action is proceeded with within such time as may be specified in the order the action shall be struck out as against the plaintiff or defendant, as the case may be, who has died; but where it is the plaintiff who has died, the Court shall not make an order under this rule unless satisfied that due notice of the application has been given to the personal representatives (if
any) of the deceased plaintiff and to any other interested persons who, in the opinion of the Court, should be notified.
(2)
Where in any action a counterclaim is made by a defendant, this rule shall
apply in relation to the counterclaim as if the counterclaim were a separate
action and as if the defendant making the counterclaim were the plaintiff and
the person against whom it is made a
defendant.
10.
Actions for possession of land (O. 15, r.
10)
(1)
Without prejudice to rule 6, the Court may at any stage of the proceedings in an action for possession of land order any person not a party to the action who is in possession of the land (whether in actual possession or by a tenant) to be added as a defendant.
(2)
An application by any person for an order under this rule may be made ex parte, supported by an affidavit showing that he is in possession of the land in question and if by a tenant, naming him.
The affidavit shall specify the applicant’s address for service and Order 12, rule 3(2), (3) and (4), shall apply as if the affidavit were an acknowledgment of service.
The affidavit shall specify the applicant’s address for service and Order 12, rule 3(2), (3) and (4), shall apply as if the affidavit were an acknowledgment of service.
(3)
A person added as a defendant by an order under this rule must serve on the
plaintiff a copy of the order giving the added defendant’s address for service
specified in accordance with paragraph
(2).
10A.
(Repealed L.N. 127 of
1995)
11.
Relator actions (O. 15, r.
11)
Before the name of any person is used in any action as relator, that person
must give a written authorization so to use his name to his solicitor and the
authorization must be filed in the
Registry.
12.
Representative proceedings (O. 15, r.
12)
(1)
Where numerous persons have the same interest in any proceedings, not being such proceedings as are mentioned in rule 13, the proceedings may be begun, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.
(2)
At any stage of proceedings under this rule the Court may, on the application of the plaintiff, and on such terms, if any, as it thinks fit, appoint any one or more of the defendants or other persons as representing whom the defendants are sued to represent all, or all except one or more, of those persons in the proceedings; and where, in exercise of the power conferred by this paragraph, the Court appoints a person not named as a defendant, it shall make an order under rule 6 adding that person as a defendant.
(3)
A judgment or order given in proceedings under this rule shall be binding on all the persons as representing whom the plaintiffs sue or, as the case may be, the defendants are sued, but shall not be enforced against any person not a party to the proceedings except with the leave of the Court.
(4)
An application for the grant of leave under paragraph (3) must be made by summons which must be served personally on the person against whom it is sought to enforce the judgment or order.
(5)
Notwithstanding that a judgment or order to which any such application relates is binding on the person against whom the application is made, that person may dispute liability to have the judgment or order enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from such liability.
(6)
The Court hearing an application for the grant of leave under paragraph (3)
may order the question whether the judgment or order is enforceable against the
person against whom the application is made to be tried and determined in any
manner in which any issue or question in an action may be tried and
determined.
13.
Representation of interested persons who
cannot be ascertained, etc. (O. 15, r.
13)
(1)
In any proceedings concerning—
(a)
the estate of a deceased person, or
(b)
property subject to a trust, or
(c)
the construction of a written instrument, including an Ordinance or any other written law,
the Court, if satisfied that it is expedient so to do, and that one or more of the conditions specified in paragraph (2) are satisfied, may appoint one or more persons to represent any person (including an unborn person) or class who is or may be interested (whether presently or for any future, contingent or unascertained interest) in or affected by the proceedings.
(2)
The conditions for the exercise of the power conferred by paragraph (1) are as follows—
(a)
that the person, the class or some member of the class, cannot be ascertained or cannot readily be ascertained;
(b)
that the person, class or some member of the class, though ascertained, cannot be found;
(c)
that, though the person or the class and the members thereof can be ascertained and found, it appears to the Court expedient (regard being had to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined) to exercise the power for the purpose of saving expense.
(3)
Where in any proceedings to which paragraph (1) applies, the Court exercises the power conferred by that paragraph, a judgment or order of the Court given or made when the person or persons appointed in exercise of that power are before the Court shall be binding on the person or class represented by the person or persons so appointed.
(4)
Where, in any such proceedings, a compromise is proposed and some of the persons who are interested in, or who may be affected by, the compromise are not parties to the proceedings (including unborn or unascertained persons) but—
(a)
there is some other person in the same interest before the Court who assents to the compromise or on whose behalf the Court sanctions the compromise, or
(b)
the absent persons are represented by a person appointed under paragraph (1) who so assents,
the Court, if satisfied that the compromise will be for the benefit of
the absent persons and that it is expedient to exercise this power, may approve
the compromise and order that it shall be binding on the absent persons, and
they shall be bound accordingly except where the order has been obtained by
fraud or non-disclosure of material
facts.
13A.
Notice of action to non-parties
(O. 15, r.
13A)
(1)
At any stage in an action to which this rule applies, the Court may, on the application of any party or of its own motion, direct that notice of the action be served on any person who is not a party thereto but who will or may be affected by any judgment given therein.
(2)
An application under this rule may be made ex parte and shall be supported by an affidavit stating the grounds of the application.
(3)
Every notice of an action under this rule shall be in Form No. 52 in Appendix A and the copy to be served shall be a sealed copy and accompanied by a copy of the originating summons or writ and of all other pleadings served in the action, and by a form of acknowledgment of service in Form No. 14 or 15 in Appendix A with such modifications as may be appropriate.
(4)
A person may, within 14 days of service on him of a notice under this rule, acknowledge service of the writ or originating summons and shall thereupon become a party to the action, but in default of such acknowledgment and subject to paragraph (5) he shall be bound by any judgment given in the action as if he was a party thereto.
(5)
If at any time after service of such notice on any person the writ or originating summons is amended so as substantially to alter the relief claimed, the Court may direct that the judgment shall not bind such person unless a further notice together with a copy of the amended writ or originating summons is issued and served upon him under this rule.
(6)
This rule applies to any action relating to—
(a)
the estate of a deceased person; or
(b)
property subject to a trust.
(7)
Order 6, rule 7(3) and (5) shall apply in relation to a notice of an action under this rule as if the notice were a writ and the person by whom the notice is issued were the plaintiff.
14.
Representation of beneficiaries
by trustees, etc. (O. 15, r.
14)
(1)
Any proceedings, including proceedings to enforce a security by foreclosure or otherwise, may be brought by or against trustees, executors or administrators in their capacity as such without joining any of the persons having a beneficial interest in the trust or estate, as the case may be; and any judgment or order given or made in those proceedings shall be binding on those persons unless the Court in the same or other proceedings otherwise orders on the ground that the trustees, executors or administrators, as the case may be, could not or did not in fact represent the interests of those persons in the first-mentioned proceedings.
(2)
Paragraph (1) is without prejudice to the power of the Court to order any
person having such an interest as aforesaid to be made a party to the
proceedings or to make an order under rule
13.
15.
Representation of deceased person interested
in proceedings (O. 15, r.
15)
(1)
Where in any proceedings it appears to the Court that a deceased person was interested in the matter in question in the proceedings and that he has no personal representative, the Court may, on the application of any party to the proceedings, proceed in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent that estate for the purposes of the proceedings; and any such order, and any judgment or order subsequently given or made in the proceedings, shall bind the estate of the deceased person to the same extent as it would have been bound had a personal representative of that person been a party to the proceedings.
(2)
Before making an order under this rule, the Court may require notice of the
application for the order to be given to such (if any) of the persons having an
interest in the estate as it thinks
fit.
16.
Declaratory judgment (O. 15, r.
16)
No action or other proceeding shall be open to objection on the ground that a
merely declaratory judgment or order is sought thereby, and the Court may make
binding declarations of right whether or not any consequential relief is or could be
claimed.
17.
Conduct of proceedings (O. 15, r.
17)
The Court may give the conduct of any action, inquiry or other proceedings to such person as it thinks fit.
Order
16
Third Party
and
Similar
Proceedings
1.
Third party notice (O. 16, r.
1)
(1)
Where in any action a defendant who has given notice of intention to
defend—
(a)
claims against a person not already a party to the action any
contribution or indemnity; or
(b)
claims against such a person any relief or remedy relating to or
connected with the original subject-matter of the action and substantially
the same as some relief or remedy claimed by the
plaintiff;
or
(c)
requires that any question or issue relating to or connected with the
original subject-matter of the action should be determined not only as
between the plaintiff and the defendant but also as between either or both
of them and a person not already a party to the action;
then, subject to paragraph (2), the defendant may issue a notice in Form
No. 20 or 21 in Appendix A, whichever is appropriate (in this Order referred to
as a third party notice), containing a statement of the nature of the claim made
against him and, as the case may be, either of the nature and grounds of the
claim made by him or of the question or issue required to be
determined.
(2)
A defendant to an action may not issue a third party notice without the
leave of the Court unless the action was begun by writ and he issues the notice
before serving his defence on the plaintiff.
(3)
Where a third party notice is served on the person against whom it is
issued, he shall as from the time of service be a party to the action (in this
Order referred to as a third party) with the same rights in respect of his
defence against any claim made against him in the notice and otherwise as if he
had been duly sued in the ordinary way by the defendant by whom the notice is
issued.
2.
Application for leave to issue third
party notice (O. 16, r.
2)
(1)
Application for leave to issue a third party notice may be made ex parte
but the Court may direct a summons for leave to be issued.
(2)
An application for leave to issue a third party notice must be supported by
an affidavit stating—
(a)
the nature of the claim made by the plaintiff in the action;
(b)
the stage which proceedings in the action have reached;
(c)
the nature of the claim made by the applicant or particulars of the
question or issue required to be determined, as the case may be, and the
facts on which the proposed third party notice is based; and
(d)
the name and address of the person against whom the third party notice
is to be
issued.
3.
Issue, service and acknowledgment of service,
of third party notice (O. 16, r.
3)
(1)
The order granting leave to issue a third party notice may contain
directions as to the period within which the notice is to be issued.
(2)
There must be served with every third party notice a copy of the writ or
originating summons by which the action was begun and of the pleadings (if any)
served in the action and a form of acknowledgment of service in Form No. 14 in
Appendix A with such modifications as may be appropriate.
(3)
The appropriate office for acknowledging service of a third party notice is
the Registry.
(4)
Subject to the foregoing provisions of this rule, the following provisions
of these rules, namely, Order 6, rule 7(3) and (5), Order 10, Order
11, Order 12 and Order 75, rule 4, shall apply in relation to a third
party notice and to the proceedings begun thereby as if—
(a)
the third party notice were a writ and the proceedings begun thereby an
action; and
(b)
the
defendant issuing the third party notice were a plaintiff and the person
against whom it is issued a defendant in that action:
Provided that in the
application of Order 11, rule 1(1)(c) leave may be granted to serve a
third party notice outside the jurisdiction on any necessary or proper party to
the proceedings brought against the defendant.
4.
Third party directions (O. 16, r.
4)
(1)
If the third party gives notice of intention to defend, the defendant who
issued the third party notice must, by summons to be served on all the other
parties to the action, apply to the Court for directions.
(2)
If no summons is served on the third party under paragraph (1), the third
party may, not earlier than 7 days after giving notice of intention to defend,
by summons to be served on all the other parties to the action, apply to the
Court for directions or for an order to set aside the third party
notice.
(3)
On an application for directions under this rule the Court may—
(a)
if the liability of the third party to the defendant who issued the
third party notice is established on the hearing, order such judgment as the
nature of the case may require to be entered against the third party in
favour of the defendant; or
(b)
order any claim, question or issue stated in the third party notice to
be tried in such manner as the Court may direct; or
(c)
dismiss the application and terminate the proceedings on the third
party notice;
and may do so either before or after any judgment in the action has been
signed by the plaintiff against the defendant.
(4)
On an application for directions under this rule the Court may give the
third party leave to defend the action, either alone or jointly with any
defendant, upon such terms as may be just, or to appear at the trial and to take
such part therein as may be just, and generally may make such orders and give
such directions as appear to the Court proper for having the rights and
liabilities of the parties most conveniently determined and enforced and as to
the extent to which the third party is to be bound by any judgment or decision
in the action.
(5)
Any order made or direction given under this rule may be varied or
rescinded by the Court at any
time.
5.
Default of third party, etc. (O. 16, r.
5)
(1)
If a third party does not give notice of intention to defend or, having been
ordered to serve a defence, fails to do so—
(a)
he shall be deemed to admit any claim stated in the third party notice
and shall be bound by any judgment (including judgment by consent) or
decision in the action in so far as it is relevant to any claim, question or
issue stated in that notice; and
(b)
the defendant by whom the third party notice was issued may, if
judgment in default is given against him in the action, at any time after
satisfaction of that judgment and, with the leave of the Court, before
satisfaction thereof, enter judgment against the third party in respect of
any contribution, and, with the leave of the Court, in respect of any other
relief or remedy claimed therein.
(2)
If a third party or the defendant by whom a third party notice was issued
makes default in serving any pleading which he is ordered to serve, the Court
may, on the application by summons of that defendant or the third party, as the
case may be, order such judgment to be entered for the applicant as he is
entitled to on the pleadings or may make such other order as may appear to the
Court necessary to do justice between the parties.
(3)
The Court may at any time set aside or vary a judgment entered under
paragraph (1)(b) or paragraph (2) on such terms (if any) as it thinks
just.
6.
Setting aside third party proceedings (O. 16, r.
6)
Proceedings on a third party notice may, at any stage of the proceedings, be
set aside by the
Court.
7.
Judgment between defendant
and third party (O. 16, r.
7)
(1)
Where in any action a defendant has served a third party notice, the Court
may at or after the trial of the action or, if the action is decided otherwise
than by trial, on an application by summons, order such judgment as the nature
of the case may require to be entered for the defendant against the third party
or for the third party against the defendant.
(2)
Where judgment is given for the payment of any contribution or indemnity to
a person who is under a liability to make a payment in respect of the same debt
or damage, execution shall not issue on the judgment without the leave of the
Court until that liability has been discharged.
(3)
For the purpose of paragraph (2)—
liability
(法律責任
) includes liability under a
judgment in the same or other proceedings and liability under an agreement to
which section 3(4) of the Civil Liability (Contribution) Ordinance
(Cap. 377)
applies.8.
Claims and issues between a defendant
and
some other party (O. 16, r.
8)
(1)
Where in any action a defendant who has given notice of intention to
defend—
(a)
claims against a person who is already a party to the action any
contribution or indemnity; or
(b)
claims against such a person any relief or remedy relating to or
connected with the original subject-matter of the action and substantially
the same as some relief or remedy claimed by the plaintiff; or
(c)
requires that any question or issue relating to or connected with the
original subject-matter of the action should be determined not only as
between the plaintiff and himself but also as between either or both of them
and some other person who is already a party to the action;
then, subject to paragraph (2), the defendant may, without leave, issue
and serve on that person a notice containing a statement of the nature and
grounds of his claim or, as the case may be, of the question or issue required
to be determined.
(2)
Where a defendant makes such a claim as is mentioned in paragraph (1) and
that claim could be made by him by counterclaim in the action, paragraph (1)
shall not apply in relation to the claim.
(3)
No acknowledgment of service of such a notice shall be necessary if the
person on whom it is served has acknowledged service of the writ or originating
summons in the action or is a plaintiff therein, and the same procedure shall be
adopted for the determination between the defendant by whom, and the person on
whom, such a notice is served of the claim, question or issue stated in the
notice as would be appropriate under this Order if the person served with the
notice were a third party and (where he has given notice of intention to defend
the action or is a plaintiff) had given notice of intention to defend the claim,
question or issue.
(4)
Rule 4(2) shall have effect in relation to proceedings on a
notice issued under this rule as if for the words “7 days after giving notice of
intention to defend” there were substituted the words “14 days after service of
the notice on
him”.
9.
Claims by third and subsequent parties
(O. 16, r.
9)
(1)
Where a defendant has served a third party notice and the third party makes
such a claim or requirement as is mentioned in rule 1 or rule
8, this Order shall, with the modification mentioned in paragraph (2)
and any other necessary modifications, apply as if the third party were a
defendant; and similarly where any further person to whom by virtue of this rule
this Order applies as if he were a third party makes such a claim or
requirement.
(2)
(3)
A third party may not issue a notice under rule 1 without the
leave of the Court unless the action in question was begun by writ and he issues
the notice before the expiration of 14 days after the time limited for
acknowledging service of the notice issued against
him.
10.
Offer of contribution (O. 16, r.
10)
(1)
If, at any time after he has acknowledged service, a party to an action who
stands to be held liable in the action to another party to contribute towards
any debt or damages which may be recovered against that other party in the
action, makes (without prejudice to his defence) a written offer to that other
party to contribute to a specified extent to the debt or damages, then subject
to paragraph (2) and, notwithstanding that he reserves the right to bring the
offer to the action of the judge at the trial, the offer shall not be brought to
the attention of the judge until after all questions of liability and amount of
debt or damages have been decided.
(2)
Where the question of the costs of the issue of liability falls to be
decided, that issue having been tried and an issue or question concerning the
amount of the debt or damages remaining to be tried separately, any party may
bring to the attention of the judge the fact that a written offer under
paragraph (1) has or has not been made and the date (but not the amount) of such
offer or of the first such offer if more than
one.
11.
Counterclaim by defendant (O. 16, r.
11)
Where in any action a counterclaim is made by a defendant, the foregoing
provisions of this Order shall apply in relation to the counterclaim as if the
subject-matter of the counterclaim were the original subject-matter of the action,
and as if the person making the counterclaim were the plaintiff and the person
against whom it is made a defendant.
Order
17
Interpleader
1.
Entitlement to relief by way
of interpleader (O. 17, r.
1)
(1)
Where—
(a)
a person is under a liability in respect of a debt or in respect of any
money, goods or chattels and he is, or expects to be, sued for or in respect
of that debt or money or those goods or chattels by two or more persons
making adverse claims thereto, or
(b)
claim is made to any money, goods or chattels taken or intended to be
taken by a bailiff in execution under any process, or to the proceeds or
value of any such goods or chattels, by a person other than the person
against whom the process is issued,
the person under liability as mentioned in sub-paragraph (a), or (subject
to rule 2) the bailiff, may apply to the Court for relief by way of
interpleader.
(2)
References in this Order to a bailiff shall be construed as including
references to any other officer charged with the execution of process by or
under the authority of the Court of First Instance.
2.
Claim to goods, etc., taken in execution
(O. 17, r.
2)
(1)
Any person making a claim to or in respect of any money, goods or chattels
taken or intended to be taken in execution under process of the Court, or to the
proceeds or value of any such goods or chattels, must give notice of his claim
to the bailiff charged with the execution of the process and must include in his
notice a statement of his address, and that address shall be his address for
service.
(2)
On receipt of a claim made under this rule the bailiff must forthwith give
notice thereof to the execution creditor and the execution creditor must, within
7 days after receiving the notice, give notice to the bailiff informing him
whether he admits or disputes the
claim.
An execution creditor who gives notice in accordance with this paragraph
admitting a claim shall only be liable to the bailiff for any fees and expenses
incurred by the bailiff before receipt of that notice.
(3)
Where—
(a)
the bailiff receives a notice from an execution creditor under
paragraph (2) disputing a claim, or the execution creditor fails, within the
period mentioned in that paragraph, to give the required notice,
and
(b)
the claim made under this rule is not withdrawn,
the bailiff may apply to the Court for relief under this
Order.
(4)
A bailiff who receives a notice from an execution creditor under paragraph
(2) admitting a claim made under this rule shall withdraw from possession of the
money, goods or chattels claimed and may apply to the Court for relief under
this Order of the following kind, that is to say, an order restraining the
bringing of an action against him for or in respect of his having taken
possession of that money or those goods or
chattels.
3.
Mode of application (O. 17, r.
3)
(1)
An application for relief under this Order may be made by originating
summons unless made in a pending action, in which case it must be made by
summons in the action.
(2)
Where the applicant is a bailiff who has withdrawn from possession of
money, goods or chattels taken in execution and who is applying for relief under
rule 2(4), the summons must be served on any person who made a
claim under that rule to or in respect of that money or those goods or chattels,
and that person may attend the hearing of the application.
(3)
An originating summons under this rule shall be in Form No. 10 in Appendix
A.
(4)
Subject to paragraph (5), a summons under this rule must be supported by
evidence that the applicant—
(a)
claims no interest in the subject-matter in dispute other than for
charges or costs,
(b)
does not collude with any of the claimants to that
subject-matter,
and
(c)
is willing to pay or transfer that subject-matter into court or to
dispose of it as the Court may direct.
(5)
Where the applicant is a bailiff, he shall not provide such evidence as is
referred to in paragraph (4) unless directed by the Court to do so.
(6)
Any person who makes a claim under rule 2 and who is served with
a summons under this rule shall within 14 days serve on the execution creditor
and the bailiff an affidavit specifying any money and describing any goods and
chattels claimed and setting out the grounds upon which such claim is
based.
(7)
Where the applicant is a bailiff a summons under this rule must give notice
of the requirement in paragraph
(6).
5.
Powers of Court hearing summons (O. 17, r.
5)
(1)
Where on the hearing of a summons under this Order all the persons by whom
adverse claims to the subject-matter in dispute (hereafter in this Order
referred to as
the
claimants)
appear, the Court may order—
(a)
that any claimant be made a defendant in any action pending with
respect to the subject-matter in dispute in substitution for or in addition
to the applicant for relief under this Order, or
(b)
that an issue between the claimants be stated and tried and may direct
which of the claimants is to be plaintiff and which defendant.
(2)
Where—
(a)
the applicant on a summons under this Order is a bailiff, or
(b)
all the claimants consent or any of them so requests, or
(c)
the question at issue between the claimants is a question of law and
the facts are not in dispute,
the Court may summarily determine the question at issue between the
claimants and make an order accordingly on such terms as may be
just.
(3)
Where a claimant, having been duly served with a summons for relief under
this Order, does not appear on the hearing of the summons or, having appeared,
fails or refuses to comply with an order made in the proceedings, the Court may
make an order declaring the claimant, and all persons claiming under him, for
ever barred from prosecuting his claim against the applicant for such relief and
all persons claiming under him, but such an order shall not affect the rights of
the claimants as between
themselves.
6.
Power to order sale of goods taken
in execution (O. 17, r.
6)
Where an application for relief under this Order is made by a bailiff who has
taken possession of any goods or chattels in execution under any process, and a
claimant alleges that he is entitled, under a bill of sale or otherwise, to the
goods or chattels by way of security for debt, the Court may order those goods or
chattels or any part thereof to be sold and may direct that the proceeds of sale be
applied in such manner and on such terms as may be just and as may be specified in
the
order.
7.
Power to stay proceedings (O. 17, r.
7)
Where a defendant to an action applies for relief under this Order in the
action, the Court may by order stay all further proceedings in the
action.
8.
Other powers (O. 17, r.
8)
Subject to the foregoing rules of this Order, the Court may in or for the
purposes of any interpleader proceedings make such order as to costs or any other
matter as it thinks
just.
9.
One order in several causes or matters (O. 17, r.
9)
Where the Court considers it necessary or expedient to make an order in any
interpleader proceedings in several causes or matters pending before the Court, the
Court may make such an order; and the order shall be entitled in all those causes or
matters and shall be binding on all the parties to
them.
10.
Discovery (O. 17, r.
10)
Orders 24 and 26 shall, with the necessary modifications, apply in relation to
an interpleader issue as they apply in relation to any other cause or
matter.
11.
Trial of interpleader issue (O. 17, r.
11)
(1)
Order 35 shall, with the necessary modifications, apply to the trial of an
interpleader issue as it applies to the trial of an action.
(2)
The Court by whom an interpleader issue is tried may give such judgment or
make such order as finally to dispose of all questions arising in the
interpleader proceedings.
Order
18
Pleadings
1.
Service of statement of claim (O. 18, r.
1)
Unless the Court gives leave to the contrary or a statement of claim is
indorsed on the writ, the plaintiff must serve a statement of claim on the defendant
or, if there are two or more defendants, on each defendant, and must do so either
when the writ is served on that defendant or at any time after service of the writ
but before the expiration of 14 days after that defendant gives notice of intention
to
defend.
2.
Service of defence (O. 18, r.
2)
(1)
Subject to paragraphs (2) and (3), a defendant who gives notice of
intention to defend an action must, unless the Court gives leave to the
contrary, serve a defence on every other party to the action who may be affected
thereby before the expiration of 28 days after the time limited for
acknowledging service of the writ or after the statement of claim is served on
him, whichever is the later.
(2)
If a summons under Order 14, rule 1, or under Order 86,
rule 1, is served on a defendant before he serves his defence,
paragraph (1) shall not have effect in relation to him unless by the order made
on the summons he is given leave to defend the action and, in that case, shall
have effect as if it required him to serve his defence within 28 days after the
making of the order or within such other period as may be specified
therein.
(3)
Where an application is made by a defendant under Order 12, rule
8(1) or (2), paragraph (1) shall not have effect in relation to him
unless the application is dismissed or no order is made on the application and,
in that case, shall have effect as if it required him to serve his defence
within 28 days after the final determination of the application or within such
other period as may be specified by the Court.
3.
Service of reply and defence
to counter
claim (O. 18, r.
3)
(1)
A plaintiff on whom a defendant serves a defence must serve a reply on that
defendant if it is needed for compliance with rule 8; and if no reply
is served, rule 14(1) will apply.
(2)
A plaintiff on whom a defendant serves a counterclaim must, if he intends
to defend it, serve on that defendant a defence to counterclaim.
(3)
Where a plaintiff serves both a reply and a defence to counterclaim on any
defendant, he must include them in the same document.
(4)
A reply to any defence must be served by the plaintiff before the
expiration of 28 days after the service on him of that defence, and a defence to
counterclaim must be served by the plaintiff before the expiration of 28 days
after the service on him of the counterclaim to which it relates.
4.
Pleadings subsequent to reply (O. 18, r.
4)
No pleading subsequent to a reply or a defence to counter-claim shall be served
except with the leave of the
Court.
5.
Service of pleadings in Summer Vacation (O. 18, r.
5)
Pleadings or amended pleadings shall not be served during the Summer Vacation,
except with the leave of the Court or with the consent of all the parties to the
action.
5A.
Filing of pleadings and originating process
(O. 18, r.
5A)
(1)
Subject to Order 3, rule 5(3) and subject to the provisions of
this rule, every pleading and originating process shall be filed in the Registry
within the time during which that pleading or originating process may be served
by him on any other party.
(2)
A party may apply to the court for further time to file a pleading or
originating process on a summons stating the further time required.
(3)
If a party fails to file a pleading or originating process within the time
allowed under paragraph (1) or further time allowed under paragraph (2), he
shall not be at liberty to file that pleading or originating process without the
leave of the
Court.
6.
Pleadings: formal requirements (O. 18, r.
6)
(1)
Every pleading in an action must bear on its face—
(a)
the year in which the writ in the action was issued and the number of
the action,
(b)
the title of the action,
(d)
the description of the pleading, and
(e)
the date on which it was served.
(2)
Every pleading must, if necessary, be divided into paragraphs numbered
consecutively, each allegation being so far as convenient contained in a
separate paragraph.
(3)
Dates, sums and other numbers must be expressed in a pleading in figures
and not in words.
(4)
Every pleading must be indorsed—
(a)
where the party sues or defends in person, with his name and
address;
(b)
in any other case, with the name or firm and business address of the
solicitor by whom it was served, and also (if the solicitor is the agent of
another) the name or firm and business address of his principal.
(5)
Every pleading must be signed by counsel, if settled by him, and, if not,
by the party’s solicitor or by the party, if he sues or defends in
person.
7.
Facts, not evidence, to be pleaded (O. 18, r.
7)
(1)
Subject to the provisions of this rule and rules 7A,
10, 11 and 12, every pleading must contain,
and contain only, a statement in a summary form of the material facts on which
the party pleading relies for his claim or defence, as the case may be, but not
the evidence by which those facts are to be proved, and the statement must be as
brief as the nature of the case admits.
(2)
Without prejudice to paragraph (1), the effect of any document or the
purport of any conversation referred to in the pleading must, if material, be
briefly stated, and the precise words of the document or conversation must not
be stated, except in so far as those words are themselves material.
(3)
A party need not plead any fact if it is presumed by law to be true or the
burden of disproving it lies on the other party, unless the other party has
specifically denied it in his pleading.
(4)
A statement that a thing has been done or that an event has occurred, being
a thing or event the doing or occurrence of which, as the case may be,
constitutes a condition precedent necessary for the case of a party is to be
implied in his
pleading.
7A.
Conviction, etc. to be adduced in evidence:
matter to be pleaded (O. 18, r.
7A)
(1)
If in any action which is to be tried with pleadings any party intends, in
reliance on section 62 of the Evidence Ordinance (Cap. 8) (convictions as evidence in civil proceedings)
to adduce evidence that a person was convicted of an offence by or before a
court in Hong Kong, he must include in his pleading a statement of his intention
with particulars of—
(a)
the conviction and the date thereof,
(b)
the court which made the conviction, and
(c)
the issue in the proceedings to which the conviction is
relevant.
(2)
If in any action which is to be tried with pleadings any party intends, in
reliance on section 63 of the Evidence Ordinance (Cap. 8) (findings of adultery as evidence in civil
proceedings) to adduce evidence that a person was found guilty of adultery in
matrimonial proceedings, he must include in his pleading a statement of his
intention with particulars of—
(a)
the finding and the date thereof,
(b)
the court which made the finding and the proceedings in which it was
made, and
(c)
the issue in the proceedings to which the finding is
relevant.
(3)
Where a party’s pleading includes such a statement as is mentioned in
paragraph (1) or (2), then if the opposite party—
(a)
denies the conviction or finding of adultery to which the statement
relates, or
(b)
alleges that the conviction or finding was erroneous, or
(c)
denies that the conviction or finding is relevant to any issue in the
proceedings,
he must make the denial or allegation in his
pleading.
8.
Matters which must be specifically pleaded (O. 18, r.
8)
(1)
A party must in any pleading subsequent to a statement of claim plead
specifically any matter, for example, performance, release, any relevant statute
of limitation, fraud or any fact showing illegality—
(a)
which he alleges makes any claim or defence of the opposite party not
maintainable; or
(b)
which, if not specifically pleaded, might take the opposite party by
surprise; or
(c)
which raises issues of fact not arising out of the preceding
pleading.
(2)
Without prejudice to paragraph (1), a defendant to an action for recovery
of land must plead specifically every ground of defence on which he relies, and
a plea that he is in possession of the land by himself or his tenant is not
sufficient.
(3)
A claim for exemplary damages or for provisional damages must be
specifically pleaded together with the facts on which the party pleading
relies.
(4)
A party must plead specifically any claim for interest under section
48 of the Ordinance or
otherwise.
9.
Matter may be pleaded whenever arising
(O. 18, r.
9)
Subject to rules 7(1), 10 and 15(2), a party
may in any pleading plead any matter which has arisen at any time, whether before or
since the issue of the
writ.
10.
Departure (O. 18, r.
10)
(1)
A party shall not in any pleading make any allegation of fact, or raise any
new ground of claim, inconsistent with a previous pleading of his.
(2)
Paragraph (1) shall not be taken as prejudicing the right of a party to
amend, or apply for leave to amend, his previous pleading so as to plead the
allegations or claims in the
alternative.
11.
Points of law may be pleaded (O. 18, r.
11)
A party may by his pleading raise any point of
law.
12.
Particulars of pleading (O. 18, r.
12)
(1)
Subject to paragraph (2), every pleading must contain the necessary
particulars of any claim, defence or other matter pleaded including, without
prejudice to the generality of the foregoing—
(a)
particulars of any misrepresentation, fraud, breach of trust, wilful
default or undue influence on which the party pleading relies;
(b)
where a party pleading alleges any condition of the mind of any person,
whether any disorder or disability of mind or any malice, fraudulent
intention or other condition of mind except knowledge, particulars of the
facts on which the party relies; and
(c)
where a claim for damages is made against a party pleading, particulars
of any facts on which the party relies in mitigation of, or otherwise in
relation to, the amount of damages.
(1A)
Subject to paragraph (1B), a plaintiff in an action for personal injuries
shall serve with his statement of claim—
(a)
a medical report; and
(b)
a statement of the special damages claimed.
(1B)
Where the documents to which paragraph (1A) applies are not served with the
statement of claim, the Court may—
(a)
specify the period of time within which they are to be provided;
or
(b)
make such other order as it thinks fit (including an order dispensing
with the requirement of paragraph (1A) or staying the proceedings.)
(1C)
For the purposes of this rule—
a statement of the special
damages claimed
(關於所申索的專項損害賠償的陳述書
)
means a statement giving full particulars of the special damages claimed for
expenses and losses already incurred and an estimate of any future expenses and
losses (including loss of earnings and of pension rights); medical
report
(醫學報告
) means a report substantiating all
the personal injuries alleged in the statement of claim which the plaintiff
proposes to adduce in evidence as part of his case at the
trial.(2)
Where it is necessary to give particulars of debt, expenses or damages and
those particulars exceed 3 folios, they must be set out in a separate document
referred to in the pleading and the pleading must state whether the document has
already been served, and, if so, when, or is to be served with the
pleading.
(3)
The Court may order a party to serve on any other party particulars of any
claim, defence or other matter stated in his pleading, or in any affidavit of
his ordered to stand as a pleading, or a statement of the nature of the case on
which he relies, and the order may be made on such terms as the Court thinks
just.
(3A)
The Court may make an order under paragraph (3) upon the application of a
party or of its own motion.
(3B)
No order shall be made under paragraph (3) unless the Court is of the
opinion that the order is necessary either for disposing fairly of the cause or
matter or for saving costs.
(4)
Where a party alleges as a fact that a person had knowledge or notice of
some fact, matter or thing, then, without prejudice to the generality of
paragraph (3), the Court may, on such terms as it thinks just, order that party
to serve on any other party—
(a)
where he alleges knowledge, particulars of the facts on which he
relies, and
(b)
where he alleges notice, particulars of the notice.
(5)
An order under this rule shall not be made before service of the defence
unless, in the opinion of the Court, the order is necessary or desirable to
enable the defendant to plead or for some other special reason.
(6)
Where the applicant for an order under this rule did not apply by letter
for the particulars he requires, the Court may refuse to make the order unless
of opinion that there were sufficient reasons for an application by letter not
having been made.
(7)
Where particulars are given pursuant to a request, or order of the Court,
the request or order shall be incorporated with the particulars, each item of
the particulars following immediately after the corresponding item of the
request or
order.
12A.
Pleading with
inconsistent
alternatives (O. 18, r.
12A)
A party may in any pleading make an allegation of fact which is inconsistent
with another allegation of fact in the same pleading if—
(a)
the party has reasonable grounds for so doing; and
(b)
the allegations are made in the alternative.
13.
Admissions and denials (O. 18, r.
13)
(1)
Subject to paragraph (6), an allegation of fact made by a party in his
pleading is deemed to be admitted by the opposite party unless it is traversed
by that party in his pleading or a joinder of issue under rule 14
operates as a non-admission of it.
(2)
Subject to paragraph (5), a traverse may be made either by a denial or by a
statement of non-admission and either expressly or by necessary implication.
(3)
Every allegation of fact made in a statement of claim or counterclaim which
the party on whom it is served does not intend to admit must be specifically
traversed by him in his defence or defence to counterclaim, as the case may be;
and a general denial of such allegations, or a general statement of
non-admission of them, is not a sufficient traverse of them.
(4)
(Repealed L.N. 403 of
1992)
(5)
Where an allegation made in a statement of claim or counterclaim is
traversed by a denial, the party who denies the allegation shall in his defence
or defence to counterclaim—
(a)
state his reasons for doing so; and
(b)
if he intends to put forward a different version of events from that
given by the claimant, state his own version.
(6)
A party who—
(a)
fails to deal with an allegation; but
(b)
has set out in his defence or defence to counterclaim the nature of his
case in relation to the issue to which that allegation is
relevant,
is to be taken to require that allegation to be proved.
14.
Non-admission by joinder of issue (O. 18, r. 14)
(1)
If there is no reply to a defence, there is an implied joinder of issue on
that defence.
(2)
Subject to paragraph (3)—
(a)
there is at the close of pleadings an implied joinder of issue on the
pleading last served, and
(b)
a party may in his pleading expressly join issue on the next preceding
pleading.
(3)
There can be no joinder of issue, implied or expressed, on a statement of
claim or counterclaim.
(4)
A joinder of issue operates as a non-admission of every material allegation
of fact made in the pleading on which there is an implied or expressed joinder
of issue unless, in the case of an expressed joinder of issue, any such
allegation is excepted from the joinder and is stated to be admitted, in which
case the expressed joinder of issue operates as a non-admission of every other
such allegation.
15.
Statement of claim (O. 18, r.
15)
(1)
A statement of claim must state specifically the relief or remedy which the
plaintiff claims; but costs need not be specifically claimed.
(2)
A statement of claim must not contain any allegation or claim in respect of
a cause of action unless that cause of action is mentioned in the writ or arises
from facts which are the same as, or include or form part of, facts giving rise
to a cause of action so mentioned; but subject to that, a plaintiff may in his
statement of claim alter, modify or extend any claim made by him in the
endorsement of the writ without amending the endorsement.
(3)
Every statement of claim must bear on its face a statement of the date on
which the writ in the action was
issued.
16.
Defence of tender (O. 18, r.
16)
Where in any action a defence of tender before action is pleaded, the defendant
must pay into court in accordance with Order 22 the amount alleged to have been
tendered, and the tender shall not be available as a defence unless and until
payment into court has been
made.
17.
Defence of set-off (O. 18, r.
17)
Where a claim by a defendant to a sum of money (whether of an ascertained
amount or not) is relied on as a defence to the whole or part of a claim made by the
plaintiff, it may be included in the defence and set-off against the plaintiff’s
claim, whether or not it is also added as a
counterclaim.
18.
Counterclaim and defence to
counterclaim (O. 18, r.
18)
Without prejudice to the general application of this Order to a counterclaim and
a defence to counterclaim, or to any provision thereof which applies to either of
those pleadings specifically—
(a)
rules 12(1A), (1B) and (1C) and 15(1) shall apply to a
counterclaim as if the counterclaim were a statement of claim and the defendant
making it a plaintiff;
(b)
rules 8(2), 16 and 17 shall, with the
necessary modifications, apply to a defence to counterclaim as they apply to a
defence.
19.
Striking out pleadings and indorsements (O. 18, r.
19)
(1)
The Court may, either of its own motion or on application, at any stage of
the proceedings order to be struck out or amended any pleading or the
indorsement of any writ in the action, or anything in any pleading or in the
indorsement, on the ground that—
(a)
it discloses no reasonable cause of action or defence, as the case may
be; or
(b)
it is scandalous, frivolous or vexatious; or
(c)
it may prejudice, embarrass or delay the fair trial of the action;
or
(d)
it is otherwise an abuse of the process of the court;
and may order the action to be stayed or dismissed or judgment to be
entered accordingly, as the case may be.
(2)
No evidence shall be admissible on an application under paragraph
(1)(a).
(3)
This rule shall, so far as applicable, apply to an originating summons and
a petition as if the summons or petition, as the case may be, were a
pleading.
20.
Close of pleadings (O. 18, r.
20)
(1)
The pleadings in an action are deemed to be closed—
(a)
at the expiration of 14 days after service of the reply or, if there is
no reply but only a defence to counterclaim, after service of the defence to
counterclaim, or
(b)
if neither a reply nor a defence to counterclaim is served, at the
expiration of 28 days after service of the defence.
(2)
The pleadings in an action are deemed to be closed at the time provided by
paragraph (1) notwithstanding that any request or order for particulars has been
made but has not been complied with at that
time.
20A.
Pleading, etc. to be verified
by
statement of truth (O. 18, r.
20A)
(1)
A pleading and the particulars of a pleading specified in paragraph (2)
must be verified by a statement of truth in accordance with Order 41A.
(2)
The particulars of a pleading referred to in paragraph (1) are particulars
given by a party to any other party, whether voluntarily or pursuant
to—
(a)
a request made by that other party; or
(b)
an order of the Court made under rule 12(3) or
(4).
21.
Trial without pleadings (O. 18, r.
21)
(1)
Where in an action to which this rule applies any defendant has given
notice of intention to defend in the action, the plaintiff or that defendant may
apply to the Court by summons for an order that the action shall be tried
without pleadings or further pleadings, as the case may be.
(2)
If, on the hearing of an application under this rule, the Court is
satisfied that the issues in dispute between the parties can be defined without
pleadings or further pleadings, or that for any other reason the action can
properly be tried without pleadings or further pleadings, as the case may be,
the Court shall order the action to be so tried, and may direct the parties to
prepare a statement of the issues in dispute or, if the parties are unable to
agree such a statement, may settle the statement itself.
(3)
Where the Court makes an order under paragraph (2), it shall, and where it
dismisses an application for such an order, it may, give such directions as to
the further conduct of the action as may be appropriate, and Order 25,
rules 2 to 7 shall, with the omission of so much of rule
7(1) as requires parties to serve a notice specifying the orders and
directions which they desire and with any other necessary modifications, apply
as if the application under this rule were a case management summons.
(4)
This rule applies to every action begun by writ other than one which
includes—
(a)
a claim by the plaintiff for libel, slander, malicious prosecution or
false imprisonment; or
(b)
a claim by the plaintiff based on an allegation of
fraud.
22.
Saving for defence under Merchant
Shipping Acts etc. (O. 18, r.
22)
Nothing in Order 75, rules 37 to 40, shall be taken as limiting the
right of any shipowner or other person to rely by way of defence on any provision of
the Merchant Shipping Acts 1894 to
1979*
in their application to Hong Kong or the Merchant Shipping (Local Vessels) Ordinance
(Cap. 548), the Merchant Shipping (Seafarers)
Ordinance (Cap. 478) or the Merchant Shipping (Safety)
Ordinance (Cap. 369), which limits the amount of his
liability in connection with a ship or other property.
Editorial Note:
| * Please also see following— | |
| (a) | in relation to the Merchant Shipping Act 1894, Part 3 of Schedule 5 to Cap. 415 and s. 1 of Schedule 2 to Cap. 508; |
| (b) | in relation to the Merchant Shipping Acts 1894 to 1979, s. 117 of Cap. 281, s. 103 of Cap. 415 and s. 142 of Cap. 478. |
23.
Transitional provision relating to rule
93
of Amendment Rules
2008
(O. 18, r.
23)
Where a statement of claim has been served on a defendant before the
commencement*
of the Amendment Rules 2008, then rule 93 of the Amendment
Rules 2008 does not apply to the defence to the claim and if a
counterclaim has been served on the plaintiff, to the defence to the counterclaim,
and rule 13 as in force immediately before the commencement continues to
apply as if rule 93 of the Amendment Rules 2008 had not been
made.
Editorial Note:
* Commencement day: 2 April
2009.
24.
Where a statement of claim has been served on a defendant before the
commencement*
of the Amendment Rules 2008, then rules 96 and 97
of the Amendment Rules 2008 do not apply—
(a)
in relation to the service of the defence and the reply to that defence;
and
(b)
if a counterclaim has been served on the plaintiff, in relation to the
service of the defence to the counterclaim,
and rules 2 and 3 as in force immediately before the
commencement continue to apply as if rules 96 and 97 of the
Amendment Rules 2008 had not been made.
Editorial Note:
* Commencement day: 2 April
2009.
Order
19
Default
of
Pleadings
1.
Default in service of statement of claim (O. 19, r.
1)
Where the plaintiff is required by these rules to serve a statement of claim on
a defendant and he fails to serve it on him, the defendant may, after the expiration
of the period fixed by or under these rules for service of the statement of claim,
apply to the Court for an order to dismiss the action, and the Court may by order
dismiss the action or make such other order on such terms as it thinks
just.
2.
Default of defence: claim for liquidated
demand (O. 19, r.
2)
(1)
Where the plaintiff’s claim against a defendant is for a liquidated demand
only, then, if that defendant fails to serve a defence on the plaintiff, the
plaintiff may, after the expiration of the period fixed by or under these rules
for service of the defence, enter final judgment against that defendant for a
sum not exceeding that claimed by the writ in respect of the demand and for
costs, and proceed with the action against the other defendants, if any. (See
App. A, Form 39)
(2)
Order 13, rule 1(2) shall apply for the purpose of this rule as
it applies for the purposes of that
rule.
3.
Default of defence: claim for unliquidated
damages (O. 19, r.
3)
Where the plaintiff’s claim against a defendant is for unliquidated damages
only, then, if that defendant fails to serve a defence on the plaintiff, the
plaintiff may, after the expiration of the period fixed by or under these rules for
service of the defence, enter interlocutory judgment against that defendant for
damages to be assessed and costs, and proceed with the action against the other
defendants, if any. (See
App. A, Form
40)
4.
Default of defence: claim in detinue (O. 19, r.
4)
(1)
Where the plaintiff’s claim against a defendant relates to the detention of goods only, then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these rules for the service of the defence and subject to Order 42, rule 1A,—
(a)
at his option enter either—
(i)
interlocutory judgment against that defendant for delivery of the goods or their value to be assessed and costs, or
(ii)
interlocutory judgment for the value of the goods to be assessed and costs, or
(b)
apply by summons for judgment against that defendant for delivery of the goods without giving him the alternative of paying their assessed value,
and in any case proceed with the action against the other defendants, if
any. (See
App. A, Form 41)
5.
Default of defence: claim for possession of land
(O. 19, r.
5)
(1)
Where the plaintiff’s claim against a defendant is for possession of land
only, then, if that defendant fails to serve a defence on the plaintiff, the
plaintiff may, after the expiration of the period fixed by or under these rules
for service of the defence, and on producing a certificate by his solicitor, or
(if he sues in person) an affidavit, stating that he is not claiming any relief
in the action of the nature specified in Order 88, rule 1, enter
judgment for possession of the land as against that defendant and for costs, and
proceed with the action against the other defendants, if any. (See
App. A, Form 42)
(5)
Where there is more than one defendant, judgment entered under this rule
shall not be enforced against any defendant unless and until judgment for
possession of the land has been entered against all the
defendants.
6.
Default of defence: mixed claims (O. 19, r.
6)
Where the plaintiff makes against a defendant two or more of the claims
mentioned in rules 2 to 5, and no other claim, then, if that defendant
fails to serve a defence on the plaintiff, the plaintiff may, after the expiration
of the period fixed by or under these rules for service of the defence, enter
against that defendant such judgment in respect of any such claim as he would be
entitled to enter under those rules if that were the only claim made, and proceed
with the action against the other defendants, if
any.
7.
Default of defence: other claims (O. 19, r.
7)
(1)
Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in rules 2 to 5, then, if the defendant or all the defendants (where there is more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim.
(2)
Where the plaintiff makes such a claim as is mentioned in paragraph (1) against more than one defendant, then, if one of the defendants makes default as mentioned in that paragraph, the plaintiff may—
(a)
if his claim against the defendant in default is severable from his claim against the other defendants, apply under that paragraph for judgment against that defendant, and proceed with the action against the other defendants; or
(b)
set down the action for judgment against the defendant at the time when the action is set down for trial, or is set down for judgment, against the other defendants.
(3)
An application under paragraph (1) must be by summons.
8.
Default of defence to counterclaim (O. 19, r.
8)
A defendant who counterclaims against a plaintiff shall be treated for the
purposes of rules 2 to 7 as if he were a plaintiff who had made against a
defendant the claim made in the counterclaim and, accordingly, where the plaintiff
or any other party against whom the counterclaim is made fails to serve a defence to
counterclaim,
those rules shall apply as if the counterclaim were a statement of claim, the
defence to counterclaim a defence and the parties making the counterclaim and
against whom it is made were plaintiffs and defendants respectively, and as if
references to the period fixed by or under these rules for service of the defence
were references to the period so fixed for service of the defence to
counterclaim.
8A.
Notice of intention to enter
judgment
(O. 19, r.
8A)
(1)
No party shall enter judgment under the provisions of this Order against a
party who has filed an acknowledgment of service giving notice of intention to
defend, or on a counterclaim, unless—
(a)
after such acknowledgment of service or counterclaim has been filed,
and not less than 2 clear days before entering judgment, the party intending
to enter judgment has served notice in writing of his intention to do so on
the party against whom judgment is sought or, if that party is legally
represented, on his solicitor;
(b)
evidence of such service by way of affidavit has been filed in the
Court.
(2)
This rule shall not apply where—
(a)
the Court has made an order prescribing or extending the time for
service of defence or defence to counterclaim; or
(b)
the party against whom it is sought to enter judgment does not have a
solicitor of record in the proceedings and has failed to state an address
within the jurisdiction in the proceedings at which he can be
served.
9.
Setting aside judgment (O. 19, r.
9)
The Court may, on such terms as it thinks just, set a side or vary any judgment entered in pursuance of this Order.
Order
20
Amendment
1.
Amendment of writ without leave (O. 20, r.
1)
(1)
Subject to paragraph (3), the plaintiff may, without the leave of the
Court, amend the writ once at any time before the pleadings in the action begun
by the writ are deemed to be closed.
(2)
Where a writ is amended under this rule after service thereof, then, unless
the Court otherwise directs on an application made ex parte, the amended writ
must be served on each defendant to the action.
(3)
This rule shall not apply in relation to an amendment which consists
of—
(a)
the addition, omission or substitution of a party to the action or an
alteration of the capacity in which a party to the action sues or is sued,
or
(b)
the addition or substitution of a new cause of action, or
(c)
(without prejudice to rule 3(1)) an amendment of the
statement of claim (if any) indorsed on the writ,
unless the amendment is made before service of the writ on any party to
the
action.
2.
Amendment of acknowledgment of service (O. 20, r.
2)
(1)
Subject to paragraph (2), a party may not amend his acknowledgment of
service without leave of the Court.
(2)
A party whose acknowledgment of service contains a statement to the effect
that—
(a)
he does, or
(b)
he does not
intend to contest the proceedings to which the acknowledgement relates
may, without the leave of the Court, amend the acknowledgment by substituting
for that statement a statement to the opposite effect, provided that in a case
falling under sub-paragraph (b) the amendment is made before judgment has been
obtained in the proceedings.
(3)
Where an acknowledgment of service is authorized to be amended under this
rule, a fresh acknowledgment, amended as so authorized, must be handed in at or
sent by post to the Registry, and Order 12, rule 4, shall
apply.
3.
Amendment of pleadings without leave (O. 20, r.
3)
(1)
A party may, without the leave of the Court, amend any pleading of his once
at any time before the pleadings are deemed to be closed and, where he does so,
he must serve the amended pleading on the opposite party.
(2)
Where an amended statement of claim is served on a defendant—
(a)
the defendant, if he has already served a defence on the plaintiff, may
amend his defence, and
(b)
the period for service of his defence or amended defence, as the case
may be, shall be either the period fixed by or under these rules for service
of his defence or a period of 14 days after the amended statement of claim
is served on him, whichever expires later.
(3)
Where an amended defence is served on the plaintiff by a defendant—
(a)
the plaintiff, if he has already served a reply on that defendant, may
amend his reply, and
(b)
the period for service of his reply or amended reply, as the case may
be, shall be 14 days after the amended defence is served on him.
(4)
In paragraphs (2) and (3) references to a defence and a reply include
references to a counterclaim and a defence to counter-claim
respectively.
(5)
Where an amended counterclaim is served by a defendant on a party (other
than the plaintiff) against whom the counterclaim is made, paragraph (2) shall
apply as if the counterclaim were a statement of claim and as if the party by
whom the counterclaim is made were the plaintiff and the party against whom it
is made a defendant.
(6)
Where a party has pleaded to a pleading which is subsequently amended and
served on him under paragraph (1), then, if that party does not amend his
pleading under the foregoing provisions of this rule, he shall be taken to reply
on it in answer to the amended pleading, and Order 18, rule 14(2),
shall have effect in such a case as if the amended pleading had been served at
the time when that pleading, before its amendment under paragraph (1), was
served.
4.
Application for disallowance of amendment
made without leave (O. 20, r.
4)
(1)
(2)
Where the Court hearing an application under this rule is satisfied that if
an application for leave to make the amendment in question had been made under
rule 5 at the date when the amendment was made under rule
1(1) or rule 3(1) leave to make the amendment or part of
the amendment would have been refused, it shall order the amendment or that part
to be struck out.
(3)
Any order made on an application under this rule may be made on such terms
as to costs or otherwise as the Court thinks
just.
5.
Amendment of writ or pleading with leave (O. 20, r.
5)
(1)
Subject to Order 15, rules 6, 7 and 8 and
the following provisions of this rule, the Court may at any stage of the
proceedings allow the plaintiff to amend his writ, or any party to amend his
pleadings, on such terms as to costs or otherwise as may be just and in such
manner (if any) as it may direct.
(2)
Where an application to the Court for leave to make the amendment mentioned
in paragraph (3), (4) or (5) is made after any relevant period of limitation
current at the date of issue of the writ has expired, the Court may nevertheless
grant such leave in the circumstances mentioned in that paragraph if it thinks
it just to do so.
(3)
An amendment to correct the name of a party may be allowed under paragraph
(2) notwithstanding that it is alleged that the effect of the amendment will be
to substitute a new party if the Court is satisfied that the mistake sought to
be corrected was a genuine mistake and was not misleading or such as to cause
any reasonable doubt as to the identity of the person intending to sue or, as
the case may be, intended to be sued.
(4)
An amendment to alter the capacity in which a party sues may be allowed
under paragraph (2) if the new capacity is one which that party had at the date
of the commencement of the proceedings or has since acquired.
(5)
An amendment may be allowed under paragraph (2) notwithstanding that the
effect of the amendment will be to add or substitute a new cause of action if
the new cause of action arises out of the same facts or substantially the same
facts as a cause of action in respect of which relief has already been claimed
in the action by the party applying for leave to make the
amendment.
7.
Amendment of other originating process (O. 20, r.
7)
Rule 5 shall have effect in relation to an originating summons, a
petition and an originating notice or motion as it has effect in relation to a
writ.
8.
Amendment of pleading and certain other documents (O. 20, r. 8)
(1)
For the purpose of determining the real question in controversy between the
parties to any proceedings, or of correcting any defect or error in any
proceedings, the Court may at any stage of the proceedings and either of its own
motion or on the application of any party to the proceedings order a pleading or
any other document in the proceedings to be amended on such terms as to costs or
otherwise as may be just and in such manner (if any) as it may direct.
(1A)
The Court shall not under paragraph (1) order a pleading to be amended
unless it is of the opinion that the order is necessary either for disposing
fairly of the cause or matter or for saving costs.
(2)
This rule shall not have effect in relation to a judgment or
order.
9.
Failure to amend after order (O. 20, r.
9)
(1)
Where the Court makes an order under this Order giving any party leave to
amend a writ, pleading or other document, then, if that party does not amend the
document in accordance with the order before the expiration of the period
specified for that purpose in the order or, if no period is so specified, of a
period of 14 days after the order was made, the order shall cease to have
effect, without prejudice, however, to the power of the Court to extend the
period.
(2)
Paragraph (1) is subject to any directions given by the Court.
10.
Mode of amendment of writ, etc. (O. 20, r.
10)
(1)
Where the amendments authorized under any rule of this Order to be made in
a writ, pleading or other document are so numerous or of such nature or length
that to make written alterations of the document so as to give effect to them
would make it difficult or inconvenient to read, a fresh document, amended as so
authorized, must be prepared and, in the case of a writ or originating summons,
re-issued, but, except as aforesaid and subject to any direction given under
rule 5, or 8, the amendments so authorized may be effected by
making in writing the necessary alterations of the document and in the case of a
writ or originating summons, causing it to be resealed and filing a
copy.
(2)
A writ, pleading or other document which has been amended under this Order
must be indorsed with a statement that it has been amended, specifying the date
on which it was amended, the name of the Judge, master or Registrar by whom the
order (if any) authorizing the amendment was made and the date thereof, or, if
no such order was made, the number of the rule of this Order in pursuance of
which the amendment was
made.
11.
Amendment of judgment and orders (O. 20, r.
11)
Clerical mistakes in judgments or orders, or errors arising therein from any
accidental slip or omission, may at any time be corrected by the Court on summons
without an appeal.
12.
Amendment of pleadings by agreement (O. 20, r.
12)
(1)
Notwithstanding the foregoing provisions of this Order any pleading in any
cause or matter may, by written agreement between the parties, be amended at any
stage of the proceedings.
(2)
This rule shall not have effect in relation to an amendment which consists
of the addition, omission or substitution of a
party.
13.
Amendment of pleadings or
particulars
of pleadings to be verified
by
statement of truth (O. 20, r.
13)
(1)
An amendment to a pleading or to the particulars of a pleading specified in
paragraph (2) must be verified by a statement of truth in accordance with Order
41A.
(2)
The particulars of a pleading referred to in paragraph (1) are the
particulars given by a party to any other party, whether voluntarily or pursuant
to—
(a)
a request made by that other party; or
(b)
an order of the Court made under Order 18, rule 12(3) or
(4).
Order
21
Withdrawal
and
Discontinuance
1.
Withdrawal of acknowledgment of service (O. 21, r.
1)
A party who has acknowledged service in an action may withdraw the
acknowledgment at any time with the leave of the
Court.
2.
Discontinuance of action, etc.,
without leave (O. 21, r.
2)
(1)
Subject to paragraph (2A) the plaintiff in an action begun by writ may,
without the leave of the Court, discontinue the action, or withdraw any
particular claim made by him therein, as against any or all of the defendants at
any time not later than 14 days after service of the defence on him or, if there
are two or more defendants, of the defence last served, by serving a notice to
that effect on the defendant concerned.
(2)
Subject to paragraph (2A) a defendant to an action begun by writ may,
without the leave of the Court—
(a)
withdraw his defence or any part of it at any time,
(b)
discontinue a counterclaim, or withdraw any particular claim made by
him therein, as against any or all of the parties against whom it is made,
at any time not later than 14 days after service on him of a defence to
counterclaim or, if the counterclaim is made against two or more parties, of
the defence to counterclaim last served,
by serving a notice to that effect on the plaintiff or other party
concerned.
(2A)
A party in whose favour an interim payment has been ordered, in accordance
with Order 29, may not discontinue any action or counterclaim, or withdraw any
particular claim therein, except with the leave of the Court or the consent of
all the other parties.
(3)
Where there are two or more defendants to an action begun by writ not all of
whom serve a defence on the plaintiff, and the period fixed by or under these
rules for service by any of those defendants of his defence expires after the
latest date on which any other defendant serves his defence, paragraph (1) shall
have effect as if the reference therein to the service of the defence last
served were a reference to the expiration of that
period.
This paragraph shall apply in relation to a counterclaim as it applies in
relation to an action begun by writ with the substitution for references to a
defence, to the plaintiff and to paragraph (1), of references to a defence to
counterclaim, to the defendant and to paragraph (2) respectively.
(3A)
The plaintiff in an action begun by originating summons may, without the
leave of the Court, discontinue the action or withdraw any particular question
or claim in the originating summons, as against any or all of the defendants at
any time not later than 14 days after service on him of the defendant’s
affidavit evidence filed pursuant to Order 28, rule 1A(2) or, if
there are two or more defendants, of such evidence last served, by serving a
notice to that effect on the defendant concerned.
(3B)
When there are two or more defendants to an action begun by originating
summons not all of whom serve affidavit evidence on the plaintiff, and the
period fixed by or under these rules for service by any of those defendants of
his affidavit evidence expires after the latest date on which any other
defendant serves his affidavit evidence, paragraph (3A) shall have effect as if
the reference therein to the service of the affidavit evidence last served were
a reference to the expiration of that period.
(4)
If all the parties to an action consent, the action may be withdrawn
without the leave of the Court at any time before trial by producing to the
Registrar a written consent to the action being withdrawn signed by all the
parties.
3.
Discontinuance of action, etc., with leave (O. 21, r.
3)
(1)
Except as provided by rule 2, a party may not discontinue an
action (whether begun by writ or otherwise) or counter-claim, or withdraw any
particular claim made by him therein, without the leave of the Court, and the
Court hearing an application for the grant of such leave may order the action or
counterclaim to be discontinued, or any particular claim made therein to be
struck out, as against any or all of the parties against whom it is brought or
made on such terms as to costs, the bringing of a subsequent action or otherwise
as it thinks just.
(2)
An application for the grant of leave under this rule may be made by
summons or by notice under Order 25, rule 7.
4.
Effect of discontinuance (O. 21, r.
4)
Subject to any terms imposed by the Court in granting leave under rule
3, the fact that a party has discontinued an action or counterclaim or
withdrawn a particular claim made by him therein shall not be a defence to a
subsequent action for the same, or substantially the same, cause of
action.
5.
Stay of subsequent action until costs paid (O. 21, r.
5)
(1)
Where a party has discontinued an action or counterclaim or withdrawn any
particular claim made by him therein and he is liable to pay any other party’s
costs of the action or counterclaim or the costs occasioned to any other party
by the claim withdrawn, then, if, before payment of those costs, he subsequently
brings an action for the same, or substantially the same, cause of action, the
Court may order the proceedings in that action to be stayed until those costs
are paid.
(2)
An application for an order under this rule may be made by summons or by
notice under Order 25, rule 7.
6.
Withdrawal of summons (O. 21, r.
6)
A party who has taken out a summons in a cause or matter may not withdraw it
without the leave of the Court.
Order
22
Offers
to Settle
and Payments
into
Court
I. Preliminary
1.
Interpretation (O. 22, r.
1)
(1)
In this Order—
claim
(申索
) includes, where the context so
permits or requires, a counterclaim;counterclaim
(反申索
) includes, where the context so
permits or requires, a claim;defendant
(被告人
) includes, where the context so
permits or requires, a defendant to a counterclaim;offeree
(受提議者
) means the party to whom an offer
is made;offeror
(提議者
) means the party who makes an
offer;plaintiff
(原告人
) includes, where the context so
permits or requires, a counterclaiming defendant;sanctioned
offer
(附帶條款和解提議
) means an offer made (otherwise
than by way of a payment into court) in accordance with this Order;sanctioned
payment
(附帶條款付款
) means an offer made by way of a
payment into court in accordance with this Order;sanctioned
payment
notice
(附帶條款付款通知書
) means the notice relating to
a sanctioned payment required to be filed under rule 8(2).(2)
Where in an action the plaintiff makes more than one claim, a reference in
this Order to—
(a)
the whole claim is to be construed as a reference to all the claims in
their entirety;
(b)
a part of a claim is to be construed as a reference to any one or more
of the claims or a part of any one or more of the claims; and
(c)
an issue arising from a claim is to be construed as a reference to an
issue arising from one or more of the
claims.
2.
Offer to settle with
specified
consequences (O. 22, r.
2)
(1)
A party to an action containing a money claim or a non-money claim or both
arising from any cause or causes of action may make an offer to settle the whole
claim, a part of it or any issue arising from it in accordance with this
Order.
(2)
An offer made under paragraph (1) may take into account any counterclaim or
set-off in the action.
(3)
(4)
Nothing in this Order prevents a party from making an offer to settle in
whatever way he chooses, but if that offer is not made in accordance with this
Order, it does not have the consequences specified in this Order, unless the
Court so orders.
II. Manner
of
Making
Sanctioned Offer
or
Sanctioned
Payment
3.
Defendant’s offer to
settle
(O. 22, r.
3)
(1)
An offer by a defendant to settle the whole or part of a claim or an issue
arising from the claim does not have the consequences specified in this Order
unless it is made by way of a sanctioned offer or a sanctioned payment or
both.
(2)
Where an offer by a defendant involves a payment of money to the plaintiff,
the offer must be made by way of a sanctioned payment.
(3)
A sanctioned payment may only be made after the proceedings have
commenced.
4.
Plaintiff’s offer to
settle
(O. 22, r.
4)
An offer by a plaintiff to settle the whole or part of a claim or an issue
arising from the claim does not have the consequences specified in this Order unless
it is made by way of a sanctioned
offer.
5.
Form and content of
sanctioned
offer (O. 22, r.
5)
(1)
A sanctioned offer must be in writing.
(2)
A sanctioned offer may relate to the whole claim or to part of it or to any
issue arising from it.
(3)
A sanctioned offer must—
(a)
state whether it relates to the whole claim or to part of it or to an
issue arising from it and if so to which part or issue;
(b)
state whether it takes into account any counterclaim or set-off;
and
(c)
if it is expressed not to be inclusive of interest, give the details
relating to interest set out in rule 26(2).
(4)
A defendant may make a sanctioned offer limited to accepting liability up
to a specified proportion.
(5)
A sanctioned offer may be made by reference to an interim
payment.
(6)
A sanctioned offer may be made at any time after the commencement of the
proceedings but may not be made before such commencement.
(7)
A sanctioned offer made not less than 28 days before the commencement of the
trial must provide that after the expiry of 28 days from the date the sanctioned
offer is made, the offeree may only accept it if—
(a)
the parties agree on the liability for costs; or
(b)
the Court grants leave to accept it.
(8)
A sanctioned offer made less than 28 days before the commencement of the
trial must provide that the offeree may only accept it if—
(a)
the parties agree on the liability for costs; or
(b)
the Court grants leave to accept
it.
6.
Service of sanctioned
offer
(O. 22, r.
6)
An offeror shall serve the sanctioned offer—
(a)
on the offeree; and
(b)
where the offeree is an aided person, on the Director of Legal
Aid.
7.
Withdrawal or diminution
of
sanctioned offer (O. 22, r.
7)
(1)
A sanctioned offer made not less than 28 days before the commencement of
the trial may not be withdrawn or diminished before the expiry of 28 days from
the date the sanctioned offer is made unless the Court grants leave to withdraw
or diminish it.
(2)
A sanctioned offer made less than 28 days before the commencement of the
trial may be withdrawn or diminished if the Court grants leave to withdraw or
diminish it.
(3)
If there is subsisting an application to withdraw or diminish a sanctioned
offer, the sanctioned offer may not be accepted unless the Court grants leave to
accept it.
(4)
If the Court dismisses an application to withdraw or diminish a sanctioned
offer or grants leave to diminish the sanctioned offer, it may by order specify
the period within which the sanctioned offer or diminished sanctioned offer may
be accepted.
(5)
If a sanctioned offer is withdrawn, it does not have the consequences
specified in this
Order.
8.
Notice of sanctioned
payment
(O. 22, r.
8)
(1)
A sanctioned payment may relate to the whole claim or to part of it or to
an issue arising from it.
(2)
A defendant who makes a sanctioned payment shall file with the Court a
notice in Form No. 23 in Appendix A, that—
(a)
states the amount of the payment;
(b)
states whether the payment relates to the whole claim or to part of it
or to an issue arising from it and if so to which part or issue it
relates;
(c)
states whether it takes into account any counterclaim or
set-off;
(d)
if an interim payment has been made, states that the interim payment
has been taken into account;
(e)
if it is expressed not to be inclusive of interest, gives the details
relating to interest set out in rule 26(2); and
(f)
if a sum of money has been paid into court (other than as security for
costs), states whether the sanctioned payment has taken into account that
sum of
money.
9.
Service of sanctioned
payment
(O. 22, r.
9)
A defendant who makes a sanctioned payment shall—
(a)
serve the sanctioned payment notice—
(i)
on the plaintiff; and
(ii)
where the plaintiff is an aided person, on the Director of Legal Aid;
and
(b)
file with the Court a certificate of service of the
notice.
10.
Withdrawal or diminution
of
sanctioned
payment
(O. 22, r.
10)
(1)
A sanctioned payment may not be withdrawn or diminished before the expiry
of 28 days from the date the sanctioned payment is made unless the Court grants
leave to withdraw or diminish it.
(2)
If there is subsisting an application to withdraw or diminish a sanctioned
payment, the sanctioned payment may not be accepted unless the Court grants
leave to accept it.
(3)
If the Court dismisses an application to withdraw or diminish a sanctioned
payment or grants leave to diminish the sanctioned payment, it may by order
specify the period within which the sanctioned payment or diminished sanctioned
payment may be accepted.
(4)
If a sanctioned payment is withdrawn, it does not have the consequences
specified in this
Order.
11.
Offer to settle claim for
provisional
damages (O. 22, r.
11)
(1)
A defendant may make a sanctioned payment in respect of a claim that
includes a claim for provisional damages.
(2)
Where the defendant makes a sanctioned payment under paragraph (1), the
sanctioned payment notice must specify whether or not the defendant is offering
to agree to the making of an award of provisional damages.
(3)
Where the defendant is offering to agree to the making of an award of
provisional damages, the sanctioned payment notice must also state—
(a)
that the sum paid into court is in satisfaction of the claim for
damages on the assumption that the injured person will not develop the
disease or suffer the type of deterioration specified in the
notice;
(b)
that the offer is subject to the condition that the plaintiff shall
make any claim for further damages within a limited period; and
(c)
what that period is.
(4)
Where a sanctioned payment is—
(a)
made in accordance with paragraph (3); and
(b)
accepted within the relevant period specified in rule
15,
the sanctioned payment has the consequences specified in rule
20, unless the Court orders otherwise.
(5)
If the plaintiff accepts the sanctioned payment he must, within 7 days of
doing so, apply to the Court for an order for an award of provisional damages
under Order 37, rule 8.
(6)
The money in court may not be paid out unless the Court has disposed of the
application made under paragraph (5).
(7)
In this rule,
provisional
damages
(暫定損害賠償
) means damages for personal
injuries that are to be assessed on the assumption that the injured person will
not develop the disease or suffer the deterioration referred to in section
56A of the
Ordinance.12.
Time when sanctioned offer
or
sanctioned payment is made
and
accepted (O. 22, r.
12)
(1)
A sanctioned offer is made when it is served on the offeree.
(2)
A sanctioned payment is made when a sanctioned payment notice is served on
the offeree.
(3)
An amendment to a sanctioned offer is effective when its details are served
on the offeree.
(4)
An amendment to a sanctioned payment is effective when notice of the
amendment is served on the offeree.
(5)
A sanctioned offer or a sanctioned payment is accepted when notice of its
acceptance is served on the
offeror.
13.
Service of notice of acceptance
of
plaintiff’s sanctioned
offer
(O. 22, r.
13)
(1)
Where there is more than one defendant, a defendant who serves on the
plaintiff a notice of acceptance of the plaintiff’s sanctioned offer shall at
the same time serve a copy of the notice on the other defendant or
defendants.
(2)
A defendant on whom a copy of the notice has been served may within 14 days
after the service apply to the Court for—
(a)
a direction as to any question of costs between him and the defendant
who has accepted the plaintiff’s sanctioned offer; and
(b)
any other direction relating to the acceptance of the plaintiff’s
sanctioned offer.
(3)
No application may be made under paragraph (2) after the expiry of the
14-day period referred to in that
paragraph.
14.
Clarification of sanctioned
offer
or sanctioned payment
notice
(O. 22, r.
14)
(1)
The offeree may, within 7 days of a sanctioned offer or a sanctioned
payment being made, request the offeror to clarify the offer or payment
notice.
(2)
If the offeror does not give the clarification requested under paragraph
(1) within 7 days of service of the request, the offeree may, unless the trial
has commenced, apply for an order that he does so.
(3)
If the Court makes an order pursuant to an application made under paragraph
(2), it shall specify the date when the sanctioned offer or sanctioned payment
is to be treated as having been made.
(4)
Where a cause of action under the Fatal Accidents Ordinance (Cap. 22) and a cause of action under Part IV or IVA
of the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23) are joined in an action, with or without any other cause of
action, the plaintiff is not entitled under paragraph (1) to request the
defendant to make an apportionment of the sanctioned payment between the causes
of action under those Ordinances.
III. Acceptance
of
Sanctioned Offer
or
Sanctioned
Payment
15.
Time for acceptance of
defendant’s
sanctioned offer or
sanctioned
payment (O. 22, r.
15)
(1)
Subject to rules 7(3) and 10(2), a plaintiff may
accept a sanctioned offer or a sanctioned payment made not less than 28 days
before the commencement of the trial without requiring the leave of the Court if
he files with the Court and serves on the defendant a written notice of
acceptance not later than 28 days after the offer or payment was made.
(2)
If—
(a)
a defendant’s sanctioned offer or sanctioned payment is made less than
28 days before the commencement of the trial; or
(b)
the plaintiff does not accept it within the period specified in
paragraph (1),
then the plaintiff may—
(i)
if the parties agree on the liability for costs, accept the offer or
payment without the leave of the Court; and
(ii)
if the parties do not agree on the liability for costs, only accept the
offer or payment with the leave of the Court.
(3)
Where the leave of the Court is required under paragraph (2), the Court
shall, if it grants leave, make an order as to costs.
(4)
A notice of acceptance of a sanctioned payment must be in Form No. 24 in
Appendix
A.
16.
Time for acceptance of
plaintiff’s
sanctioned offer (O. 22, r.
16)
(1)
Subject to rule 7(3), a defendant may accept a sanctioned offer
made not less than 28 days before the commencement of the trial without
requiring the leave of the Court if he files with the Court and serves on the
plaintiff a written notice of acceptance not later than 28 days after the offer
was made.
(2)
If—
(a)
a plaintiff’s sanctioned offer is made less than 28 days before the
commencement of the trial; or
(b)
the defendant does not accept it within the period specified in
paragraph (1),
then the defendant may—
(i)
if the parties agree on the liability for costs, accept the offer
without the leave of the Court; and
(ii)
if the parties do not agree on the liability for costs, only accept the
offer with the leave of the Court.
(3)
Where the leave of the Court is required under paragraph (2), the Court
shall, if it grants leave, make an order as to
costs.
17.
Payment out of a sum in court on
acceptance of sanctioned payment (O. 22, r. 17)
acceptance of sanctioned payment (O. 22, r. 17)
Subject to rules 18(4) and 19 and Order 22A, rule
2, where a sanctioned payment is accepted, the plaintiff may obtain
payment out of the sum in court by making a request for payment in Form No. 25 in
Appendix
A.
18.
Acceptance of sanctioned offer
or
sanctioned payment made by
one
or more, but not all,
defendants
(O. 22, r.
18)
(1)
This rule applies where the plaintiff wishes to accept a sanctioned offer
or a sanctioned payment made by one or more, but not all, of a number of
defendants.
(2)
If the defendants are sued jointly or in the alternative, the plaintiff may
accept the offer or payment without requiring the leave of the Court in
accordance with rule 15(1) if—
(a)
he discontinues his claim against those defendants who have not made
the offer or payment; and
(b)
those defendants give written consent to the acceptance of the offer or
payment.
(3)
If the plaintiff alleges that the defendants have a several liability to
him, the plaintiff may—
(a)
accept the offer or payment in accordance with rule 15(1);
and
(b)
continue with his claims against the other defendants.
(4)
In all other cases the plaintiff shall apply to the Court for—
(a)
an order permitting a payment out to him of any sum in court;
and
(b)
such order as to costs as the Court considers
appropriate.
19.
Other cases where court order
is
required to enable acceptance
of
sanctioned offer or
sanctioned
payment (O. 22, r.
19)
(1)
Where a sanctioned offer or a sanctioned payment is made in proceedings to
which Order 80, rule 10 (Compromise, etc., by person under
disability) applies—
(a)
the offer or payment may be accepted only with the leave of the Court;
and
(b)
the money in court may not be paid out except in pursuance of an order
of the Court.
(2)
Where the Court grants leave to a plaintiff to accept a sanctioned offer or
a sanctioned payment after the trial has commenced—
(a)
the money in court may not be paid out except in pursuance of an order
of the Court; and
(b)
the Court shall, in the order, deal with the whole costs of the
proceedings.
(3)
Where a plaintiff accepts a sanctioned payment after a defence of tender
before action has been put forward by the defendant, the money in court may not
be paid out except in pursuance of an order of the Court.
(4)
Where a plaintiff accepts a sanctioned payment made in satisfaction
of—
(a)
(b)
a cause of action under the Fatal Accidents Ordinance (Cap. 22) where more than one person is entitled
to the money,
the money in court may not be paid out except in pursuance of an order of
the Court.
IV. Consequences
of
Sanctioned Offer
or
Sanctioned
Payment
20.
Costs consequences of acceptance
of
defendant’s sanctioned offer
or
sanctioned payment (O. 22, r.
20)
(1)
Where a defendant’s sanctioned offer or sanctioned payment to settle the
whole claim is accepted without requiring the leave of the Court, the plaintiff
is entitled to his costs of the proceedings up to the date of serving notice of
acceptance, unless the Court otherwise orders.
(2)
Where—
(a)
a sanctioned offer or a sanctioned payment relating to a part of the
claim or an issue arising from the claim is accepted; and
(b)
at the time of serving notice of acceptance the plaintiff abandons the
other parts of the claim or other issues arising from the claim,
the plaintiff is entitled to his costs of the proceedings up to the date
of serving notice of acceptance, unless the Court otherwise orders.
(3)
The plaintiff’s costs include any costs attributable to the defendant’s
counterclaim or set-off if the sanctioned offer or the sanctioned payment notice
states that it takes into account the counterclaim or
set-off.
21.
Costs consequences of
acceptance
of plaintiff’s
sanctioned
offer (O. 22, r.
21)
(1)
Where a plaintiff’s sanctioned offer to settle the whole claim is accepted
without requiring the leave of the Court, the plaintiff is entitled to his costs
of the proceedings up to the date upon which the defendant serves notice of
acceptance, unless the Court otherwise orders.
(2)
The plaintiff’s costs include any costs attributable to the defendant’s
counterclaim or set-off if the sanctioned offer states that it takes into
account the counterclaim or
set-off.
22.
Other consequences of
acceptance
of sanctioned offer or
sanctioned
payment (O. 22, r.
22)
(1)
If a sanctioned offer or a sanctioned payment relates to the whole claim
and is accepted, the claim is stayed.
(2)
In the case of acceptance of a sanctioned offer which relates to the whole
claim—
(a)
the stay is upon the terms of the offer; and
(b)
either party may apply to enforce those terms without the need to
commence new proceedings.
(3)
If a sanctioned offer or a sanctioned payment which relates only to a part
of the claim or an issue arising from the claim is accepted—
(a)
the claim is stayed as to that part or issue, and in the case of the
sanctioned offer, the stay is upon the terms of the offer;
(b)
either party may apply to enforce those terms without the need to
commence new proceedings; and
(c)
unless the parties have agreed on costs, the liability for costs shall
be decided by the Court.
(4)
If the approval of the Court is required before a settlement can be
binding, any stay which would otherwise arise on the acceptance of a sanctioned
offer or a sanctioned payment takes effect only when that approval has been
given.
(5)
Any stay arising under this rule does not affect the power of the
Court—
(a)
to enforce the terms of a sanctioned offer;
(b)
to deal with any question of costs (including interest on costs)
relating to the proceedings; or
(c)
to order payment out of court of any sum paid into court.
(6)
Where—
(a)
a sanctioned offer has been accepted; and
(b)
a party alleges that—
(i)
the other party has not honoured the terms of the offer;
and
(ii)
he is therefore entitled to a remedy for breach of
contract,
the party may claim the remedy by applying to the Court without the need
to commence new proceedings unless the Court otherwise
orders.
23.
Costs consequences where
plaintiff
fails to do better than
sanctioned
offer or sanctioned
payment
(O. 22, r.
23)
(1)
This rule applies where a plaintiff—
(a)
fails to obtain a judgment better than the sanctioned payment;
or
(b)
fails to obtain a judgment that is more advantageous than a defendant’s
sanctioned offer.
(2)
The Court may by order disallow all or part of any interest otherwise
payable under section 48 of the Ordinance on the whole or part of any
sum of money awarded to the plaintiff for some or all of the period after the
latest date on which the payment or offer could have been accepted without
requiring the leave of the Court.
(3)
The Court may order the plaintiff to pay any costs incurred by the
defendant after the latest date on which the payment or offer could have been
accepted without requiring the leave of the Court.
(4)
The Court may also order that the defendant is entitled to—
(a)
his costs on the indemnity basis after the latest date on which the
plaintiff could have accepted the payment or offer without requiring the
leave of the Court; and
(b)
interest on the costs referred to in paragraph (3) or sub-paragraph (a)
at a rate not exceeding 10% above judgment rate.
(5)
Where this rule applies, the Court shall make the orders referred to in
paragraphs (2), (3) and (4) unless it considers it unjust to do so.
(6)
In considering whether it would be unjust to make the orders referred to in
paragraphs (2), (3) and (4), the Court shall take into account all the
circumstances of the case including—
(a)
the terms of any sanctioned payment or sanctioned offer;
(b)
the stage in the proceedings at which any sanctioned payment or
sanctioned offer was made;
(c)
the information available to the parties at the time when the
sanctioned payment or sanctioned offer was made; and
(d)
the conduct of the parties with regard to the giving or refusing to
give information for the purposes of enabling the payment or offer to be
made or evaluated.
(7)
The power of the Court under this rule is in addition to any other power it
may have to award or disallow
interest.
24.
Costs and other consequences
where
plaintiff does better than
he
proposed in his
sanctioned
offer (O. 22, r.
24)
(1)
This rule applies where—
(a)
a defendant is held liable for more than the proposals contained in a
plaintiff’s sanctioned offer; or
(b)
the judgment against a defendant is more advantageous to the plaintiff
than the proposals contained in a plaintiff’s sanctioned offer.
(2)
The Court may order interest on the whole or part of any sum of money
(excluding interest) awarded to the plaintiff at a rate not exceeding 10% above
judgment rate for some or all of the period after the latest date on which the
defendant could have accepted the offer without requiring the leave of the
Court.
(3)
The Court may also order that the plaintiff is entitled to—
(a)
his costs on the indemnity basis after the latest date on which the
defendant could have accepted the offer without requiring the leave of the
Court; and
(b)
interest on those costs at a rate not exceeding 10% above judgment
rate.
(4)
Where this rule applies, the Court shall make the orders referred to in
paragraphs (2) and (3) unless it considers it unjust to do so.
(5)
In considering whether it would be unjust to make the orders referred to in
paragraphs (2) and (3), the Court shall take into account all the circumstances
of the case including—
(a)
the terms of any sanctioned offer;
(b)
the stage in the proceedings at which any sanctioned offer was
made;
(c)
the information available to the parties at the time when the
sanctioned offer was made; and
(d)
the conduct of the parties with regard to the giving or refusing to
give information for the purposes of enabling the offer to be made or
evaluated.
(6)
The power of the Court under this rule is in addition to any other power it
may have to award interest.
V. Miscellaneous
25.
Restriction on disclosure of
sanctioned
offer or sanctioned
payment
(O. 22, r.
25)
(1)
A sanctioned offer is treated as “without prejudice save as to
costs”.
(2)
The fact that a sanctioned payment has been made must not be communicated
to the trial judge or the master hearing or determining the action or
counterclaim or any question or issue as to the debt or damages until all
questions of liability and the amount of money to be awarded have been
decided.
(3)
Paragraph (2) does not apply—
(a)
where the defence of tender before action has been raised;
(b)
where the proceedings have been stayed under rule 22
following acceptance of a sanctioned offer or a sanctioned payment;
or
(c)
where—
(i)
the issue of liability has been determined before any assessment of
the money claimed; and
(ii)
the fact that there has or has not been a sanctioned payment may be
relevant to the question of the costs of the issue of
liability.
26.
Interest (O. 22, r.
26)
(1)
Unless—
(a)
a plaintiff’s sanctioned offer which offers to accept a sum of money;
or
(b)
a sanctioned payment notice,
indicates to the contrary, any such offer or payment is to be treated as
inclusive of all interest until the last date on which it could be accepted
without requiring the leave of the Court.
(2)
Where a plaintiff’s sanctioned offer or a sanctioned payment notice is
expressed not to be inclusive of interest, the offer or notice must
state—
(a)
whether interest is offered; and
(b)
if so, the amount offered, the rate or rates offered and the period or
periods for which it is
offered.
27.
Money paid into court under
order
(O. 22, r.
27)
(1)
On making any payment into court under an order of the Court or a
certificate of a master, the party making the payment shall give notice of the
payment in Form No. 25A in Appendix A to every other party to the
proceedings.
(2)
Unless the Court otherwise orders, a defendant who has paid money into court
in pursuance of an order made under Order 14 may—
(a)
by notice served on the plaintiff, appropriate the whole or any part of
the money and any additional payment, if necessary, in satisfaction of any
particular claim made by the plaintiff and specified in the notice;
or
(b)
if he pleads a tender, by his pleading served on the plaintiff,
appropriate the whole or any part of the money as payment into court of the
money alleged to have been tendered.
(3)
Any money appropriated in accordance with paragraph (2) is deemed to
be—
(a)
in the case of paragraph (2)(a), a sanctioned payment when
the notice is served on the plaintiff; and
(b)
in the case of paragraph (2)(b), money paid into court with
a plea of tender when the pleading is served on the plaintiff,
and this Order applies accordingly.
(4)
A notice served on the plaintiff in accordance with paragraph
(2)(a) is deemed to be a sanctioned payment
notice.
28.
Transitional provision relating to Part
9
of Amendment Rules
2008
(O. 22, r.
28)
Where—
(a)
a payment into court has been made in accordance with Order 22
(the
repealed
Order)
repealed by rule 111
(the
repealing
rule)
of the Amendment Rules 2008; and
(b)
the disposal of the payment is pending immediately before the
commencement*
of the repealing rule,
then nothing in Division 1 of Part 9 of the Amendment Rules
2008 applies in relation to that payment, and the repealed Order and all
the other provisions amended or repealed by that Division, as in force immediately
before the commencement, continue to apply in relation to that payment as if that
Division had not been made.
Editorial Note:
*
Commencement
date:
2 April 2009.
Order
22A
Miscellaneous Provisions
about Payments
into
Court
1.
Money remaining in court
(O.
22A, r.
1)
(1)
Subject to Order 22, rule 17, any money paid into court in an
action (whether or not in accordance with Order 22) may not be paid out except
in pursuance of an order of the Court which may be made at any time before, at
or after the trial or hearing of the action.
(2)
Where an order under paragraph (1) is made before the trial or hearing and
the money in court is a sanctioned payment made in accordance with Order 22, the
money may not be paid out except—
(a)
in satisfaction of the cause or causes of action in respect of which it
was paid in; or
(b)
to the extent to which the sanctioned payment may be withdrawn or
diminished pursuant to Order
22.
2.
Person to whom payment to
be
made (O. 22A, r.
2)
(1)
Where the party entitled to money in court is a person in respect of whom a
certificate is or has been in force entitling him to legal aid under the Legal
Aid Ordinance (Cap. 91), payment shall be made only
to the Director of Legal Aid without the need for any authority from the
party.
(2)
Subject to paragraph (1), payment shall be made to the party entitled or to
his solicitor.
(3)
This rule applies whether the money in court has been paid into court under
Order 22 or under an order of the Court or a certificate of the
Registrar.
3.
Payment out: small
intestate
estates (O. 22A, r.
3)
Where—
(a)
a person entitled to a fund in court, or a share of such fund, dies
intestate;
(b)
the Court is satisfied that no grant of administration of his estate has
been made; and
(c)
the assets of his estate, including the fund or share, do not exceed
$150,000 in value,
it may order that the fund or share shall be paid, transferred or delivered
to the person who, being a widower, widow, child, father, mother, brother or sister
of the deceased, would have the prior right to a grant of administration of the
estate of the
deceased.
4.
Investment of money in
court
(O. 22A, r.
4)
Cash under the control of or subject to the order of the Court may be invested
in any manner specified in the High Court Suitors’ Funds Rules (Cap. 4 sub. leg. B) and the Trustee Ordinance (Cap. 29).
Order
23
Security
for
Costs
1.
Security for costs of action, etc. (O. 23, r.
1)
(1)
Where, on the application of a defendant to an action or other proceeding in
the Court of First Instance, it appears to the Court—
(a)
that the plaintiff is ordinarily resident out of the jurisdiction,
or
(b)
that the plaintiff (not being a plaintiff who is suing in a
representative capacity) is a nominal plaintiff who is suing for the benefit
of some other person and that there is reason to believe that he will be
unable to pay the costs of the defendant if ordered to do so, or
(c)
subject to paragraph (2), that the plaintiff’s address is not stated in
the writ or other originating process or is incorrectly stated therein,
or
(d)
that the plaintiff has changed his address during the course of the
proceedings with a view to evading the consequences of the
litigation,
then if, having regard to all the circumstances of the case, the Court
thinks it just to do so, it may order the plaintiff to give such security for
the defendant’s costs of the action or other proceeding as it thinks
just.
(2)
The Court shall not require a plaintiff to give security by reason only of
paragraph (1)(c) if he satisfies the Court that the failure to state
his address or the mis-statement thereof was made innocently and without
intention to deceive.
(3)
The references in the foregoing paragraphs to a plaintiff and a defendant
shall be construed as references to the person (howsoever described on the
record) who is in the position of plaintiff or defendant, as the case may be, in
the proceeding in question, including a proceeding on a
counterclaim.
2.
Manner of giving security (O. 23, r.
2)
Where an order is made requiring any party to give security for costs, the
security shall be given in such manner, at such time, and on such terms (if any) as
the Court may
direct.
3.
Saving for enactments (O. 23, r.
3)
This Order is without prejudice to the provisions of any written law which
empowers the Court to require security to be given for the costs of any
proceedings.
Order
24
Discovery
and Inspection
of
Documents
1.
Mutual discovery of documents (O. 24, r.
1)
(1)
After the close of pleadings in an action begun by writ there shall,
subject to and in accordance with the provisions of this Order, be discovery by
the parties to the action of the documents which are or have been in their
possession, custody or power relating to matters in question in the
action.
(2)
Nothing in this Order shall be taken as preventing the parties to an action
agreeing to dispense with or limit the discovery of documents which they would
otherwise be required to make to each
other.
2.
Discovery by parties without order (O. 24, r.
2)
(1)
Subject to the provisions of this rule and of rule 4, the parties
to an action between whom pleadings are closed must make discovery by exchanging
lists of documents and, accordingly, each party must, within 14 days after the
pleadings in the action are deemed to be closed as between him and any other
party, make and serve on that other party a list of the documents which are or
have been in his possession, custody or power relating to any matter in question
between them in the action.
Without prejudice to any directions given by the Court under Order 16,
rule 4, this paragraph shall not apply in third party
proceedings, including proceedings under that Order involving fourth or
subsequent parties.
(2)
Unless the Court otherwise orders, a defendant to an action arising out of
an accident on land due to a collision or apprehended collision involving a
vehicle shall not make discovery of any documents to the plaintiff under
paragraph (1).
(3)
Paragraph (1) shall not be taken as requiring a defendant to an action for
the recovery of any penalty recoverable by virtue of any written law to make
discovery of any documents.
(4)
Paragraphs (2) and (3) shall apply in relation to a counterclaim as they
apply in relation to an action but with the substitution, for the reference in
paragraph (2) to the plaintiff, of a reference to the party making the
counterclaim.
(5)
On the application of any party required by this rule to make discovery of
documents, the Court may—
(a)
order that the parties to the action or any of them shall make
discovery under paragraph (1) of such documents or classes of documents
only, or as to such only of the matters in question, as may be specified in
the order, or
(b)
if satisfied that discovery by all or any of the parties is not
necessary, or not necessary at that stage of the action, order that there
shall be no discovery of documents by any or all of the parties either at
all or at that stage;
and the Court shall make such an order if and so far as it is of opinion
that discovery is not necessary either for disposing fairly of the action or for
saving costs.
(6)
An application for an order under paragraph (5) must be by summons, and the
summons must be taken out before the expiration of the period within which by
virtue of this rule discovery of documents in the action is required to be
made.
(7)
Any party to whom discovery of documents is required to be made under this
rule may, at any time before the case management summons in the action is taken
out, serve on the party required to make such discovery a notice requiring him
to make an affidavit verifying the list he is required to make under paragraph
(1), and the party on whom such a notice is served must, within 14 days after
service of the notice, make and file an affidavit in compliance with the notice
and serve a copy of the affidavit on the party by whom the notice was
served.
3.
Order for discovery (O. 24, r.
3)
(1)
Subject to the provisions of this rule and of rules 4 and
8, the Court may order any party to a cause or matter (whether
begun by writ, originating summons or otherwise) to make and serve on any other
party a list of the documents which are or have been in his possession, custody
or power relating to any matter in question in the cause or matter, and may at
the same time or subsequently also order him to make and file an affidavit
verifying such a list and to serve a copy thereof on the other party.
(2)
Where a party who is required by rule 2 to make discovery of
documents fails to comply with any provision of that rule, the Court, on the
application of any party to whom the discovery was required to be made, may make
an order against the first-mentioned party under paragraph (1) of this rule or,
as the case may be, may order him to make and file an affidavit verifying the
list of documents he is required to make under rule 2 and to serve a
copy thereof on the applicant.
(3)
An order under this rule may be limited to such documents or classes of
document only, or to such only of the matters in question in the cause or
matter, as may be specified in the
order.
4.
Order for determination of issue, etc.,
before discovery (O. 24, r.
4)
(1)
(2)
Where in an action begun by writ an order is made under this rule for the
determination of an issue or question, Order 25, rules 2 to 7, shall,
with the omission of so much of rule 7(1) as requires parties to
serve a notice specifying the orders and directions which they desire and with
any other necessary modifications, apply as if the application on which the
order was made were a case management summons.
5.
Form of list and affidavit (O. 24, r.
5)
(1)
A list of documents made in compliance with rule 2 or with an
order under rule 3 must be in Form No. 26 in Appendix A, and must
enumerate the documents in a convenient order and as shortly as possible but
describing each of them or, in the case of bundles of documents of the same
nature, each bundle, sufficiently to enable it to be identified.
(2)
If it is desired to claim that any documents are privileged from
production, the claim must be made in the list of documents with a sufficient
statement of the grounds of the privilege.
(3)
An affidavit made as aforesaid verifying a list of documents must be in
Form No. 27 in Appendix
A.
6.
Defendant entitled to copy of co-defendant’
s
list
(O. 24, r.
6)
(1)
A defendant who has pleaded in an action shall be entitled to have a copy
of any list of documents served under any of the foregoing rules of this Order
on the plaintiff by any other defendant to the action; and a plaintiff against
whom a counterclaim is made in an action begun by writ shall be entitled to have
a copy of any list of documents served under any of those rules on the party
making the counterclaim by any other defendant to the counterclaim.
(2)
A party required by virtue of paragraph (1) to supply a copy of a list of
documents must supply it free of charge on a request made by the party entitled
to it.
(3)
Where in an action begun by originating summons the Court makes an order
under rule 3 requiring a defendant to the action to serve a list of
documents on the plaintiff, it may also order him to supply any other defendant
to the action with a copy of that list.
(4)
In this rule
list
of
documents
(文件清單
) includes an affidavit verifying a
list of
documents.7.
Order for discovery of particular
documents (O. 24, r.
7)
(1)
Subject to rule 8, the Court may at any time, on the application
of any party to a cause or matter, make an order requiring any other party to
make an affidavit stating whether any document specified or described in the
application or any class of document so specified or described is, or has at any
time been, in his possession, custody or power, and if not then in his
possession, custody or power when he parted with it and what has become of
it.
(2)
(3)
An application for an order under this rule must be supported by an
affidavit stating the belief of the deponent that the party from whom discovery
is sought under this rule has, or at some time had, in his possession, custody
or power the document, or class of document, specified or described in the
application and that it relates to one or more of the matters in question in the
cause or
matter.
7A.
Application under section 41 or 42(1)
of the Ordinance (O. 24, r.
7A)
(1)
An application for an order under section 41 of the Ordinance
for the disclosure of documents before the commencement of proceedings shall be
made by originating summons (in Form No. 10 in Appendix A) and the person
against whom the order is sought shall be made defendant to the summons.
(2)
An application after the commencement of proceedings for an order under
section 42(1) of the Ordinance for the disclosure of documents by
a person who is not a party to the proceedings shall be made by summons, which
must be served on that person personally and on every party to the proceedings
other than the applicant.
(3)
A summons under paragraph (1) or (2) shall be supported by an affidavit
which must—
(a)
in the case of a summons under paragraph (1), state the grounds on
which it is alleged that the applicant and the person against whom the order
is sought are likely to be parties to subsequent proceedings in the Court of
First Instance;
(b)
in any case, specify or describe the documents in respect of which the
order is sought and show, if practicable by reference to any pleading served
or intended to be served in the proceedings, that the documents are relevant
to an issue arising or likely to arise in the proceedings and that the
person against whom the order is sought is likely to have or have had them
in his possession, custody or power.
(3A)
In the case of a summons under paragraph (1), paragraph (3)(b)
shall be construed as if for the word “relevant”, there were substituted the
words “directly relevant (within the meaning of section 41 of the
Ordinance)”.
(4)
A copy of the supporting affidavit shall be served with the summons on
every person on whom the summons is required to be served.
(5)
An order under section 41 or 42(1) for the disclosure
of documents may be made conditional on the applicant’s giving security for the
costs of the person against whom it is made or on such other terms, if any, as
the Court thinks just, and shall require the person against whom the order is
made to make an affidavit stating whether any documents specified or described
in the order are, or at any time have been, in his possession, custody or power
and, if not then in his possession, custody or power, when he parted with them
and what has become of them.
(6)
No person shall be compelled by virtue of such an order to produce any
documents which he could not be compelled to produce—
(a)
in the case of a summons under paragraph (1), if the subsequent
proceedings had already been begun; or
(b)
in the case of a summons under paragraph (2), if he had been served
with a writ of subpoena duces tecum to produce the documents at the
trial.
(7)
(Repealed L.N. 152 of
2008)
(8)
For the purposes of rules 10 and 11 an application
for an order under section 41 or 42(1) shall be treated as
a cause or matter between the applicant and the person against whom the order is
sought.
8.
Discovery to be ordered only if necessary (O. 24, r.
8)
(1)
On the hearing of an application for an order under rule 3 or
7 the Court, if satisfied that discovery is not necessary, or not
necessary at that stage of the cause or matter, may dismiss or, as the case may
be, adjourn the application and shall in any case refuse to make such an order
if and so far as it is of opinion that discovery is not necessary either for
disposing fairly of the cause or matter or for saving costs.
(2)
No order for the disclosure of documents shall be made under section
41 or 42 of the Ordinance, unless the Court is of opinion
that the order is necessary either for disposing fairly of the cause or matter
or for saving costs.
9.
Inspection of documents referred to in list (O. 24, r.
9)
A party who has served a list of documents on any other party, whether in
compliance with rule 2 or with an order under rule 3, must
allow the other party to inspect the documents referred to in the list (other than
any which he objects to produce) and to take copies thereof and, accordingly, he
must when he serves the list on the other party also serve on him a notice stating a
time within 7 days after the service thereof at which the said documents may be
inspected at a place specified in the
notice.
10.
Inspection of documents referred to in
pleadings and affidavits (O. 24, r.
10)
(1)
Any party to a cause or matter shall be entitled at any time to serve a
notice on any other party in whose pleadings, affidavits or witness statements
served under Order 38, rule 2A, or experts’ reports, reference is
made to any document requiring him to produce that document for the inspection
of the party giving the notice and to permit him to take copies thereof.
(2)
The party on whom a notice is served under paragraph (1) must, within 4
days after service of the notice, serve on the party giving the notice a notice
stating a time within 7 days after the service thereof at which the documents,
or such of them as he does not object to produce, may be inspected at a place
specified in the notice, and stating which (if any) of the documents he objects
to produce and on what
grounds.
11.
Order for production for inspection (O. 24, r.
11)
(1)
If a party who is required by rule 9 to serve such a notice as is
therein mentioned or who is served with a notice under rule
10(1)—
(a)
fails to serve a notice under rule 9 or, as the case may be,
rule 10(2), or
(b)
objects to produce any document for inspection, or
(c)
offers inspection at a time or place such that, in the opinion of the
Court, it is unreasonable to offer inspection then or, as the case may be,
there,
then, subject to rule 13(1), the Court may, on the application
of the party entitled to inspection, make an order for production of the
documents in question for inspection at such time and place, and in such manner,
as it thinks fit.
(2)
Without prejudice to paragraph (1), but subject to rule 13(1),
the Court may, on the application of any party to a cause or matter, order any
other party to permit the party applying to inspect any documents in the
possession, custody or power of that other party relating to any matter in
question in the cause or matter.
(3)
An application for an order under paragraph (2) must be supported by an
affidavit specifying or describing the documents of which inspection is sought
and stating the belief of the deponent that they are in the possession, custody
or power of the other party and that they relate to a matter in question in the
cause or
matter.
11A.
Provision of copies of documents (O. 24, r.
11A)
(1)
Any party who is entitled to inspect any documents under any provision of
this Order or any order made thereunder may at or before the time when
inspection takes place serve on the party who is required to produce such
documents for inspection a notice (which shall contain an undertaking to pay the
reasonable charges) requiring him to supply a true copy of any such document as
is capable of being copied by photographic or similar process.
(2)
The party on whom such a notice is served must within 7 days after receipt
thereof supply the copy requested together with an account of the reasonable
charges.
(3)
Where a party fails to supply to another party a copy of any document under
paragraph (2), the Court may, on the application of either party, make such
order as to the supply of that document as it thinks
fit.
11B.
(Added L.N. 157 of 2003 and repealed L.N. 199 of
2003)
12.
Order for production to Court (O. 24, r.
12)
(1)
At any stage of the proceedings in any cause or matter the Court may,
subject to rule 13(1), order any party to produce to the Court any
document in his possession, custody or power relating to any matter in question
in the cause or matter and the Court may deal with the document when produced in
such manner as it thinks fit.
(2)
(Added L.N. 157 of 2003 and repealed L.N. 199 of
2003)
13.
Production to be ordered only if
necessary, etc. (O. 24, r.
13)
(1)
No order for the production of any documents for inspection or to the Court
or for the supply of a copy of any document shall be made under any of the
foregoing rules unless the Court is of opinion that the order is necessary
either for disposing fairly of the cause or matter or for saving
costs.
(2)
Where on an application under this Order for production of any document for
inspection or to the Court or for the supply of a copy of any document privilege
from such production or supply is claimed or objection is made to such
production or supply on any other ground, the Court may inspect the document for
the purpose of deciding whether the claim or objection is
valid.
14.
Production of business books (O. 24, r.
14)
(1)
Where production of any business books for inspection is applied for under
any of the foregoing rules, the Court may, instead of ordering production of the
original books for inspection, order a copy or any entries therein to be
supplied and verified by an affidavit of some person who has examined the copy
with the original books.
(2)
Any such affidavit shall state whether or not there are in the original
book any and what erasures, interlineations or alterations.
(3)
Notwithstanding that a copy of any entries in any book has been supplied
under this rule, the Court may order production of the book from which the copy
was
made.
14A.
Use of documents (O. 24, r.
14A)
Any undertaking, whether express or implied, not to use a document for any
purposes other than those of the proceedings in which it is disclosed shall cease to
apply to such document after it has been read to or by the Court, or referred to, in
open court, unless the Court for special reasons has otherwise ordered on the
application of a party or of the person to whom the document
belongs.
15.
Document disclosure of which would be injurious
to public interest: saving (O. 24, r.
15)
The foregoing provisions of this Order shall be without prejudice to any rule
of law which authorizes or requires the withholding of any document on the ground
that the disclosure of it would be injurious to the public
interest.
15A.
Order for limiting
discovery
(O. 24, r.
15A)
For the purpose of managing the case in question and furthering any of the
objectives specified in Order 1A, the Court may make any one or more of the
following orders—
(a)
an order limiting the discovery of documents which the parties to the case
would otherwise be required to make to each other under rule
1(1);
(b)
an order directing that the discovery of documents required to be made
under this Order to any party to the case shall, notwithstanding anything in
this Order, be made in the manner specified in the order; and
(c)
16.
Failure to comply with requirement
for discovery, etc. (O. 24, r.
16)
(1)
If any party who is required by any of the foregoing rules, or by any order
made thereunder, to make discovery of documents or to produce any documents for
the purpose of inspection or any other purpose or to supply copies thereof fails
to comply with any provision of that rule or with that order, as the case may
be, then, without prejudice, in the case of a failure to comply with any such
provision, to rules 3(2) and 11(1), the Court may make
such order as it thinks just including, in particular, an order that the action
be dismissed or, as the case may be, an order that the defence be struck out and
judgment be entered accordingly.
(2)
If any party against whom an order for discovery or production of documents
is made fails to comply with it, then, without prejudice to paragraph (1), he
shall be liable to committal.
(3)
Service on a party’s solicitor of an order for discovery or production of
documents made against that party shall be sufficient service to found an
application for committal of the party disobeying the order, but the party may
show in answer to the application that he had no notice or knowledge of the
order.
(4)
A solicitor on whom such an order made against his client is served and who
fails without reasonable excuse to give notice thereof to his client shall be
liable to
committal.
17.
Revocation and variation of orders (O. 24, r.
17)
Any order made under this Order (including an order made on appeal) may, on
sufficient cause being shown, be revoked or varied by a subsequent order or
direction of the Court made or given at or before the trial of the cause or matter
in connection with which the original order was made.
Order
25
Case
Management Summons
and
Conference
(Amended L.N. 152 of 2008)
1.
Case management summons and
conference
(O. 25, r.
1)
(1)
For the purpose of facilitating the giving of directions for the management
of a case, each party shall, within 28 days after the pleadings in an action to
which this rule applies are deemed to be closed—
(a)
complete a questionnaire prescribed in a practice direction issued for
that purpose by providing the information requested in the manner specified
in the questionnaire; and
(b)
serve it on all other parties and file it with the Court in the manner
specified in the practice direction.
(1A)
Where, upon completion of the questionnaire, the parties are able to reach
an agreement on—
(a)
the directions relating to the management of the case that they wish
the Court to make; or
(b)
a timetable for the steps to be taken between the date of the giving of
those directions and the date of the trial,
they shall procure an order to that effect by way of a consent summons.
(1B)
Where there is no agreement on any of the matters specified in paragraph
(1A)(a) and (b)—
(a)
each party shall in the questionnaire make a proposal on the matter;
and
(b)
the plaintiff shall, within the time specified in the practice
direction, take out a summons (in these rules referred to as a
case
management summons) returnable in not less than 14 days, so
that the Court may give directions relating to the management of the case.
(2)
This rule applies to all actions begun by writ except—
(a)
actions in which the plaintiff or defendant has applied for judgment
under Order 14, or in which the plaintiff has applied for judgment under
Order 86, and directions have been given under the relevant Order;
(b)
actions in which the plaintiff or defendant has applied under Order 18,
rule 21, for trial without pleadings or further pleadings and
directions have been given under that rule;
(c)
actions in which an order has been made under Order 24, rule
4, for the trial of an issue or question before
discovery;
(d)
actions in which directions have been given under Order 29, rule
7;
(e)
actions in which an order for the taking of an account has been made
under Order 43, rule 1;
(f)
actions in which an application for transfer to the commercial list is
pending;
(h)
actions for the infringement of a patent; and
(j)
actions for personal injuries for which automatic directions are
provided by rule 8.
(k)
(Repealed L.N. 152 of
2008)
(3)
(Repealed L.N. 152 of
2008)
(4)
If the plaintiff does not file the questionnaire in accordance with
paragraph (1)(b) or take out a case management summons in accordance
with paragraph (1B)(b), the defendant or any defendant may—
(a)
take out a case management summons; or
(b)
apply for an order to dismiss the action.
(5)
On an application by a defendant to dismiss the action under paragraph (4)
the Court may either dismiss the action on such terms as may be just or deal
with the application as if it were a case management summons.
(6)
In the case of an action which is proceeding only as respects a
counterclaim, references in this rule and rule 1A(1)(c) to the
plaintiff and defendant shall be construed respectively as references to the
party making the counterclaim and the defendant to the counterclaim.
(7)
Notwithstanding anything in paragraph (1B), any party to an action to which
this rule applies may take out a case management summons at any time after the
defendant has given notice of intention to defend, or, if there are two or more
defendants, at least one of them has given such notice.
1A.
Case management
timetable
(O. 25, r.
1A)
(1)
Subject to paragraph (4), as soon as practicable after the completed questionnaire has been filed with the Court, the Court shall, having regard to the questionnaire and the needs of the case—
(a)
give directions relating to the management of the case and fix the timetable for the steps to be taken between the date of the giving of those directions and the date of the trial;
(b)
fix a case management conference if the Court is of the opinion that it is desirable to do so; or
(c)
direct the plaintiff to take out a case management summons if he has not already done so under rule 1(1B)(b).
(2)
Where the Court has fixed a case management conference, it shall—
(a)
give directions relating to the management of the case and fix the timetable for the steps to be taken between the date of the giving of those directions and the date of the case management conference; and
(b)
at the case management conference, fix a timetable for the steps to be taken between the date of the conference and the date of the trial, and the timetable must include—
(i)
a date for a pre-trial review; or
(ii)
the trial date or the period in which the trial is to take place.
(3)
Where the Court has not fixed a case management conference, any timetable fixed under paragraph (1)(a) must include—
(a)
a date for a pre-trial review; or
(b)
the trial date or the period in which the trial is to take place.
(4)
The Court may, without a hearing of the case management summons and having regard to the completed questionnaire, by an order nisi, give directions relating to the management of the case and fix the timetable for the steps to be taken between the date of the giving of those directions and the date of the trial.
(5)
The order nisi becomes absolute 14 days after the order is made unless a party has applied to the Court for varying the order.
(6)
The Court shall, on an application made under paragraph (5), hear the case management summons.
1B.
Variation of case
management
timetable (O. 25, r.
1B)
(1)
The Court may, either of its own motion or on the application of a party, give further directions relating to the management of the case or vary any timetable fixed by it under rule 1A.
(2)
A party may apply to the Court if he wishes to vary a milestone date.
(3)
The Court shall not grant an application under paragraph (2) unless there are exceptional circumstances justifying the variation.
(4)
A non-milestone date may be varied by procuring an order to that effect by way of a consent summons.
(5)
A party may apply to the Court if he wishes to vary a non-milestone date without the agreement of the other parties.
(6)
The Court shall not grant an application under paragraph (5) unless sufficient grounds have been shown to it.
(7)
Whether or not sufficient grounds have been shown to it, the Court shall not grant an application under paragraph (5) if the variation would make it necessary to change a trial date or the period in which the trial is to take place.
(8)
In this rule—
milestone
date
(進度指標日期
) means—(a)
a date which the Court has fixed for—
(i)
a case management conference;
(ii)
a pre-trial review; or
(iii)
the trial; or
(b)
a period fixed by the Court in which a trial is to take place;
non-milestone
date
(非進度指標日期
) means a date or period fixed by
the Court, other than a date or period specified in the definition of
milestone
date.1C.
Failure to appear at case
management
conference or pre-trial
review
(O. 25, r.
1C)
(1)
Where the plaintiff does not appear at the case management conference or pre-trial review, the Court shall provisionally strike out the plaintiff’s claim.
(2)
Where the defendant has made a counterclaim in the action and he does not appear at the case management conference or pre-trial review, the Court shall provisionally strike out the defendant’s counterclaim.
(3)
Where the Court has provisionally struck out a claim or counterclaim under paragraph (1) or (2), the plaintiff or the defendant may, before the expiry of 3 months from the date of the case management conference or pre-trial review, as the case may be, apply to the Court for restoration of the claim or counterclaim.
(4)
The Court may restore the claim or counterclaim subject to such conditions as it thinks fit or refuse to restore it.
(5)
The Court shall not restore the claim or counterclaim unless good reasons have been shown to the satisfaction of the Court.
(6)
If the plaintiff or the defendant does not apply under paragraph (3) or his application under that paragraph is refused, then—
(a)
the plaintiff’s claim or the defendant’s counterclaim stands dismissed upon the expiry of 3 months from the date of the case management conference or pre-trial review, as the case may be; and
(b)
(i)
in the case of the plaintiff’s claim, the defendant is entitled to his costs of the claim; and
(ii)
in the case of the defendant’s counterclaim, the plaintiff is entitled to his costs of the counterclaim.
2.
Duty to consider all matters (O. 25, r.
2)
(1)
When the case management summons first comes to be determined, the Court shall consider whether—
(a)
it is possible to deal then with all the matters which, by the rules of this Order, are required to be considered at the case management summons; or
(b)
it is expedient to adjourn the consideration of all or any of those matters until a later stage.
(2)
If when the case management summons first comes to be determined the Court considers that it is possible to deal then with all the said matters, it shall deal with them forthwith and shall endeavour to secure that all other matters which must or can be dealt with on interlocutory applications and have not already been dealt with are also then dealt with.
(3)
If, when the case management summons first comes to be determined, the Court considers that it is expedient to adjourn the consideration of all or any of the matters which, by the rules of this Order, are required to be considered at the case management summons, the Court shall deal forthwith with such of those matters as it considers can conveniently be dealt with forthwith and adjourn the consideration of the remaining matters and shall endeavour to secure that all other matters which must or can be dealt with on interlocutory applications and have not already been dealt with are dealt with either then or at such time as the Court may specify.
(4)
Subject to paragraph (5), and except where the parties agree to the making of an order under Order 33 as to the place or mode of trial before all the matters which, by the rules of this Order, are required to be considered at the case management summons have been dealt with, no such order shall be made until all those matters have been dealt with.
(5)
If, at the determination of the case management summons, an action is ordered to be transferred to the District Court or some other court, paragraph (4) shall not apply and nothing in this Order shall be construed as requiring the Court to make any further order at the case management summons.
(7)
If the determination of the case management summons is adjourned without a day being fixed for its resumption, any party may restore the summons to the list on 2 days’ notice to the other parties.
3.
Particular matters for consideration (O. 25, r.
3)
At the determination of the case management summons, the Court shall in particular consider, if necessary of its own motion, whether any order should be made or direction given in the exercise of the powers conferred by any of the following provisions, that is to say—
(a)
any provision of Part IV and Part V of the Evidence Ordinance (Cap. 8) (hearsay evidence of fact or opinion in civil proceedings) or of Part III and Part IV of Order 38;
(b)
Order 20, rule 5 and Order 38, rules 2 to 7;
(c)
4.
Admissions and agreements to be made (O. 25, r.
4)
At the determination of the case management summons, the Court shall endeavour to secure that the parties make all admissions and all agreements as to the conduct of the proceedings which ought reasonably to be made by them and may cause the order on the summons to record any admissions or agreements so made, and (with a view to such special order, if any, as to costs as may be just being made at the trial) any refusal to make any admission or agreement.
5.
Limitation of right of appeal (O. 25, r.
5)
Nothing in rule 4 shall be construed as requiring the Court to endeavour to secure that the parties shall agree to exclude or limit any right of appeal, but the order made on the case management summons may record any such agreement.
6.
Duty to give all information at determination of
case
management summons (O. 25, r.
6)
(1)
Subject to paragraph (2), no affidavit shall be used at the determination of
the case management summons except by the leave or directions of the Court, but,
subject to paragraph (4), it shall be the duty of the parties to the action and
their advisers to give all such information and produce all such documents as
the Court may reasonably require for the purposes of enabling it properly to
deal with the
summons.
The Court may, if it appears proper so to do in the circumstances,
authorize any such information or documents to be given or produced to the Court
without being disclosed to the other parties but, in the absence of such
authority, any information or document given or produced under this paragraph
shall be given or produced to all the parties as well as to the Court.
(2)
No leave shall be required by virtue of paragraph (1) for the use of an
affidavit by any party at the determination of the case management summons in
connection with any application thereat for any order if, under any of these
rules, an application for such an order is required to be supported by an affidavit.
(3)
If the Court at the determination of the case management summons requires a
party to the action or his solicitor or counsel to give any information or
produce any document and that information or document is not given or produced,
then, subject to paragraph (4), the Court may—
(a)
cause the facts to be recorded in the order with a view to such special
order, if any, as to costs as may be just being made at the trial,
or
(b)
if it appears to the Court to be just so to do, order the whole or any
part of the pleadings of the party concerned to be struck out, or if the
party is plaintiff or the claimant under a counterclaim, order the action or
counterclaim to be dismissed on such terms as may be just.
(4)
Notwithstanding anything in the foregoing provisions of this rule, no
information or documents which are privileged from disclosure shall be required
to be given or produced under this rule by or by the advisers of any party
otherwise than with the consent of that
party.
7.
Duty to make all interlocutory applications
at case management summons (O. 25, r.
7)
(1)
Any party to whom the case management summons is addressed must so far as
practicable apply at the time fixed for determination of the summons for any
order or directions which he may desire as to any matter capable of being dealt
with on an interlocutory application in the action and must, not less than 7
days before the time fixed for determination of the summons, serve on the other
parties a notice specifying those orders and directions in so far as they differ
from the orders and directions asked for by the summons.
(2)
If the determination of the case management summons is adjourned and any
party to the proceedings desires to apply for any order or directions not asked
for by the summons or in any notice given under paragraph (1), he must, not less
than 7 days before the resumption of the determination of the summons, serve on
the other parties a notice specifying those orders and directions in so far as
they differ from the orders and directions asked for by the summons or in any
such notice as aforesaid.
(3)
Any application subsequent to the case management summons and before
judgment as to any matter capable of being dealt with on an interlocutory
application in the action must be made under the summons by 2 clear days’ notice
to the other party stating the grounds of the application.
8.
Automatic directions in personal
injury actions (O. 25, r.
8)
(1)
When the pleadings in any action to which this rule applies are deemed to be closed the following directions shall take effect automatically—
(a)
there shall be discovery of documents within 14 days in accordance with Order 24, rule 2, and inspection within 7 days thereafter, save that where liability is admitted, or where the action arises out of a road accident, discovery shall be limited to disclosure by the plaintiff of any documents relating to special damages;
(b)-(c)
(Repealed L.N. 152 of 2008)
(d)
photographs, a sketch plan and the contents of any police accident report shall be receivable in evidence at the trial and shall be agreed if possible;
(dd)
the record of any proceedings in any court or tribunal shall be receivable in evidence upon production of a copy thereof certified as a true copy by the clerk or other appropriate officer of the court or tribunal;
(f)-(g)
(Repealed L.N. 99 of 1993)
(2)
(Repealed L.N. 152 of 2008)
(3)
Nothing in paragraph (1) shall prevent any party to an action to which this rule applies from applying to the Court for such further or different directions or orders as may, in the circumstances, be appropriate or prevent the making of an order for the transfer of the proceedings to the District Court.
(4)
For the purpose of this rule—
a
road
accident
(道路意外
) means an accident on land due to a
collision or apprehended collision involving a vehicle; anddocuments
relating to special
damages
(關於專項損害賠償的文件
) include—(a)
documents relating to any industrial injury, industrial disablement or sickness benefit rights, and
(b)
where the claim is made under the Fatal Accidents Ordinance (Cap. 22), documents relating to any claim for dependency on the deceased.
(5)
This rule applies to any action for personal injuries except—
(a)
any Admiralty action; and
(b)
any action where the pleadings contain an allegation of a negligent act
or omission in the course of medical
treatment.
9.
(Repealed L.N. 152 of
2008)
10.
Application to action in
specialist
list (O. 25, r.
10)
Notwithstanding anything in this Order, a specialist judge may, by a practice direction, determine the extent to which this Order is to apply to an action in a specialist list.
11.
Transitional provisions
relating
to Part 11 of Amendment
Rules 2008 (O. 25, r.
11)
(1)
A summons for directions taken out before the
commencement*
of the Amendment Rules 2008 and pending immediately before the
commencement is deemed to be—
(a)
if the summons for directions was taken out by the plaintiff, a case
management summons taken out under rule 1(1B)(b); or
(b)
if the summons for directions was taken out by a defendant, a case
management summons taken out under rule 1(4)(a).
(2)
Where the pleadings in an action to which rule 1 applies are deemed to be closed but no summons for directions has been taken out before the commencement of the Amendment Rules 2008, rule 1(1) has effect as if for the words “the pleadings in an action to which this rule applies are deemed to be closed”, there were substituted the words “the commencement of the Amendment Rules 2008”.
Editorial Note:
*
Commencement
date:
2 April 2009.
Order
26
Interrogatories
1.
Discovery by interrogatories (O. 26, r.
1)
(1)
A party to any cause or matter may in accordance with the following
provisions of this Order serve on any other party interrogatories relating to
any matter in question between the applicant and that other party in the cause
or matter which are necessary either—
(a)
for disposing fairly of the cause or matter; or
(b)
for saving costs.
(2)
Without prejudice to the provisions of paragraph (1), a party may apply to
the Court for an order giving him leave to serve on any other party
interrogatories relating to any matter in question between the applicant and
that other party in the cause or matter.
(3)
A proposed interrogatory which does not relate to such a matter as is
mentioned in paragraph (1) may not be administered notwithstanding that it might
be admissible in oral cross-examination of a witness.
(4)
In this Order—
interrogatories
without
order
(在無命令下發出的質詢書
) means interrogatories
served under paragraph (1);ordered
interrogatories
(根據命令發出的質詢書
) means interrogatories served
under paragraph (2) or interrogatories which are required to be answered
pursuant to an order made on an application under rule 3(2) and,
where such an order is made, the interrogatories shall not, unless the Court
orders otherwise, be treated as interrogatories without order for the purposes
of rule 3(1).(5)
Unless the context otherwise requires, the provisions of this Order apply
to both interrogatories without order and ordered interrogatories.
2.
Form and nature of interrogatories (O. 26, r.
2)
(1)
Where interrogatories are served, a note at the end of the interrogatories
shall specify—
(a)
a period of time (not being less than 28 days from the date of service)
within which the interrogatories are to be answered;
(b)
where the party to be interrogated is a body corporate or unincorporate
which is empowered by law to sue or be sued whether in its own name or in
the name of an officer or other person, the officer or member on whom the
interrogatories are to be served; and
(c)
where the interrogatories are to be served on two or more parties or
are required to be answered by an agent or servant of a party, which of the
interrogatories each party or, as the case may be, an agent or servant is
required to answer, and which agent or servant.
(2)
3.
Interrogatories without order (O. 26, r.
3)
(1)
Interrogatories without order may be served on a party not more than
twice.
(2)
A party on whom interrogatories without order are served may, within 14
days of the service of the interrogatories, apply to the Court for the
interrogatories to be varied or withdrawn and, on any such application, the
Court may make such order as it thinks fit (including an order that the party
who served the interrogatories shall not serve further interrogatories without
order).
(3)
Interrogatories without order shall not be served on the Crown.
4.
Ordered interrogatories (O. 26, r.
4)
(1)
Where an application is made for leave to serve interrogatories, a copy of
the proposed interrogatories shall be served with the summons or the notice
under Order 25, rule 7, by which the application is made.
(2)
In deciding whether to give leave to serve interrogatories, the Court shall
take into account any offer made by the party to be interrogated to give
particulars, make admissions or produce documents relating to any matter in
question and whether or not interrogatories without order have been
administered.
5.
Objections and insufficient answers (O. 26, r.
5)
(1)
Without prejudice to rule 3(2), where a person objects to
answering any interrogatory on the ground of privilege he may take the objection
in his answer.
(2)
Where any person on whom ordered interrogatories have been served answers
any of them insufficiently, the Court may make an order requiring him to make a
further answer, either by affidavit or on oral examination as the Court may
direct.
(3)
Where any person on whom interrogatories without order have been served
answers any of them insufficiently, the party serving the interrogatories may
ask for further and better particulars of the answer given and any such request
shall not be treated as service of further interrogatories for the purposes of
rule 3(1).
6.
Failure to comply with order (O. 26, r.
6)
(1)
If a party fails to answer interrogatories or to comply with an order made
under rule 5(2) or a request made under rule 5(3), the
Court may make such order as it thinks just including, in particular, an order
that the action be dismissed or, as the case may be, an order that the defence
be struck out and judgment be entered accordingly.
(2)
Without prejudice to paragraph (1), where a party fails to answer ordered
interrogatories or to comply with an order made under rule 5(2), he
shall be liable to committal.
(3)
Service on a party’s solicitor of an order to answer interrogatories made
against the party shall be sufficient service to found an application for
committal of the party disobeying the order, but the party may show in answer to
the application that he had no notice or knowledge of the order.
(4)
A solicitor on whom an order to answer interrogatories made against his
client is served and who fails without reasonable excuse to give notice thereof
to his client shall be liable to committal.
7.
Use of answers to interrogatories at trial (O. 26, r.
7)
A party may put in evidence at the trial of a cause or matter, or of any issue
therein, some only of the answers to interrogatories, or part only of such an
answer, without putting in evidence the other answers or, as the case may be, the
whole of that answer, but the Court may look at the whole of the answers and if of
opinion that any other answer or other part of an answer is so connected with an
answer or part thereof used in evidence that the one ought not to be so used without
the other, the Court may direct that that other answer or part shall be put in
evidence.
8.
Revocation and variation of orders (O. 26, r.
8)
Any order made under this Order (including an order made on appeal) may, on
sufficient cause being shown, be revoked or varied by a subsequent order or
direction of the Court made or given at or before the trial of the cause or matter
in connection with which the original order was made.
Order
27
Admissions
1.
Admission of case of other party (O. 27, r.
1)
Without prejudice to Order 18, rule 13, a party to a cause or matter
may give notice, by his pleading or otherwise in writing, that he admits the truth
of the whole or any part of the case of any other
party.
2.
Notice to admit (O. 27, r.
2)
(1)
A party to a cause or matter may not later than 21 days after the cause or
matter is set down for trial serve on any other party a notice requiring him to
admit, for the purpose of that cause or matter only, such facts or such part of
his case as may be specified in the notice.
(2)
An admission made in compliance with a notice under this rule shall not be
used against the party by whom it was made in any cause or matter other than the
cause or matter for the purpose of which it was made or in favour of any person
other than the person by whom the notice was given, and the Court may at any
time allow a party to amend or withdraw an admission so made by him on such
terms as may be
just.
3.
Judgment on admissions (O. 27, r.
3)
Where admissions of fact or of part of a case are made by a party to a cause or
matter either by his pleadings or otherwise, any other party to the cause or matter
may apply to the Court for such judgment or order as upon those admissions he may be
entitled to, without waiting for the determination of any other question between the
parties, and the Court may give such judgment, or make such order, on the
application as it thinks
just.
An application for an order under this rule may be made by
summons.
4.
Admission and production of documents specified
in list of documents (O. 27, r.
4)
(1)
Subject to paragraph (2) and without prejudice to the right of a party to
object to the admission in evidence of any document, a party on whom a list of
documents is served in pursuance of any provision of Order 24 shall, unless the
Court otherwise orders, be deemed to admit—
(a)
that any document described in the list as an original document is such
a document and was printed, written, signed or executed as it purports
respectively to have been, and
(b)
that any document described therein as a copy is a true copy.
This paragraph does not apply to a document the authenticity of which the
party has denied in his pleading.
(2)
If before the expiration of 21 days after inspection of the documents
specified in a list of documents or after the time limited for inspection of
those documents expires, whichever is the later, the party on whom the list is
served serves on the party whose list it is a notice stating, in relation to any
document specified therein, that he does not admit the authenticity of that
document and requires it to be proved at the trial, he shall not be deemed to
make any admission in relation to that document under paragraph (1).
(3)
A party to a cause or matter by whom a list of documents is served on any
other party in pursuance of any provision of Order 24 shall be deemed to have
been served by that other party with a notice requiring him to produce at the
trial of the cause or matter such of the documents specified in the list as are
in his possession, custody or power.
(4)
The foregoing provisions of this rule apply in relation to an affidavit
made in compliance with an order under Order 24, rule 7, as they
apply in relation to a list of documents served in pursuance of any provision of
that
Order.
5.
Notices to admit or produce documents (O. 27, r.
5)
(1)
Except where rule 4(1) applies, a party to a cause or matter may
within 21 days after the cause or matter is set down for trial serve on any
other party a notice requiring him to admit the authenticity of the documents
specified in the notice.
(2)
If a party on whom a notice under paragraph (1) is served desires to
challenge the authenticity of any document therein specified he must, within 21
days after service of the notice, serve on the party by whom it was given a
notice stating that he does not admit the authenticity of the document and
requires it to be proved at the trial.
(3)
A party who fails to give a notice of non-admission in accordance with
paragraph (2) in relation to any document shall be deemed to have admitted the
authenticity of that document unless the Court otherwise orders.
(4)
Except where rule 4(3) applies, a party to a cause or matter may
serve on any other party a notice requiring him to produce the documents
specified in the notice at the trial of the cause or matter.
Order
28
Originating
Summons
Procedure
1.
Application (O. 28, r.
1)
The provisions of this Order apply to all originating summonses subject, in the
case of originating summonses of any particular class, to any special provisions
relating to originating summonses of that class made by these rules or by or under
any written law; and subject as aforesaid, Order 32, rule 5, shall apply
in relation to originating summonses as they apply in relation to other
summonses.
1A.
Affidavit evidence (O. 28, r.
1A)
(1)
In any cause or matter begun by originating summons (not being an ex parte
summons) the plaintiff must, before the expiration of 14 days after the
defendant has acknowledged service, or, if there are two or more defendants, at
least one of them has acknowledged service, file with the Court the affidavit
evidence on which he intends to rely.
(2)
In the case of an ex parte summons the applicant must file his affidavit
evidence not less than 4 clear days before the day fixed for the
hearing.
(3)
Copies of the affidavit evidence filed in the Court under paragraph (1)
must be served by the plaintiff on the defendant, or, if there are two or more
defendants, on each defendant, before the expiration of 14 days after service
has been acknowledged by that defendant.
(4)
Where a defendant who has acknowledged service wishes to adduce affidavit
evidence he must within 28 days after service on him of copies of the
plaintiff’s affidavit evidence under paragraph (3) file his own affidavit
evidence in the Court and serve copies thereof on the plaintiff and on any other
defendant who is affected thereby.
(5)
A plaintiff on whom a copy of a defendant’s affidavit evidence has been
served under paragraph (4) may within 14 days of such service file in the Court
further affidavit evidence in reply and shall in that event serve copies thereof
on that defendant.
(6)
No other affidavit shall be received in evidence without the leave of the
Court.
(7)
Where an affidavit is required to be served by one party on another party
it shall be served without prior charge.
(8)
The provisions of this rule apply subject to any direction by the Court to
the contrary.
(9)
In this rule references to affidavits and copies of affidavits include
references to exhibits to affidavits and copies of such
exhibits.
2.
Fixing time for attendance of parties
before Court (O. 28, r.
2)
(1)
In the case of an originating summons which is in Form No. 8 in Appendix A
the plaintiff must, within one month of the expiry of the time within which
copies of affidavit evidence may be served under rule 1A, obtain an
appointment for the attendance of the parties before the Court for the hearing
of the summons, and a day and time for their attendance shall be fixed by a
notice (in Form No. 12 in Appendix A) sealed with the seal of the
Court.
(2)
A day and time for the attendance of the parties before the Court for the
hearing of an originating summons which is in Form No. 10 in Appendix A, or for
the hearing of an ex parte originating summons, may be fixed on the application
of the plaintiff or applicant, as the case may be and in the case of a summons
which is required to be served, the time limited for acknowledging service
shall, where appropriate, be abridged so as to expire on the next day but one
before the day so fixed, and the time limits for lodging affidavits under
rule 1A(2) and (3) shall, where appropriate, be abridged so as to
expire, respectively, on the fifth day before, and the next day but one before,
the day so fixed.
(3)
Where a plaintiff fails to apply for an appointment under paragraph (1),
any defendant may, with the leave of the Court, obtain an appointment in
accordance with that paragraph provided that he has acknowledged service of the
originating
summons.
3.
Notice of hearing (O. 28, r.
3)
(1)
Not less than 14 days before the day fixed under rule 2 for the
attendance of the parties before the Court for the hearing of an originating
summons which is in Form No. 8 in Appendix A, the party on whose application the
day was fixed must serve a copy of the notice fixing it on every other
party.
(2)
Not less than 4 clear days before the day fixed under rule 2 for
the hearing of an originating summons which is in Form No. 10 in Appendix A, the
plaintiff must serve the summons on every defendant or, if any defendant has
already been served with the summons, must serve on that defendant notice of the
day fixed for the hearing.
(3)
Where notice in Form No. 12 in Appendix A is served in accordance with
paragraph (1), such notice shall specify what orders of directions the party
serving the notice intends to seek at the hearing; and any party served with
such notice who wishes to seek different orders or directions must, not less
than 7 days before the hearing, serve on every other party a notice specifying
the other orders and directions he intends to seek.
(4)
If the hearing of an originating summons which is in Form No. 8 or 10 in
Appendix A is adjourned and any party to the proceedings desires to apply at the
resumed hearing for any order or direction not previously asked for, he must,
not less than 7 days before the resumed hearing of the summons, serve on every
other party a notice specifying those orders and directions.
(5)
Where a party is required by any provision of this rule or rule
5(2) to serve a notice or a copy of a notice on “every other party” he
must—
(a)
where he is the plaintiff, serve it on every defendant who has
acknowledged service of the originating summons; and
(b)
where he is a defendant, serve it on the plaintiff and on every other
defendant affected thereby.
3A.
Originating summons to be heard
in
open court (O. 28, r.
3A)
An originating summons must be heard in open court unless the Court otherwise
directs.
4.
Directions, etc., by Court (O. 28, r.
4)
(1)
The Court by whom an originating summons is heard may, if the liability of
the defendant to the plaintiff in respect of any claim made by the plaintiff is
established, make such order in favour of the plaintiff as the nature of the
case may require, but where the Court makes an order under this paragraph
against a defendant who does not appear at the hearing, the order may be varied
or revoked by a subsequent order of the Court on such terms as it thinks
just.
(2)
In any case where the Court does not dispose of any originating summons
altogether at a hearing or order the cause or matter begun by it to be
transferred to a District Court or some other court or makes an order under
rule 8, the Court shall give such directions as to the further
conduct of the proceedings as it thinks best adapted to secure the just,
expeditious and economical disposal thereof.
(3)
Without prejudice to the generality of paragraph (2), the Court shall, at
as early a stage of the proceedings on the summons as appears to it to be
practicable, consider whether there is or may be a dispute as to fact and
whether the just, expeditious and economical disposal of the proceedings can
accordingly best be secured by hearing the summons on oral evidence or mainly on
oral evidence and, if it thinks fit, may order that no further evidence shall be
filed and that the summons shall be heard on oral evidence or partly on oral
evidence and partly on affidavit evidence, with or without cross-examination of
any of the deponents, as it may direct.
(4)
Without prejudice to the generality of paragraph (2), and subject to
paragraph (3), the Court may give directions as to the filing of evidence and as
to the attendance of deponents for cross-examination and any directions which it
could give under Order 25 if the cause or matter had been begun by writ and the
summons were a case management summons under that Order.
(5)
The Court may at any stage of the proceedings order that any affidavit, or
any particulars of any claim, defence or other matters stated in any affidavit,
shall stand as pleadings or that points of claim, defence or reply be delivered
and stand as pleadings.
5.
Adjournment of summons (O. 28, r.
5)
(1)
The hearing of the summons by the Court may (if necessary) be adjourned
from time to time, either generally or to a particular date, as may be
appropriate, and the powers of the Court under rule 4 may be
exercised at any resumed hearing.
(2)
If the hearing of the summons is adjourned generally, any party may restore
it to the list on 14 days’ notice to every other party and rule 3(4)
shall apply in relation to any such adjourned hearing.
6.
Applications affecting party who has failed
to acknowledge service (O. 28, r.
6)
Where in a cause or matter begun by originating summons an application is made
to the Court for an order affecting a party who has failed to acknowledge service of
the summons, the Court hearing the application may require to be satisfied in such
manner as it thinks fit that the party has so
failed.
7.
Counterclaim by defendant (O. 28, r.
7)
(1)
A defendant to an action begun by originating summons who has acknowledged
service of the summons and who alleges that he has any claim or is entitled to
any relief or remedy against the plaintiff in respect of any matter (whenever
and however arising) may make a counterclaim in the action in respect of that
matter instead of bringing a separate action.
(2)
A defendant who wishes to make a counterclaim under this rule must at the
first or any resumed hearing of the originating summons by the Court but, in any
case, at as early a stage in the proceedings as is practicable, inform the Court
of the nature of his claim and, without prejudice to the powers of the Court
under paragraph (3), the claim shall be made in such manner as the Court may
direct under rule 4 or rule 8.
(3)
If it appears on the application of a plaintiff against whom a counterclaim
is made under this rule that the subject-matter of the counterclaim ought for
any reason to be disposed of by a separate action, the Court may order the
counterclaim to be struck out or may order it to be tried separately or make
such other order as may be
expedient.
8.
Continuation of proceedings as if cause
or matter begun by writ (O. 28, r.
8)
(1)
Where, in the case of a cause or matter begun by originating summons, it
appears to the Court at any stage of the proceedings that the proceedings should
for any reason be continued as if the cause or matter had been begun by writ, it
may order the proceedings to continue as if the cause or matter had been so
begun and may, in particular, order that any affidavits shall stand as
pleadings, with or without liberty to any of the parties to add thereto or to
apply for particulars thereof.
(2)
Where the Court decides to make such an order, Order 25, rules 2 to
7, shall, with the omission of so much of rule 7(1) as
requires parties to serve a notice specifying the orders and directions which
they require and with any other necessary modifications, apply as if there had
been a case management summons in the proceedings and that order were one of the
orders to be made thereon.
(3)
This rule applies notwithstanding that the cause or matter in question
could not have been begun by writ.
(4)
Any reference in these rules to an action begun by writ shall, unless the
context otherwise requires, be construed as including a reference to a cause or
matter proceedings in which are ordered under this rule to continue as if the
cause or matter had been so
begun.
9.
Order for hearing or trial (O. 28, r.
9)
(1)
Except where the Court disposes of a cause or matter begun by originating
summons in chambers or orders it to be transferred to a District Court or some
other court or makes an order in relation to it under rule 8 or some
other provision of these rules, the Court shall, on being satisfied that the
cause or matter is ready for determination, make such order as to the hearing of
the cause or matter as may be appropriate.
(3)
The Court shall by order determine the place and mode of the trial, but any
such order may be varied by a subsequent order of the Court made at or before
the trial.
(4)
Order 33, rule 4(2) and Order 34, rules 1 to 8, shall
apply in relation to a cause or matter begun by originating summons and to an
order made therein under this rule as they apply in relation to an action begun
by writ and to an order made therein under the said rule 4 and shall
have effect accordingly with any necessary modifications and with the further
modification that for references therein to the case management summons there
shall be substituted references to the first or any resumed hearing of the
originating summons by the Court.
10.
Failure to prosecute proceedings
with despatch (O. 28, r.
10)
(1)
If the plaintiff in a cause or matter begun by originating summons makes
default in complying with any order or direction of the Court as to the conduct
of the proceedings, or if the Court is satisfied that the plaintiff in a cause
or matter so begun is not prosecuting the proceedings with due despatch, the
Court may order the cause or matter to be dismissed or may make such other order
as may be just.
(2)
Paragraph (1) shall, with any necessary modifications, apply in relation to
a defendant by whom a counterclaim is made under rule 7 as it applies
in relation to a plaintiff.
(3)
Where, by virtue of an order made under rule 8, proceedings in a
cause or matter begun by originating summons are to continue as if the cause or
matter had been begun by writ, the foregoing provisions of this rule shall not
apply in relation to the cause or matter after the making of the
order.
11.
Abatement, etc., of action (O. 28, r.
11)
Order 34, rule 9, shall apply in relation to an action begun by
originating summons as it applies in relation to an action begun by writ.
Order
29
Interlocutory
Injunctions,
Interim Preservation
of
Property,
Interim
Payments,
etc.
I.
Interlocutory Injunctions, Interim Preservation of Property,
etc.
1.
Application for injunction (O. 29, r.
1)
(1)
An application for the grant of an injunction may be made by any party to a
cause or matter before or after the trial of the cause or matter, whether or not
a claim for the injunction was included in that party’s writ, originating
summons, counterclaim or third party notice, as the case may be.
(2)
Where the applicant is the plaintiff and the case is one of urgency such
application may be made ex parte on affidavit but, except as aforesaid, such
application must be made by summons.
(3)
The plaintiff may not make such an application before the issue of the writ
or originating summons by which the cause or matter is to be begun except where
the case is one of urgency, and in that case the injunction applied for may be
granted on terms providing for the issue of the writ or summons and such other
terms, if any, as the Court thinks
fit.
2.
Detention, preservation etc., of subject-matter
of
cause or matter (O. 29, r.
2)
(1)
On the application of any party to a cause or matter the Court may make an
order for the detention, custody or preservation of any property which is the
subject-matter of the cause or matter, or as to which any question may arise
therein, or for the inspection of any such property in the possession of a party
to the cause or matter.
(2)
For the purpose of enabling any order under paragraph (1) to be carried out
the Court may by the order authorize any person to enter upon any land or
building in the possession of any party to the cause or matter.
(3)
Where the right of any party to a specific fund is in dispute in a cause or
matter, the Court may, on the application of a party to the cause or matter,
order the fund to be paid into court or otherwise secured.
(4)
An order under this rule may be made on such terms, if any, as the Court
thinks just.
(5)
An application for an order under this rule must be made by summons or by
notice under Order 25, rule 7.
(6)
Unless the Court otherwise directs, an application by a defendant for such
an order may not be made before he acknowledges service of the writ or
originating summons by which the cause or matter was
begun.
3.
Power to order samples to be taken, etc. (O. 29, r.
3)
(1)
Where it considers it necessary or expedient for the purpose of obtaining
full information or evidence in any cause or matter, the Court may, on the
application of a party to the cause or matter, and on such terms, if any, as it
thinks just, by order authorize or require any sample to be taken of any
property which is the subject-matter of the cause or matter or as to which any
question may arise therein, any observation to be made on such property or any
experiment to be tried on or with such property.
(2)
For the purpose of enabling any order under paragraph (1) to be carried out
the Court may by the order authorize any person to enter upon any land or
building in the possession of any party to the cause or matter.
(3)
Rule 2(5) and (6) shall apply in relation to an application for
an order under this rule as they apply in relation to an application for an
order under that
rule.
4.
Sale of perishable property, etc. (O. 29, r.
4)
(1)
The Court may, on the application of any party to a cause or matter, make an
order for the sale by such person, in such manner and on such terms (if any) as
may be specified in the order of any property (other than land) which is the
subject-matter of the cause or matter or as to which any question arises therein
and which is of a perishable nature or likely to deteriorate if kept or which
for any other good reason it is desirable to sell forthwith.
In this paragraph
land
(土地
) includes any interest in, or right
over, land.(2)
Rule 2(5) and (6) shall apply in relation to an application for
an order under this rule as they apply in relation to an application for an
order under that
rule.
5.
Order for early trial (O. 29, r.
5)
Where on the hearing of an application, made before the trial of a cause or
matter, for an injunction or the appointment of a receiver or an order under
rule 2, 3 or 4 it appears to the Court that the
matter in dispute can be better dealt with by an early trial than by considering the
whole merits thereof for the purposes of the application, the Court may make an
order accordingly and may also make such order as respects the period before trial
as the justice of the case
requires.
Where the Court makes an order for early trial it shall by the order
determine the mode of the trial.
6.
Recovery of personal property subject
to
lien, etc. (O. 29, r.
6)
Where the plaintiff, or the defendant by way of counterclaim, claims the
recovery of specific property (other than land) and the party from whom recovery is
sought does not dispute the title of the party making the claim but claims to be
entitled to retain the property by virtue of a lien or otherwise as security for any
sum of money, the Court, at any time after the claim to be so entitled appears from
the pleadings (if any) or by affidavit or otherwise to its satisfaction, may order
that the party seeking to recover the property be at liberty to pay into court, to
abide the event of the action, the amount of money in respect of which the security
is claimed and such further sum (if any) for interest and costs as the Court may
direct and that, upon such payment being made, the property claimed be given up to
the party claiming
it.
7.
Directions (O. 29, r.
7)
(1)
Where an application is made under any of the foregoing provisions of this
Order, the Court may give directions as to the further proceedings in the cause
or matter.
(2)
If, in an action begun by writ, not being any such action as is mentioned
in sub-paragraphs (a) to (c) and (e) to (h) of Order 25, rule
1(2),
the Court thinks fit to give directions under this rule before the case
management summons, rules 2 to 7 of that Order shall, with the
omission of so much of rule 7(1) as requires parties to serve a
notice specifying the orders and directions which they desire and with any other
necessary modifications, apply as if the application were a case management
summons.
7A.
Inspection, etc. of property under sections 42
and
44(1) of the Ordinance (O. 29, r.
7A)
(1)
An application for an order under section 44(1) of the Ordinance
in respect of property which may become the subject-matter of subsequent
proceedings in the Court or as to which any question may arise in any such
proceedings shall be made by originating summons and the person against whom the
order is sought shall be made defendant to the summons.
(2)
An application after the commencement of proceedings for an order under
section 42(2) of the Ordinance in respect of property which is
not the property of or in the possession of any party to the proceedings shall
be made by summons, which must be served on the person against whom the order is
sought personally and on every party to the proceedings other than the
applicant.
(3)
A summons under paragraph (1) or (2) shall be supported by affidavit which
must specify or describe the property in respect of which the order is sought
and show, if practicable by reference to any pleading served or intended to be
served in the proceedings or subsequent proceedings, that it is property which
is or may become the subject-matter of the proceedings or as to which any
question arises or may arise in the proceedings.
(4)
A copy of the supporting affidavit shall be served with the summons on
every person on whom the summons is required to be served.
(5)
An order made under section 42(2) or 44(1) may be
made conditional on the applicant’s giving security for the costs of the person
against whom it is made or on such other terms, if any, as the Court thinks
just.
(6)
No such order shall be made if it appears to the Court—
(a)
that compliance with the order, if made, would result in the disclosure
of information relating to a secret process, discovery or invention not in
issue in the proceedings; and
(b)
that the application would have been refused on that ground if—
(i)
in the case of a summons under paragraph (1), the subsequent
proceedings had already been begun; or
(ii)
in the case of a summons under paragraph (2), the person against
whom the order is sought were a party to the
proceedings.
8.
Allowance of income of property
pendente
lite (O. 29, r.
8)
Where any real or personal property forms the subject-matter of any
proceedings, and the Court is satisfied that it will be more than sufficient to
answer all the claims thereon for which provision ought to be made in the
proceedings, the Court may at any time allow the whole or part of the income of the
property to be paid, during such period as it may direct, to any or all of the
parties who have an interest therein or may direct that any part of the personal
property be transferred or delivered to any or all of such
parties.
8A.
Application for interim relief under
section 21M(1) of the
Ordinance
(O. 29, r.
8A)
(1)
An application for interim relief under section 21M(1) of the
Ordinance must be made by originating summons in Form No. 10 in Appendix
A.
(2)
(3)
Upon hearing of the originating summons, the Court may direct that all or
any part of the hearing be conducted in open court.
II. Interim
Payments
9.
Interpretation of Part II (O. 29, r.
9)
In this Part of this Order—
interim
payment
(中期付款
), in relation to a defendant, means a
payment on account of any damages, debt or other sum (excluding costs) which he may
be held liable to pay to or for the benefit of the plaintiff; and any reference to
the plaintiff or defendant includes a reference to any person who, for the purpose
of the proceedings, acts as next friend of the plaintiff or guardian of the
defendant. 10.
Application for interim payment (O. 29, r.
10)
(1)
The plaintiff may, at any time after the writ has been served on a
defendant and the time limited for him to acknowledge service has expired, apply
to the Court for an order requiring that defendant to make an interim
payment.
(2)
An application under this rule shall be made by summons but may be included
in a summons for summary judgment under Order 14 or Order 86.
(3)
An application under this rule shall be supported by an affidavit which
shall—
(a)
verify the amount of the damages, debt or other sum to which the
application relates and the grounds of the application;
(b)
exhibit any documentary evidence relied on by the plaintiff in support
of the application; and
(c)
if the plaintiff’s claim is made under the Fatal Accidents Ordinance
(Cap. 22), contain the particulars mentioned
in section 5(4) that Ordinance.
(4)
The summons and a copy of the affidavit in support and any documents
exhibited thereto shall be served on the defendant against whom the order is
sought not less than 10 clear days before the return day.
(5)
Notwithstanding the making or refusal of an order for an interim payment, a
second or subsequent application may be made upon cause
shown.
11.
Order for interim payment in respect
of
damages (O. 29, r.
11)
(1)
If, on the hearing of an application under rule 10 in an action
for damages, the Court is satisfied—
(a)
that the defendant against whom the order is sought (in this paragraph
referred to as
the
respondent)
has admitted liability for the plaintiff’s damages; or
(b)
that the plaintiff has obtained judgment against the respondent for
damages to be assessed; or
(c)
that, if the action proceeded to trial, the plaintiff would obtain
judgment for substantial damages against the respondent or, where there are
two or more defendants, against any of them,
the Court may, if it thinks fit and subject to paragraph (2), order the
respondent to make an interim payment of such amount as it thinks just, not
exceeding a reasonable proportion of the damages which in the opinion of the
Court are likely to be recovered by the plaintiff after taking into account any
relevant contributory negligence and any set-off, cross-claim or counterclaim on
which the respondent may be entitled to rely.
(2)
No order shall be made under paragraph (1) in an action for personal
injuries if it appears to the Court that the defendant is not a person falling
within one of the following categories, namely—
(a)
a person who is insured in respect of the plaintiff’s claim or whose
liability in respect of the plaintiff’s claim will be met by the following
person—
(i)
an insurer under section 10 of the Motor Vehicles
Insurance (Third Party Risks) Ordinance (Cap.
272); or
(ii)
an insurer who is a party to an agreement with the Motor Insurers’
Bureau of Hong Kong; or
(iii)
the Motor Insurers’ Bureau of Hong Kong;
(b)
a public authority; or
(c)
a person whose means and resources are such as to enable him to make
the interim payment.
(3)
In paragraph (2)(a)(ii),
agreement
(協議
) means the domestic agreement between
the Motor Insurers’ Bureau of Hong Kong and the insurance companies and Lloyd’s
underwriters authorized to carry on motor vehicle insurance business in Hong
Kong, made on 1 February 1981, as amended from time to time. 12.
Order for interim payment in respect of
sums
other than damages (O. 29, r.
12)
If, on the hearing of an application under rule 10, the Court is
satisfied—
(a)
that the plaintiff has obtained an order for an account to be taken as
between himself and the defendant and for any amount certified due on taking the
account to be paid; or
(b)
that the plaintiff’s action includes a claim for possession of land and, if
the action proceeded to trial, the defendant would be held liable to pay to the
plaintiff a sum of money in respect of the defendant’s use and occupation of the
land during the pendency of the action, even if a final judgment or order were
given or made in favour of the defendant; or
(c)
that, if the action proceeded to trial, the plaintiff would obtain judgment
against the defendant for a substantial sum of money apart from any damages or
costs,
the Court may, if it thinks fit, and without prejudice to any contentions of
the parties as to the nature or character of the sum to be paid by the defendant,
order the defendant to make an interim payment of such amount as it thinks just,
after taking into account any set-off, cross-claim or counterclaim on which the
defendant may be entitled to
rely.
13.
Manner of payment (O. 29, r.
13)
(1)
Subject to Order 80, rule 12, the amount of any interim payment
ordered to be made shall be paid to the plaintiff unless the order provides for
it to be paid into court, and where the amount is paid into court, the Court
may, on the application of the plaintiff, order the whole or any part of it to
be paid out to him at such time or times as the Court thinks fit.
(2)
An application under paragraph (1) for money in court to be paid out may be
made ex parte, but the Court hearing the application may direct a summons to be
issued.
(3)
An interim payment may be ordered to be made in one sum or by such
instalments as the Court thinks fit.
(4)
Where a payment is ordered in respect of the defendant’s use and occupation
of land the order may provide for periodical payments to be made during the
pendency of the
action.
14.
Directions on application under rule 10 (O. 29, r.
14)
Where an application is made under rule 10, the Court may give
directions as to the further conduct of the action, and, so far as may be
applicable, Order 25, rules 2 to 7, shall, with the omission of so much
of rule 7(1) as requires the parties to serve a notice specifying the
orders and directions which they require and with any other necessary modifications,
apply as if the application were a case management summons, and, in particular, the
Court may order an early trial of the action.
15.
Non-disclosure of interim payment (O. 29, r.
15)
The fact that an order has been made under rule 11 or 12
shall not be pleaded and, unless the defendant consents or the Court so directs, no
communication of that fact or of the fact that an interim payment has been made,
whether voluntarily or pursuant to an order, shall be made to the Court at the
trial, or hearing, of any question or issue as to liability or damages until all
questions of liability and amount have been
determined.
16.
Payment into court in satisfaction (O. 29, r.
16)
Where, after making an interim payment, whether voluntarily or pursuant to an
order, a defendant pays a sum of money into court under Order 22, the notice of
payment must state that the defendant has taken into account the interim
payment.
17.
Adjustment on final judgment or order
or
on discontinuance (O. 29, r.
17)
Where a defendant has been ordered to make an interim payment or has in fact
made an interim payment, whether voluntarily or pursuant to an order, the Court may,
in giving or making a final judgment or order, or granting the plaintiff leave to
discontinue his action or to withdraw the claim in respect of which the interim
payment has been made, or at any other stage of the proceedings on the application
of any party, make such order with respect to the interim payment as may be just,
and in particular—
(a)
an order for the repayment by the plaintiff of all or part of the interim
payment; or
(b)
an order for the payment to be varied or discharged; or
(c)
an order for the payment by any other defendant of any part of the interim
payment which the defendant who made it is entitled to recover from him by way
of contribution or indemnity or in respect of any remedy or relief relating to
or connected with the plaintiff’s
claim.
18.
Counterclaims and other proceedings (O. 29, r.
18)
The preceding rules in this Part of this Order shall apply, with the necessary
modifications, to any counterclaim or proceeding commenced otherwise than by writ,
where one party seeks an order for an interim payment to be made by
another.
Order
30
Receivers
1.
Application for receiver and injunction (O. 30, r.
1)
(1)
An application for the appointment of a receiver may be made by
summons.
(2)
An application for an injunction ancillary or incidental to an order
appointing a receiver may be joined with the application for such
order.
(3)
Where the applicant wishes to apply for the immediate grant of such an
injunction, he may do so ex parte on affidavit.
(4)
The Court hearing an application under paragraph (3) may grant an
injunction restraining the party beneficially entitled to any interest in the
property of which a receiver is sought from assigning, charging or otherwise
dealing with that property until after the hearing of a summons for the
appointment of the receiver and may require such a summons, returnable on such
date as the Court may direct, to be
issued.
2.
Giving of security by receiver (O. 30, r.
2)
(1)
A judgment or order directing the appointment of a receiver may include
such directions as the Court thinks fit for the giving of security by the person
appointed.
(2)
Where by virtue of any judgment or order appointing a person named therein
to be a receiver, a person is required to give security in accordance with this
rule he must give security approved by the Court duly to account for what he
receives as receiver and to deal with it as the Court directs.
(3)
Unless the Court otherwise directs, the security shall be by
guarantee.
(4)
The guarantee must be filed in the Registry, and it shall be kept as of
record until duly
vacated.
3.
Remuneration of receiver (O. 30, r.
3)
A person appointed receiver shall be allowed such proper remuneration, if any,
as may be authorized by the Court and the Court may direct that such remuneration
shall be fixed by reference to such scales or rates of professional charges as it
thinks
fit.
4.
Service of order and notice (O. 30, r.
4)
A copy of the judgment or order appointing a receiver shall be served by the
party having conduct of the proceedings on the receiver and all other parties to the
cause or matter in which the receiver has been
appointed.
5.
Receiver’s accounts (O. 30, r.
5)
(1)
A receiver shall submit such accounts to such parties at such intervals or
on such dates as the Court may direct.
(2)
Any party to whom a receiver is required to submit accounts may, on giving
reasonable notice to the receiver, inspect, either personally or by an agent,
the books and other papers relating to the accounts.
(3)
Any party who is dissatisfied with the accounts of the receiver may give
notice specifying the item or items to which objection is taken and requiring
the receiver within not less than 14 days to lodge his accounts with the Court
and a copy of such notice shall be lodged in the Registry.
(4)
Following an examination by or on behalf of the Court of an item or items
in an account to which objection is taken the result of such examination must be
certified by the Registrar and an order may thereupon be made as to the
incidence of any costs or expenses
incurred.
6.
Payment into court by receiver (O. 30, r.
6)
The Court may fix the amounts and frequency of payments into court to be made
by a
receiver.
7.
Default by receiver (O. 30, r.
7)
(1)
Where a receiver fails to attend for the examination of any account of his,
or fails to submit any account, provide access to any books or papers or do any
other thing which he is required to submit, provide or do, he and any or all of
the parties to the cause or matter in which he was appointed may be required to
attend in chambers to show cause for the failure, and the Court may, either in
chambers or after adjournment into court, give such directions as it thinks
proper including, if necessary, directions for the discharge of the receiver and
the appointment of another and the payment of costs.
(2)
Without prejudice to paragraph (1), where a receiver fails to attend for
the examination of any account of his or fails to submit any account or fails to
pay into court on the date fixed by the Court any sum required to be so paid,
the Court may disallow any remuneration claimed by the receiver and may, where
he has failed to pay any such sum into court, charge him with interest at the
rate currently payable in respect of judgment debts in the Court of First
Instance on that sum while in his possession as receiver.
8.
Directions to receivers (O. 30, r.
8)
A receiver may at any time request the Court to give him directions and such a
request shall state in writing the matters with regard to which directions are
required.
9.
Application for appointment of
receiver
under section 21M(1) of
the
Ordinance (O. 30, r.
9)
This Order applies to an application for appointment of a receiver under
section 21M(1) of the Ordinance as it applies to an application for
appointment of a receiver in an action or proceeding in the High Court subject to
the following modifications—
(a)
the application must be made by originating summons in Form No. 10 in
Appendix A and accordingly rule 1(1) does not apply; and
(b)
rule 1(3) and (4) does not apply to the application.
Order
31
Sales,
etc.
of Land
by Order
of
Court
1.
Power to order sale of land (O. 31, r.
1)
Where in any cause or matter relating to any land it appears necessary or
expedient for the purposes of the cause or matter that the land or any part thereof
should be sold, the Court may order that land or part to be sold, and any party
bound by the order and in possession of that land or part, or in receipt of the
rents and profits thereof, may be compelled to deliver up such possession or receipt
to the purchaser or to such other person as the Court may direct.
In this Order
land
(土地
) includes any interest in, or right over,
land.2.
Manner of carrying out sale (O. 31, r.
2)
(1)
Where an order is made, whether in court or in chambers, directing any land
to be sold, the Court may permit the party or person having the conduct of the
sale to sell the land in such manner as he thinks fit, or may direct that the
land be sold in such manner as the Court may either by the order or subsequently
direct for the best price that can be obtained, and all proper parties shall
join in the sale and conveyance as the Court shall direct.
(2)
The Court may give such directions as it thinks fit for the purpose of
effecting the sale, including, without prejudice to the generality of the
foregoing words, directions—
(a)
appointing the party or person who is to have the conduct of the
sale;
(b)
fixing the manner of sale, whether by contract conditional on the
approval of the Court, private treaty, public auction, tender or some other
manner;
(c)
fixing reserve or minimum price;
(d)
requiring payment of the purchase money into court or to trustees or
other persons;
(e)
for settling the particulars and conditions of sale;
(f)
for obtaining evidence of the value of the property;
(g)
fixing the security (if any) to be given by the auctioneer, if the sale
is to be by public auction, and the remuneration to be allowed
him;
(h)
requiring an abstract of the title to be referred to counsel for his
opinion thereon and to settle the particulars and conditions of
sale.
3.
Certifying result of sale (O. 31, r.
3)
(1)
If either the Court has directed payment of the purchase money into court or
the Court so directs, the result of a sale by order of the Court must be
certified—
(a)
in the case of a sale by public auction, by the auctioneer who
conducted the sale; and
(b)
in any other case, by the solicitor of the party or person having the
conduct of the sale;
and the Court may require the certificate to be verified by the affidavit
of the auctioneer or solicitor, as the case may be.
(2)
The solicitor of the party or person having the conduct of the sale must
file the certificate and any affidavit in the
Registry.
4.
Mortgage, exchange or partition under
order of the Court (O. 31, r.
4)
Order
32
Applications
and Proceedings
in
Chambers
I. General
1.
Mode of making application (O. 32, r.
1)
Except as provided by Order 25, rule 7, every application in
chambers not made ex parte must be made by summons, and where, under the provisions
of these rules, such summons must be supported by affidavit, such affidavit shall be
filed at the same time as the summons.
2.
Issue of summons (O. 32, r.
2)
(1)
Issue of a summons by which an application in chambers is to be made takes
place on its being sealed with the Seal of the Court.
(2)
A summons may not be amended after issue without the leave of the
Court.
3.
Services of summons (O. 32, r.
3)
A summons asking only for the extension or abridgement of any period of time
may be served on the day before the day specified in the summons for the hearing
thereof but, except as aforesaid and unless the Court otherwise orders or any of
these rules otherwise provides, a summons must be served on every other party not
less than 2 clear days before the day so
specified.
4.
Adjournment of hearing (O. 32, r.
4)
(1)
The hearing of a summons may be adjourned from time to time, either
generally or to a particular date, as may be appropriate.
(2)
If the hearing is adjourned generally, the party by whom the summons was
taken out may restore it to the list on 2 clear days’ notice to all the other
parties on whom the summons was
served.
5.
Proceeding in absence of party
failing
to attend (O. 32, r.
5)
(1)
Where any party to a summons fails to attend on the first or any resumed
hearing thereof, the Court may proceed in his absence if, having regard to the
nature of the application, it thinks it expedient so to do.
(2)
Before proceeding in the absence of any party the Court may require to be
satisfied that the summons or, as the case may be, notice of the time appointed
for the resumed hearing was duly served on that party.
(3)
Where the Court hearing a summons proceeded in the absence of a party,
then, provided that any order made on the hearing has not been perfected, the
Court, if satisfied that it is just to do so, may re-hear the summons.
(4)
Where an application made by summons has been dismissed without a hearing
by reason of the failure of the party who took out the summons to attend the
hearing, the Court, if satisfied that it is just to do so, may allow the summons
to be restored to the
list.
6.
Order made ex parte may be set aside (O. 32, r.
6)
The Court may set aside an order made ex
parte.
7.
Subpoena for attendance of witness (O. 32, r.
7)
(1)
A writ of subpoena ad testificandum or a writ of subpoena duces tecum to
compel the attendance of a witness for the purpose of proceedings in chambers
may be issued out of the Registry, if the party who desires the attendance of
the witness produces a note from a judge or from the Registrar or a master, as
the case may be, authorizing the issue of the writ.
(2)
The Registrar or any master may give such a note or may direct the
application for it be made to the judge before whom the proceedings are to be
heard.
8.
Registrar, etc., may administer oaths, etc. (O. 32, r.
8)
(1)
The Registrar or any master shall have authority to administer oaths and
take affidavits for the purpose of proceedings in the
Court.
9.
Applications under the Mental Health
Ordinance
(O. 32, r.
9)
(1)
The jurisdiction of the Court to grant leave under section 69 of
the Mental Health Ordinance (Cap. 136) to bring
proceedings against a person may be exercised in chambers by a judge.
(2)
An originating summons by which an application for leave under the said
section 69 is made shall be in Form No. 10 in Appendix
A.
(3)
The application must be supported by an affidavit setting out the grounds
on which such leave is sought and any facts necessary to substantiate those
grounds.
9A.
Application for a direction under the Limitation
Ordinance
(O. 32, r.
9A)
The jurisdiction to direct, under section 30 of the Limitation
Ordinance (Cap. 347), that section 27 or
28 of that Ordinance should not apply to an action or to any
specified cause of action to which the action relates shall be exercisable by the
Court.
10.
Application to make order of Court of Final Appeal
order
of Court of First Instance (O. 32, r.
10)
An application to make an order of the Court of Final Appeal an order of the
Court of First Instance may be made ex parte by affidavit to a master.
II. Powers of the Registrar, Judges and the
Court
11.
Jurisdiction of the Registrar and masters (O. 32, r.
11)
(1)
The Registrar and any master shall have power to transact all such business
and exercise all such authority and jurisdiction as under any Ordinance or by
these rules may be transacted and exercised by a judge in chambers except in
respect of the following matters and proceedings, that is to say—
(a)
matters relating to criminal proceedings, other than matters relating
to the conditions of admission to bail and an application under Order 70
relating to criminal proceedings;
(b)
matters relating to the liberty of the subject other than orders for
arrest and imprisonment to enforce, secure or pursue civil claims for the
payment of money and orders prohibiting persons from leaving Hong
Kong;
(d)
subject to paragraph (2), proceedings for the grant of an injunction or
other order under Part I of Order 29;
(da)
applications under section 27A of the Ordinance (leave to
institute or continue proceedings) for leave to institute or continue legal
proceedings;
(f)
any other matter or proceeding which by any of these rules is required
to be heard only by a judge.
(2)
The Registrar and any master shall have power to grant an injunction, or to
make an order for the detention, custody or preservation of any property, in the
terms agreed by the parties to the proceedings in which the injunction or order
is
sought.
11A.
Interlocutory
applications
(O. 32, r.
11A)
(1)
A master may—
(a)
determine an interlocutory application without an oral hearing;
or
(b)
adjourn the application to be heard before him or another master or a
judge in chambers.
(2)
The master may fix a date on which he may—
(a)
in the case of paragraph (1)(a), hand down his determination
of the application; and
(b)
in the case of paragraph (1)(b), make an order that the
application be heard before him or another master or a judge in chambers on
a date specified in the order.
(3)
The master may give such directions as he thinks necessary or desirable for
the purpose of determining the application, including directions for—
(a)
the setting of a timetable for the steps to be taken between the date
of the giving of those directions and the date of the determination of the
application;
(b)
the filing of evidence and arguments;
(c)
the filing of a statement of costs in respect of the application;
and
(d)
the filing of a statement of grounds in opposition to the statement of
costs referred to in sub-paragraph (c).
(4)
Where the determination of the application is adjourned for the hearing of
the summons, no further evidence may be adduced unless it appears to the Court
that there are exceptional circumstances making it desirable that further
evidence should be adduced.
(5)
Paragraph (4) is subject to a direction given under paragraph
(3).
(6)
This rule does not apply to—
(a)
an application under Order 2, rule 4 for relief from any
sanction imposed by a court order; and
(b)
an application to extend or shorten the time for compliance with a
court order.
11B.
Court’s power to specify
consequences
of failure to comply with court
order
on interlocutory
application
(O. 32, r.
11B)
(1)
Where the Court makes an order on an interlocutory application
before—
(a)
a case management summons in the action is taken out under Order 25;
or
(b)
it gives directions relating to the management of the case under Order
25, rule 1A(1)(a), (2)(a) or (4),
it may, if it thinks appropriate to do so, specify the consequences of
failing to comply with the order.
(2)
Where the Court makes an order on an interlocutory application
after—
(a)
a case management summons in the action taken out under Order 25 has
been dealt with by the Court; or
(b)
it has given directions relating to the management of the case under
Order 25, rule 1A(1)(a), (2)(a) or (4),
it shall, unless there are special circumstances which render it
inexpedient to do so, specify the consequences of failing to comply with the
Order.
(3)
The consequences specified under paragraph (1) or (2) must be appropriate
and proportionate in relation to the non-compliance.
12.
Reference of matter to judge (O. 32, r.
12)
The Registrar and any master may refer to a judge any matter which he thinks
should properly be decided by a judge, and the judge may either dispose of the
matter or refer it back to the Registrar or to any master, with such directions as
he thinks
fit.
13.
Power to direct hearing in court (O. 32, r.
13)
(1)
The judge in chambers may direct that any summons, application or appeal
shall be heard in court or shall be adjourned into court to be so heard if he
considers that by reason of its importance or for any other reason it should be
so heard.
(2)
Any matter heard in court by virtue of a direction under paragraph (1) may
be adjourned from court into
chambers.
16.
Obtaining assistance of experts (O. 32, r.
16)
If the Court thinks it expedient in order to enable it better to determine any
matter arising in proceedings in chambers, it may obtain the assistance of any
person specially qualified to advise on that matter and may act upon his
opinion.
17.
Notice of filing, etc. of affidavit (O. 32, r.
17)
Any party—
(a)
filing an affidavit intended to be used by him in any proceedings in
chambers, or
(b)
intending to use in any such proceedings any affidavit filed by him in
previous proceedings,
must give notice to every other party of the filing or, as the case may be,
of his intention to do
so.
18.
Adjournment into or from court (O. 32, r.
18)
The hearing of any summons or other application in chambers may be adjourned
from chambers into court and subsequently from court into
chambers.
19.
Disposal of matters in chambers (O. 32, r.
19)
The judge may by any judgment or order made in court in any proceedings direct
that such matters (if any) in the proceedings as he may specify shall be disposed of
in
chambers.
21.
Papers for use of Court, etc. (O. 32, r.
21)
The original of any document which is to be used in evidence in proceedings in
chambers must, if it is available, be brought in, and copies of any such document or
of any part thereof shall not be made unless the Court directs that copies of that
document or part be supplied for the use of the Court or be given to the other
parties to the proceedings.
22.
Notes of proceedings in chambers (O. 32, r.
22)
A note shall be kept of all proceedings in the judge’s, registrar’s or master’s
chamber with the dates thereof so that all such proceedings in any cause or matter
are noted in chronological order with a short statement of the matters decided at
each hearing.
Order
32A
Vexatious
Litigants
1.
Application under section
27(1)
of the Ordinance (O. 32A, r.
1)
(1)
An application under section 27(1) of the Ordinance for an order
specified in that section must be made by originating summons supported by
affidavit and served on the person against whom the order is sought.
(2)
The application must be heard in open court by a single
judge.
2.
Application for leave for
institution
or continuance of proceedings,
etc.
(O. 32A, r.
2)
(1)
Where an order made under section 27(1) of the Ordinance is in
force against a person, an application for leave to institute or continue any
legal proceedings by that person must be made by a notice in Form No. 27A in
Appendix A containing a statement of—
(a)
the title and reference number of the proceedings in which that order
was made;
(b)
the name and address of the applicant;
(c)
the order the applicant is seeking; and
(d)
briefly, why the applicant is seeking the order.
(2)
The notice of application for leave must be filed together with any
affidavit evidence on which the applicant relies in support of the
application.
(3)
Any previous applications for leave which the applicant has made under
section 27 of the Ordinance, and the results of those
applications, must be listed in the notice of
application.
3.
Hearing and determination of
application
for leave (O. 32A, r.
3)
(1)
An application for leave made under rule 2 may be determined by
a single judge without the attendance of the applicant unless the judge gives
directions for the hearing of the application.
(2)
Where the judge gives directions for the hearing of the application, the
hearing may be held in chambers.
(3)
Directions for the hearing of the application given under paragraph (2) may
include an order that the notice of application be served by the applicant on
the Secretary for Justice and on any person against whom the applicant wishes to
institute or continue the proceedings for which leave is being sought.
(4)
The judge may give directions for further affidavit evidence to be supplied
by the applicant before an order is made on the application.
(5)
Without limiting the power of the judge to refuse the application, if the
leave sought, or the grounds advanced, substantially repeat those submitted in
support of a previous application which has been refused, the judge may make an
order refusing the application.
(6)
Where the applicant institutes the new proceedings or continues the
proceedings for which leave has been granted, the applicant shall—
(a)
file the order granting the leave, together with the instrument by
which the proceedings are instituted or continued; and
(b)
serve the order granting the leave on every other person who is a party
to the proceedings, together with the instrument by which the proceedings
are instituted or
continued.
4.
Service of order (O. 32A, r.
4)
(1)
An order granting or refusing the leave sought or an order made pursuant to
rule 3(3) must be sent to the applicant at the address given in
the notice of application.
(2)
The applicant shall forthwith after being sent an order granting the leave
sought serve a copy of the order on the Secretary for Justice if he has been
served with the notice of application pursuant to rule
3(3).
5.
Setting aside grant of
leave
(O. 32A, r.
5)
(1)
A person may apply to set aside a grant of leave if—
(a)
the leave allows the applicant to institute or continue proceedings
against that person; and
(b)
the leave was granted other than at a hearing of which that person was
given notice pursuant to a direction given under rule
3.
(2)
An application under paragraph (1) must be made by an inter partes summons
within 14 days after the order granting the leave was served on the person under
rule
3(6)(b).
6.
Leave required for inspection
of
documents relating to
application
for leave under section 27A
of
the Ordinance (O. 32A, r.
6)
(1)
A person may not without the leave of the Court inspect any document filed
in the Registry relating to the application for leave under section
27A of the Ordinance.
(2)
Leave may not be granted under paragraph (1) unless the Court is satisfied
that there is reasonable ground for the inspection.
(3)
Leave granted under paragraph (1) may be granted on such terms and
conditions as the Court thinks
just.
7.
Transitional (O. 32A, r.
7)
Where, immediately before the
commencement*
of this Order, an application for an order or for leave under section 27
of the Ordinance as in force immediately before the commencement is pending, then
the application is to be determined as if this Order had not been made.
Editorial Note:
* Commencement
date:
2 April 2009.
Trial
Order
33
Place
and
Mode
of Trial
1.
Place of trial (O. 33, r.
1)
Subject to the provisions of these rules, the place of trial of a cause or
matter, or of any question or issue arising therein, shall be determined by the
Court and shall be either the High Court Building or such other place or places as
may be authorized by the Chief Justice.
2.
Mode of trial (O. 33, r.
2)
Subject to the provisions of these rules, a cause or matter, or any question or
issue arising therein, may be tried before—
(a)
a judge alone, or
(b)
a judge with a jury, or
(c)
a judge with the assistance of assessors, or
(e)
a
master.
3.
Time, etc. of trial of questions or issues (O. 33, r.
3)
The Court may order any question or issue arising in a cause or matter, whether
of fact or law or partly of fact and partly of law, and whether raised by the
pleadings or otherwise, to be tried before, at or after the trial of the cause or
matter, and may give directions as to the manner in which the question or issue
shall be
stated.
4.
Determining the place and mode of trial (O. 33, r.
4)
(1)
In every action begun by writ, the Court shall by order determine the place
and mode of the trial.
(2)
In any such action different questions or issues may be ordered to be tried
at different places or by different modes of trial and one or more questions or
issues may be ordered to be tried before the others.
(2A)
In an action for personal injuries, the Court may at any stage of the
proceedings and of its own motion make an order for the issue of liability to be
tried before any issue or question concerning the amount of damages to be
awarded and—
(a)
notwithstanding the provisions of Order 42, rule 5(5), an
order so made in the absence of the parties shall be drawn up by an officer
of the Court who shall serve a copy of the order on every party;
and
(b)
where a party applies within 14 days after service of the order upon
him, the Court may confirm or vary the order or set in aside.
(4)
(Repealed L.N. 89 of 2025)
4A.
Split trial: offer on liability (O. 33, r.
4A)
(1)
This rule applies where an order is made under rule 4(2) for the
issue of liability to be tried before any issue or question concerning the
amount of damages to be awarded if liability is established.
(2)
After the making of an order to which paragraph (1) applies, any party
against whom a finding of liability is sought may (without prejudice to his
defence) make a written offer to the other party to accept liability up to a
specified proportion.
(3)
Any offer made under the preceding paragraph may be brought to the
attention of the Judge after the issue of liability has been decided, but not
before.
5.
Trial with jury (O. 33, r.
5)
(1)
The provisions of rule 4(2) are, as respects any action and as
respects any question of fact arising in such an action, subject to the
provisions of section 33A of the Ordinance, but an application for
trial with a jury under that section (the time for making which is, under that
section, to be limited by rules of court) must be made before the place and mode
of trial is fixed under rule 4.
(2)
The powers conferred by the said section 33A on a judge may be
exercised by a
master.
6.
Trial with assistance of assessors (O. 33, r.
6)
A trial of a cause or matter with the assistance of assessors under
section 53 of the Ordinance shall take place in such manner and on
such terms as the Court may
direct.
7.
Dismissal of action, etc., after decision
of preliminary issue (O. 33, r.
7)
If it appears to the Court that the decision of any question or issue arising
in a cause or matter and tried separately from the cause or matter substantially
disposes of the cause or matter or renders the trial of the cause or matter
unnecessary, it may dismiss the cause or matter or make such other order or give
such judgment therein as may be just. (See
App. A, Form 48)
Order
34
Setting
Down for Trial Action begun by Writ
1.
Application and interpretation (O. 34, r.
1)
(1)
This Order applies to actions begun by writ and, accordingly, references in
this Order to an action shall be construed as references to an action so
begun.
2.
Time for setting down action (O. 34, r.
2)
(1)
Unless the Court has fixed a trial date or a period in which the trial is
to take place under Order 25, rule 1A(2)(b) or (3)(b), every order
made in an action which provides for trial before a judge shall, whether the
trial is to be with or without a jury, fix a period within which the plaintiff
is to set down the action for trial.
(2)
Where the plaintiff does not, within the period fixed under paragraph (1),
set the action down for trial, the defendant may set the action down for trial
or may apply to the Court to dismiss the action for want of prosecution and, on
the hearing of any such application, the Court may order the action to be
dismissed accordingly or may make such order as it thinks just.
(3)
Every order made in an action which provides for trial before a judge
(otherwise than in the commercial list or in any list which may be specified for
the purposes of this paragraph by directions under rule 4) shall
contain an estimate of the length of the trial and, shall, subject to any such
directions, specify the list in which the action is to be
put.
3.
Lodging documents when setting down (O. 34, r.
3)
(1)
In order to set down for trial an action which is to be tried before a
Judge, the party setting it down must deliver to the Registrar, by post or
otherwise, a request that the action may be set down for trial, together with a
bundle (for the use of the judge) consisting of one copy each of the following
documents that is to say—
(a)
the writ,
(b)
the pleadings (including any affidavits ordered to stand as pleadings)
any request or order for particulars and the particulars given,
(c)
all orders made—
(i)
pursuant to the questionnaire completed in accordance with Order
25, rule 1(1)(a);
(ii)
pursuant to a case management summons; and
(iii)
at a case management conference or pre-trial review,
(d)
the requisite legal aid documents, if any, and
(e)
(2)
The said bundle must be bound up in the proper chronological order, save
that voluntary particulars of any pleading and particulars to which Order 18,
rule 12(7) applies shall be placed immediately after the pleading
to which they relate.
(3)
In this rule
the
requisite legal aid
documents
(必需的法律援助文件
) means any documents which are
required to be filed in the Registry under the Legal Aid Ordinance (Cap. 91) or the regulations made thereunder. 4.
Directions relating to lists (O. 34, r.
4)
Nothing in this Order shall prejudice any powers of the Chief Justice to give
directions—
(a)
specifying the lists in which actions, or actions of any class or
description, are to be set down for trial and providing for the keeping and
publication of the lists;
(b)
providing for the determination of a date for the trial of any action which
has been set down or a date before which the trial thereof is not to take place;
and
(c)
as to the making of applications (whether to the Court or an officer of the
Court) to fix, vacate or alter any such date, and, in particular, requiring any
such application to be supported by an estimate of the length of the trial and
any other relevant
information.
8.
Notification of setting down (O. 34, r.
8)
(1)
A party to an action who sets it down for trial must, within 24 hours after
doing so, notify the other parties to the action that he has done so.
(2)
It shall be the duty of all parties to an action entered in any list to
furnish without delay to the officer who keeps the list all available
information as to the action being or being likely to be settled, or affecting
the estimated length of the trial, and, if the action is settled or withdrawn,
to notify that officer of the fact without delay and take such steps as may be
necessary to withdraw the record.
(3)
In performance of the duty imposed by paragraph (2), a plaintiff who gives
notice of acceptance of a sanctioned payment or a sanctioned offer in accordance
with Order 22, shall at the same time lodge a copy of the notice with the
officer mentioned in that paragraph.
9.
Abatement, etc., of action (O. 34, r.
9)
(1)
Where after an action has been set down for trial the action becomes
abated, or the interest or liability of any party to the action is assigned or
transmitted to or devolves on some other person, the solicitor for the plaintiff
or other party having the conduct of the action must, as soon as practicable
after becoming aware of it, certify the abatement or change of interest or
liability and send the certificate to the officer who keeps the list, and that
officer shall cause the appropriate entry to be made in the list of actions set
down for trial.
(2)
Where in any such list an action stands for one year marked as abated or
ordered to stand over generally, the action shall on the expiration of that year
be struck out of the list unless, in the case of an action ordered to stand over
generally, the order otherwise provides.
Order
35
Procedure
at Trial
1.
Failure to appear by both parties
or one of them (O. 35, r.
1)
(1)
If, when the trial of an action is called on, neither party appears, the
action may be struck out of the list, without prejudice, however, to the
restoration thereof, on the direction of a judge.
(2)
If, when the trial of an action is called on, one party does not appear,
the judge may proceed with the trial of the action or any counterclaim in the
absence of that
party.
2.
Judgment, etc., given in absence of party
may
be set aside (O. 35, r.
2)
(1)
Any judgment, order or verdict obtained where one party does not appear at
the trial may be set aside by the Court, on the application of that party, on
such terms as it thinks just.
(2)
An application under this rule must be made within 7 days after the
trial.
3.
Adjournment of trial (O. 35, r.
3)
The judge may, if he thinks it expedient in the interest of justice, adjourn a
trial for such time, and to such place, and upon such terms, if any, as he thinks
fit.
3A.
Time, etc. limits at
trial
(O. 35, r.
3A)
(1)
At any time before or during a trial, the Court may by direction—
(a)
limit the time to be taken in examining, cross-examining or
re-examining a witness;
(b)
limit the number of witnesses (including expert witnesses) that a party
may call on a particular issue;
(c)
limit the time to be taken in making any oral submission;
(d)
limit the time to be taken by a party in presenting its case;
(e)
limit the time to be taken by the trial; and
(f)
vary a direction made under this rule.
(2)
In deciding whether to make any such direction, the Court shall have regard
to the following matters in addition to any other matters that may be
relevant—
(a)
the time limited for a trial must be reasonable;
(b)
any such direction must not detract from the principle that each party
is entitled to a fair trial;
(c)
any such direction must not detract from the principle that each party
must be given a reasonable opportunity to lead evidence and cross-examine
witnesses;
(d)
the complexity or simplicity of the case;
(e)
the number of witnesses to be called by the parties;
(f)
the volume and character of the evidence to be led;
(g)
the state of the Court lists;
(h)
the time expected to be taken for the trial; and
(i)
the importance of the issues and the case as a whole.
7.
Order of speeches (O. 35, r.
7)
(1)
The judge before whom an action is tried (whether with or without a jury)
may give directions as to the party to begin and the order of speeches at the
trial, and, subject to any such directions, the party to begin and the order of
speeches shall be that provided by this rule.
(2)
Subject to paragraph (6), the plaintiff shall begin by opening his
case.
(3)
If the defendant elects not to adduce evidence, then, whether or not the
defendant has in the course of cross-examination of a witness for the plaintiff
or otherwise put in a document, the plaintiff may, after the evidence on his
behalf has been given, make a second speech closing his case and the defendant
shall then state his case.
(4)
If the defendant elects to adduce evidence, he may, after any evidence on
behalf of the plaintiff has been given, open his case and, after the evidence on
his behalf has been given, make a second speech closing his case, and at the
close of the defendant’s case the plaintiff may make a speech in
reply.
(5)
Where there are 2 or more defendants who appear separately or are separately
represented, then—
(a)
if none of them elects to adduce evidence, each of them shall state his
case in the order in which his name appears on the record;
(b)
if each of them elects to adduce evidence, each of them may open his
case and the evidence on behalf of each of them shall be given in the order
aforesaid and the speech of each of them closing his case shall be made in
that order after the evidence on behalf of all the defendants has been
given;
(c)
if some of them elect to adduce evidence and some do not, those who do
not shall state their cases in the order aforesaid after the speech of the
plaintiff in reply to the other defendants.
(6)
Where the burden of proof of all the issues in the action lies on the
defendant or, where there are two or more defendants and they appear separately
or are separately represented, on one of the defendants, the defendant or that
defendant, as the case may be, shall be entitled to begin, and in that case
paragraphs (2), (3) and (4) shall have effect in relation to, and as between,
him and the plaintiff as if for references to the plaintiff and the defendant
there were substituted references to the defendant and the plaintiff
respectively.
(7)
Where, as between the plaintiff and any defendant, the party who would, but
for this paragraph, be entitled to make the final speech raises any fresh point
of law in that speech or cites in that speech any authority not previously
cited, the opposite party may make a further speech in reply, but only in
relation to that point of law or that authority, as the case may
be.
8.
Inspection by judge or jury (O. 35, r.
8)
(1)
The judge by whom any cause or matter is tried may inspect any place or
thing with respect to which any question arises in the cause or
matter.
(2)
Where a cause or matter is tried with a jury and the judge inspects any
place or thing under paragraph (1), he may authorize the jury to inspect it
also.
9.
Death of party before giving of judgment (O. 35, r.
9)
Where a party to any action dies after the verdict or finding of the issues of
fact and before judgment is given, judgment may be given notwithstanding the death,
but the foregoing provision shall not be taken as affecting the power of the judge
to make an order under Order 15, rule 7(2), before giving
judgment.
10.
Certificate of judicial clerk (O. 35, r.
10)
At the conclusion of the trial of any action, the judicial clerk or other
officer in attendance at the trial shall make a certificate in which he shall
certify—
(a)
the time actually occupied by the trial,
(c)
every finding of fact by the jury, where the trial was with a
jury,
(d)
the judgment given by the judge, and
(e)
any order made by the judge as to
costs.
11.
List of exhibits (O. 35, r.
11)
(1)
The judicial clerk or other officer in attendance at the trial shall take
charge of every document or object put in as an exhibit during the trial of any
action and shall mark or label every exhibit with a letter or letters indicating
the party by whom the exhibit is put in or the witness by whom it is proved, and
with a number, so that all the exhibits put in by a party, or proved by a
witness, are numbered in one consecutive series.
In this paragraph a witness by whom an exhibit is proved includes a witness in the course of whose evidence the exhibit is put in.
In this paragraph a witness by whom an exhibit is proved includes a witness in the course of whose evidence the exhibit is put in.
(2)
The judicial clerk or other officer in attendance at the trial shall cause
a list to be made of all the exhibits in the action, and any party may, on
payment of the prescribed fee, have an office copy of that list.
(3)
The list of exhibits when completed shall form part of the record of the action.
(4)
For the purpose of this rule a bundle of documents may be treated and
counted as one
exhibit.
12.
Exhibits retained by Registrar
pending appeal (O. 35, r.
12)
(1)
Unless the Court otherwise directs, the Registrar shall retain in his custody all exhibits duly marked and labelled until—
(a)
the expiration of the time limited by these rules for appealing to the Court of Appeal, or such extended period therefor as may be allowed; and thereafter
(b)
in the event of an appeal to the Court of Appeal, the final disposal of such appeal; and thereafter
(c)
the expiration of the time limited by Order in Council for applying to the Court of Appeal for leave to appeal to the Court of Final Appeal, or such extended period therefor as may be allowed; and thereafter
(d)
in the event of the Court of Appeal or the Court of Final Appeal giving leave to appeal to the Court of Final Appeal, the non-fulfilment of any condition for such leave to appeal or the final disposal of such appeal.
(2)
Unless the Court otherwise directs, upon the expiration of the time limited
for retention of exhibits fixed under paragraph (1) it shall be the duty of
every party to an action who has put in any exhibits, and where represented, of
his solicitor on the record, to apply to the Registrar for the return of the
exhibits and to collect the same.
13.
Impounded documents (O. 35, r.
13)
(1)
Documents impounded by order of the Court shall not be delivered out of the custody of the Court except in compliance with an order made by a judge on an application made by summons: Provided that where the Secretary for Justice makes a written request in that behalf, documents so impounded shall be delivered into his custody.
(2)
Documents impounded by order of the Court, while in the custody of the
Court, shall not be inspected except by a person authorized to do so by an order
signed by a judge.
Order
36
Trials
before,
and Inquiries by, Master
1.
Trial before, and inquiry by, master (O. 36, r.
1)
In
any cause or matter other than a criminal proceeding by the Crown, the Court may,
with the consent of the parties, order that the cause or matter, or any question or
issue of fact arising therein, be tried before a master or that the master do
inquire and report thereon and, in the case of inquiry and report, giving
consequential
directions.
4.
Power of master (O. 36, r.
4)
(1)
Subject to any directions contained in the order made pursuant to rule 1—
(a)
the master shall for the purposes of the trial or inquiry (including any interlocutory application therein) have the same jurisdiction, powers and duties (including the power of committal and discretion as to costs) as a judge, exercisable or, as the case may be, to be performed as nearly as circumstances admit, in the like cases, in the like manner and subject to the like limitations; and
(b)
every trial and all other proceedings before a master shall, as nearly as circumstances admit, be conducted in the like manner as the like proceedings before a judge.
(2)
Without prejudice to the generality of paragraph (1) but subject to any
such directions as are mentioned therein the master before whom any cause or
matter is tried shall have the like powers as the Court with respect to claims
relating to or connected with the original subject-matter of the cause or matter
by any party thereto against any other person and Order 15, rule 5(2)
and Order 16 shall with any necessary modifications apply in relation to any
such claim
accordingly.
9.
Report on reference (O. 36, r.
9)
(1)
The report made by a master in pursuance of a reference under rule 1 shall be made to the Court and notice thereof served on the parties to the reference.
(2)
The master may in his report submit any question arising therein for the decision of the Court or make a special statement of facts from which the Court may draw such inferences as it thinks fit.
(3)
On receipt of the master’s report the Court may—
(a)
adopt the report in whole or in part;
(b)
vary the report;
(c)
require an explanation from him;
(d)
remit the whole or any part of the question or issue originally referred to him for further consideration by him or any other master; or
(e)
decide the question originally referred to him on the evidence taken before him either with or without additional evidence.
(4)
When the report of the master has been made, an application to vary the report or remit the whole or any part of the question or issue originally referred may be made on the hearing by the Court of further consideration of the cause or matter, after giving not less than 4 days’ notice thereof, and any other application with respect to the report may be made on that hearing without notice.
Order
37
Damages:
Assessment
after Judgment and Orders for Provisional Damages
I. Assessment
of Damages after
Judgment
1.
Assessment of damages by a master (O. 37, r.
1)
(1)
Where judgment is given for damages to be assessed and no provision is made
by the judgment as to how they are to be assessed, the damages shall, subject to
the provisions of this Order, be assessed by a master, and the party entitled to
the benefit of the judgment may, after obtaining the necessary appointment from
a master and, at least 7 days before the date of the appointment, serving notice
of the appointment on the party against whom the judgment is given, proceed
accordingly.
(1A)
Upon
judgment being given for damages to be assessed, the following directions shall,
unless the Court directs otherwise, take effect
automatically—
(a)
(ab)
each party shall serve on the other parties, within 6 weeks, written
statements under Order 38, rule 2A of the oral evidence which the
party intends to lead on any issues of fact to be decided at the
trial;
(b)-(d)
(Repealed L.N. 152 of
2008)
(e)
photographs, plans and the contents of any police investigation report
shall be receivable in evidence at the hearing and shall be agreed if
possible;
(f)
the record of any proceedings in any court or tribunal shall be
receivable in evidence upon production of a copy thereof certified as a true
copy by the clerk or other appropriate officer of the court or
tribunal;
(g)
at the time of making of the application for an appointment the master
shall be notified of the estimated length of the assessment and any other
matter which may affect the setting down of the assessment.
(2)
Notwithstanding anything in Order 65, rule 9, a notice under
this rule must be served on the party against whom the judgment is
given.
(3)
The attendance of witnesses and the production of documents before a master
in proceedings under this Order may be compelled by writ of subpoena, and the
provisions of Order 35 shall, with the necessary adaptations, apply in relation
to those proceedings as they apply in relation to proceedings at a
trial.
1A.
Assessment of costs as damages (O. 37, r.
1A)
Where damages to be assessed pursuant to a judgment to which this Order applies
consist solely of costs claimed on an indemnity basis, such assessment shall proceed
as for a taxation of costs under Order 62 and the provisions of that Order shall
apply as if an order for taxation of costs on the indemnity basis had been
made.
2.
Certificate of amount of damages (O. 37, r.
2)
Where in pursuance of this Order or otherwise damages are assessed by a master,
he shall certify the amount of the damages and the certificate shall, when judgment
is entered, be filed in the
Registry.
3.
Default judgment against some but not all defendants
(O.
37, r.
3)
Where any such judgment as is mentioned in rule 1 is given on
failure to give notice of intention to defend or in default of defence, and the
action proceeds against other defendants, the damages under the judgment shall be
assessed at the trial unless the Court otherwise
orders.
4.
Power to order assessment at trial (O. 37, r.
4)
(1)
Where judgment is given for damages to be assessed, the Court may—
(d)
order that the action shall proceed to trial before a judge (with or
without a jury) as respects the damages.
(3)
Where the Court orders that the action shall proceed to trial, Order 25,
rules 2 to 7, shall, with the omission of so much of rule
7(1) as requires the parties to serve a notice specifying the orders
and directions which they desire and with any other necessary modifications,
apply as if the application to the Court in pursuance of which the Court makes
the order, were a case management summons under Order 25.
5.
Assessment of value (O. 37, r.
5)
The foregoing provisions of this Order shall apply in relation to a judgment
for the value of goods to be assessed, with or without damages to be assessed, as
they apply to a judgment for damages to be assessed, and references in those
provisions to the assessment of damages shall be construed
accordingly.
6.
Assessment of damages to time
of
assessment (O. 37, r.
6)
Where damages are to be assessed (whether under this Order or otherwise) in
respect of any continuing cause of action, they shall be assessed down to the time
of the assessment.
II. Orders
for
Provisional Damages for Personal
Injures
7.
Application and interpretation (O. 37, r.
7)
(1)
This Part of this Order applies to actions to which section 56A
of the Ordinance (in this Part of this Order referred to as
section
56A)
applies.
(2)
In this Part of this Order
award
of provisional
damages
(暫定損害賠償裁決
) means an award of damages
for personal injuries under which—(a)
damages are assessed on the assumption that the injured person will
not develop the disease or suffer the deterioration referred to in
section 56A; and
(b)
the injured person is entitled to apply for further damages at a
future date if he develops the disease or suffers the
deterioration.
8.
Order for provisional damages (O. 37, r.
8)
(1)
The Court may on such terms as it thinks just and subject to the provisions
of this rule make an award of provisional damages if—
(a)
the plaintiff has pleaded a claim for provisional damages,
and
(b)
the Court is satisfied that the action is one to which section
56A applies.
(2)
An order for an award of provisional damages shall specify the disease or
type of deterioration in respect of which an application may be made at a future
date, and shall also, unless the Court otherwise determines, specify the period
within which such application may be made.
(3)
The Court may, on the application of the plaintiff made within the period,
if any, specified in paragraph (2), by order extend that period if it thinks it
just to do so, and the plaintiff may make more than one such
application.
(4)
An order for an award of provisional damages may be made in respect of more
than one disease or type of deterioration and may in respect of each disease or
deterioration specify a different period within which an application may be made
at a future date.
(5)
Orders 13 and 19 shall not apply in relation to an action in which the
plaintiff claims provisional
damages.
9.
Offer to submit to an award (O. 37, r.
9)
(1)
Where an application is made for an award of provisional damages, any
defendant may at any time (whether or not he makes a payment into court) make a
written offer to the plaintiff—
(a)
to tender a sum of money (which may include an amount, to be specified,
in respect of interest) in satisfaction of the plaintiff’s claim for damages
assessed on the assumption that the injured person will not develop the
disease or suffer the deterioration referred to in section 56A
and identifying the disease or deterioration in question; and
(b)
to agree to the making of an award of provisional damages.
(2)
Any offer made under paragraph (1) shall not be brought to the attention of
the Court until after the Court has determined the claim for an award of
provisional damages.
(3)
Where an offer is made under paragraph (1), the plaintiff may, within 28
days after the offer was made, give written notice to the defendant of his
acceptance of the offer and shall on such acceptance make an application to the
Court for an order in accordance with the provisions of rule
8(2).
10.
Application for award of further damages (O. 37, r.
10)
(1)
This rule applies where the plaintiff, pursuant to an award of provisional
damages, claims further damages.
(2)
(3)
The plaintiff shall give not less than three months’ written notice to the
defendant of his intention to apply for further damages and, if the defendant is
to the plaintiff’s knowledge insured in respect of the plaintiff’s claim, to the
insurers.
(4)
The plaintiff must take out a case management summons as to the future
conduct of the action within 21 days after the expiry of the period of notice
referred to in paragraph (3).
(5)
At the determination of the case management summons, the Court shall give
such directions as may be appropriate for the future conduct of the action,
including, but not limited to, the disclosure of medical reports and the place,
mode and date of the hearing of the application for further damages.
(6)
Only one application for further damages may be made in respect of each
disease or type of deterioration specified in the order for the award of
provisional damages.
(7)
The provisions of Order 29 with regard to the making of interim payments
shall, with the necessary modifications, apply where an application is made
under this rule.
(8)
The Court may include in an award of further damages simple interest at
such rate as it thinks fit on all or any part thereof for all or any part of the
period between the date of notification of the plaintiff’s intention to apply
for further damages and the date of the award.
Order 38
Evidence
(Format changes—E.R. 1 of
2015)
I. General
Rules
1.
General rule: witnesses to be examined orally (O. 38, r.
1)
Subject to the provisions of these rules and of the Evidence Ordinance (Cap. 8) and any other written law relating to evidence,
any fact required to be proved at the trial of any action begun by writ by the
evidence of witnesses shall be proved by the examination of the witnesses orally and
in open
court.
2.
Evidence by affidavit (O. 38, r.
2)
(1)
The Court may, at or before the trial of an action begun by writ, order
that the affidavit of any witness may be read at the trial if in the
circumstances of the case it thinks it reasonable so to order.
(2)
An order under paragraph (1) may be made on such terms as to the filing and
giving of copies of the affidavits and as to the production of the deponents for
cross-examination as the Court thinks fit but, subject to any such terms and to
any subsequent order of the Court, the deponents shall not be subject to
cross-examination and need not attend the trial for the purpose.
(3)
In any cause or matter begun by originating summons, originating motion or
petition, and on any application made by summons or motion, evidence may be
given by affidavit unless in the case of any such cause, matter or application
any provision of these rules otherwise provides or the Court otherwise directs,
but the Court may, on the application of any party, order the attendance for
cross-examination of the person making any such affidavit, and where, after such
an order has been made, the person in question does not attend, his affidavit
shall not be used as evidence without the leave of the
Court.
2A.
Exchange of witness statements (O. 38, r.
2A)
(1)
The powers of the Court under this rule shall be exercised for the purpose
of disposing fairly and expeditiously of the cause or matter before it, and
saving costs, having regard to all the circumstances of the case, including (but
not limited to)—
(a)
the extent to which the facts are in dispute or have been
admitted;
(b)
the extent to which the issues of fact are defined by the
pleadings;
(c)
the extent to which information has been or is likely to be provided by
further and better particulars, answers to interrogatories or
otherwise.
(2)
At the determination of a case management summons, in an action commenced by
writ the Court shall direct every party to serve on the other parties, within
such period as the Court may specify and on such terms as the Court may specify,
written statements of the oral evidence which the party intends to adduce on any
issues of fact to be decided at the trial.
The Court may give a direction to any party under this paragraph at any
other stage of such an action and at any stage of any other cause or
matter.
Order 3, rule 5(3) shall not apply to any period specified by
the Court under this paragraph.
(3)
Directions under paragraph (2) or (17) may make different provision with
regard to different issues of fact or different witnesses.
(4)
Statements served under this rule shall—
(a)
be dated and, except for good reason (which should be specified by
letter accompanying the statement), be signed by the intended witness and
must be verified by a statement of truth in accordance with Order
41A;
(b)
sufficiently identify any documents referred to therein; and
(c)
where they are to be served by more than one party, be exchanged
simultaneously.
(5)
Where a party is unable to obtain a written statement from an intended
witness in accordance with paragraph (4)(a), the Court may direct the
party wishing to adduce that witness’s evidence to provide the other party with
the name of the witness and (unless the Court otherwise orders) a statement of
the nature of the evidence intended to be adduced.
(6)
Subject to paragraph (9), where the party serving a statement under this
rule does not call the witness to whose evidence it relates, no other party may
put the statement in evidence at the trial.
(7)
Subject to paragraph (9), where the party serving the statement does call
such a witness at the trial—
(a)
except where the trial is with a jury, the Court may, on such terms as
it thinks fit, direct that the statement served, or part of it, shall stand
as the evidence in chief of the witness or part of such evidence;
(b)
the witness may with the leave of the Court—
(i)
amplify his witness statement; and
(ii)
give evidence in relation to new matters which have arisen since
the witness statement was served on the other party;
(c)
whether or not the statement or any part of it is referred to during
the evidence in chief of the witness, any party may put the statement or any
part of it in cross-examination of that witness.
(7A)
The Court may grant leave under paragraph (7)(b) only if it
considers that there is good reason not to confine the evidence of the witness
to the contents of his witness statement.
(8)
Nothing in this rule shall make admissible evidence which is otherwise
inadmissible.
(9)
Where any statement served is one to which the Evidence Ordinance (Cap. 8) applies, paragraphs (6) and (7) shall take
effect subject to the provisions of that Ordinance and Parts III and IV of this
Order.
The service of a witness statement under this rule shall not, unless
expressly so stated by the party serving the same, be treated as a notice under
that Ordinance; and where a statement or any part thereof would be admissible in
evidence by virtue only of that Ordinance, the appropriate notice under Part III
or IV of this Order shall be served with the statement notwithstanding any
provision of those Parts as to the time for serving such a notice.
(10)
Where a party fails to comply with a direction for the exchange of witness
statements he shall not be entitled to adduce evidence to which the direction
related without the leave of the Court.
(11)
Where a party serves a witness statement under this rule, no other person
may make use of that statement for any purpose other than the purpose of the
proceedings in which it was served—
(a)
unless and to the extent that the party serving it gives his consent in
writing or the Court gives leave; or
(b)
unless and to the extent that it has been put in evidence (whether
pursuant to a direction under paragraph (7)(a) or
otherwise).
(12)
Subject to paragraph (13), the judge shall, if any person so requests during
the course of the trial, direct the Clerk of Court to certify as open to
inspection any witness statement which was ordered to stand as evidence in chief
under paragraph
(7)(a).
A request under this paragraph may be made orally or in
writing.
(13)
The judge may refuse to give a direction under paragraph (12) in relation to
a witness statement, or may exclude from such a direction any words or passages
in a statement, if he considers that inspection should not be
available—
(a)
in the interests of justice or national security;
(b)
because of the nature of any expert medical evidence in the statement;
or
(c)
for any other sufficient reason.
(14)
Where the Clerk of Court is directed under paragraph (12) to certify a
witness statement as open to inspection he shall—
(a)
prepare a certificate which shall be attached to a
copy (
the certified copy
) of that witness statement; and(b)
make the certified copy available for inspection.
(15)
Subject to any conditions which the Court may by special or general
direction impose, any person may inspect and (subject to payment of the
prescribed fee) take a copy of the certified copy of a witness statement from
the time when the certificate is given until the end of 7 days after the
conclusion of the trial.
(16)
In this rule—
(a)
any reference in paragraphs (12) to (15) to a witness statement shall,
in relation to a witness statement of which only part has been ordered to
stand as evidence in chief under paragraph (7)(a), be construed
as a reference to that part;
(b)
any reference to inspecting or copying the certified copy of a witness
statement shall be construed as including a reference to inspecting or
copying a copy of that certified copy.
(17)
The Court shall have power to vary or override any of the provisions of
this rule (except paragraphs (1), (8) and (12) to (16)) and to give such
alternative directions as it thinks fit.
3.
Evidence of particular facts (O. 38, r.
3)
(1)
Without prejudice to rule 2, the Court may, at or before the
trial of any action, order that evidence of any particular fact shall be given
at the trial in such manner as may be specified by the order.
(2)
The power conferred by paragraph (1) extends in particular to ordering that
evidence of any particular fact may be given at the trial—
(a)
by statement on oath of information or belief, or
(b)
by the production of documents or entries in books, or
(c)
by copies of documents or entries in books, or
(d)
in the case of a fact which is or was a matter of common knowledge
either generally or in a particular district, by the production of a
specified newspaper which contains a statement of that
fact.
4.
Limitation of expert evidence (O. 38, r.
4)
The Court may, at or before the trial of any action, order that the number of
medical or other expert witnesses who may be called at the trial shall be limited as
specified by the
order.
4A.
Evidence by single joint expert (O. 38, r.
4A)
(1)
In any action in which any question for an expert witness arises, the Court
may, at or before the trial of the action, order 2 or more parties to the action
to appoint a single joint expert witness to give evidence on that
question.
(2)
Where the parties cannot agree on who should be the joint expert witness,
the Court may—
(a)
select the expert witness from a list prepared or identified by the
parties; or
(b)
direct that the expert witness be selected in such manner as the Court
may direct.
(3)
Where an order is made under paragraph (1), the Court may give such
directions as it thinks fit with respect to the terms and conditions of the
appointment of the joint expert witness, including but not limited to the scope
of instructions to be given to the expert witness and the payment of the expert
witness’s fees and expenses.
(4)
Notwithstanding that a party to the action disagrees with the appointment
of a single joint expert witness to give evidence, the Court may, subject to
paragraph (6), make an order under paragraph (1) if it is satisfied that it is
in the interests of justice to do so after taking into account all the
circumstances of the case.
(5)
The circumstances that the Court may take into account include but are not
limited to—
(a)
whether the issues requiring expert evidence can readily be identified
in advance;
(b)
the nature of those issues and the likely degree of controversy
attaching to the expert evidence in question;
(c)
the value of the claim and the importance of the issue on which expert
evidence is sought, as compared with the cost of employing separate expert
witnesses to give evidence;
(d)
whether any party has already incurred expenses for instructing an
expert who may be asked to give evidence as an expert witness in the case;
and
(e)
whether any significant difficulties are likely to arise in relation
to—
(i)
the choosing of the joint expert witness;
(ii)
the drawing up of his instructions; or
(iii)
the provision to him of the information and other facilities needed
to perform his duties.
(6)
Where a party to the action disagrees with the appointment of a single
joint expert witness to give evidence, the Court shall not make an order under
paragraph (1) unless the party has been given a reasonable opportunity to appear
before the Court and to show cause why the order should not be made.
(7)
Where the Court is satisfied that an order made under paragraph (1) is
inappropriate, it may set aside the order and allow the parties concerned to
appoint their own expert witnesses to give evidence.
5.
Limitation of plans, etc., in evidence (O. 38, r.
5)
Unless, at or before the trial, the Court for special reasons otherwise
orders, no plan, photograph or model shall be receivable in evidence at the trial of
an action unless at least 10 days before the commencement of the trial the parties,
other than the party producing it, have been given an opportunity to inspect it and
to agree to the admission thereof without further
proof.
6.
Revocation or variation of orders under rules 2 to 5 (O. 38, r.
6)
Any order under rules 2 to 5 (including an order made on appeal)
may, on sufficient cause being shown, be revoked or varied by a subsequent order of
the Court made at or before the
trial.
7.
Evidence of finding on foreign law (O. 38, r.
7)
(1)
A party to any cause or matter who intends to adduce in evidence a finding
or decision on a question of foreign law by virtue of section 59 of
the Evidence Ordinance (Cap. 8) shall—
(a)
in the case of an action to which Order 25, rule 1, applies
within 28 days after the pleadings in the action are deemed to be closed,
and
(b)
in the case of any other cause or matter, within 21 days after the date
on which an appointment for the first hearing of the cause or matter is
obtained,
or in either case, within such other period as the Court may specify,
serve notice of his intention on every other party to the
proceedings.
(2)
The notice shall specify the question on which the finding or decision was
given or made and specify the document in which it is reported or recorded in
citable form.
(3)
In any cause or matter in which evidence may be given by affidavit, an
affidavit specifying the matters contained in paragraph (2) shall constitute
notice under paragraph (1) if served within the period mentioned in that
paragraph.
8.
Application to trials of issues, references, etc. (O. 38, r.
8)
The foregoing rules of this Order shall apply to trials of issues or questions
of fact or law, references, inquiries and assessments of damages as they apply to
the trial of
actions.
9.
Depositions: when receivable in evidence at trial (O. 38, r.
9)
(1)
No deposition taken in any cause or matter shall be received in evidence at
the trial of the cause or matter unless—
(a)
the deposition was taken in pursuance of an order under Order 39,
rule 1, and
(b)
either the party against whom the evidence is offered consents or it is
proved to the satisfaction of the Court that the deponent is dead, or beyond
the jurisdiction of the Court or unable from sickness or other infirmity to
attend the trial.
(2)
A party intending to use any deposition in evidence at the trial of a cause
or matter must, a reasonable time before the trial, give notice of his intention
to do so to the other party.
(3)
A deposition purporting to be signed by the person before whom it was taken
shall be receivable in evidence without proof of the signature being the
signature of that
person.
9A.
Notarial instruments receivable in evidence in civil proceedings (O. 38, r.
9A)
(1)
A notarial instrument may be received in evidence in civil proceedings,
without further proof, as duly authenticated unless the contrary is
proved.
(2)
A reference in paragraph (1) to a notarial instrument is a reference to a
document—
(a)
evidencing and showing any notarial act of a notary public;
and
(b)
bearing the signature and the seal of the notary public.
(3)
In this rule—
notarial act
(公證行為
)—(a)
means the exercise of any of the powers referred to in section
40B of the Legal Practitioners Ordinance (Cap. 159) by a notary public; but
(b)
does not include any notarial act done before a diplomatic or
consular officer of the People’s Republic of China outside the People’s
Republic of China as referred to in section 10 of the Oaths
and Declarations Ordinance (Cap.
11);
notary public
(公證人
) means a person who, at the material time, is qualified to
practise as a notary public under section 40D of the Legal
Practitioners Ordinance (Cap. 159).10.
High Court documents admissible or receivable in evidence (O. 38, r.
10)
(1)
Office copies of writs, records, pleadings and documents filed in the High
Court shall be admissible in evidence in any cause or matter and between all
parties to the same extent as the original would be admissible.
(2)
Without prejudice to the provisions of any enactment, every document
purporting to be sealed with the seal of any office or department of the High
Court shall be received in evidence without further proof, and any document
purporting to be so sealed and to be a copy of a document filed in, or issued
out of, that office or department shall be deemed to be an office copy of that
document without further proof unless the contrary is shown.
11.
Evidence of consent of new trustee to act (O. 38, r.
11)
A document purporting to contain the written consent of a person to act as
trustee and to bear his signature verified by some other person shall be evidence of
such
consent.
12.
Evidence at trial may be used in subsequent proceedings (O. 38, r.
12)
Any evidence taken at the trial of any cause or matter may be used in any
subsequent proceedings in that cause or
matter.
13.
Order to produce document at proceeding other than trial (O. 38, r.
13)
(1)
At any stage in a cause or matter the Court may order any person to attend
any proceeding in the cause or matter and produce any document, to be specified
or described in the order, the production of which appears to the Court to be
necessary for the purpose of that proceeding.
(2)
No person shall be compelled by an order under paragraph (1) to produce any
document at a proceeding in a cause or matter which he could not be compelled to
produce at the trial of that cause or matter.
II. Writs of
Subpoena
14.
Form and issue of writ of subpoena (O. 38, r.
14)
(1)
A writ of subpoena must be in Form No. 28 or 29 in Appendix A, whichever is
appropriate.
(2)
Issue of a writ of subpoena takes place upon its being sealed by an officer
of the Court.
(3)
Where a writ of subpoena is to be issued in a cause or matter in the Court,
the appropriate office for the issue of the writ is the Registry.
(5)
Before a writ of subpoena is issued a praecipe for the issue of the writ
must be filed in the Registry together with a note from a judge or master
authorizing the issue of such writ and the sum of $500 shall be deposited in the
Registry, in addition to any fee payable in respect of such issue, as a deposit
in respect of the witness’ reasonable expenses; and the praecipe must contain
the name and address of the party issuing the writ, if he is acting in person,
or the name or firm and business address of that party’s solicitor and also (if
the solicitor is the agent of another) the name or firm and business address of
his principal.
(6)
In any proceedings, whether in chambers or in court, the Court may order
the reimbursement by one or more of the parties to a witness who has been served
with a writ of subpoena in respect of any expenses reasonably and properly
incurred by that witness.
(7)
Any expenses so ordered by the Court to be paid shall be assessed by the
Court making the order or, if no such assessment is made by the Court, shall be
taxed (if not agreed) and paid by the party ordered to make such payment.
(8)
A witness whose expenses have been ordered to be paid may, if the party
ordered to make such payment is the party who made the deposit on issue of the
writ of subpoena, recover such expenses, after assessment, agreement or
taxation, from the said deposit and look to the party liable to make such
payment for the balance, if any.
(9)
The deposit (or such part of it as shall remain after payment to the witness
under rule 14(8)) shall be refunded to the party that paid the
deposit if—
(a)
that party was not ordered to pay the costs of the witness;
or
(b)
that party was ordered to pay the costs of the witness and has effected
payment of such costs after assessment, agreement or
taxation.
15.
More than one name may be included in one writ of subpoena (O. 38, r.
15)
The names of two or more persons may be included in one writ of subpoena ad
testificandum.
16.
Amendment of writ of subpoena (O. 38, r.
16)
Where there is a mistake in any person’s name or address in a writ of
subpoena, then, if the writ has not been served, the party by whom the writ was
issued may have the writ re-sealed in correct form by filing a second praecipe under
rule 14(5) endorsed with the words “Amended and
re-sealed”.
17.
Service of writ of subpoena (O. 38, r.
17)
A writ of subpoena must be served personally and, subject to rule
19, the service shall not be valid unless effected within 12 weeks after
the date of issue of the writ and not less than four days, or such other period as
the Court may fix, before the day on which attendance before the Court is
required.
18.
Duration of writ of subpoena (O. 38, r.
18)
Subject to rule 19, a writ of subpoena continues to have effect
until the conclusion of the trial at which the attendance of the witness is
required.
19.
Writ of subpoena in aid of inferior court or tribunal (O. 38, r.
19)
(1)
The office of the Court out of which a writ of subpoena ad testificandum or
a writ of subpoena duces tecum in aid of an inferior court or tribunal may be
issued is the Registry, and no order of the Court for the issue of such a writ
is necessary.
(2)
A writ of subpoena in aid of an inferior court or tribunal continues to
have effect until the disposal of the proceedings before that court or tribunal
at which the attendance of the witness is required.
(3)
A writ of subpoena issued in aid of an inferior court or tribunal must be
served personally.
(4)
Unless a writ of subpoena issued in aid of an inferior court or tribunal is
duly served on the person to whom it is directed not less than 4 days, or such
other period as the Court may fix, before the day on which the attendance of
that person before the court or tribunal is required by the writ, that person
shall not be liable to any penalty or process for failing to obey the
writ.
(5)
An application to set aside a writ of subpoena issued in aid of an inferior
court or tribunal may be heard by a master.
III. Hearsay
Evidence
20.
Application and interpretation (O. 38, r.
20)
(1)
In this Part of this Order
the Ordinance
(條例
) means the Evidence Ordinance (Cap. 8) and any expressions used in this Part and in
Part IV of the Ordinance have the same meanings in this Part as they have in the
said Part IV.(2)
This Part of this Order shall apply in relation to the trial or hearing of
an issue or question arising in a cause or matter, and to a reference, inquiry
and assessment of damages, as it applies in relation to the trial or hearing of
a cause or matter.
(3)
In this Part—
hearsay evidence
(傳聞證據
) means evidence consisting of hearsay
within the meaning of section 46 of the Ordinance.
21.
Power to call witness for cross-examination on hearsay evidence and to call
additional evidence to attack or support hearsay evidence (O. 38, r.
21)
(1)
Where a party tenders as hearsay evidence a statement made by a person but
does not propose to call the person who made the statement to give evidence, the
Court may, on application—
(a)
allow another party to call and cross-examine the person who made the
statement on its contents;
(b)
allow any party to call—
(i)
additional evidence to attack or support the reliability of the
statement;
(ii)
additional evidence to attack or support that first-mentioned
additional evidence.
(2)
Where the Court allows another party to call and cross-examine the person
who made the statement, it may give such directions as it thinks fit to secure
the attendance of that person and as to the procedure to be followed.
22.
Powers exercisable in chambers (O. 38, r.
22)
23-34.
(Repealed 2 of 1999 s. 6)
IV. Expert
Evidence
35.
Interpretation (O. 38, r.
35)
(1)
Expressions used in this Part of this Order which are used in the Evidence
Ordinance (Cap. 8) have the same meanings in this
Part of this Order as in that Ordinance.
(2)
A reference to an expert witness in this Part or Appendix D is a reference
to an expert who has been instructed to give or prepare evidence for the purpose
of proceedings in the Court.
35A.
Expert witness’s overriding duty to Court (O. 38, r.
35A)
(1)
It is the duty of an expert witness to help the Court on the matters within
his expertise.
(2)
The duty under paragraph (1) overrides any obligation to the person from
whom the expert witness has received instructions or by whom he is
paid.
36.
Restrictions on adducing expert evidence (O. 38, r.
36)
(1)
Except with the leave of the Court or where all parties agree, no expert
evidence may be adduced at the trial or hearing of any cause or matter unless
the party seeking to adduce the evidence—
(a)
(b)-(c)
(Repealed L.N. 152 of
2008)
(2)
Nothing in paragraph (1) shall apply to evidence which is permitted to be
given by affidavit or shall affect the enforcement under any other provision of
these rules (except of Order 45, rule 5) of a direction given under
this Part of this Order.
37.
Direction that expert report be disclosed (O. 38, r.
37)
(1)
Subject to paragraph (2), where in any cause or matter an application is
made under rule 36(1) in respect of oral expert evidence, then,
unless the Court considers that there are special reasons for not doing so, it
shall direct that the substance of the evidence be disclosed in the form of a
written report or reports to such other parties and within such period as the
Court may specify.
(2)
Nothing in paragraph (1) shall
require a party to disclose a further medical report if he proposes to rely at
the trial only on the report provided pursuant to Order 18, rule
12(1A) or (1B) but, where a party claiming damages for personal
injuries discloses a further report, that report shall be accompanied by
a statement of the special damages claimed
and, in
this paragraph, a statement of the special damages claimed (關於所申索的專項損害賠償的陳述書
) has the same meaning as in
Order 18, rule 12(1C). 37A.
Expert report to be verified by statement of truth (O. 38, r.
37A)
An expert report disclosed under these rules must be verified by a statement
of truth in accordance with Order 41A.
37B.
Duty to provide expert witness with copy of code of conduct (O. 38, r.
37B)
(1)
A party who instructs an expert witness shall as soon as practicable
provide the expert witness with a copy of the code of conduct set out in
Appendix D.
(2)
Where the Court has under rule 4A(1) ordered that 2 or more
parties shall appoint a single joint expert witness, paragraph (1) applies to
each of the parties.
(3)
If the instruction is in writing, it must be accompanied by a copy of the
code of conduct set out in Appendix D.
37C.
Expert witness’s declaration of duty to Court (O. 38, r.
37C)
(1)
An expert report disclosed under these rules is not admissible in evidence
unless the report contains a declaration by the expert witness that—
(a)
he has read the code of conduct set out in Appendix D and agrees to be
bound by it;
(b)
he understands his duty to the Court; and
(c)
he has complied with and will continue to comply with that
duty.
(2)
Oral expert evidence is not admissible unless the expert witness has
declared, whether orally or in writing or otherwise, that—
(a)
he has read the code of conduct set out in Appendix D and agrees to be
bound by it;
(b)
he understands his duty to the Court; and
(c)
he has complied with and will continue to comply with that
duty.
(3)
Editorial Note:
* Commencement date: 2
April 2009.
38.
Meeting of experts (O. 38, r.
38)
In any cause or matter the Court may, if it thinks fit, direct that there be a
meeting “without prejudice” of such experts within such periods before or after the
disclosure of their reports as the Court may specify, for the purpose of identifying
those parts of their evidence which are in issue. Where such a meeting takes place
the experts may prepare a joint statement indicating those parts of their evidence
on which they are, and those on which they are not, in
agreement.
39.
Disclosure of part of expert evidence (O. 38, r.
39)
Where the Court considers that any circumstances rendering it undesirable to
give a direction under rule 37 relate to part only of the evidence sought
to be adduced, the Court may, if it thinks fit, direct disclosure of the
remainder.
41.
Expert evidence contained in statement (O. 38, r.
41)
Where an application is made under rule 36 in respect of expert
evidence contained in a statement and the applicant alleges that the maker of the
statement cannot or should not be called as a witness, the Court may direct that the
provisions of rules 20 to 22 inclusive shall apply with such
modifications as the Court thinks fit.
42.
Putting in evidence expert report disclosed by another party (O. 38, r.
42)
A party to any cause or matter may put in evidence any expert report disclosed
to him by any other party in accordance with this Part of this
Order.
43.
Time for putting expert report in evidence (O. 38, r.
43)
Where a party to any cause or matter calls as a witness the maker of an expert
report which has been disclosed under these rules, the report may be put in evidence
at the commencement of the examination in chief of its maker or at such other time
as the Court may direct.
44.
Revocation and variation of directions (O. 38, r.
44)
Any direction given under this Part of this Order may on sufficient cause
being shown be revoked or varied by a subsequent direction given at or before the
trial of the cause or matter.
Order
39
Evidence
by Deposition: Examiners of the Court
1.
Power to order depositions to be taken (O. 39, r.
1)
(1)
The Court may, in any cause or matter where it appears necessary for the
purposes of justice, make an order (in Form No. 32 in Appendix A) for the
examination on oath before a judge, an officer or examiner of the Court or some
other person, at any place, of any person. (See
also App. A, Form 31)
(2)
An order under paragraph (1) may be made on such terms (including, in
particular, terms as to the giving of discovery before the examination takes
place) as the Court thinks fit and may contain an order for the production of
any document which appears to the Court to be necessary for the purposes of the
examination.
2.
Where person to be examined is out
of the jurisdiction (O. 39, r.
2)
(1)
Where the person in relation to whom an order under rule 1 is
required is out of the jurisdiction, an application may be made—
(a)
for an order (in Form No. 34 in Appendix A) under that rule for the
issue of a letter of request to the judicial authorities of the country in
which that person is to take, or cause to be taken, the evidence of that
person, or (See
also App. A, Form 33)
(b)
if the government of that country allows a person in that country to be
examined before a person appointed by the Court, for an order (in Form No.
37 in Appendix A) under that rule appointing a special examiner to take the
evidence of that person in that country. (See
also App. A, Form 36)
(2)
An application may be made for the appointment as special examiner of a
British consul in the country in which the evidence is to be taken or his
deputy—
(a)
if there subsists with respect to that country a Civil Procedure
Convention providing for the taking of the evidence of any person in that
country for the assistance of proceedings in the Court, or
(b)
with the consent of the Chief Secretary for Administration.
3.
Order for issue of letter of request (O. 39, r.
3)
(1)
Where an order is made under rule 1 for the issue of a letter of
request to the judicial authorities of a country to take, or cause to be taken,
the evidence of any person in that country the following provisions of this rule
shall apply.
(2)
The party obtaining the order must prepare the letter of request and lodge
it in the Registry, and the letter must be in Form No. 35 in Appendix A, with
such variations as the order may require.
(3)
If the evidence of the person to be examined is to be obtained by means of
written questions, there must be lodged with the letter of request a copy of the
interrogatories and cross-interrogatories to be put to him on
examination.
(4)
Each document lodged under paragraph (2) or (3) must be accompanied by a
translation of the document in the official language of the country in which the
examination is to be taken or, if there is more than one official language of
that country, in any one of those languages which is appropriate to the place in
that country where the examination is to be taken unless—
(a)
the Registrar has given a general direction in relation to that country
that no translation need be provided, or
(b)
the official language or one of the official languages of that country
is English.
(5)
Every translation lodged under paragraph (4) must be certified by the
person making it to be a correct translation; and the certificate must contain a
statement of that person’s full name, of his address and of his qualifications
for making the translation.
(6)
The party obtaining the order must, when he lodges in the Registry the
documents mentioned in paragraphs (2) to (5), also file in that office an
undertaking signed by him or his solicitor to be responsible personally for all
expenses incurred by the Chief Secretary for Administration in respect of the
letter of request and, on receiving due notification of the amount of those
expenses, to pay that amount to the Treasury and to produce a receipt for the
payment to the Registrar.
3A.
Examination otherwise than on oath (O. 39, r.
3A)
Notwithstanding the provisions of rule 1, where the person to be
examined is out of the jurisdiction that person may be examined on oath or
affirmation or otherwise in accordance with the procedure of the country in which
the examination is to take
place.
4.
Enforcing attendance of witness
at examination (O. 39, r.
4)
Where an order has been made under rule 1—
(a)
for the examination of any person before an officer of the Court or some
other person (in this rule and rules 5 to 14 referred to as
the
examiner),
or
(b)
for the cross-examination before the examiner of any person who has made an
affidavit which is to be used in any cause or matter,
the attendance of that person before the examiner and the production by him
of any document at the examination may be enforced by writ of subpoena in like
manner as the attendance of a witness and the production by a witness of a document
at a trial may be
enforced.
5.
Refusal of witness to attend, be sworn, etc. (O. 39, r.
5)
(1)
If any person, having been duly summoned by writ of subpoena to attend
before the examiner, refuses or fails to attend or refuses to be sworn for the
purpose of the examination or to answer any lawful question or produce any
document therein, a certificate of his refusal or failure, signed by the
examiner, must be filed in the Registry, and upon the filing of the certificate
the party by whom the attendance of that person was required may apply to the
Court for an order requiring that person to attend, or to be sworn, or to answer
any question or produce any document, as the case may be.
(2)
An application for an order under this rule may be made ex parte.
(3)
If the Court makes an order under this rule it may order the person against
whom the order is made to pay any costs occasioned by his refusal or
failure.
(4)
A person who wilfully disobeys any order made against him under paragraph
(1) is guilty of contempt of
court.
6.
Appointment of time and place
for examination (O. 39, r.
6)
(1)
The examiner must give the party on whose application the order for
examination was made by a notice appointing the place and time at which, subject
to any application by the parties, the examination shall be taken, and such time
shall, having regard to the convenience of the persons to be examined and all
the circumstances of the case, be as soon as practicable after the making of the
order.
(2)
The party to whom a notice under paragraph (1) is given must, on receiving
it, forthwith give notice of the appointment to all the other
parties.
7.
Examiner to have certain documents (O. 39, r.
7)
The party on whose application the order for examination before the examiner
was made must furnish the examiner with copies of such of the documents in the cause
or matter as are necessary to inform the examiner of the questions at issue in the
cause or
matter.
8.
Conduct of examination (O. 39, r.
8)
(1)
Subject to any directions contained in the order for examination—
(a)
any person ordered to be examined before the examiner may be
cross-examined and re-examined, and
(b)
the examination, cross-examination and re-examination of persons before
the examiner shall be conducted in like manner as at the trial of a cause or
matter.
(2)
The examiner may put any question to any person examined before him as to
the meaning of any answer made by that person or as to any matter arising in the
course of the examination.
(3)
The examiner may, if necessary, adjourn the examination from time to
time.
9.
Examination of additional witnesses (O. 39, r.
9)
The examiner may, with the written consent of all the parties to the cause or
matter, take the examination of any person in addition to those named or provided
for in the order for examination, and must annex such consent to the original
deposition of that
person.
10.
Objection to questions (O. 39, r.
10)
(1)
If any person being examined before the examiner objects to answer any
question put to him, or if objection is taken to any such question, that
question, the ground for the objection and the answer to any such question to
which objection is taken must be set out in the deposition of that person or in
a statement annexed thereto.
(2)
The validity of the ground for objecting to answer any such question or for
objecting to any such question shall be decided by the Court and not by the
examiner, but the examiner must state to the parties his opinion thereon, and
the statement of his opinion must be set out in the deposition or in a statement
annexed thereto.
(3)
If the Court decides against the person taking the objection it may order
him to pay the costs occasioned by his
objection.
11.
Taking of depositions (O. 39, r.
11)
(1)
The deposition of any person examined before the examiner must be taken
down by the examiner or a shorthand writer or some other person in the presence
of the examiner but, subject to paragraph (2) and rule 10(1), the
deposition need not set out every question and answer so long as it contains as
nearly as may be the statement of the person examined.
(2)
The examiner may direct the exact words of any particular question and the
answer thereto to be set out in the deposition if that question and answer
appear to him to have special importance.
(3)
The deposition of any person shall be read to him, and he shall be asked to
sign it, in the presence of such of the parties as may attend, but the parties
may agree in writing to dispense with the foregoing provision. If a person
refuses to sign a deposition when asked under this paragraph to do so, the
examiner must sign the deposition.
(4)
The original deposition of any person, authenticated by the signature of
the examiner before them it was taken, must be sent by the examiner to the
Registry and shall be filed
therein.
12.
Time taken by examination to be indorsed
on depositions (O. 39, r.
12)
Before sending any deposition to the Registry under rule 11(4) the
examiner must indorse on the deposition a statement signed by him of the time
occupied in taking the examination and the fees received in respect
thereof.
13.
Special report by examiner (O. 39, r.
13)
The examiner may make a special report to the Court with regard to any
examination taken before him and with regard to the absence or conduct of any person
thereat, and the Court may direct such proceedings to be taken, or make such order,
on the report as it thinks
fit.
14.
Order for payment of examiner’s fees (O. 39, r.
14)
(1)
If the fees and expenses due to an examiner are not paid he may report that
fact to the Court, and the Court may direct the Law Officer (Civil Law) to apply
for an order against the party on whose application the order for examination
was made to pay the examiner the fees and expenses due to him in respect of the
examination.
(2)
An order under this rule shall not prejudice any determination on the
taxation of costs or otherwise as to the party by whom the costs of the
examination are ultimately to be
borne.
15.
Perpetuation of testimony (O. 39, r.
15)
(1)
Witnesses shall not be examined to perpetuate testimony unless an action
has been begun for the purpose.
(2)
Any person who would under the circumstances alleged by him to exist become
entitled, upon the happening of any future event, to any honour, title, dignity
or office, or to any estate or interest in any real or personal property, the
right or claim to which cannot be brought to trial by him before the happening
of such event, may begin an action to perpetuate any testimony which may be
material for establishing such right or claim.
(3)
No action to perpetuate the testimony of witnesses shall be set down for
trial.
Order
40
Court
Expert
1.
Appointment of expert to report on
certain questions (O. 40, r.
1)
(1)
In any cause or matter which is to be tried without a jury and in which any
question for an expert witness arises the Court may at any time, on the
application of any party, appoint an independent expert or, if more than one
such question arises, 2 or more such experts, to inquire and report upon any
question of fact or opinion not involving questions of law or of
construction.
An expert appointed under this paragraph is referred to in this Order as
a court expert.
(2)
Any court expert in a cause or matter shall, if possible, be a person
agreed between the parties and, failing agreement, shall be nominated by the
Court.
(3)
The question to be submitted to the court expert and the instructions (if
any) given to him shall, failing agreement between the parties, be settled by
the Court.
(4)
In this rule
expert
(專家
), in relation to any question arising
in a cause or matter, means any person who has such knowledge or experience of
or in connection with that question that his opinion on it would be admissible
in
evidence.2.
Report of court expert (O. 40, r.
2)
(1)
The court expert must send his report to the Court, together with such
number of copies thereof as the Court may direct, and the Registrar must send
copies of the report to the parties or their solicitors.
(2)
The Court may direct the court expert to make a further or supplemental
report.
(3)
Any part of a court expert’s report which is not accepted by all the
parties to the cause or matter in which it is made shall be treated as
information furnished to the Court and be given such weight as the Court thinks
fit.
3.
Experiments and tests (O. 40, r.
3)
If the court expert is of opinion that an experiment or test of any kind (other
than one of a trifling character) is necessary to enable him to make a satisfactory
report he shall inform the parties or their solicitors and shall, if possible, make
an arrangement with them as to the expenses involved, the persons to attend and
other relevant matters; and if the parties are unable to agree on any of those
matters it shall be settled by the
Court.
4.
Cross-examination of court expert (O. 40, r.
4)
Any party may, within 14 days after receiving a copy of the court expert’s
report, apply to the Court for leave to cross-examine the expert on his report, and
on that application the Court shall make an order for the cross-examination of the
expert by all the parties either—
(a)
at the trial, or
(b)
before an examiner at such time and place as may be specified in the
order.
5.
Remuneration of court expert (O. 40, r.
5)
(1)
The remuneration of the court expert shall be fixed by the Court and shall
include a fee for his report and a proper sum for each day during which he is
required to be present either in court or before an examiner.
(2)
Without prejudice to any order providing for payment of the court expert’s
remuneration as part of the costs of the cause or matter, the parties shall be
jointly and severally liable to pay the amount fixed by the Court for his
remuneration, but where the appointment of a court expert is opposed the Court
may, as a condition of making the appointment, require the party applying for
the appointment to give such security for the remuneration of the expert as the
Court thinks
fit.
6.
Calling of expert witnesses (O. 40, r.
6)
Where a court expert is appointed in a cause or matter, any party may, on
giving to the other parties a reasonable time before the trial notice of his
intention to do so, call one expert witness to give evidence on the question
reported on by the court expert but no party may call more than one such witness
without the leave of the Court, and the Court shall not grant leave unless it
considers the circumstances of the case to be exceptional.
Order
41
Affidavits
1.
Form of affidavit (O. 41, r.
1)
(1)
Subject to paragraphs (2) and (3), every affidavit sworn in a cause or matter must be entitled in that cause or matter.
(2)
Where a cause or matter is entitled in more than one matter, it shall be sufficient to state the first matter followed by the words “and other matters”, and where a cause or matter is entitled in a matter or matters and between parties, that part of the title which consists of the matter or matters may be omitted.
(3)
Where there are more plaintiffs than one, it shall be sufficient to state the full name of the first followed by the words “and others”, and similarly with respect to defendants.
(4)
Every affidavit must be expressed in the first person and, unless the Court otherwise directs, must state the place of residence of the deponent and his occupation or, if he has none, his description, and if he is, or is employed by, a party to the cause or matter in which the affidavit is sworn, the affidavit must state that fact. In the case of a deponent who is giving evidence in a professional, business or other occupational capacity the affidavit may, instead of stating the deponent’s place of residence, state the address at which he works, the position he holds and the name of his firm or employer, if any.
(5)
Whether or not both sides of the paper are used, the printed, written or typed sides of the paper of every affidavit must be numbered consecutively.
(6)
Every affidavit must be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject.
(7)
Dates, sums and other numbers must be expressed in an affidavit in figures and not in words.
(8)
Every affidavit must be signed by the deponent and the jurat must be completed and signed by the person before whom it is sworn.
(9)
Where any affidavit has been interpreted to the deponent before being sworn
it shall contain a statement to that effect, state the name and address of the
person who interpreted it, and be signed by him.
2.
Affidavit by 2 or more deponents (O. 41, r.
2)
Where an affidavit is made by 2 or more deponents, the names of the persons
making the affidavit must be inserted in the jurat except that, if the affidavit is
sworn by both or all the deponents at one time before the same person, it shall be
sufficient to state that it was sworn by both (or all) of the “above named”
deponents.
3.
Affidavit by illiterate or blind person (O. 41, r.
3)
Where it appears to the person administering the oath that the deponent is illiterate or blind, he must certify in the jurat that—
(a)
the affidavit was read in his presence to the deponent,
(b)
the deponent seemed perfectly to understand it, and
(c)
the deponent made his signature or mark in his presence;
and the affidavit shall not be used in evidence without such a certificate
unless the Court is otherwise satisfied that it was read to and appeared to be
perfectly understood by the
deponent.
4.
Use of defective affidavit (O. 41, r.
4)
An affidavit may, with the leave of the Court, be filed or used in evidence
notwithstanding any irregularity in the form
thereof.
5.
Contents of affidavit (O. 41, r.
5)
(1)
Subject to Order 14, rules 2(2) and 4(2), to Order 86, rule 2(1), to paragraph (2) of this rule and to any order made under Order 38, rule 3, an affidavit may contain only such facts as the deponent is able of his own knowledge to prove.
(2)
An affidavit sworn for the purpose of being used in interlocutory
proceedings may contain statements of information or belief with the sources and
grounds
thereof.
6.
Scandalous, etc., matter in affidavit (O. 41, r.
6)
The Court may order to be struck out of any affidavit any matter which is
scandalous, irrelevant or otherwise
oppressive.
7.
Alterations in affidavits (O. 41, r.
7)
(1)
An affidavit which has in the jurat or body thereof any interlineation, erasure or other alteration shall not be filed or used in any proceeding without the leave of the Court unless the person before whom the affidavit was sworn has initialled the alteration and, in the case of an erasure, has re-written in the margin of the affidavit any words or figures written on the erasure and has signed or initialled them.
(2)
Where an affidavit is sworn at the Registry, the Seal of the Court may be
substituted for the signature or initials required by this
rule.
8.
Affidavit not to be sworn before solicitor
of party, etc. (O. 41, r.
8)
No affidavit shall be sufficient if sworn before the solicitor of the party on
whose behalf the affidavit is to be used or before any agent, partner or clerk of
that
solicitor.
9.
Filing of affidavits (O. 41, r.
9)
(4)
Every affidavit used in a cause or matter proceeding in the Court must be filed in the Registry.
(5)
Every affidavit must be indorsed with a note showing on whose behalf it is
filed and the dates of swearing and filing, and an affidavit which is not so
indorsed may not be filed or used without the leave of the
Court.
10.
Use of original affidavit or office copy (O. 41, r.
10)
(1)
Subject to paragraph (2), an original affidavit may be used without the leave of the Court, notwithstanding that it has not been filed in accordance with rule 9.
(2)
Where an original affidavit is used then, unless the party whose affidavit it is undertakes to file it, he must immediately after it is used leave it with the judicial clerk in court or chambers, as the case may be, who shall send it to be filed.
(3)
Where an affidavit has been filed, an office copy thereof may be used in
any
proceedings.
11.
Document to be used in conjunction with affidavit
to be exhibited to it (O. 41, r.
11)
(1)
Any document to be used in conjunction with an affidavit must be exhibited, and not annexed, to the affidavit.
(2)
Any exhibit to an affidavit must be identified by a certificate of the
person before whom the affidavit is
sworn.
The certificate must be entitled in the same manner as the affidavit and
rule 1(1), (2) and (3) shall apply accordingly.
12.
Affidavit taken in Commonwealth or foreign country
admissible without proof of seal, etc. (O. 41, r.
12)
(1)
Any affidavit sworn in any part of the Commonwealth outside Hong Kong before any judge, officer or other person duly authorized, or before any commissioner authorized by the Court, to take affidavits therein, may be used in the Court in all cases where affidavits are admissible.
(2)
Any affidavit sworn in any foreign parts out of Her Majesty’s dominions before a judge or magistrate, being authenticated by the official seal of the foreign court to which he is attached or of such magistrate, or before a notary public or a British consular officer, may be used in the Court in all cases where affidavits are admissible.
(3)
The fact that an affidavit purports to have been sworn in the manner prescribed by paragraph (1) or (2) of this rule shall be prima facie evidence of the seal or signature, as the case may be, of any such court, judge, magistrate, commissioner or other officer or person therein mentioned, appended or subscribed to such affidavit, and of the authority of such court, judge, magistrate, commissioner or other officer or person to administer oaths.
Order
41A
Statements
of
Truth
1.
Interpretation (O. 41A, r.
1)
In this Order, unless the context otherwise requires—
expert
report
(專家報告
) means an expert report disclosed under
these rules;pleading
(狀書
) includes—(a)
particulars of a pleading given by a party to any other party, whether
voluntarily or pursuant to—
(i)
a request made by that other party; or
(ii)
an order of the Court made under Order 18, rule 12(3) or
(4); and
(b)
an amendment to a pleading or any of the particulars referred to in
paragraph (a);
2.
Documents to be verified
by
statement of truth (O. 41A, r.
2)
(1)
The following documents must be verified by a statement of truth in
accordance with this Order—
(a)
a pleading;
(b)
a witness statement;
(c)
an expert report; and
(d)
any other document verification of which in accordance with this Order
is required by any other provision of these rules or by a practice
direction.
(2)
A pleading must be verified by a statement of truth in accordance with this
Order notwithstanding that the party has in the pleading made an allegation of
fact in accordance with Order 18, rule 12A, which is inconsistent
with another allegation of fact in the same pleading.
(3)
If the Court considers that it is just to do so in a particular case, it
may direct that all or any of the documents specified in paragraph (1) need not
be verified by a statement of truth.
(4)
All or any of the documents specified in paragraph (1) need not be verified
by a statement of truth if it is so provided by a practice direction.
(5)
A practice direction may only provide that all or any of the documents
specified in paragraph (1) need not be verified by a statement of truth if the
documents or document relate to a matter that is to be heard in a specialist
list.
3.
Signing of statement of
truth
(O. 41A, r.
3)
(1)
Subject to paragraphs (6), (7), (8) and (9), a statement of truth must be
signed by—
(a)
in the case of a witness statement or expert report, the maker of the
statement or report;
(b)
in any other case—
(i)
the party putting forward the verified document or where
appropriate, his next friend or guardian ad litem; or
(ii)
the legal representative of the party or next friend or guardian ad
litem.
(2)
Subject to paragraphs (6), (7), (8) and (9), where a party is a body of
persons, corporate or unincorporate, the statement of truth must be signed by a
person holding a senior position in the body.
(3)
Subject to paragraph (7), where the party is a public officer, the
statement of truth must be signed by the public officer or a person holding a
senior position in the public body or public authority to which the proceedings
relate.
(4)
Each of the following persons is a person holding a senior
position—
(a)
in respect of a corporation that is neither a public body nor a public
authority, any director, manager, secretary or other similar officer of the
corporation;
(b)
in respect of an unincorporated association that is neither a public
body nor a public authority, any corresponding person appropriate to that
unincorporated association; and
(c)
in respect of a public body or public authority, a person duly
authorized by the public body or public authority for the purposes of this
sub-paragraph.
(5)
Where a statement of truth is signed by a person holding a senior position,
that person shall state in the statement of truth the office or position he
holds.
(6)
Subject to paragraphs (7), (8) and (9), where the party is a partnership,
the statement of truth must be signed by—
(a)
one of the partners; or
(b)
a person having the control or management of the partnership
business.
(7)
A statement of truth in or in relation to a pleading may be signed
by—
(a)
a person who is not a party; or
(b)
two or more parties jointly,
if this is permitted by a practice direction.
(8)
An insurer or the Motor Insurers’ Bureau of Hong Kong may sign a statement
of truth in or in relation to a pleading on behalf of a party where the insurer
or the Motor Insurers’ Bureau of Hong Kong has a financial interest in the
result of proceedings brought wholly or partially by or against that
party.
(9)
If more than one insurer is conducting proceedings on behalf of a plaintiff
or defendant, a statement of truth in or in relation to a pleading may be signed
by an officer of the insurer responsible for the case as the lead insurer,
but—
(a)
the person signing shall specify the capacity in which he
signs;
(b)
the statement of truth must be a statement that the lead insurer
believes that the facts stated in the document are true; and
(c)
the Court may order that the statement of truth also be signed by one
or more of the parties.
(10)
Where a legal representative signs a statement of truth, he shall sign in
his own name, and shall not sign only in the name of the firm to which he
belongs.
4.
Effect of statement of
truth
(O. 41A, r.
4)
(1)
Subject to paragraph (2), a statement of truth is a statement that—
(a)
the party putting forward the document believes that the facts stated
in the document are true; or
(b)
in the case of a witness statement or expert report, the maker of the
witness statement or expert report believes that the facts stated in the
document are true and (if applicable) the opinion expressed in it is
honestly held.
(2)
If a party is conducting proceedings with a next friend or guardian ad
litem, the statement of truth in or in relation to a pleading is a statement
that the next friend or guardian ad litem believes the facts stated in the
document being verified are true.
(3)
Where a legal representative or insurer has signed a statement of truth on
behalf of a party, the Court shall treat his signature as his statement
that—
(a)
the party on whose behalf he has signed had authorized him to do
so;
(b)
before signing he had explained to the party that in signing the
statement of truth he would be confirming the party’s belief that the facts
stated in the document were true; and
(c)
before signing he had informed the party of the possible consequences
to the party if it should subsequently appear that the party did not have an
honest belief in the truth of those
facts.
5.
Form of statement of
truth
(O. 41A, r.
5)
(1)
The form of the statement of truth verifying a document other than a
witness statement or expert report is as follows—
“[I believe] [the
(plaintiff
or as may be) believes] that the facts stated in this
[name
document being
verified]
are true.”.
(2)
The form of the statement of truth verifying a witness statement or expert
report is as follows—
“I believe that the facts stated in this
[name
document being
verified]
are true and (if applicable) the opinion expressed in it is honestly
held.”.
(3)
Where the statement of truth is not contained in the document that it
verifies—
(a)
the document containing the statement of truth must be headed with the
title of the proceedings and the action number; and
(b)
the document being verified must be identified in the statement of truth
as follows—
(i)
pleading: “the
[statement
of claim or as may be] served on the
[name
of party] on
[date]”;
(ii)
particulars of pleading: “the particulars of pleading issued on
[date]”;
(iii)
amendment to a pleading or particulars of pleading: “the amendment
to
[name
document being
verified],
made on
[date];
(iv)
witness statement: “the witness statement filed on
[date]
or served on
[party]
on
[date]”;
(v)
expert report: “the expert report disclosed to
[party]
on
[date]”.
6.
Failure to verify
pleading
(O. 41A, r.
6)
(1)
The Court may by order strike out a pleading that is not verified by a
statement of truth.
(2)
Any party may apply for an order under paragraph
(1).
7.
Failure to verify witness
statement
or expert report (O. 41A, r.
7)
If the maker of a witness statement or expert report fails to verify the
witness statement or expert report by a statement of truth, the witness statement or
expert report is not admissible in evidence unless otherwise ordered by the
Court.
8.
Power of Court to require
document
to be verified (O. 41A, r.
8)
(1)
The Court may order a person who has failed to verify a document in
accordance with this Order to verify the document.
(2)
Any party may apply for an order under paragraph
(1).
9.
False statements (O. 41A, r.
9)
(1)
Proceedings for contempt of court may be brought against a person if he
makes, or causes to be made, a false statement in a document verified by a
statement of truth without an honest belief in its truth.
(2)
Proceedings under this rule may be brought only—
(a)
by the Secretary for Justice or a person aggrieved by the false
statement; and
(b)
with the leave of the Court.
(3)
The Court shall not grant the leave under paragraph (2) unless it is
satisfied that the punishment for contempt of court is proportionate and
appropriate in relation to the false statement.
(4)
Proceedings under this rule are subject to the law relating to contempt of
court and this rule is without prejudice to such
law.
10.
Transitional (O. 41A, r.
10)
This Order does not apply in relation to a document in any action if that
document was filed, served or exchanged before the
commencement*
of this Order.
Editorial Note:
*
Commencement
date:
2 April 2009.
Judgments,
Orders, Accounts
and
Inquiries
Order
42
Judgments
and Orders
1.
Form of judgment and interest
thereon, etc. (O. 42, r.
1)
(1)
If, in the case of any judgment, a form thereof is prescribed by Appendix A
the judgment must be in that form. (See
App. A, Forms 39-46, 48, 49)
(2)
The party entering any judgment shall be entitled to have recited therein a
statement of the manner in which, and the place at which, the writ or other
originating process by which the cause or matter in question was begun was
served.
(3)
An order other than a consent order to which rule 5A applies
must be marked with the name of the judge or master by whom it was made and must
be
sealed.
1A.
Judgment in favour of reversioner for
detention of goods (O. 42, r.
1A)
(1)
Where a claim relating to the detention of goods is made by a partial owner
whose right of action is not founded on a possessory title, any judgment or
order given or made in respect of the claim shall be for the payment of damages
only.
In this paragraph
partial
owner
(部分擁有人
) means one of two or more persons
having interest in the goods, unless he has the written authority of every other
such person to sue on the latter’s
behalf.2.
Judgment, etc. requiring act to be done:
time for doing it (O. 42, r.
2)
(1)
Subject to paragraph (2), a judgment or order which requires a person to do
an act must specify the time after service of the judgment or order, or some
other time, within which the act is to be done.
(2)
Where the act which any person is required by any judgment or order to do
is to pay money to some other person, give possession of any land or deliver any
goods, a time within which the act is to be done need not be specified in the
judgment or order by virtue of paragraph (1), but the foregoing provision shall
not affect the power of the Court to specify such a time and to adjudge or order
accordingly.
3.
Date from which judgment or order
takes effect (O. 42, r.
3)
(1)
A judgment or order of the Court takes effect from the day of its
date.
(2)
Such a judgment or order shall be dated as of the day on which it is
pronounced, given or made, unless the Court orders it to be dated as of some
other earlier or later day, in which case it shall be dated as of that other
day.
(3)
A judgment or order shall take effect for the purposes of this rule
notwithstanding that the reasons therefor may not be given until a later
date.
4.
Orders required to be drawn up (O. 42, r.
4)
(1)
Subject to paragraph (2), every order of the Court shall be drawn up unless
the Court otherwise directs.
(2)
An order—
(a)
which—
(i)
extends the period within which a person is required or authorized
by these rules, or by any judgment, order or direction, to do any act,
or
(ii)
grants leave for the doing of any of the acts mentioned in
paragraph (3), and
(b)
which neither imposes any special terms nor includes any special
directions other than a direction as to costs,
need not be drawn up unless the Court otherwise directs.
(3)
The acts referred to in paragraph (2)(a)(ii) are—
(a)
the issue of any writ, other than a writ of summons for service out of
the jurisdiction;
(b)
the amendment of a writ of summons or other originating process or a
pleading;
(c)
the filing of any document;
(d)
any act to be done by an officer of the Court other than a
solicitor;
(e)
the extension of the validity of a writ;
(f)
the abridgement of time for service of a summons;
(g)
the adjournment of the hearing of a summons;
(h)
the adjournment of the trial of an action;
(i)
an order made by a Judge ordering that an application or summons shall
be heard by a master or a similar order made by a master that an application
or summons shall be heard by a Judge;
(j)
leave to inspect and take copies of documents filed in the
Registry;
(k)
the transfer of an action from one list to another;
(l)
the vacation or variation of the dates upon which an action has been
set down to be heard; and
(m)
the admission of a person as a solicitor or a barrister of the High
Court under the Legal
Practitioners
Ordinance (Cap. 159), and any order made under
rule 13 of the Admission and Registration Rules (Cap. 159 sub. leg. B).
5.
Drawing up and entry of judgments
and orders (O. 42, r.
5)
(1)
Where a judgment given in a cause or matter is presented for entry in
accordance with this rule at the Registry, it shall be entered in the book kept
for the purpose by the Registrar.
(2)
The party seeking to have such a judgment entered must draw up the judgment
and present it to the Registrar for entry.
(3)
A party presenting a judgment for entry must produce any certificate, order
or other document needed to satisfy the Registrar that he is entitled to have
the judgment entered.
(4)
On entering any such judgment the Registrar shall file the
judgment.
(5)
Every order made and required to be drawn up must be drawn up by the party
initiating the application upon which the order was made and if that party fails
to draw up the order within 7 days after it is made any other party affected by
the order may draw it up.
(6)
The order referred to in paragraph (5) must, when drawn up, be produced at
the Registry, together with a copy thereof, and when passed by the Registrar the
order, after it has been sealed, shall be returned to the party producing it and
the copy shall be lodged in the
Registry.
5A.
Consent judgment and orders (O. 42, r.
5A)
(1)
Subject to paragraphs (2), (3), (4) and (5), where all the parties to a
cause or matter are agreed upon the terms in which a judgment should be given,
or an order should be made, a judgment or order in such terms may be given
effect as a judgment or order of the Court by the procedure provided in
rule 5.
(2)
This rule applies to any judgment or order which consists of one or more of
the following—
(a)
any judgment or order for—
(i)
the payment of a liquidated sum, or damages to be assessed, or the
value of goods to be assessed;
(ii)
the delivery up of goods, with or without the option of paying the
value of the goods to be assessed, or the agreed value;
(iii)
the possession of land where the claim does not relate to a
dwelling-house;
(b)
any order for—
(i)
the dismissal, discontinuance or withdrawal of any proceedings,
wholly or in part;
(ii)
the stay of proceedings, either unconditionally or upon conditions
as to the payment of money;
(iii)
the stay of proceedings upon terms which are scheduled to the order
but which are not otherwise part of it (a
Tomlin
order);
(iv)
the stay of enforcement of a judgment, either unconditionally or
upon condition that the money due under judgment is paid by instalments
specified in the order;
(v)
the setting aside of a judgment in default;
(vi)
the transfer of any proceedings to the District Court or the Lands Tribunal;
(vii)
the payment out of money in court;
(viii)
the discharge from liability of any party;
(ix)
the payment, taxation or waiver of costs, or such other provision
for costs as may be agreed;
(c)
any order, to be included in a judgment or order to which the preceding
sub-paragraphs apply, for—
(i)
the extension of the period required for the service or filing of
any pleading or other document;
(ii)
the withdrawal of the record;
(iii)
liberty to apply, or to restore.
(3)
Before any judgment, or order to which this rule applies may be entered, or
sealed, it must be drawn up in the terms agreed and expressed
as
being “By Consent” and it must be indorsed by solicitors
acting for each of the parties.
(4)
This rule shall not apply to any judgment or order in proceedings which are
pending in the Admiralty jurisdiction or in the Commercial List.
(5)
This rule shall not apply to any judgment or order in proceedings in which
any of the parties is a litigant in person or a person under a
disability.
5B.
Reasons for judgment or order (O. 42, r.
5B)
(1)
A Court shall give the reasons for any decision either at the time the
judgment or order is pronounced or, where it is at that time announced that the
reasons will be given at a later date, at such later date as may be fixed.
(2)
Where the judgment or order is not pronounced on the day on which the
hearing is concluded or where a decision is pronounced but it is announced in
accordance with paragraph (1) that reasons therefor will be given at a later
date, the Court may state that the judgment or order or the judgment or order
and the reasons therefor, as the case may be, will be recorded in
writing.
(3)
Where a date has been fixed for delivery of a written decision or of
written reasons notice shall be given to the parties, but it shall not be
necessary for them to appear by counsel or in person.
(4)
Where it has been announced that a judgment or order and reasons therefor
or the reasons for a judgment or order previously pronounced will be recorded in
writing, the Court may on the date fixed, instead of reading in full the
judgment or order and reasons therefor or the reasons, as the case may be,
supply copies thereof in accordance with paragraph (5). Thereupon any judgment
or order contained in the writing shall be deemed to have been pronounced for
the purposes of rule 3.
(5)
Where the judgment or order and reasons therefor or the reasons are given at
a later date and, being recorded in writing, are not read in full, the Court
shall—
(a)
hand down a copy thereof for each of the parties and endorse the record
accordingly;
(b)
lodge a copy thereof in the High Court Library; and
(c)
make a copy thereof available for public inspection in the
Registry.
(6)
Where a written decision is given pursuant to this rule the Court may make
therein an order nisi as to costs and, unless an application has been made to
vary that order, that order shall become absolute 14 days after the decision is
pronounced.
(7)
Where a court consisting of more than one judge sits to deliver pursuant to
this rule a decision and reasons for a decision previously pronounced, it shall
be sufficient if at least one of the judges who conducted the hearing is
present.
(8)
Nothing in this rule shall affect the provisions of Order 63 rule
4.
Order
43
Accounts
and Inquiries
1.
Summary order for account (O. 43, r.
1)
(1)
Where a writ is indorsed with a claim for an account or a claim which
necessarily involves taking an account, the plaintiff may, at any time after the
defendant has acknowledged service of the writ or after the time limited for
acknowledging service, apply for an order under this rule.
(1A)
A defendant to an action begun by writ who has served a counterclaim, which
includes a claim for an account or a claim which necessarily involves taking an
account, on—
(a)
the plaintiff, or
(b)
any other party, or
(c)
any person who becomes a party by virtue of such service,
may apply for an order under this rule.
(2)
An application under this rule must be made by summons and, if the Court so
directs, must be supported by affidavit or other evidence.
(3)
On the hearing of the application, the Court may, unless satisfied that
there is some preliminary question to be tried, order that an account be taken
and may also order that any amount certified on taking the account to be due to
either party be paid to him within a time specified in the
order.
2.
Court may direct taking of accounts, etc. (O. 43, r.
2)
(1)
The Court may, on an application made by summons at any stage of the
proceedings in a cause or matter, direct any necessary accounts or inquiries to
be taken or made.
(2)
Every direction for the taking of an account or the making of an inquiry
shall be numbered in the judgment or order so that, as far as may be, each
distinct account and inquiry may be designated by a
number.
3.
Directions as to manner of taking account
or making inquiry (O. 43, r.
3)
(1)
Where the Court orders an account to be taken or inquiry to be made it may
by the same or a subsequent order give directions with regard to the manner in
which the account is to be taken or vouched or the inquiry is to be
made.
(2)
Without prejudice to the generality of paragraph (1), the Court may direct
that in taking an account the relevant books of account shall be evidence of the
matters contained therein with liberty to the parties interested to take such
objections thereto as they think
fit.
4.
Account to be made, verified, etc. (O. 43, r.
4)
(1)
Where an account has been ordered to be taken, the accounting party must
make out his account and, unless the Court otherwise directs, verify it by an
affidavit to which the account must be exhibited.
(2)
The items on each side of the account must be numbered
consecutively.
(3)
Unless the order for the taking of the account otherwise directs, the
accounting party must lodge the account with the Court and must at the same time
notify the other parties that he has done so and of the filing of any affidavit
verifying the account and of any supporting
affidavit.
5.
Notice to be given of alleged omissions,
etc. in account (O. 43, r.
5)
Any party who seeks to charge an accounting party with an amount beyond that
which he has by his account admitted to have received or who alleges that any item
in his account is erroneous in respect of amount or in any other respect must give
him notice thereof stating, so far as he is able, the amount sought to be charged
with brief particulars thereof or, as the case may be, the grounds for alleging that
the item is
erroneous.
6.
Allowances (O. 43, r.
6)
In taking any account directed by any judgment or order all just allowances
shall be made without any direction to that
effect.
7.
Delay in prosecution of accounts, etc. (O. 43, r.
7)
(1)
If it appears to the Court that there is undue delay in the prosecution of
any accounts or inquiries, or in any other proceedings under any judgment or
order, the Court may require the party having the conduct of the proceedings or
any other party to explain the delay and may then make such order for staying
the proceedings or for expediting them or for the conduct thereof and for costs
as the circumstances require.
(2)
The Court may direct any party or the Official Solicitor to take over the
conduct of the proceedings in question and to carry out any directions made by
an order under this rule and may make such order as it thinks fit as to the
payment of the Official Solicitor’s costs.
8.
Distribution of fund before all persons
entitled are ascertained (O. 43, r.
8)
Where some of the persons entitled to share in a fund are ascertained, and
difficulty or delay has occurred or is likely to occur in ascertaining the other
persons so entitled, the Court may order or allow immediate payment of their shares
to the persons ascertained without reserving any part of those shares to meet the
subsequent costs of ascertaining those other
persons.
9.
Guardian’s accounts (O. 43, r.
9)
The accounts of a person appointed guardian of a minor’s estate must be
verified and passed in such a manner as the Court may direct.
Order
44
Proceedings
under
Judgments and Orders
1.
Application to orders (O. 44, r.
1)
In this Order references to a judgment include references to an
order.
2.
Service of notice of judgment on
person not a party (O. 44, r.
2)
(1)
Where in an action for—
(a)
the administration of the estate of a deceased person, or
(b)
the execution of a trust, or
(c)
the sale of any property,
the Court gives a judgment or makes a direction which affects persons not
parties to the action, the Court may when giving the judgment or at any stage of
the proceedings under the judgment direct notice of the judgment to be served on
any such person and any person so served shall, subject to paragraph (4), be
bound by the judgment as if he had originally been a party to the
action.
(2)
If it appears that it is not practicable to serve notice of a judgment on a
person directed to be served the Court may dispense with service and may also
order that such person be bound by the judgment.
(2A)
Order 6, rule 7(3) and (5) shall apply in relation to a notice
of judgment under this rule as if the notice were a writ and the person by whom
the notice is issued were the plaintiff.
(3)
Every notice of a judgment for service under this rule must be indorsed
with a memorandum in Form No. 52 in Appendix A and accompanied by a form of
acknowledgment of service in Form No. 15 in Appendix A with such modifications
as may be appropriate and the copy of the notice to be served shall be a sealed
copy.
(4)
A person served with notice of a judgment may, within one month after
service of the notice on him, and after acknowledging service, apply to the
Court to discharge, vary or add to the judgment.
(5)
A person served with notice of a judgment may, after acknowledging service
of the notice, attend the proceedings under the judgment.
(6)
Order 12, rules 1 to 4, shall apply in relation to the
acknowledgment of service of a notice of judgment as if the judgment were a
writ, and the person by whom the notice is served were the plaintiff and the
person on whom it is served a defendant.
3.
Directions by the Court (O. 44, r.
3)
(1)
Where a judgment given in a cause or matter contains directions which make
it necessary to proceed in chambers under the judgment the Court may, when
giving the judgment or at any time during proceedings under the judgment, give
further directions for the conduct of those proceedings, including, in
particular, directions with respect to—
(a)
the manner in which any account or inquiry is to be
prosecuted,
(b)
the evidence to be adduced in support thereof,
(c)
the preparation and service on the parties to be bound thereby of the
draft of any deed or other instrument which is directed by the judgment to
be settled by the Court and the service of any objections to the
draft,
(d)
without prejudice to Order 15, rule 17, the parties required
to attend all or any part of the proceedings,
(e)
the representation by the same solicitors of parties who constitute a
class and by different solicitors of parties who ought to be separately
represented, and
(f)
the time within which each proceeding is to be taken,
and may fix a day or days for the further attendance of the
parties.
(2)
The Court may revoke or vary any directions given under the
rule.
4.
Application of rules 5 to 8 (O. 44, r.
4)
Rules 5 to 8 apply—
(a)
where in proceedings for the administration under the direction of the
Court of the estate of a deceased person the judgment directs any account of
debts or other liabilities of the deceased’s estate to be taken or any inquiry
for next of kin or other unascertained claimants to be made, and
(b)
where in proceedings for the execution under the direction of the Court of
a trust the judgment directs any such inquiry to be made,
and those rules shall, with the necessary modifications, apply where in any
other proceedings the judgment directs any account of debts or other liabilities to
be taken or any inquiry to be
made.
5.
Advertisements for creditors and
other claimants (O. 44, r.
5)
The Court may, when giving a judgment or at any stage of proceedings under a
judgment, give directions for the issue of advertisements for creditors or other
claimants and may fix the time within which creditors and claimants may
respond.
6.
Examination of claims (O. 44, r.
6)
(1)
Where an account of debts or other liabilities of the estate of a deceased
person has been directed, such party as the Court may direct must—
(a)
examine the claims of persons claiming to be creditors of the
estate,
(b)
determine, so far as he is able, to which of such claims the estate is
liable, and
(c)
at least seven clear days before the time appointed for adjudicating on
claims, make an affidavit stating his findings and his reasons for them and
listing all the other debts of the deceased which are or may still be
due.
(2)
Where an inquiry for next of kin or other unascertained claimants has been
directed, such party as the Court may direct must—
(a)
examine the claims,
(b)
determine, so far as he is able, which of them are valid, and
(c)
at least seven clear days before the time appointed for adjudicating on
claims, make an affidavit stating his findings and his reasons for
them.
(3)
If the personal representative or trustee concerned are not the parties
directed by the Court to examine claims, they must join with the party directed
to examine them in making the affidavit required by this
rule.
7.
Adjudication on claims (O. 44, r.
7)
For the purpose of adjudicating on claims the Court may—
(a)
direct any claim to be investigated in such manner as it thinks
fit,
(b)
require any claimant to attend and prove his claim or to furnish further
particulars or evidence of it, or
(c)
allow any claim after or without proof
thereof.
8.
Notice of adjudication (O. 44, r.
8)
The Court shall give directions that there be served on every creditor whose
claim or any part thereof has been allowed or disallowed, and who did not attend
when the claim was disposed of, a notice informing him of that
fact.
9.
Interest on debts (O. 44, r.
9)
(1)
Where an account of the debts of a deceased person is directed by any
judgment, then, unless the deceased’s estate is insolvent or the Court otherwise
orders, interest shall be allowed—
(a)
on any such debt as carries interest, at the rate it carries,
and
(b)
on any other debt, from the date of the judgment at the rate payable on
judgment debts at that date.
(2)
A creditor who has established his debt in proceedings under the judgment
and whose debt does not carry interest shall be entitled to interest on his debt
in accordance with paragraph (1)(b) out of any assets which may
remain after satisfying the costs of the cause or matter, the debts which have
been established and the interest on such of those debts as by law carry
interest.
(3)
For the purposes of this rule
debt
(債項
) includes funeral, testamentary or
administration expenses and, in relation to expenses incurred after the
judgment, for the reference in paragraph (1)(b) to the date of the
judgment there shall be substituted a reference to the date when the expenses
became
payable.10.
Interest on legacies (O. 44, r.
10)
Where an account of legacies is directed by any judgment, then, subject to any
directions contained in the will or codicil in question and to any order made by the
Court, interest shall be allowed on each legacy at the rate of 8 per cent per annum
beginning at the expiration of one year after the testator’s
death.
11.
Master’s order (O. 44, r.
11)
(1)
Subject to Order 37, rule 2, the result of proceedings before a
master under a judgment shall be stated in the form of an order.
(2)
Subject to any direction of the master under paragraph (3) or otherwise an
order under this rule shall have effect as a final order disposing of the cause
or matter in which it is made.
(3)
An order under this rule shall contain such directions as the master thinks
fit as to the further consideration, either in court or in chambers, of the
cause or matter in which it is made.
(4)
Every order made under this rule shall have immediate binding effect on the
parties to the cause or matter in which it is made and copies of the order shall
be served on such of the parties as the master may
direct.
12.
Appeal against master’s order (O. 44, r.
12)
(1)
(1A)
The following provisions shall have effect in the application of Order 58,
rule 1 to an order made under rule 11—
(a)
the notice referred to in Order 58, rule 1(2) shall state
the grounds of the appeal;
(b)
no fresh evidence (other than evidence as to matters which occurred
after the date of the master’s order) shall be admitted except on special
grounds;
(c)
the judge hearing the appeal shall have the same power to draw
inferences of fact as has the Court of Appeal under Order 59, rule
10(3).
(2)
If the order is to be acted on by the Judiciary Accountant or is an order
passing a receiver’s account, notice of appeal must be issued not later than two
clear days after the making of the order and, where the order is to be acted on
by the Judiciary Accountant, a duplicate of it must be served on the Judiciary
Accountant as soon as practicable after it is made.
Provisional
Remedies
Order
44A
Prohibition
Order before or after Judgment and Attachment of Property before
Judgment
Prohibition Order
against
Debtor
1.
Application of the Order to an
intended action (O. 44A, r.
1)
(1)
Subject to paragraph (2), on the hearing of an application by a plaintiff,
the Judge may, if he thinks fit, order that the relief provided by this Order
shall be available to the plaintiff notwithstanding that the plaintiff has not
commenced his action.
(2)
An order shall not be made under paragraph (1) unless the plaintiff, at the
hearing of his application for such order—
(a)
produces at the hearing of the application, a draft writ; and
(b)
undertakes to the Judge to issue the writ on the next day on which an
office of the Court is open.
(3)
In paragraph (1),
plaintiff
(原告人
) means a person who intends to
commence an action and elsewhere in this Order, where the Judge has made an
order under paragraph (1),
plaintiff
(原告人
) includes a person who
intends to commence an action and
defendant
(被告人
) or
debtor
(債務人
) includes a person against whom a
plaintiff intends to commence an
action.2.
Application for an order prohibiting a debtor
from leaving Hong Kong (O. 44A, r.
2)
A plaintiff or judgment creditor may apply ex parte to the Court for an order
prohibiting a debtor from leaving Hong
Kong.
3.
Making of prohibition order (O. 44A, r.
3)
(1)
Subject to the provisions of section 21B of the Ordinance the
Court may make an order prohibiting the debtor from leaving Hong Kong.
(2)
The order prohibiting a debtor from leaving Hong Kong shall be in Form No.
106 in Appendix
A.
4.
Application to discharge order (O. 44A, r.
4)
(1)
Where a debtor is prohibited from leaving Hong Kong, he may, on 2 days
clear notice to the plaintiff or judgment creditor and upon being present in
person in Court, apply for the order to be discharged.
(2)
In an application under paragraph (1) by a debtor under a judgment for
money, the Court shall, after the assessment of the amount due to the judgment
creditor if appropriate—
(a)
discharge the order; and
(b)
proceed as if the judgment debtor appears under arrest for examination
under Order 49B.
(3)
Where, in an application under paragraph (1), a debtor for money, other than
a judgment debtor—
(a)
consents to judgment being entered against him; or
(b)
satisfies the Court that he has a substantial defence to the
plaintiff’s claim; or
(c)
consents to judgment being entered against him in respect of part of
the plaintiff’s claim and, as to the remainder of that claim, satisfies the
Court that he has a substantial defence to the plaintiff’s claim,
the Court shall—
(i)
discharge the order; and
(ii)
where the defendant consents to judgment being entered against him in
respect of the whole or any part of the plaintiff’s claim, give judgment in
accordance with that consent and thereafter proceed as if the defendant
appears under arrest for examination under Order 49B.
(4)
Where, in an application under paragraph (1), a debtor, other than a debtor
for money or a debtor under a judgment for money, satisfies the Court that he
has a substantial defence to the plaintiff’s claim, the Court shall discharge
the order.
(5)
In an application under paragraph (1), the Court may either for the
purposes of the application or to achieve a speedy determination of any issue in
dispute, give such directions as it thinks fit as to the filing of statements of
claim, defences and counter-claims, the filing of affidavits, the assessment of
the amount due or otherwise.
(6)
Paragraphs (2), (3) and (4) shall not prevent the Court from discharging
the order, either absolutely or subject to conditions, in any circumstances in
which it thinks fit to do
so.
5.
Power to award compensation (O. 44A, r.
5)
(1)
Where it appears to the Court that the order prohibiting a debtor from
leaving Hong Kong—
(a)
was applied for on insufficient grounds; or
(b)
was not caused to lapse by the plaintiff or judgment creditor as soon
as reasonably possible after it was no longer required,
the Court may, on the application of the debtor, award against the
plaintiff or judgment creditor reasonable compensation to the debtor for any
injury or loss sustained by the debtor by reason of sub-paragraph (a) or
(b):
Provided that the Court shall
not award a larger sum by way of compensation under this rule than is competent
to the Court to award in an action for damages.
(2)
An award of compensation under this rule shall bar any action for damages
in respect of the prohibition
order.
Interim Attachment of Property of Defendant
7.
Application for taking security from defendant
or for attachment of his property in certain
cases (O. 44A, r.
7)
(1)
If in any action the defendant, with intent to obstruct or delay the
execution of any judgment that may be given against him in the action, is about
to dispose of his property or any part thereof, or to remove any such property
from the jurisdiction of the Court, the plaintiff may, either at the institution
of the action or at any time thereafter until final judgment, apply to the Court
to call upon the defendant to furnish sufficient security to produce and place
at the disposal of the Court, when required, his property, or the value of the
same, or such portion thereof as may be sufficient to answer any judgment that
may be given against him in the action, and, in the event of his failing to
furnish such security, to direct that any property, movable or immovable,
belonging to the defendant shall be attached until the further order of the
Court.
(2)
The application shall contain a specification of the property required to
be attached, and the estimated value thereof, so far as the plaintiff can
reasonably ascertain the same.
(3)
There shall be filed with the application an affidavit to the effect that
the defendant is about to dispose of or remove his property or some part
thereof, with such intent as
aforesaid.
8.
Issue of warrant requiring defendant to furnish security
or to appear and show cause, and attaching his
property (O. 44A, r.
8)
(1)
If the Court, after making such investigation as it may consider necessary,
is of opinion that there is probable cause for believing that the defendant is
about to dispose of or remove his property or some part thereof, with such
intent as aforesaid, it shall be lawful for the Court to issue a warrant to the
bailiff commanding him to call upon the defendant, within a time to be fixed by
the Court, either to furnish security, in such sum as may be specified in the
order to produce and place at the disposal of the Court, when required, the said
property, or the value of the same, or such portion thereof as may be sufficient
to answer any judgment that may be given against him in the action, or to appear
before the Court and show cause why he should not furnish such security. (See
App. C, Form 5)
(2)
The Court may also in the warrant direct the attachment until further order
of the whole or any portion of the property of the defendant within the
Colony.
(3)
The attachment shall be made, according to the nature of the property to be
attached, in the manner prescribed for the attachment of property in execution
of a judgment for
money.
9.
Showing cause, and procedure thereon (O. 44A, r.
9)
(1)
If the defendant shows such cause or furnishes the required security within
the time fixed by the Court, and the property specified in the application, or
any portion thereof, has been attached, the Court shall order the attachment to
be withdrawn.
(2)
If the defendant fails to show such cause or to furnish the required
security within the time fixed by the Court, the Court may direct that the
property specified in the application, if not already attached, or such portion
thereof as may be sufficient to answer any judgment that may be given against
the defendant in the action, shall be attached until the further order of the
Court.
(3)
The attachment shall be made, according to the nature of the property to be
attached, in the manner prescribed for the attachment of property in execution
of a judgment for
money.
10.
Saving of rights of other persons under
attachment (O. 44A, r.
10)
(1)
The attachment shall not affect the rights of any persons not being parties
to the action, and in the event of any claim being preferred to the property
attached before judgment, such claim shall be investigated in the manner
prescribed for the investigation of claims to property attached in execution of
a judgment.
(2)
Where the property consists of movable property to which the judgment
debtor is entitled subject to a lien or right of some other person to the
immediate possession thereof, the attachment shall be made by a written order
prohibiting the person in possession from giving over the property to the
judgment debtor or to any other
person.
11.
Removal of attachment on furnishing
of security (O. 44A, r.
11)
In any case of attachment before judgment the Court shall at any time remove
the same on the defendant furnishing the required security together with security
for the costs of the
attachment.
12.
Power to award compensation to defendant for
unjustifiable attachment (O. 44A, r.
12)
(1)
If it appears to the Court that the attachment was applied for on
insufficient grounds, or if the action is dismissed or judgment is given against
the plaintiff by default or otherwise and it appears to the Court that there was
no probable ground for instituting the action, the Court may, on the application
of the defendant, made either before or at the time of the pronouncing of the
judgment, award against the plaintiff such amount, as it may deem a reasonable
compensation to the defendant for any injury or loss which he may have sustained
by reason of the attachment: Provided that the Court shall not award a larger
sum by way of compensation under this rule than it is competent to the Court to
award in an action for damages.
(2)
An award of compensation under this rule shall bar any action for damages
in respect of the attachment.
Enforcement
of Judgments and Orders
Order
45
Enforcement
of Judgments and Orders: General
1.
Enforcement of judgment, etc., for
payment of money (O. 45, r.
1)
(1)
Subject to the provisions of these rules, a judgment or order for the
payment of money, not being a judgment or order for the payment of money into
court, may be enforced by one or more of the following means, that is to
say—
(a)
writ of fieri facias;
(b)
garnishee proceedings;
(c)
a charging order;
(d)
the appointment of a receiver;
(e)
in a case in which rule 5 applies, an order of
committal;
(f)
in such a case, writ of sequestration;
(g)
an order of imprisonment made under Order 49B.
(2)
Subject to the provisions of these rules, a judgment or order for the
payment of money into court may be enforced by one or more of the following
means, that is to say—
(a)
the appointment of a receiver;
(b)
in a case in which rule 5 applies, an order of
committal;
(c)
in such a case, writ of sequestration.
(3)
Paragraphs (1) and (2) are without prejudice to any other remedy available
to enforce such a judgment or order as is therein mentioned or to any written
law relating to bankruptcy or the winding up of companies.
(4)
In this Order references to any writ shall be construed as including
references to any further writ in aid of the first mentioned
writ.
3.
Enforcement of judgment for possession
of land (O. 45, r.
3)
(1)
Subject to the provisions of these rules, a judgment or order for the giving
of possession of land may be enforced by one or more of the following means,
that is to say—
(a)
writ of possession;
(b)
in a case in which rule 5 applies, an order of
committal;
(c)
in such a case, writ of sequestration.
(2)
A writ of possession to enforce a judgment or order for the giving of
possession of any land shall not be issued without the leave of the Court except
where the judgment or order was given or made in a mortgage action to which
Order 88 applies.
(3)
Such leave shall not be granted unless it is shown that every person in
actual possession of the whole or any part of the land has received such notice
of the proceedings as appears to the Court sufficient to enable him to apply to
the Court for any relief to which he may be entitled.
(4)
A writ of possession may include provision for enforcing the payment of any
money adjudged or ordered to be paid by the judgment or order which is to be
enforced by the
writ.
4.
Enforcement of judgment for delivery
of goods (O. 45, r.
4)
(1)
Subject to the provisions of these rules, a judgment or order for the
delivery of any goods which does not give a person against whom the judgment is
given or order made the alternative of paying the assessed value of the goods
may be enforced by one or more of the following means, that is to say—
(a)
writ of delivery to recover the goods without alternative provision for
recovery of the assessed value thereof (hereafter in this rule referred to
as a
writ
of specific
delivery);
(b)
in a case in which rule 5 applies, an order of
committal;
(c)
in such a case, writ of sequestration.
(2)
Subject to the provisions of these rules, a judgment or order for the
delivery of any goods or payment of their assessed value may be enforced by one
or more of the following means, that is to say—
(a)
writ of delivery to recover the goods or their assessed
value;
(b)
by order of the Court, writ of specific delivery;
(c)
in a case in which rule 5 applies, writ of
sequestration.
An application for an order under sub-paragraph (b) shall be made by
summons, which must, notwithstanding Order 65, rule 9, be served on
the defendant against whom the judgment or order sought to be enforced was given
or made.
(3)
A writ of specific delivery, and a writ of delivery to recover any goods or
their assessed value, may include provision for enforcing the payment of any
money adjudged or ordered to be paid by the judgment or order which is to be
enforced by the writ.
(4)
A judgment or order for the payment of the assessed value of any goods may
be enforced by the same means as any other judgment or order for the payment of
money.
5.
Enforcement of judgment to do or abstain
from doing any act (O. 45, r.
5)
(1)
Where—
(a)
a person required by a judgment or order to do an act within a time
specified in the judgment or order refuses or neglects to do it within that
time or, as the case may be, within that time as extended or abridged under
Order 3, rule 5, or
(b)
a person disobeys a judgment or order requiring him to abstain from
doing an act,
then, subject to the provisions of these rules, the judgment or order may
be enforced by one or more of the following means, that is to say—
(i)
with the leave of the Court, a writ of sequestration against the
property of that person;
(ii)
where that person is a body corporate, with the leave of the Court, a
writ of sequestration against the property of any director or other officer
of the body;
(iii)
an order of committal against that person or, where that person is a
body corporate, against any such officer.
(2)
Where a judgment or order requires a person to do an act within a time
therein specified and an order is subsequently made under rule 6
requiring the act to be done within some other time, references in paragraph (1)
of this rule to a judgment or order shall be construed as references to the
order made under rule 6.
(3)
Where under any judgment or order requiring the delivery of any goods the
person liable to execution has the alternative of paying the assessed value of
the goods, the judgment or order shall not be enforceable by order of committal
under paragraph (1), but the Court may, on the application of the person
entitled to enforce the judgment or order, make an order requiring the first
mentioned person to deliver the goods to the applicant within a time specified
in the order, and that order may be so
enforced.
6.
Judgment, etc. requiring act to be done: order
fixing time for doing it (O. 45, r.
6)
(1)
Notwithstanding that a judgment or order requiring a person to do an act
specifies a time within which the act is to be done, the Court shall, without
prejudice to Order 3, rule 5, have power to make an order requiring
the act to be done within another time, being such time after service of that
order, or such other time, as may be specified therein.
(2)
Where, notwithstanding Order 42, rule 2(1), or by reason of
Order 42, rule 2(2), a judgment or order requiring a person to do an
act does not specify a time within which the act is to be done, the Court shall
have power subsequently to make an order requiring the act to be done within
such time after service of that order, or such other time, as may be specified
therein.
(3)
An application for an order under this rule must be made by summons and the
summons must, notwithstanding anything in Order 65, rule 9, be served
on the person required to do the act in
question.
7.
Service of copy of judgment, etc., prerequisite
to enforcement under r. 5 (O. 45, r.
7)
(1)
In this rule references to an order shall be construed as including
references to a judgment.
(2)
Subject to Order 24, rule 16(3), Order 26, rule 6(3)
and paragraphs (6) and (7) of this rule, an order shall not be enforced under
rule 5 unless—
(a)
a copy of the order has been served personally on the person required
to do or abstain from doing the act in question, and
(b)
in the case of an order requiring a person to do an act, the copy has
been so served before the expiration of the time within which he was
required to do the act.
(3)
Subject as aforesaid, an order requiring a body corporate to do or abstain
from doing an act shall not be enforced as mentioned in rule 5(1)(ii)
or (iii) unless—
(a)
a copy of the order has also been served personally on the officer
against whose property leave is sought to issue a writ of sequestration or
against whom an order of committal is sought, and
(b)
in the case of an order requiring the body corporate to do an act, the
copy has been so served before the expiration of the time within which the
body was required to do the act.
(4)
There must be indorsed on the copy of an order served under this rule a
notice informing the person on whom the copy is served—
(a)
in the case of service under paragraph (2) that if he neglects to obey
the order within the time specified therein, or, if the order is to abstain
from doing an act, that if he disobeys the order, he is liable to process of
execution to compel him to obey it, and
(b)
in the case of service under paragraph (3) that if the body corporate
neglects to obey the order within the time so specified or, if the order is
to abstain from doing an act, that if the body corporate disobeys the order,
he is liable to process of execution to compel the body to obey
it.
(5)
With the copy of an order required to be served under this rule, being an
order requiring a person to do an act, there must also be served a copy of any
order made under Order 3, rule 5, extending or abridging the time for
doing the act and, where the first-mentioned order was made under rule
5(3) or 6 of this Order, a copy of the previous order
requiring the act to be done.
(6)
An order requiring a person to abstain from doing an act may be enforced
under rule 5 notwithstanding that service of a copy of the order has
not been effected in accordance with this rule if the Court is satisfied that,
pending such service, the person against whom or against whose property it is
sought to enforce the order has had notice thereof either—
(a)
by being present when the order was made, or
(b)
by being notified of the terms of the order, whether by telephone,
telegram or otherwise.
(7)
Without prejudice to its powers under Order 65, rule 4, the
Court may dispense with service of a copy of an order under this rule if it
thinks it just to do
so.
8.
Court may order act to be done at expense
of disobedient party (O. 45, r.
8)
If an order of mandamus, a mandatory order, an injunction or a judgment or
order for the specific performance of a contract is not complied with, then, without
prejudice to its powers to punish the disobedient party for contempt, the Court may
direct that the act required to be done may, so far as practicable, be done by the
party by whom the order or judgment was obtained or some other person appointed by
the Court, at the cost of the disobedient party, and upon the act being done the
expenses incurred may be ascertained in such manner as the Court may direct and
execution may issue against the disobedient party for the amount so ascertained and
for
costs.
9.
Execution by or against person
not being a party (O. 45, r.
9)
(1)
Any person, not being a party to a cause or matter, who obtains any order
or in whose favour any order is made, shall be entitled to enforce obedience to
the order by the same process as if he were a party.
(2)
Any person, not being a party to a cause or matter, against whom obedience
to any judgment or order may be enforced, shall be liable to the same process
for enforcing obedience to the judgment or order as if he were a
party.
10.
Conditional judgment: waiver (O. 45, r.
10)
A party entitled under any judgment or order to any relief subject to the
fulfilment of any condition who fails to fulfil that condition is deemed to have
abandoned the benefit of the judgment or order, and, unless the Court otherwise
directs, any other person interested may take any proceedings which either are
warranted by the judgment or order or might have been taken if the judgment or order
had not been given or
made.
11.
Matters occurring after judgment: stay
of execution, etc. (O. 45, r.
11)
Without prejudice to Order 47, rule 1, a party against whom a
judgment has been given or an order made may apply to the Court for a stay of
execution of the judgment or order or other relief on the ground of matters which
have occurred since the date of the judgment or order, and the Court may by order
grant such relief, and on such terms, as it thinks
just.
12.
Forms of writs (O. 45, r.
12)
(1)
A writ of fieri facias must be in such of the Forms Nos. 53 to 63 in
Appendix A as is appropriate in the particular case.
(2)
A writ of delivery must be in Form No. 64 or 65 in Appendix A, whichever is
appropriate.
(3)
A writ of possession must be in Form No. 66 or 66A in Appendix A.
(4)
A writ of sequestration must be in Form No. 67 in Appendix
A.
13.
Enforcement of judgments and orders for
recovery of money, etc. (O. 45, r.
13)
(1)
Rule 1(1) of this Order, with the omission of sub-paragraphs (e)
and (f) thereof, and Orders 46 to 51 shall apply in relation to a judgment or
order for the recovery of money as they apply in relation to a judgment or order
for the payment of
money.
(2)
(3)
Rule 4 of this Order, with the omission of paragraphs
(1)(b) and (c) and (2)(c) thereof, and Order 47,
rule 3(2), shall apply in relation to a judgment or order that a
person do have a return of any goods and to a judgment or order that a person do
have a return of any goods or do recover the assessed value thereof as they
apply in relation to a judgment or order for the delivery of any goods and a
judgment or order for the delivery of any goods or payment of the assessed value
thereof
respectively.
14.
Power of the Court to order immediate
execution (O. 45, r.
14)
(1)
The Court may at the time of giving judgment, on the oral application of
the party in whose favour the judgment is given, order immediate execution
thereof without the issue of a writ of execution, except as to so much as
relates to the costs, and that the judgment shall be executed as to the costs as
soon as the amount thereof has been ascertained by taxation.
(2)
The order for immediate execution shall be in writing and shall be
sufficient authority to the bailiff to proceed at once to execution of the
judgment against the property of the party against whom judgment is given:
Provided that the party obtaining the order shall as soon thereafter as
practicable comply with the requirements of Order 46, rule 6:
Provided further that, if the party against whom the order has been made
satisfies the Court that he has sufficient means and intends to satisfy the
judgment, the Court may discharge the order for immediate
execution.
15.
Judgment for money against representatives
of deceased persons (O. 45, r.
15)
If the judgment is against a party as the representative of a deceased person and
such judgment is for money to be paid out of the property of the deceased person, it
may be executed by the attachment and sale of any such property or, if no such
property can be found and the defendant fails to satisfy the Court that he has duly
applied such property of the deceased person as may be proved to have come into his
possession, the judgment may be executed against the defendant to the extent of the
property not duly applied by him, in the same manner as if the judgment had been
against him
personally.
16.
Execution in case of cross-judgments
for money (O. 45, r.
16)
If
there are cross-judgments between the same parties for the payment of money
execution shall be taken out by that party only who has obtained a judgment for the
larger sum and for so much only as may remain after deducting the smaller sum, and
satisfaction for the smaller sum shall be entered on the judgment for the larger sum
as well as satisfaction on the judgment for the smaller sum, and if both sums are
equal satisfaction shall be entered on both
judgments.
17.
Application for leave to issue execution by one of
several persons entitled (O. 45, r.
17)
(1)
If a judgment has been given jointly in favour of more persons than one,
any one or more of such persons, or his or their representatives, may apply to
the Court for leave to issue execution on the whole judgment for the benefit of
them all or, where any of them has died, for the benefit of the survivors and of
the representative in interest of the deceased person.
(2)
If the Court grants such leave it shall make such order as it may think fit
for protecting the interests of the persons who have not joined in the
application.
Order
46
Writs
of Execution: General
1.
Definition (O. 46, r.
1)
In this Order, unless the context otherwise requires,
writ
of
execution
(執行令狀
) includes a writ of fieri facias, a
writ of possession, a writ of delivery, a writ of sequestration and any further writ
in aid of any of the aforementioned writs. (See
App. A, Form
69)2.
When leave to issue any writ of execution
is necessary (O. 46, r.
2)
(1)
A writ of execution to enforce a judgment or order may not issue without the
leave of the Court in the following cases, that is to say—
(a)
where 6 years or more have elapsed since the date of the judgment or
order;
(b)
where any change has taken place, whether by death or otherwise, in the
parties entitled or liable to execution under the judgment or
order;
(c)
where the judgment or order is against the assets of a deceased person
coming to the hands of his executors or administrators after the date of the
judgment or order, and it is sought to issue execution against such
assets;
(d)
where under the judgment or order any person is entitled to relief
subject to the fulfilment of any condition which it is alleged has been
fulfilled;
(e)
where any goods sought to be seized under a writ of execution are in
the hands of a receiver appointed by the Court or a sequestrator.
(2)
Paragraph (1) is without prejudice to any written law or rule by virtue of
which a person is required to obtain the leave of the Court for the issue of a
writ of execution or to proceed to execution on or otherwise to the enforcement
of a judgment or order.
(3)
Where the Court grants leave, whether under this rule or otherwise, for the
issue of a writ of execution and the writ is not issued within one year after
the date of the order granting such leave, the order shall cease to have effect,
without prejudice, however, to the making of a fresh
order.
3.
Leave required for issue of writ in
aid of other writ (O. 46, r.
3)
A writ of execution in aid of any other writ of execution shall not issue
without the leave of the
Court.
4.
Application for leave to issue writ (O. 46, r.
4)
(1)
An application for leave to issue a writ of execution may be made ex parte
unless the Court directs it to be made by summons.
(2)
Such an application must be supported by an affidavit—
(a)
identifying the judgment or order to which the application relates and,
if the judgment or order is for the payment of money, stating the amount
originally due thereunder and the amount due thereunder at the date of the
application;
(b)
stating, where the case falls within rule 2(l)(a), the
reasons for the delay in enforcing the judgment or order;
(c)
stating where the case falls within rule 2(1)(b), the change
which has taken place in the parties entitled or liable to execution since
the date of the judgement or order;
(d)
stating, where the case falls within rule 2(1)(c) or (d),
that a demand to satisfy the judgment or order was made on the person liable
to satisfy it and that he has refused or failed to do so;
(e)
giving such other information as is necessary to satisfy the Court that
the applicant is entitled to proceed to execution on the judgment or order
in question and that the person against whom it is sought to issue execution
is liable to execution on it.
(3)
The Court hearing such application may grant leave in accordance with the
application or may order that any issue or question, a decision on which is
necessary to determine the rights of the parties, be tried in any manner in
which any question of fact or law arising in an action may be tried and, in
either case, may impose such terms as to costs or otherwise as it thinks
just.
5.
Application for leave to issue writ
of sequestration (O. 46, r.
5)
(1)
(2)
Subject to paragraph (3), the summons, stating the grounds of the
application and accompanied by a copy of the affidavit in support of the
application, must be served personally on the person against whose property it
is sought to issue the writ.
(3)
Without prejudice to its powers under Order 65, rule 4, the
Court may dispense with service under this rule if it thinks it just to do
so.
(4)
The judge hearing an application for leave to issue a writ of sequestration
may sit in private in any case in which, if the application were for an order of
committal, he would be entitled to do so by virtue of Order 52, rule
6, but, except in such a case, the application shall be heard in open
court.
6.
Issue of writ of execution (O. 46, r.
6)
(1)
Issue of a writ of execution takes place on its being sealed by the
Registrar.
(2)
Before such a writ is issued a praecipe for its issue must be
filed.
(3)
The praecipe must be signed by or on behalf of the solicitor of the person
entitled to execution or, if that person is acting in person, by him.
(4)
No such writ shall be sealed unless at the time of the tender thereof for
sealing—
(a)
the person tendering it produces—
(i)
the judgment or order on which the writ is to issue, or an office
copy thereof,
(ii)
where the writ may not issue without the leave of the Court, the
order granting such leave or evidence of the granting of it;
and
(b)
the Registrar is satisfied that the period, if any, specified in the
judgment or order for the payment of any money or the doing of any other act
thereunder has expired.
(5)
Every writ of execution shall bear the date of the day on which it is
issued.
8.
Duration and renewal of writ of execution (O. 46, r.
8)
(1)
For the purpose of execution, a writ of execution is valid in the first
instance for 12 months beginning with the date of its issue.
(2)
Where a writ has not been wholly executed the Court may by order extend the
validity of the writ from time to time for a period of 12 months at any one time
beginning with the day on which the order is made, if an application for
extension is made to the Court before the day next following that on which the
writ would otherwise expire or such later day, if any, as the Court may
allow.
(3)
Before a writ the validity of which has been extended under paragraph (2)
is executed either the writ must be sealed with the Seal of the Court showing
the date on which the order extending its validity was made or the applicant for
the order must serve a notice (in Form No. 71 in Appendix A), sealed as
aforesaid, on the bailiff to whom the writ is directed informing him of the
making of the order and the date thereof.
(4)
The priority of a writ, the validity of which has been extended under this
rule, shall be determined by reference to the date on which it was originally
delivered to the bailiff.
(5)
The production of a writ of execution, or of such a notice as is mentioned
in paragraph (3), purporting in either case to be sealed as mentioned in that
paragraph, shall be evidence that the validity of that writ or, as the case may
be, of the writ referred to in that notice, has been extended under paragraph
(2).
(6)
If, during the validity of a writ of execution, an interpleader summons is
issued in relation to an execution under that writ, the validity of the writ
shall be extended until the expiry of 12 months from the conclusion of the
interpleader proceedings.
9.
Return to writ of execution (O. 46, r.
9)
(1)
Any party at whose instance or against whom a writ of execution was issued
may serve a notice on the bailiff to whom the writ was directed requiring him,
within such time as may be specified in the notice, to endorse on the writ a
statement of the manner in which he has executed it and to send to that party a
copy of the statement.
(2)
If a bailiff on whom such a notice is served fails to comply with it the
party by whom it was served may apply to the Court for an order directing the
bailiff to comply with the notice.
(3)
(Repealed L.N. 404 of
1991)
Order
47
Writs
of Fieri Facias
1.
Power to stay execution by writ
of fieri facias (O. 47, r.
1)
(1)
Where a judgment is given or an order made for the payment by any person of
money, and the Court is satisfied, on an application made at the time of the
judgment or order, or at any time thereafter, by the judgment debtor or other
party liable to execution—
(a)
that there are special circumstances which render it inexpedient to
enforce the judgment or order, or
(b)
that the applicant is unable from any cause to pay the money,
then, notwithstanding anything in rule 3, the Court may by
order stay the execution of the judgment or order by writ of fieri facias either
absolutely or for such period and subject to such conditions as the Court thinks
fit.
(2)
An application under this rule, if not made at the time the judgment is
given or order made, must be made by summons and may be so made notwithstanding
that the party liable to execution did not acknowledge service of the writ or
originating summons in the action or did not state in his acknowledgment of
service that he intended to apply for a stay of execution under this rule
pursuant to Order 13, rule 8.
(3)
An application made by summons must be supported by an affidavit made by or
on behalf of the applicant stating the grounds of the application and the
evidence necessary to substantiate them and, in particular, where such
application is made on the grounds of the applicant’s inability to pay,
disclosing his income, the nature and value of any property of his and the
amount of any other liabilities of his.
(4)
The summons and a copy of the supporting affidavit must, not less than 4
clear days before the return day, be served on the party entitled to enforce the
judgment or order.
(5)
An order staying execution under this rule may be varied or revoked by a
subsequent
order.
3.
Separate writs to enforce payment
of costs, etc. (O. 47, r.
3)
(1)
Where only the payment of money, together with costs to be taxed, is
adjudged or ordered, then, if when the money becomes payable under the judgment
or order the costs have not been taxed, the party entitled to enforce that
judgment or order may issue a writ of fieri facias to enforce payment of the sum
(other than for costs) adjudged or ordered and, not less than 8 days after the
issue of that writ, he may issue a second writ to enforce payment of the taxed
costs.
(2)
A party entitled to enforce a judgment or order for the delivery of
possession of any property (other than money) may, if he so elects, issue a
separate writ of fieri facias to enforce payment of any damages or costs awarded
to him by that judgment or
order.
6.
Order for sale in execution of judgment (O. 47, r.
6)
(1)
Every sale in execution of a judgment shall be made under the direction of
the Registrar and shall be conducted according to such orders, if any, as the
Court may make on application of the person at whose instance the writ of
execution under which the sale is to be made was issued, of the person against
whom that writ was issued or of the bailiff to whom it was issued. In the
absence of any such application the sale shall be made by public auction.
(2)
Such an application must be made by summons and the summons must contain a
short statement of the grounds of the application.
(3)
Where the applicant for an order under this rule is not a bailiff, the
bailiff must, on the demand of the applicant, send to the applicant a list
containing the name and address of every person at whose instance any other writ
of execution against the goods of the judgment debtor was issued and delivered
to the bailiff (in this rule referred to as
the
bailiff’s
list);
and where the bailiff is the applicant, he must prepare such a list.
(4)
Not less than 4 clear days before the return day the applicant must serve
the summons on each of the other persons by whom the application might have been
made and on every person named in the bailiff’s list.
(5)
Where any goods of a debtor are taken in execution, and the bailiff has
notice of another execution or other executions, the Court shall not consider an
application for sale otherwise than by auction until service of the summons on
the person or persons named in the bailiff’s list has been effected.
(6)
The applicant must produce the bailiff’s list to the Court on the hearing
of the application.
(7)
Every person on whom the summons was served may attend and be heard on the
hearing of the
application.
7.
Special rules as to the sale of immovable
property
(O. 47, r. 7)
(1)
At any time within 10 days from the date of sale of any immovable property
in execution of a judgement, application may be made to the Court to set aside
the sale on the ground of any material irregularity in the conduct of the sale,
but no such sale shall be set aside on the ground of such irregularity unless
the applicant proves to the satisfaction of the Court that he has sustained
substantial injury by reason of such irregularity.
(2)
(a)
If no such application is made the sale shall be deemed
absolute.
(b)
If such application is made and the objection is disallowed, the Court
shall make an order confirming the sale.
(c)
If such application is made and the objection is allowed, the Court
shall make an order setting aside the sale for irregularity.
(3)
Whenever a sale of immovable property is set aside for irregularity the
purchaser shall be entitled to receive back any money deposited or paid by him
on account of such sale, with or without interest, to be paid by such parties
and in such manner as it may appear to the Court proper to direct.
(4)
(a)
After a sale of immovable property has become absolute in manner
aforesaid the Court shall grant a certificate to the person who has been
declared the purchaser at such sale to the effect that he has purchased the
right, title and interest of the judgment debtor in the property
sold.
(b)
Such certificate shall be liable to the same stamp duty as an
assignment of the same property and, when duly stamped as aforesaid, shall
be taken and deemed to be a valid transfer of such right, title and interest
and may be registered in the Land Registry under the Land Registration
Ordinance (Cap. 128).
(5)
(a)
Where the property sold consists of immovable property in the occupancy
of the judgment debtor, or of some person on his behalf, or of some person
claiming under a title created by the judgment debtor subsequently to the
attachment of the property, the Court shall, on the application of the
purchaser, order delivery of the property to be made by putting the party to
whom the property has been sold, or any person whom he may appoint to
receive delivery on his behalf, in possession thereof and, if necessary, by
removing any person who may refuse to vacate the same.
(b)
Where the property sold consists of immovable property in the occupancy
of any other person entitled to occupy the same the Court shall, on the
application of the purchaser, order delivery thereof to be made by affixing
a copy of the certificate of sale in some conspicuous place on the property
or at the court house.
(6)
(a)
If the purchaser of any immovable property sold in execution of a
judgment is, notwithstanding the order of the Court, resisted or obstructed
in obtaining possession of the property, the provisions of this Order
relating to resistance or obstruction to the execution of the judgment for
immovable property shall be applicable in the case of such resistance or
obstruction.
(b)
If it appears that the resistance or obstruction to the delivery of
possession was occasioned by any person other than the judgment debtor
claiming a right to the possession of the property sold as proprietor,
mortgagee, lessee, or under any other title, or if in the delivery of
possession to the purchaser any such person claiming as aforesaid is
dispossessed, the Court, on the complaint of the purchaser or of such person
claiming as aforesaid, if made within one month from the date of such
resistance or obstruction or of such dispossession, as the case may be,
shall inquire into the matter of the complaint and make such order as may be
proper in the circumstances of the case.
(c)
The person against whom any such order is made shall be at liberty to
bring an action to establish his right at any time within three months from
the date of the order.
8.
Special rules as to the sale of movable
property
(O. 47, r. 8)
(1)
(a)
Where the property sold consists of movable property in the possession
of the judgment debtor, or to the immediate possession of which the judgment
debtor is entitled, and of which actual seizure has been made, the property
shall be delivered to the purchaser.
(b)
Where the property sold consists of movable property to which the
judgment debtor is entitled subject to a lien or right of any person to the
immediate possession thereof, the delivery to the purchaser shall as far as
practicable be made by the bailiff giving notice to the person in possession
prohibiting him from delivering possession of the property to any person
except the purchaser.
(2)
Where the property sold consists of debts, not being negotiable
instruments, or of shares in any public company or corporation, the Court shall,
on the application of the purchaser, make an order prohibiting the judgment
debtor from receiving the debts and his debtor from making payment thereof to
any person except the purchaser, or prohibiting the person in whose name the
shares are standing from making any transfer of the shares to any person except
the purchaser, or receiving payment of any dividends thereon, and the manager,
secretary or other proper officer of the company or corporation from permitting
any such transfer or making any such payment to any person except the
purchaser.
(3)
Where the property sold consists of a negotiable instrument of which actual
seizure has been made the same shall be delivered to the purchaser.
(4)
(a)
If the execution of a transfer by any person in whose name any share in
a public company or corporation is standing, or the indorsement by any
person of any negotiable instrument, or the execution by any person of any
deed or other instrument relating to immovable property or any interest
therein, is lawfully required to give effect to any sale in execution of a
judgment, the Registrar, with the sanction of the Court, may—
(i)
execute such transfer; or
(ii)
endorse such negotiable instrument; or
(iii)
execute such deed or other instrument.
(b)
The execution of such transfer, the endorsement of such negotiable
instrument and the execution of such deed or other instrument by the
Registrar shall have the same effect as the execution and the endorsement by
the person whose execution or endorsement is so required as
aforesaid.
(c)
Until the execution of such transfer or the endorsement of such
negotiable instrument the Court may, by order, appoint some person to
receive any dividend or interest due in respect of any such share or
negotiable instrument.
Order
48
Examination
of Judgment Debtor, etc.
1.
Order for examination of judgment debtor (O. 48, r.
1)
(1)
Where a person has obtained a judgment or order for the payment by some
other person (hereinafter referred to as
the
judgment
debtor)
of money, the Court may, on an application made ex parte by the person entitled
to enforce the judgment or order, order the judgment debtor or, if the judgment
debtor is a body corporate, an officer thereof, to attend before the Registrar
or such officer as the Court may appoint and be orally examined on the
questions—
(a)
whether any and, if so, what debts are owing to the judgment debtor,
and
(b)
whether the judgment debtor has any and, if so, what other property or
means of satisfying the judgment or order,
and the Court may also order the judgment debtor or officer to produce
any books or documents in the possession of the judgment debtor relevant to the
questions aforesaid at the time and place appointed for the
examination.
(2)
An order under this rule must be served personally on the judgment debtor
and on any officer of a body corporate ordered to attend for
examination.
(3)
Any difficulty arising in the course of an examination under this rule
before the Registrar or officer, including any dispute with respect to the
obligation of the person being examined to answer any question put to him, may
be referred to a judge and he may determine it or give such directions for
determining it as he thinks
fit.
2.
Examination of party liable to satisfy other judgment
(O. 48, r.
2)
Where any difficulty arises in or in connection with the enforcement of any
judgment or order, other than such a judgment or order as is mentioned in rule
1, the Court may make an order under that rule for the attendance of the
party liable to satisfy the judgment or order and for his examination on such
questions as may be specified in the order, and that rule shall apply accordingly
with the necessary
modifications.
3.
Record of judgment debtor’s evidence given at
examination (O. 48, r.
3)
The Registrar or officer conducting the examination shall cause to be recorded,
by means of shorthand notes or mechanical,
digital,
electronic or optical device or otherwise, the evidence given by
the judgment debtor or other person at the examination.
Order
49
Garnishee
Proceedings
1.
Attachment of debt due to judgment
debtor (O. 49, r.
1)
(1)
Where a person (in this Order referred to as
the
judgment
creditor)
has obtained a judgment or order for the payment by some other person (in this
Order referred to as
the
judgment
debtor)
of a sum of money amounting in value to at least $1,000, not being a judgment or
order for the payment of money into court, and any other person within the
jurisdiction (in this Order referred to as
the
garnishee)
is indebted to the judgment debtor, the Court may, subject to the provisions of
this Order and of any written law, order the garnishee to pay the judgment
creditor the amount of any debt due or accruing due to the judgment debtor from
the garnishee, or so much thereof as is sufficient to satisfy that judgment or
order and the costs of the garnishee proceedings. (See
App. A, Forms 72-74)
(2)
An order under this rule shall in the first instance be an order to show
cause, specifying the time and place for further consideration of the matter,
and in the meantime attaching such debt as is mentioned in paragraph (1), or so
much thereof as may be specified in the order, to answer the judgment or order
mentioned in that paragraph and the costs of the garnishee
proceedings.
2.
Application for order (O. 49, r.
2)
An application for an order under rule 1 must be made ex parte
supported by an affidavit—
(a)
stating the name and the last known address of the judgment
debtor,
(b)
identifying the judgment or order to be enforced and stating the amount
remaining unpaid under it at the time of the application,
(ba)
if the amount remaining unpaid under the judgment or order is arrears of
maintenance, stating—
(i)
the interest payable in respect of the arrears of maintenance that the
judgment creditor is entitled to under section 20A(2) of the
Guardianship of Minors Ordinance (Cap. 13),
section 9B(2) of the Separation and Maintenance Orders
Ordinance (Cap. 16), section 53A(2)
of the Matrimonial Causes Ordinance (Cap. 179)
or section 28AA(2) of the Matrimonial Proceedings and Property
Ordinance (Cap. 192), as the case may be;
and
(ii)
the surcharge payable in respect of the arrears of maintenance under
section 20B(1) of the Guardianship of Minors Ordinance (Cap. 13), section 9C(1) of the
Separation and Maintenance Orders Ordinance (Cap.
16), section 53B(1) of the Matrimonial Causes Ordinance
(Cap. 179) or section 28AB(1) of
the Matrimonial Proceedings and Property Ordinance (Cap. 192), as the case may be;
(c)
stating that to the best of the information or belief of the deponent the
garnishee (naming him) is within the jurisdiction and is indebted to the
judgment debtor and stating the sources of the deponent’s information or the
grounds for his belief, and
(d)
stating, where the garnishee is a bank having more than one place of
business, the name and address of the branch at which the judgment debtor’s
account is believed to be held or, if it be the case, that this information is
not known to the
deponent.
3.
Service and effect of order to show cause (O. 49, r.
3)
(1)
Unless the Court otherwise directs, an order under rule 1 to show
cause must be served—
(a)
on the garnishee personally, at least 15 days before the day appointed
thereby for the further consideration of the matter, and
(b)
on the judgment debtor, at least 7 days after the order has been served
on the garnishee and at least 7 days before the day appointed for the
further consideration of the matter.
(2)
Such an order shall bind in the hands of the garnishee as from the service
of the order on him any debt specified in the order or so much thereof as may be
so
specified.
4.
No appearance or dispute of liability
by garnishee (O. 49, r.
4)
(1)
Where on the further consideration of the matter the garnishee does not
attend or does not dispute the debt due or claimed to be due from him to the
judgment debtor, the Court may make an order absolute under rule 1
against the garnishee. (See
App. A, Forms 73, 74)
(2)
An order absolute under rule 1 against the garnishee may be
enforced in the same manner as any other order for the payment of
money.
5.
Dispute of liability by garnishee (O. 49, r.
5)
Where on the further consideration of the matter the garnishee disputes
liability to pay the debt due or claimed to be due from him to the judgment debtor,
the Court may summarily determine the question at issue or order that any question
necessary for determining the liability of the garnishee be tried in any manner in
which any question or issue in an action may be tried, without if it orders trial
before a master the need for any consent by the
parties.
6.
Claims of third persons (O. 49, r.
6)
(1)
If in garnishee proceedings it is brought to the notice of the Court that
some other person than the judgment debtor is or claims to be entitled to the
debt sought to be attached or has or claims to have a charge or lien upon it,
the Court may order that person to attend before the Court and state the nature
of his claim with particulars thereof.
(2)
After hearing any person who attends before the Court in compliance with an
order under paragraph (1), the Court may summarily determine the questions at
issue between the claimants or make such other order as it thinks just,
including an order that any question or issue necessary for determining the
validity of the claim of such other person as is mentioned in paragraph (1) be
tried in such manner as is mentioned in rule
5.
8.
Discharge of garnishee (O. 49, r.
8)
Any payment made by a garnishee in compliance with an order absolute under this
Order, and any execution levied against him in pursuance of such an order, shall be
a valid discharge of his liability to the judgment debtor to the extent of the
amount paid or levied notwithstanding that the garnishee proceedings are
subsequently set aside or the judgment or order from which they arose
reversed.
9.
Money in court (O. 49, r.
9)
(1)
Where money is standing to the credit of the judgment debtor in court, the
judgment creditor shall not be entitled to take garnishee proceedings in respect
of that money but may apply to the Court by summons for an order that the money
or so much thereof as is sufficient to satisfy the judgment or order sought to
be enforced and the costs of the application be paid to the judgment
creditor.
(2)
The money to which the application relates shall not be paid out of court
until after the determination of the application.
(3)
Unless the Court otherwise directs, the summons must be served on the
judgment debtor at least 7 days before the day named therein for the hearing of
it.
(4)
Subject to Order 75, rule 24, the Court hearing an application
under this rule may make such order with respect to the money in court as it
thinks
just.
10.
Costs (O. 49, r.
10)
Order
49B
Execution
and Enforcement of Judgment for Money by Imprisonment
1.
Securing attendance at examination (O. 49B, r.
1)
(1)
Where a judgment for the payment of a specified sum of money is, wholly or partly, unsatisfied, the Court, on an ex parte application of the judgment creditor, may order that the judgment debtor be examined under rule 1A and shall, for the purpose of securing the attendance of the judgment debtor at an examination under rule 1A either—
(a)
order the judgment debtor, by an order which shall be served personally upon him, to appear before the Court at a time appointed by the Court, with such documents or records as the Court may specify; or
(b)
where it appears to the Court that there is reasonable cause, from all the circumstances of the case, including the conduct of the judgment debtor, to believe that an order under paragraph (a) may be ineffective to secure the attendance of the judgment debtor for examination, order that he be arrested and brought before the Court before the expiry of the day after the day of arrest.
(2)
On an application under paragraph (1), the Court may make an order prohibiting the judgment debtor from leaving Hong Kong.
(3)
Where a judgment debtor fails to appear as ordered under paragraph (1)(a), the Court may order that he be arrested and brought before the Court for examination before the expiry of the day after the day of arrest.
(4)
Section 71 of the Interpretation and General Clauses Ordinance (Cap. 1) shall not apply to this rule.
(5)
The order for arrest shall be in Form No. 102 in Appendix
A.
1A.
Examination of debtor (O. 49B, r.
1A)
(1)
Upon appearance of the judgment debtor for examination, he shall give evidence and he may be examined on oath by the judgment creditor and the Court; and the Court may receive such other evidence as it thinks fit.
(2)
The judgment debtor shall, at his examination, make a full disclosure of all his assets, liabilities, income and expenditure and of the disposal of any assets or income and shall, subject to the directions of the Court, answer all questions put to him.
(3)
Where the examination is adjourned, the Court shall order that the judgment debtor appear at the resumption of the examination and may—
(a)
order that he be prohibited from leaving Hong Kong; or
(b)
where it appears to the Court that there is reasonable cause, from all the circumstances of the case, including any evidence heard by the Court and the conduct of the judgment debtor, to believe that he may not appear at the resumption of the examination, order that he be imprisoned until that resumption.
(4)
The order under paragraph (3)(b) shall be in Form No. 103 in
Appendix
A.
1AA.
Record of judgment debtor’s evidence
given at examination
(O. 49B, r.
1AA)
The Court shall cause to be recorded, by means of shorthand notes or
mechanical,
digital,
electronic or optical device or otherwise, the evidence given by
the judgment debtor at the examination conducted under rule 1A.
1B.
Power of the Court following
examination (O. 49B, r.
1B)
(1)
Where the Court is satisfied, following the examination conducted under rule 1A or following an examination conducted under Order 48, that the judgment debtor—
(a)
is able to satisfy the judgment, wholly or partly; or
(b)
has disposed of assets with a view to avoiding satisfaction of the judgment or the liability which is the subject of the judgment, wholly or partly; or
(c)
has wilfully failed to make a full disclosure as required under rule 1A(2) or at the examination under Order 48 or to answer any question as provided under that rule or Order,
it may, in its discretion, order the imprisonment of the judgment debtor for a period not exceeding 3 months.
(2)
(a)
Where the Court is satisfied, following the examination conducted under rule 1A or following an examination conducted under Order 48, that the judgment debtor is able or will be able to satisfy the judgment, wholly or partly, by instalments or otherwise, it may order him to satisfy the judgment in such manner as it thinks fit.
(b)
The Court may, on application, discharge, vary or suspend an order made under sub-paragraph (a), either absolutely or subject to such conditions as it thinks fit.
(3)
(a)
Where the judgment debtor fails to comply with an order made under paragraph (2), the judgment creditor may apply to the Court, on not less than 2 clear days notice to the judgment debtor, for an order for the imprisonment of the judgment debtor and the Court may, unless the judgment debtor shows good cause, order the imprisonment of the judgment debtor for a period not exceeding 3 months.
(b)
Notwithstanding rule 7, the Court may order the imprisonment of the judgment debtor on each occasion of a failure to comply with an order under paragraph (2) or more than once in respect of a continuing failure to comply with an order under that paragraph.
(4)
The order for imprisonment shall be in Form No. 104 in Appendix A.
(5)
The application under paragraph (3)(a) shall be in Form No. 105 in Appendix A.
(6)
An order under paragraph (1), (2) or (3) shall not prevent execution of the judgment by other means unless the Court so directs.
(7)
An order for imprisonment of a judgment debtor shall be made in open
court.
1C.
Imprisonment not to satisfy debt (O. 49B, r.
1C)
An order for imprisonment under this Order shall not satisfy or extinguish any
judgment
debt.
2.
Support and maintenance allowance
to prisoner for debt (O. 49B, r.
2)
When a judgment debtor is committed to prison in execution of the judgment the Court shall fix whatever monthly allowance it may think sufficient for his support and maintenance, not exceeding $725 per diem, which shall be paid by the person at whose instance the judgment has been executed to the Commissioner of Correctional Services by monthly payments in advance, the second and subsequent such payments to be made not less than 7 days before the last preceding such payment is exhausted.
3.
Removal to hospital of prisoner for debt
in case of serious illness (O. 49B, r.
3)
(1)
In case of the serious illness of any person imprisoned in execution of a judgment it shall be lawful for the Court, on the certificate of the medical officer of the prison in which he is confined or of the Director of Health of the Government, to make an order for the removal of the judgment debtor to a hospital and for his treatment there under custody until further order.
(2)
In any such case the period of the judgment debtor’s stay in hospital shall
be counted as part of his term of imprisonment and his support and maintenance
money shall be paid as if no such order had been
made.
4.
Release of prisoner for debt (O. 49B, r.
4)
Every person arrested or imprisoned in execution of a judgment shall be
released at any time on the judgment being fully satisfied, or at the request of the
person at whose instance the judgment has been executed, or on such person omitting
to pay his support and maintenance
money.
5.
Recovery of amount of support and
maintenance money (O. 49B, r.
5)
All sums paid by a plaintiff for the support and maintenance of a person
imprisoned in execution of a judgment shall be added to the costs of the judgment
and shall be recoverable by the attachment and sale of the property of the judgment
debtor; but the judgment debtor shall not be detained in custody or arrested on
account of any sum so
paid.
6.
Recovery of costs of execution (O. 49B, r.
6)
The costs of obtaining and executing the order and warrant of arrest or
imprisonment shall be added to the costs of the judgment and shall be recoverable
accordingly.
7.
Effect of discharge of prisoner for debt (O. 49B, r.
7)
Subject to rule 1B(3)(b), when any person imprisoned in execution of
a judgment has been once discharged he shall not again be imprisoned on account of
the same judgment, but his property shall continue liable, under the ordinary rules,
to attachment and sale until the judgment is fully
satisfied.
8.
Meaning of
judgment
creditor
(O. 49B, r.
8)
In this Order,
judgment
creditor
(判定債權人
) includes any person entitled to
enforce the judgment.Order
50
Charging
Orders, Stop Orders, etc.
1.
Order imposing a charge on a beneficial
interest (O. 50, r.
1)
(2)
An application by a judgment creditor for a charging order in respect of a
judgment debtor’s beneficial interest may be made ex parte, and any order made
on such an application shall in the first instance be an order, made in Form No.
75 in Appendix A, to show cause, specifying the time and place for further
consideration of the matter and imposing the charge in any event until that
time. (See
also App. A, Form 76)
(3)
The application shall be supported by an affidavit—
(a)
identifying the judgment or order to be enforced and stating the amount
unpaid at the date of the application;
(b)
stating the name of the judgment debtor and of any creditor of his whom
the applicant can identify;
(ba)
if the amount unpaid under the judgment or order is arrears of
maintenance, stating—
(i)
the interest payable in respect of the arrears of maintenance that
the judgment creditor is entitled to under section 20A(2) of
the Guardianship of Minors Ordinance (Cap.
13), section 9B(2) of the Separation and
Maintenance Orders Ordinance (Cap. 16),
section 53A(2) of the Matrimonial Causes Ordinance (Cap. 179) or section 28AA(2) of
the Matrimonial Proceedings and Property Ordinance (Cap. 192), as the case may be; and
(ii)
the surcharge payable in respect of the arrears of maintenance
under section 20B(1) of the Guardianship of Minors Ordinance
(Cap. 13), section 9C(1) of
the Separation and Maintenance Orders Ordinance (Cap. 16), section 53B(1) of the Matrimonial Causes
Ordinance (Cap. 179) or section
28AB(1) of the Matrimonial Proceedings and Property Ordinance
(Cap. 192), as the case may be;
(c)
giving full particulars of the subject-matter of the intended charge,
including, in the case of securities other than securities in court, the
full title of the securities, their amount and the name in which they stand
and, in the case of funds in court, the number of the account; and
(d)
verifying that the interest to be charged is owned beneficially by the
judgment debtor.
(4)
Unless the Court otherwise directs, an affidavit for the purposes of this
rule may contain statements of information or belief with the sources and
grounds thereof.
(5)
An application may be made for a single charging order in respect or more
than one judgment or order against the
debtor.
2.
Service of notice of order to show cause
(O. 50, r.
2)
(1)
On the making of an order to show cause, notice of the order shall, unless
the Court otherwise directs, be served as follows—
(a)
a copy of the order, together with a copy of the affidavit in support,
shall be served on the judgment debtor;
(b)
where the order relates to securities other than securities in court,
copies of the order shall also be served—
(iii)
in the case of stock of any body incorporated within Hong Kong, on
that body;
(iv)
in the case of stock of any body incorporated outside Hong Kong,
being stock registered in a register kept in Hong Kong, on the keeper of
the register;
(v)
in the case of units of any unit trust in respect of which a
register of unit holders is kept in Hong Kong, on the keeper of the
register;
(c)
where the order relates to a fund in court, a copy of the order shall
be served on the Registrar at the Registry, and
(d)
where the order relates to an interest under a trust, copies of the
order shall be served on such of the trustees as the Court may
direct.
(2)
Without prejudice to the provisions of paragraph (1) the Court may, on
making the order to show cause, direct the service of copies of the order, and
of the affidavit in support, on any other creditor of the judgment debtor or on
any other interested person as may be appropriate in the
circumstances.
(3)
Documents to be served under this rule must be served at least seven days
before the time appointed for the further consideration of the
matter.
3.
Order made on further consideration (O. 50, r.
3)
(1)
On the further consideration of the matter the Court shall either make the
order absolute, with or without modifications, or discharge it.
(2)
Where the order is made absolute, it shall be in Form 76 in Appendix A, and
where it is discharged, the provisions of rule 7, regarding the
service of copies of the order of discharge, shall
apply.
4.
Order imposing a charge on an interest
held by a trustee (O. 50, r.
4)
(1)
(2)
Instead of verifying the judgment debtor’s beneficial ownership of the
interest to be charged, the affidavit required by rule 1(3) shall
state the ground on which the application is based and shall verify the material
facts.
(3)
On making the order to show cause, the Court shall give directions for
copies of the order, and of the affidavit in support, to be served on such of
the trustees and beneficiaries, if any, as may be appropriate.
(4)
Rules 5, 6 and 7 shall apply to an order
charging an interest held by a trustee as they apply to an order charging the
judgment debtor’s beneficial interest, except that, where the order is made
under subsection (ii) or (iii) of section 20A(1)(b) of the Ordinance
references in those rules to “the judgment debtor” shall be references to the
trustee.
(5)
Forms No. 75 and 76 in Appendix A shall be modified so as to indicate that
the interest to be charged is held by the debtor as trustee or, as the case may
be, that it is held by a trustee (to be named in the order) on trust for the
debtor
beneficially.
5.
Effect of order in relation to securities
out of court (O. 50, r.
5)
(1)
No disposition by the judgment debtor of his interest in any securities to
which an order to show cause relates made after the making of that order shall,
so long as that order remains in force, be valid as against the judgment
creditor.
(2)
Until such order is discharged or made absolute, the person or body served
in accordance with rule 2(1)(b) shall not permit any transfer of any
of the securities specified in the order, or pay any dividend, interest or
redemption payment in relation thereto, except with the authority of the Court,
and, if it does so, shall be liable to pay the judgment creditor the value of
the securities transferred or, as the case may be, the amount of the payment
made or, if that value or amount is more than sufficient to satisfy the judgment
or order to which such order relates, so much thereof as is sufficient to
satisfy
it.
(3)
If the Court makes the order absolute, a copy of the order, including a
stop notice as provided in Form No. 76 in Appendix A, shall be served on the
person or body specified in rule 2(1)(b) as may be appropriate and,
save as provided in rule 7(5), rules 11 to 14 shall apply
to such a notice as they apply to a stop notice made and served under rule
11.
(4)
This rule does not apply to orders in respect of securities in
court.
6.
Effect of order in relation to funds in court (O. 50, r.
6)
(1)
Where an order to show cause has been made in relation to funds in court
(including securities in court) and a copy thereof has been served on the
Registrar in accordance with rule 2, no disposition by the judgment
debtor of any interest to which the order relates, made after the making of that
order, shall, so long as the order remains in force, be valid as against the
judgment creditor.
(2)
If the Court makes the order absolute, a copy of the order shall be served
on the Registrar at the
Registry.
7.
Discharge, etc., of charging order (O. 50, r.
7)
(1)
Subject to paragraph (2) on the application of the judgment debtor or any
other person interested in the subject-matter of the charge, the Court may, at
any time, whether before or after the order is made absolute, discharge or vary
the order on such terms (if any) as to costs or otherwise as it thinks
just.
(2)
Where an application is made for the discharge of a charging order in
respect of the judgment debtor’s land on the ground that the judgment debt has
been satisfied, the applicant shall state in his application, and the Court
shall specify in its order the lot number of the land and the memorial number of
any relevant charge registered against the land.
(3)
Notice of an application for the discharge or variation of the order shall
be served on such interested parties as the Court may direct.
(4)
Where an order is made for the discharge or variation of a charging order
in respect of funds in court, a copy thereof shall be served on the Registrar at
the Registry.
(5)
Where an order is made for the discharge or variation of a charging order
in respect of securities other than securities in court, a copy thereof shall be
served on the person or body specified in rule 2(1)(b) as may be
appropriate, and the service thereof shall discharge, or, as the case may be,
vary, any stop notice in respect of such securities which may be in force
pursuant to the original
order.
9.
Jurisdiction of master to grant injunction (O. 50, r.
9)
9A.
Enforcement of charging order by sale (O. 50, r.
9A)
(1)
Proceedings for the enforcement of a charging order by sale of the property
charged must be begun by originating summons.
(2)
The provisions of Order 88 shall apply to all such
proceedings.
10.
Funds in court: stop order (O. 50, r.
10)
(1)
The Court, on the application of any person—
(a)
who has a mortgage or charge on the interest of any person in funds in
court, or
(b)
to whom that interest has been assigned, or
(c)
who is a judgment creditor of the person entitled to that
interest,
may make an order prohibiting the transfer, sale, delivery out, payment
or other dealing with such funds, or any part thereof, or the income thereon,
without notice to the applicant. (See
App. A, Form 79)
(2)
An application for an order under this rule must be made by summons in the
cause or matter relating to the funds in court, or, if there is no such cause or
matter, by originating summons.
(3)
The summons must be served on every person whose interest may be affected
by the order applied for but shall not be served on any other person.
(4)
Without prejudice to the Court’s powers and discretion as to costs, the
Court may order the applicant for an order under this rule to pay the costs of
any party to the cause or matter relating to the funds in question, or of any
person interested in those funds occasioned by the application.
11.
Securities not in court: stop notice (O. 50, r.
11)
(1)
Any person claiming to be beneficially entitled to an interest in any
securities of the kinds set out in section 20A(2)(b) of the
Ordinance, other than securities in court, who wishes to be notified of any
proposed transfer or payment of those securities may avail himself of the
provisions of this rule.
(2)
A person claiming to be so entitled must file in the Registry—
(a)
an affidavit identifying the securities in question and describing his
interest therein by reference to the document under which it arises,
and
(b)
a notice in Form No. 80 in Appendix A (a stop notice), signed by the
deponent to the affidavit, and annexed to it, addressed to the body or unit
trust concerned,
and must serve an office copy of the affidavit, and a copy of the notice
sealed with the Seal of the Court on that person or body as provided in
rule 2(1)(b).
(3)
There must be endorsed on the affidavit filed under this rule a note
stating the address to which any such notice as is referred to in rule
12 is to be sent and, subject to paragraph (4), that address shall for
the purpose of that rule be the address for service of the person on whose
behalf the affidavit is filed.
(4)
A person on whose behalf an affidavit under this rule is filed may change
his address for service for the purpose of rule 12 by serving on the
person or body concerned, a notice to that effect, and as from the date of
service of such a notice the address stated therein shall for the purpose of
that rule be the address for service of that
person.
12.
Effect of stop notice (O. 50, r.
12)
Where a stop notice has been served in accordance with rule 11,
then, so long as the stop notice is in force, the person or body on which it is
served shall not register a transfer of the securities or take any other steps
restrained by the stop notice until 14 days after sending notice thereof, by
ordinary pre-paid post, to the person on whose behalf the stop notice was filed, but
shall not by reason only of that notice refuse to register a transfer, or to take
any other step, after the expiry of that
period.
13.
Amendment of stop notice (O. 50, r.
13)
If any securities are incorrectly described in a stop notice which has been
filed and of which a sealed copy has been served in accordance with rule
11, an amended stop notice may be filed and served in accordance with the
same procedure and shall take effect as a stop notice on the day on which the sealed
copy of the amended notice is
served.
14.
Withdrawal, etc. of stop notice (O. 50, r.
14)
(1)
The person on whose behalf a stop notice was filed may withdraw it by
serving a request for its withdrawal on the person or body on whom the notice
was served.
(2)
Such request must be signed by the person on whose behalf the notice was
filed and his signature must be witnessed by a practising solicitor.
(3)
The Court, on the application of any person claiming to be beneficially
entitled to an interest in the securities to which a notice under rule
11 relates, may by order discharge the notice.
(4)
An application for an order under paragraph (3) must be made by originating
summons, and the summons must be served on the person on whose behalf a stop
notice was
filed.
The summons shall be in Form No. 10 in Appendix A.
15.
Order prohibiting transfer, etc.
of securities (O. 50, r.
15)
(1)
The Court, on the application of any person claiming to be beneficially
entitled to an interest in any securities of the kinds set out in section
20A(2)(b) of the Ordinance may by order prohibit the person or body
concerned from registering any transfer of the securities or taking any other
step to which section 55C(4) of the Ordinance applies. (See
App. A, Form 81)
The order shall specify the securities to which the prohibition relates,
the name in which they stand and the steps which may not be taken, and shall
state whether the prohibition applies to the securities only or to the dividends
or interest as well.
(2)
An application for an order under this rule must be made by summons.
An originating summons under this rule shall be in Form No. 10 in
Appendix A.
(3)
The Court, on the application of any person claiming to be entitled to an
interest in any securities to which an order under this rule relates, may vary
or discharge the order on such terms (if any) as to costs or otherwise as it
thinks fit.
Order
51
Receivers:
Equitable Execution
1.
Appointment of receiver by way of
equitable execution (O. 51, r.
1)
(1)
Where an application is made for the appointment of a receiver by way of
equitable execution, the Court in determining whether it is just or convenient
that the appointment should be made shall have regard to the amount claimed by
the judgment creditor, to the amount likely to be obtained by the receiver and
to the probable costs of his appointment and may direct an inquiry on any of
these matters or any other matter before making the appointment. (See
App. A, Form
84)
2.
Masters may appoint receiver etc. (O. 51, r.
2)
A master shall have power to make an order for the appointment of a receiver by
way of equitable execution and to grant an injunction if, and only so far as, the
injunction is ancillary or incidental to such
order.
3.
Application of rules as to appointment
of receiver, etc. (O. 51, r.
3)
An application for the appointment of a receiver by way of equitable execution
may be made in accordance with Order 30, rule 1, and rules 2 to
6 of that Order shall apply in relation to a receiver appointed by way of
equitable execution as they apply in relation to a receiver appointed for any other
purpose. (See
App. A, Forms 82, 83)
Order
52
Committal
1.
Committal for contempt of court (O. 52, r.
1)
The power of the Court or of the Court of Appeal to punish for contempt of
court may be exercised by an order of committal made by a single Judge or by a
single justice of appeal. (See
App. A, Form
85)
2.
Grant of leave to apply for
committal (O. 52, r.
2)
(1)
No application for an order of committal against any person may be made
unless leave to make such an application has been granted in accordance with
this rule.
(2)
An application for such leave must be made ex parte to a judge, and must be
supported by a statement setting out the name and description of the applicant,
the name, description and address of the person sought to be committed and the
grounds on which his committal is sought, and by an affidavit, to be filed
before the application is made, verifying the facts relied on.
(3)
The applicant must give notice of the application for leave not later than
the preceding day to the Registrar and must at the same time lodge with the
Registrar copies of the statement and affidavit.
(4)
The judge may determine the application for leave without a hearing, unless
a hearing is requested in the notice of application, and need not sit in open
court; and in any case the Registrar shall serve a copy of the judge’s order on
the applicant.
(5)
Where an application for leave is refused by a judge or is granted on
terms, the applicant may appeal against the judge’s order to the Court of Appeal
within 10 days after such order.
(6)
Without prejudice to the powers conferred by Order 20, rule 8,
the judge hearing an application for leave may allow the applicant’s statement
to be amended on such terms, if any, as the judge thinks fit.
(7)
If the judge grants leave he may impose such terms as to costs and as to
giving of security as
he
thinks
fit.
3.
Application for order after leave
to apply granted (O. 52, r.
3)
(1)
When leave has been granted to make an application for an order of committal, the application shall be made by originating summons to a judge and unless the Court granting leave has otherwise directed, there must be at least 8 clear days between the service of the originating summons and the day named therein for the hearing.
(1A)
The originating summons shall state the grounds in respect of which leave for making an application for an order of committal has been granted.
(2)
Unless within 14 days after such leave was granted the originating summons is entered for hearing the leave shall lapse.
(3)
The originating summons, accompanied by a copy of the statement and affidavit in support of the application for leave under rule 2, must be served personally on the person sought to be committed.
(4)
Without prejudice to the powers of the Court under Order 65, rule 4, the Court may dispense with service of the originating summons under this rule if it thinks it just to do so.
5.
Saving for power to commit without
application
for purpose (O. 52, r.
5)
Nothing in the foregoing provisions of this Order shall be taken as affecting the power of the Court of First Instance or the Court of Appeal to make an order of committal of its own motion against a person guilty of contempt of court.
6.
Provisions as to hearing (O. 52, r.
6)
(1)
Subject to paragraph (2), the Court hearing an application for an order of committal may sit in private in the following cases, that is to say—
(a)
where the application arises out of proceedings relating to the wardship or adoption of an infant or wholly or mainly to the guardianship, custody, maintenance or upbringing of an infant, or rights of access to an infant;
(b)
where the application arises out of proceedings relating to a person suffering or appearing to be suffering from mental disorder within the meaning of the Mental Health Ordinance (Cap. 136);
(c)
where the application arises out of proceedings in which a secret process, discovery or invention was in issue;
(d)
where it appears to the Court that in the interests of the administration of justice or for reasons affecting the security of Hong Kong the application should be heard in private;
but, except as aforesaid, the application shall be heard in open court.
(2)
If the Court hearing an application in private by virtue of paragraph (1) decides to make an order of committal against the person sought to be committed, it shall in open court state—
(a)
the name of that person,
(b)
in general terms the nature of the contempt of court in respect of which the order of committal is being made, and
(c)
the length of the period for which he is being committed.
(3)
Except with the leave of the Court hearing an application for an order of
committal, no grounds shall be relied upon at the hearing except the grounds as
stated in the originating summons under rule 3(1A).
The foregoing provision is without prejudice to the powers of the Court
under Order 20, rule 8.
(4)
If on the hearing of the application the person sought to be committed
expresses a wish to give oral evidence on his own behalf, he shall be entitled
to do
so.
7.
Power to suspend execution of
committal order (O. 52, r.
7)
(1)
The Court by whom an order of committal is made may by order direct that the execution of the order of committal shall be suspended for such period or on such terms or conditions as it may specify.
(2)
Where execution of an order of committal is suspended by an order under
paragraph (1), the applicant for the order of committal must, unless the Court
otherwise directs, serve on the person against whom it was made a notice
informing him of the making and terms of the order under that
paragraph.
8.
Discharge of person committed (O. 52, r.
8)
(1)
The Court may, on the application of any person committed to prison for any contempt of court, discharge him.
(2)
Where a person has been committed for failing to comply with a judgment or
order requiring him to deliver any thing to some other person or to deposit it
in court or elsewhere, and a writ of sequestration has also been issued to
enforce that judgment or order, then, if the thing is in the custody or power of
the person committed, the commissioners appointed by the writ of sequestration
may take possession of it as if it were the property of that person and, without
prejudice to the generality of paragraph (1), the Court may discharge the person
committed and may give such directions for dealing with the thing taken by the
commissioners as it thinks
fit.
9.
Saving for other powers (O. 52, r.
9)
Nothing in the foregoing provisions of this Order shall be taken as affecting the power of the Court to make an order requiring a person guilty of contempt of court, or a person punishable by virtue of any written law in like manner as if he had been guilty of contempt of the Court of First Instance, to pay a fine or to give security for his good behaviour, and those provisions, so far as applicable, and with the necessary modifications, shall apply in relation to an application for such an order as they apply in relation to an application for an order of committal.
Order
53
Applications
for Judicial Review
1A.
Interpretation (O. 53, r.
1A)
In this Order—
application
for judicial
review
(司法覆核申請
) includes an application in
accordance with this Order for a review of the lawfulness of—(a)
an enactment; or
(b)
a decision, action or failure to act in relation to the exercise of a
public function;
interested
party
(有利害關係的一方
、有利害關係的各方
), in relation to an application for judicial review, means any
person (other than the applicant and respondent) who is directly affected by the
application.1.
Cases appropriate for application
for judicial review (O. 53, r.
1)
(1)
An application for judicial review must be made if the applicant is
seeking—
(a)
an order for mandamus, prohibition or certiorari; or
(b)
an injunction under section 21J of the Ordinance restraining
a person from acting in any office in which he is not entitled to
act.
(2)
An application for judicial review may be made if the applicant is
seeking—
(a)
a declaration; or
(b)
an injunction (not being an injunction mentioned in paragraph
(1)(b)).
(3)
An application for judicial review may include an application for an award
of damages, restitution or the recovery of a sum due but may not seek such a
remedy alone.
2.
Joinder of claims for relief (O. 53, r.
2)
On an application for judicial review any relief mentioned in rule
1(1) or (2) may be claimed as an alternative or in addition to any other
relief so mentioned if it arises out of or relates to or is connected with the same
matter.
3.
Grant of leave to apply for judicial review (O. 53, r.
3)
(1)
No application for judicial review shall be made unless the leave of the
Court has been obtained in accordance with this rule.
(2)
An application for leave must be made ex parte by filing in the
Registry—
(a)
a notice in Form No. 86 in Appendix A containing a statement
of—
(i)
the name and description of the applicant;
(ii)
the name and description of the respondent;
(iii)
the relief sought and the grounds on which it is sought;
(iv)
the name and description of all interested parties (if any) known
to the applicant;
(v)
the name and address of the applicant’s solicitors (if any);
and
(vi)
if no solicitor acts for the applicant, the applicant’s address for service; and
(b)
an affidavit verifying the facts relied on.
(3)
The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application, and need not sit in open court; and in any case the Registrar shall serve a copy of the judge’s order on the applicant.
(4)
Where an application for leave is refused by a judge or is granted on terms, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.
(6)
Without prejudice to its powers conferred by Order 20, rule 8,
the Court hearing an application for leave may allow the applicant’s statement
to be amended, whether by specifying different or additional grounds or relief
or otherwise, on such terms, if any, as the Court thinks fit.
(7)
The Court shall not grant leave unless it considers that the applicant has
a sufficient interest in the matter to which the application relates.
(8)
Where leave is sought to apply for an order of certiorari to remove for the
purpose of its being quashed any judgment, order, conviction or other proceeding
which is subject to appeal and a time is limited for the bringing of the appeal,
the Court may adjourn the application for leave until the appeal is determined
or the time for appealing has expired.
(9)
If the Court grants leave it may impose such terms as to costs and as to
giving security as it thinks fit.
(10)
Where leave to apply for judicial review is granted, then—
(a)
if the relief sought is an order of prohibition or certiorari and the
Court so directs, the grant shall operate as a stay of the proceedings to
which the application relates until the determination of the application or
until the Court otherwise orders;
(b)
if any other relief is sought, the Court may at any time grant in the
proceedings such interim relief as could be granted in an action begun by
writ.
4.
Delay in applying for relief (O. 53, r.
4)
(1)
An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.
(2)
Where the relief sought is an order of certiorari in respect of any
judgment, order, conviction or other proceeding, the date when grounds for the
application first arose shall be taken to be the date of that judgment, order,
conviction or proceeding.
(3)
The preceding paragraphs are without prejudice to any statutory provision
which has the effect of limiting the time within which an application for
judicial review may be
made.
4A.
Service of order granting
leave
(O. 53, r.
4A)
(1)
Where leave to make an application for judicial review is granted, the
Court may also give directions as to the management of the case.
(2)
The applicant for judicial review shall, within 14 days after the leave was
granted, serve the order granting leave and any directions given under paragraph
(1) on—
(a)
the respondent; and
(b)
such interested parties as may be directed by the Court.
5.
Mode of applying for judicial review (O. 53, r.
5)
(1)
When leave has been granted to make an application for judicial review, the application must be made by originating summons in Form No. 86A in Appendix A to a judge sitting in open court or, if the judge granting leave has so ordered, to a judge in chambers.
(3)
The originating summons must be served on all persons directly affected
and, where it relates to any proceedings in or before a court and the object of
the application is either to compel the court or an officer of the court to do
any act in relation to the proceedings or to quash them or any order made
therein, the originating summons must also be served on the clerk or registrar
of the court and, where any objection to the conduct of the judge is to be made,
on that judge.
(4)
Unless the Court granting leave has otherwise directed, there must be at
least 10 days between the service of the originating summons and the day named
therein for the hearing.
(5)
An originating summons must be issued for hearing within 14 days after the
grant of leave.
(6)
An affidavit giving the names and addresses of, and the places and dates of
service on, all persons who have been served with the originating summons must
be filed within 7 days of such service and, if any person who ought to be served
under this rule has not been served, the affidavit must state that fact and the
reason for it; and the affidavit shall be before the Court on the hearing of the
originating summons.
(7)
If on the hearing of the originating summons the Court is of opinion that
any person who ought, whether under this rule or otherwise, to have been served
has not been served, the Court may adjourn the hearing on such terms (if any) as
it may direct in order that the originating summons may be served on that
person.
5A.
Affidavit evidence (O. 53, r.
5A)
At the hearing of the application for judicial review, no affidavit may be
relied on unless—
(a)
rule 6(3), (4) or (5), as the case may be, has been complied
with as regards the use of affidavits;
(b)
the affidavit has been served in accordance with any direction of the
Court; or
(c)
the Court grants leave.
5B.
Court’s powers to hear any
person
(O. 53, r.
5B)
(1)
Any person may apply for leave to—
(a)
file evidence; or
(b)
make representations at the hearing of the application for judicial
review.
(2)
An application under paragraph (1) must be made promptly.
(3)
The Court shall not grant leave under paragraph (1) unless the applicant
appears to the Court to be a proper person to be heard at the hearing of the
application for judicial review.
6.
Statements and affidavits (O. 53, r.
6)
(1)
Copies of the statement in support of an application for leave under rule 3 must be served with the originating summons and, subject to paragraph (2), no grounds shall be relied upon or any relief sought at the hearing except the grounds and relief set out in the statement.
(2)
The Court may on the hearing of the originating summons allow the applicant to amend his statement, whether by specifying different or additional grounds or relief or otherwise, on such terms, if any, as it thinks fit and may allow further affidavits to be used by him.
(3)
Where the applicant intends to ask to be allowed to amend his statement or
to use further affidavits, he shall give notice of his intention and of any
proposed amendment to every other party.
(4)
Any respondent who intends to use an affidavit at the hearing shall file it in the Registry as soon as practicable and in any event, unless the Court otherwise directs, within 56 days after service upon him of the documents required to be served by paragraph (1).
(5)
Each party to the application must supply to every other party copies of
every affidavit which he proposes to use at the hearing, including, in the case
of the applicant, the affidavit in support of the application for leave under
rule 3.
(6)
A reference to a party in paragraphs (3) and (5) includes a reference to an
interested party on whom the applicant is required under rule 4A(2)
to serve the order granting leave for judicial review.
7.
Claim for damages (O. 53, r.
7)
(1)
On an application for judicial review the judge may, subject to paragraph
(2), award damages to the applicant if—
(a)
he has included in the statement in support of his application for
leave under rule 3 a claim for damages arising from any matter to
which the application relates, and
(b)
the Court is satisfied that, if the claim had been made in an action
begun by the applicant at the time of making his application, it could have
been awarded damages.
(2)
Order 18, rule 12, shall apply to a statement relating to a
claim for damages as it applies to a
pleading.
8.
Application for discovery, interrogatories,
cross-examination, etc. (O. 53, r.
8)
(1)
Unless the judge otherwise directs, any interlocutory application in
proceedings on an application for judicial review may be made to any judge in
chambers or a master.
(2)
In this paragraph
interlocutory
application
(非正審申請
) includes an application for an
order under Order 24 or 26 or Order 38, rule 2(3), or for an order
dismissing the proceedings by consent of the parties.(3)
This rule is without prejudice to any statutory provision or rule of law
restricting the making of an order against the
Crown.
9.
Hearing of application for judicial review (O. 53, r.
9)
(1)
On the hearing of any originating summons under rule 5, any
person who desires to be heard in opposition to or in support of the originating
summons, and appears to the Court to be a proper person to be heard, shall be
heard, notwithstanding that he has not been served with the originating
summons.
(2)
Where the relief sought is or includes an order of certiorari to remove any
proceedings for the purpose of quashing them, the applicant may not question the
validity of any order, warrant, commitment, conviction, inquisition or record
unless before the hearing of the originating summons he has lodged with the
Registrar a copy thereof verified by affidavit or accounts for his failure to do
so to the satisfaction of the Court hearing the originating summons.
(3)
Where an order of certiorari is made in any such case as is referred to in paragraph (2), the order shall, subject to paragraph (4), direct that the proceedings shall be quashed forthwith on their removal into the Court of First Instance.
(4)
Where the relief sought is an order of certiorari and the Court is
satisfied that there are grounds for quashing the decision to which the
application relates, the Court may, in addition to quashing it, remit the matter
to the court, tribunal or authority concerned with a direction to reconsider it
and reach a decision in accordance with the findings of the Court.
(5)
Where the relief sought is a declaration, an injunction or damages and the
Court considers that it should not be granted on an application for judicial
review but might have been granted if it had been sought in an action begun by
writ by the applicant at the time of making his application, the Court may,
instead of refusing the application, order the proceedings to continue as if
they had been begun by writ; and Order 28, rule 8, shall
apply.
10.
Saving for person acting in obedience
to mandamus (O. 53, r.
10)
No action or proceeding shall be begun or prosecuted against any person in
respect of anything done in obedience to an order of
mandamus.
12.
Consolidation of applications (O. 53, r.
12)
Where there is more than one application pending under section 21K
of the Ordinance against several persons in respect of the same office, and on the
same grounds, the Court may order the applications to be
consolidated.
13.
Order made by judge may be
set aside, etc. (O. 53, r.
13)
An appeal shall lie, from an order of a judge granting or refusing an application
for judicial review, to the Court of Appeal, which may set aside or confirm any such
order or substitute such order as ought to have been
made.
14.
Meaning of
Court
(O. 53, r.
14)
In relation to the hearing by a judge of an application for
leave under rule 3 or of an application for judicial review, any
reference in this Order to
the
Court
(法庭
) shall, unless the context otherwise
requires, be construed as a reference to the
judge.15.
Transitional provisions relating to
Part 24 of Amendment
Rules
2008 (O. 53, r.
15)
(1)
Where, immediately before the
commencement*
of the Amendment Rules 2008, an application for leave to apply for
judicial review is pending, then nothing in Part 24 of the Amendment
Rules applies in relation to the application and (if leave is granted) the
subsequent application for judicial review, and this Order as in force
immediately before the commencement continues to apply as if that Part had not
been made.
(2)
Where, immediately before the commencement of the Amendment Rules
2008, an application for judicial review is pending, then nothing in
Part 24 of the Amendment Rules 2008 applies in
relation to the application, and this Order as in force immediately before the
commencement continues to apply as if that Part had not been made.
Editorial Note:
* Commencement
date:
2 April 2009.
Order
54
Applications
for Writ of Habeas Corpus
1.
Application for writ of habeas corpus
ad subjiciendum (O. 54, r.
1)
(1)
An application for a writ of habeas corpus ad subjiciendum shall be made to
a single judge in court, except that—
(b)
at any time when no judge is sitting in court, it may be made to a
judge otherwise than in court; and
(c)
any application on behalf of a minor must be made in the first instance
to a judge otherwise than in court.
(2)
An application for such writ may be made ex parte and, subject to paragraph
(3), must be supported by an affidavit by the person restrained showing that it
is made at his instance and setting out the nature of the restraint.
(3)
Where the person restrained is unable for any reason to make the affidavit
required by paragraph (2), the affidavit may be made by some other person on his
behalf and that affidavit must state that the person restrained is unable to
make the affidavit himself and for what
reason.
2.
Power of Court to whom ex parte
application made (O. 54, r.
2)
(1)
The judge to whom an application under rule 1 is made ex parte
may make an order forthwith for the writ to issue, or
may— (See
App. A, Forms 87, 88)
(a)
where the application is made otherwise than in court, direct that an
originating summons for the writ be issued, or that an application therefor
be made by originating summons to a judge in court;
(b)
where the application is made to a judge in court, adjourn the
application so that notice thereof may be given, or direct that an
application be made by originating summons.
(2)
The summons must be served on the person against whom the issue of the writ
is sought and on such other persons as the judge may direct, and, unless the
judge otherwise directs, there must be at least 8 clear days between the service
of the summons and the date named therein for the hearing of the
application.
(3)
An originating summons under this rule must be in Form No. 87 in Appendix
A.
3.
Copies of affidavits to be supplied (O. 54, r.
3)
Every party to an application under rule 1 must supply to every
other party on demand copies of the affidavits which he proposes to use at the
hearing of the
application.
4.
Power to order release of person
restrained (O. 54, r.
4)
Without prejudice to rule 2(1), the judge hearing an application for
a writ of habeas corpus ad subjiciendum may in his discretion order that the person
restrained be released, and such order shall be a sufficient warrant to any
superintendent of a prison, constable or other person for the release of the person
under
restraint.
5.
Directions as to return to writ (O. 54, r.
5)
Where a writ of habeas corpus ad subjiciendum is ordered to issue, the judge by
whom the order is made shall give directions as to the judge before whom, and the
date on which, the writ is
returnable.
6.
Service of writ and notice (O. 54, r.
6)
(1)
Subject to paragraphs (2) and (3), a writ of habeas corpus ad subjiciendum
must be served personally on the person to whom it is directed.
(2)
If it is not possible to serve such writ personally, or if it is directed
to a superintendent of a prison or other public official, it must be served by
leaving it with a servant or agent of the person to whom the writ is directed at
the place where the person restrained is confined or restrained.
(3)
If the writ is directed to more than one person, the writ must be served in
manner provided by this rule on the person first named in the writ, and copies
must be served on each of the other persons in the same manner as the
writ.
(4)
There must be served with the writ a notice (in Form No. 90 in Appendix A)
stating the judge before whom and the date on which the person restrained is to
be brought and that in default of obedience proceedings for committal of the
party disobeying will be
taken.
7.
Return to the writ (O. 54, r.
7)
(1)
The return to a writ of habeas corpus ad subjiciendum must be indorsed on
or annexed to the writ and must state all the causes of the detainer of the
person restrained.
(2)
The return may be amended, or another return substituted therefor, by leave
of the judge before whom the writ is
returnable.
8.
Procedure at hearing of writ (O. 54, r.
8)
When a return to a writ of habeas corpus ad subjiciendum is made, the return
shall first be read, and motion then made for discharging or remanding the person
restrained or amending or quashing the return, and where that person is brought up
in accordance with the writ, his counsel shall be heard first, then counsel for the
Crown, and then one counsel for the person restrained in
reply.
9.
Bringing up prisoner to give evidence, etc. (O. 54, r.
9)
(1)
An application for a writ of habeas corpus ad testificandum or of habeas
corpus ad respondendum must be made on affidavit to a judge in
chambers.
10.
Form of writ (O. 54, r.
10)
A writ of habeas corpus must be in Form No. 89, 91 or 92 in Appendix A,
whichever is appropriate.
Order
55
Appeals
to the High Court from Court, Tribunal or Person: General
1.
Application (O. 55, r.
1)
(1)
Subject to paragraphs (2), (3) and (4), this Order shall apply to every appeal which by or under any enactment lies to the Court of First Instance from any court, tribunal or person.
(2)
This Order shall not apply to—
(a)
an appeal by case stated,
(b)
an appeal under the Magistrates Ordinance (Cap. 227), or
(c)
any appeal to which Order 73 applies.
(4)
The following rules of this Order shall, in relation to an appeal to which this Order applies, have effect subject to any provision made in relation to that appeal by any other provision of these rules or by or under any enactment.
(5)
In this Order references to a Tribunal shall be construed as references to
any Tribunal constituted by or under any enactment other than any of the
ordinary courts of
law.
2.
Court to hear appeal (O. 55, r.
2)
Except where it is otherwise provided by these rules or under any enactment, an
appeal to which this Order applies shall be heard and determined by a single
judge.
3.
Bringing of appeal (O. 55, r.
3)
(1)
An appeal to which this Order applies shall be by way of rehearing and must be brought by originating motion.
(2)
Every notice of the motion by which such an appeal is brought must state the grounds of the appeal and, if the appeal is against a judgment, order or other decision of a court, must state whether the appeal is against the whole or a part of that decision and, if against a part only, must specify the part.
(3)
The bringing of such an appeal shall not operate as a stay of proceedings
on the judgment, determination or other decision against which the appeal is
brought unless the Court by which the appeal is to be heard or the court,
tribunal or person by which or by whom the decision was given so
orders.
4.
Service of notice of motion and
entry of appeal (O. 55, r.
4)
(1)
The persons to be served with notice of the motion by which an appeal to which this Order applies is brought are the following—
(a)
if the appeal is against a judgment, order or other decision of a court, the registrar or clerk of the court and any party to the proceedings in which the decision was given who is directly affected by the appeal;
(b)
if the appeal is against an order, determination, award or other decision of a tribunal, government department or other person, the chairman of the tribunal, government department or person, as the case may be, and every party to the proceedings (other than the appellant) in which the decision appealed against was given.
(2)
The notice must be served, and the appeal entered, within 28 days after the date of the judgment, order, determination or other decision against which the appeal is brought.
(3)
In the case of an appeal against a judgment, order or decision of a court, the period specified in paragraph (2) shall be calculated from the date of the judgment or order or the date on which the decision was given.
(4)
In the case of an appeal against an order, determination, award or other
decision of a tribunal, government department or other person, the period
specified in paragraph (2) shall be calculated from the date on which notice of
the decision was given to the appellant by the person who made the decision or
by a person authorized in that behalf to do
so.
5.
Date of hearing of appeal (O. 55, r.
5)
Unless the Court having jurisdiction to determine the appeal otherwise directs,
an appeal to which this Order applies shall not be heard sooner than 21 days after
service of notice of the motion by which the appeal is
brought.
6.
Amendment of grounds of appeal, etc. (O. 55, r.
6)
(1)
The notice of the motion by which an appeal to which this Order applies is brought may be amended by the appellant, without leave, by supplementary notice served not less than 7 days before the day appointed for the hearing of the appeal, on each of the persons on whom the notice to be amended was served.
(2)
Within 2 days after service of a supplementary notice under paragraph (1) the appellant must lodge two copies of the notice in the office in which the appeal is entered.
(3)
Except with the leave of the Court hearing any such appeal, no grounds other than those stated in the notice of the motion by which the appeal is brought or any supplementary notice under paragraph (1) may be relied upon by the appellant at the hearing; but that Court may amend the grounds so stated or make any other order, on such terms as it thinks just, to ensure the determination on the merits of the real question in controversy between the parties.
(4)
The foregoing provisions of this rule are without prejudice to the powers
of the Court under Order
20.
6A.
Interlocutory applications (O. 55, r.
6A)
(1)
Unless the Court otherwise directs, any interlocutory application in
proceedings to which this Order applies may be made to any judge or a
master.
In this paragraph
interlocutory
application
(非正審申請
) includes an application for the
extension of time for the service of a notice of motion or the entry of the
appeal or for the amendment of the notice of motion.(2)
This rule is without prejudice to any statutory provision or rule of law restricting the making of an order against the Crown.
7.
Powers of court hearing appeal (O. 55, r.
7)
(1)
In addition to the power conferred by rule 6(3), the Court hearing an appeal to which this Order applies shall have the powers conferred by the following provisions of this rule.
(2)
The Court shall have power to receive further evidence on questions of fact, and the evidence may be given in such manner as the Court may direct either by oral examination in court, by affidavit, by deposition taken before an examiner or in some other manner.
(3)
The Court shall have power to draw any inferences of fact which might have been drawn in the proceedings out of which the appeal arose.
(4)
It shall be the duty of the appellant to apply to the judge or other person
presiding at the proceedings in which the decision appealed against was given
for a signed copy of any note made by him of the proceedings and to furnish that
copy for the use of the Court; and in default of production of such a note, or,
if such note is incomplete, in addition to such note, the Court may hear and
determine the appeal on any other evidence or statement of what occurred in
those proceedings as appears to the Court to be
sufficient.
Except where the Court otherwise directs, an affidavit or note by a
person present at the proceedings shall not be used in evidence under this
paragraph unless it was previously submitted to the person presiding at the
proceedings for his comments.
(5)
The Court may give any judgment or decision or make any order which ought to have been given or made by the court, tribunal or person and make such further or other order as the case may require or may remit the matter with the opinion of the Court for rehearing and determination by it or him.
(6)
The Court may, in special circumstances, order that such security shall be given for the costs of the appeal as may be just.
(7)
The Court shall not be bound to allow the appeal on the ground merely of
misdirection, or of the improper admission or rejection of evidence, unless in
the opinion of the Court substantial wrong or miscarriage has been thereby
occasioned.
8.
Right of government department to
appear and be heard (O. 55, r.
8)
Where an appeal to which this Order applies is against any order, determination or other decision of a government department, the department shall be entitled to appear and be heard in the proceedings on the appeal.
Order
58
Appeals
from Masters
1.
Appeals from certain decisions of masters
to a judge in chambers (O. 58, r.
1)
(1)
(2)
The appeal shall be brought by serving on every other party to the proceedings in which the judgment, order or decision was given or made a notice to attend before the judge on a day specified in the notice or as on such other day as may be directed.
(3)
Unless the Court otherwise orders, the notice must be issued within 14 days after the judgment, order or decision appealed against was given or made and must be served within 5 days after issue and an appeal to which this rule applies shall not be heard sooner than 2 clear days after such service.
(4)
Except so far as the Court may otherwise direct, an appeal under this rule shall not operate as a stay of the proceedings in which the appeal is brought.
(5)
No further evidence (other than evidence as to matters which have occurred
after the date on which the judgment, order or decision was given or made) may
be received on the hearing of an appeal under this rule except on special grounds.
2.
Appeals from certain decisions of masters
to Court of Appeal (O. 58, r.
2)
An appeal shall lie to the Court of Appeal from any judgment, order or decision
(other than an interlocutory judgment, order or decision) of a master, given or
made—
(a)
(b)
on an assessment of damages under Order 37 or otherwise; or
(c)
on the hearing or determination of an application under Order 84A,
rule 3; or
(d)
on the hearing or determination of an application under Order 49B;
or
(e)
on the hearing of a petition for winding-up or bankruptcy; or
(f)
on the trial of an issue under Order 17, rule 11(2).
7.
Appeal from judgment, etc. of judge in
interpleader proceedings (O. 58, r.
7)
(1)
Any judgment, order or decision of a judge given or made in summarily determining under Order 17, rule 5(2)(b) or (c), any question at issue between claimants in interpleader proceedings shall be final and conclusive against the claimants and all persons claiming under them unless leave to appeal to the Court of Appeal is given by the judge or the Court of Appeal.
(2)
Where an interpleader issue is tried by a judge (with or without a jury), an appeal shall lie to the Court of Appeal, without the leave of the judge or that Court, from any judgment, order or decision given or made by the judge on the trial.
(3)
(Repealed L.N. 152 of 2008)
Order
59
Appeals
to the Court of Appeal
1.
Application of Order to appeals (O. 59, r.
1)
(1)
This Order applies, subject to the provisions of these rules with respect
to particular appeals, to every appeal to the Court of Appeal (including so far
as it is applicable thereto, any appeal to that Court from a master or other
officer of the High Court or from any tribunal from which an appeal lies to that
Court under or by virtue of any enactment) not being an appeal for which other
provision is made by these rules and references to “the court below” apply to
any Court, tribunal or person from which such appeal lies.
(2)
For the avoidance of doubt and without prejudice to the generality of
paragraph (1), this Order, unless the context otherwise requires, applies in
relation to an appeal to the Court of Appeal from the District
Court or
the Competition Tribunal.
2.
Application of Order to applications
for new trial (O. 59, r.
2)
This Order (except so much of rule 3(1) as provides that an appeal
shall be by way of rehearing and except rule
11(1))
applies to an application to the Court of Appeal for a new trial or to set aside a
verdict, finding or judgment after trial with or without a jury, as it applies to an
appeal to that Court, and references in this Order to an appeal and to an appellant
shall be construed
accordingly.
General Provisions as to Appeals
2A.
Application to Court of Appeal
for
leave to appeal (O. 59, r.
2A)
(1)
An application to the Court of Appeal for leave to appeal must be made by a
summons supported by a statement setting out—
(a)
the reasons why leave should be granted; and
(b)
if the time for appealing has expired, the reasons why the application
was not made within that time.
(2)
An application under paragraph (1) must be made inter partes if the
proceedings in the court below are inter partes.
(3)
An application under paragraph (1) must include, where necessary, an
application to extend the time for appealing.
(4)
A party who intends to resist an application under paragraph (1) made inter
partes shall, within 14 days after the application is served on him, file in the
Court of Appeal and serve on the applicant a statement as to why the application
should not be granted.
(5)
The Court of Appeal may—
(a)
determine the application without a hearing on the basis of written
submissions only; or
(b)
direct that the application be heard at an oral hearing,
and in both cases, the Court of Appeal may give such directions as it
thinks fit in relation to the application.
(6)
Where the Court of Appeal grants the application, it may impose such terms
as it thinks fit.
(7)
Subject to paragraph (8), if the application is determined on the basis of
written submissions only, a party aggrieved by the determination may, within 7
days after he has been given notice of the determination, request the Court of
Appeal to reconsider the determination at an oral hearing inter
partes.
(8)
Where the Court of Appeal determines the application on the basis of
written submissions only, it may, if it considers that the application is
totally without merit, make an order that no party may under paragraph (7)
request the determination to be reconsidered at an oral hearing inter
partes.
(9)
An oral hearing held pursuant to a request under paragraph (7) may be before
the Court of Appeal consisting of—
(a)
the Justice of Appeal; or
(b)
one or more of the Justices of Appeal,
who have determined the application on the basis of written submissions
only.
2B.
Application for leave to
appeal
against interlocutory and
other
judgments or orders of
Court
(O. 59, r.
2B)
(1)
Subject to paragraph (4) and any other enactment, an application for leave
to appeal against—
(a)
an interlocutory judgment or order of the Court;
(b)
a judgment or order of the Court specified in section
14(3)(e) or (f) of the Ordinance; or
(c)
any other judgment or order of the Court against which an appeal may be
made with leave of the Court or the Court of Appeal,
may only be made to the Court in the first instance within 14 days from
the date of the judgment or order.
(2)
So far as is practicable, the application must be made to the judge or
master against whose judgment or order leave to appeal is sought.
(3)
Where the Court refuses the application, a further application for leave to
appeal may be made to the Court of Appeal within 14 days from the date of the
refusal.
(4)
If the Court of Appeal allows, the application may be made direct to the
Court of Appeal within 14 days from the date of the judgment or order.
(5)
An application under this rule must be made inter partes if the proceedings
to which the judgment or order relates are inter partes.
(6)
The Court or the Court of Appeal may extend the period for making an
application for leave to appeal before or after the expiry of the period.
2BA.
Application for leave to appeal against interlocutory orders, etc. of
Competition Tribunal (O. 59, r. 2BA)
(1)
If the Competition Tribunal refuses an application for leave to appeal
against an interlocutory decision, determination or order of the member or
members of the Tribunal under rule 45 of the
Competition
Tribunal Rules
(Cap.
619 sub. leg.
D),
another application for leave to appeal may be made to the Court of Appeal
within 14 days from the date of the refusal.
(2)
If the Court of Appeal allows, the application for leave mentioned in
paragraph (1) may be made direct to the Court of Appeal within 14 days from the
date of the interlocutory decision, determination or order.
(3)
An application under this rule must be made inter partes if the proceedings
to which the interlocutory decision, determination or order relates are inter
partes.
2C.
Refusal by single judge of
application
for leave to appeal (O. 59, r.
2C)
(1)
Notwithstanding rule 2A(8), where an application for leave to
appeal made under rule
2A(1),
2B(3)
or 2BA(1) is determined (with or without a hearing)
by a single Justice of Appeal, a party aggrieved by the determination may,
within 7 days from the date of the refusal, make a fresh application to the
Court of Appeal.
(2)
The party is entitled to have the fresh application determined by the Court
of Appeal consisting of 2 Justices of Appeal.
(3)
The Justice of Appeal who has previously determined the application may sit
in the Court of Appeal determining the fresh application.
3.
Notice of appeal (O. 59, r.
3)
(1)
An appeal to the Court of Appeal shall be by way of rehearing and must be
brought by motion, and the notice of the motion is referred to in this Order as
notice
of
appeal.
(2)
Notice of appeal may be given either in respect of the whole or in respect
of any specified part of the judgment or order of the court below; and every
such notice must specify the grounds of the appeal and the precise form of the
order which the appellant proposes to ask the Court of Appeal to make.
(3)
Except with the leave of the Court of Appeal or a single judge, the
appellant shall not be entitled on the hearing of an appeal to rely on any
grounds of appeal, or to apply for any relief, not specified in the notice of appeal.
(5)
A notice of appeal must be served on all parties to the proceedings in the
court below who are directly affected by the appeal; and, subject to rule
8, it shall not be necessary to serve the notice on parties not so
affected.
(6)
No notice of appeal shall be given by a respondent in a case to which
rule 6(1)
relates.
4.
Time for appealing (O. 59, r.
4)
(1)
Except as otherwise provided by these rules, a notice of appeal must be
served under rule 3(5) within—
(a)
in the case where leave to appeal to the Court of Appeal is required
under section 14AA (not being a case to which sub-paragraph (b)
applies) or section 14(3)(e) or (f) of the Ordinance, 7 days
after the date on which leave to appeal is granted;
(b)
in the case of an appeal from a judgment, order or decision given or
made in the matter of the winding up of a company, or in the matter of any
bankruptcy, 28 days from the date of the judgment, order or decision;
and
(c)
in any other case, 28 days from the date of the judgment, order or
decision concerned.
(2)
In the case where an appeal may lie from a judgment of the Court of First
Instance under Division 3 of Part II of the Hong Kong Court of Final
Appeal Ordinance (Cap. 484), the following period
of time shall be disregarded in determining the period referred to in paragraph
(1)—
(a)
where an application has been made under section 27C of that
Ordinance, the period from the date on which the judgment is given to the
date on which the application is determined; or
(b)
where an application has been made under section 27D of that
Ordinance, the period from the date on which the judgment is given to the
date on which the application is determined.
(3)
(Repealed L.N. 152 of
2008)
(4)
In relation to an appeal from the District Court, a notice of appeal must be
served under rule 3(5) within—
(a)
in the case where leave to appeal to the Court of Appeal is required
under section 63(1) or (1B) of the District Court Ordinance (Cap. 336), 7 days after the date on which leave
to appeal is granted; and
(b)
in the case of an appeal from an order specified in section
63(3) of the District Court Ordinance (Cap.
336) or an order for imprisonment given or made under
Order
49B of the Rules of the District Court (Cap. 336 sub. leg. H), 28 days after the date on which the order
is made.
(5)
In relation to an appeal from the Competition Tribunal or the Registrar of
the Tribunal under the Competition Ordinance (Cap.
619), a notice of appeal must be served under rule 3(5)
within—
(a)
if leave to appeal to the Court of Appeal is required under
sections 154(2)(c) and 155(1) of that Ordinance, 7
days after the date on which leave to appeal is granted; and
(b)
if an appeal lies as of right against—
(i)
any decision, determination or order of the Tribunal under
section 154(1) of that Ordinance;
(ii)
any interlocutory decision, determination or order of the Tribunal
under section 155(2) of that Ordinance; or
(iii)
any decision, determination or order of the Registrar of the
Tribunal under rule 43 of the
Competition
Tribunal Rules
(Cap.
619 sub. leg. D),
28 days after the date on which the decision, determination or order
is made.
5.
Setting down appeal (O. 59, r.
5)
(1)
Within 7 days after the date on which service of the notice of appeal was
effected, the appellant must lodge with the
Registrar—
(a)
a copy of the sealed judgment or order and a copy of the reasoned
decision (if any); and
(b)
two copies of the notice of appeal, one of which shall be indorsed with
the amount of the fee paid, and the other indorsed with a certificate of the
date of service of the notice.
(2)
Upon the said documents being left, the Registrar shall file one copy of
the notice of appeal and cause the appeal to be set down in the list of appeals.
(3)
Within 4 days after an appeal has been set down, the appellant must give
notice to that effect to all parties on whom the notice of appeal was
served.
6.
Respondent’s notice (O. 59, r.
6)
(1)
A respondent who, having been served with a notice of appeal,
desires—
(a)
to contend on the appeal that the decision of the court below should be
varied, either in any event or in the event of the appeal being allowed in
whole or in part, or
(b)
to contend that the decision of the court below should be affirmed on
grounds other than those relied upon by that court, or
(c)
to contend by way of cross-appeal that the decision of the court below
was wrong in whole or in part,
must give notice to that effect, specifying the grounds of his contention
and, in a case to which sub-paragraph (a) or (c) relates, the precise form of
the order which he proposes to ask the Court to make.
(2)
Except with the leave of the Court of Appeal or a single judge, a
respondent shall not be entitled on the hearing of the appeal to apply for any
relief not specified in a notice under paragraph (1) or to rely, in support of
any contention, upon any ground which has not been specified in such a notice or
relied upon by the court below.
(3)
Any notice given by a respondent under this rule (in this Order referred to
as a
respondent’s
notice)
must be served on the appellant, and on all parties to the proceedings in the
court below who are directly affected by the contentions of the respondent, and
must be served—
(a)
where the notice of appeal related to an interlocutory order, within 14
days, and
(b)
in any other case, within 21 days,
after the service of the notice of appeal on the respondent.
(4)
A party by whom a respondent’s notice is given must, within 2 days after
service of the notice, furnish 2 copies of the notice to the
Registrar.
6A.
Fixing of date for hearing appeal (O. 59, r. 6A)
(1)
The Registrar may, at any time after an appeal has been set down under
rule 5, direct that a date be fixed for hearing the
appeal.
(2)
The Registrar may give the direction—
(a)
either on the Registrar’s own motion or on the application of a party;
and
(b)
only if the Registrar is satisfied that the matter is ready for
determination.
(3)
Despite paragraphs (1) and (2), the Court of Appeal or a single judge may
at any time give a direction as to the date for hearing the appeal (including a
direction to fix a date for the hearing).
7.
Amendment of notice of appeal and
respondent’s notice (O. 59, r.
7)
(1)
A notice of appeal or respondent’s notice may be amended—
(a)
by or with the leave of the Court of Appeal or a single judge at any time;
(b)
without such leave, by supplementary notice
served—
(i)
on each of the parties on whom the notice of appeal or respondent’s
notice was served; and
(ii)
before the date on which a hearing date of the appeal is fixed in
accordance with a direction referred to in rule 6A.
(2)
A party by whom a supplementary notice is served under this rule must,
within 2 days after service of the notice, furnish two copies of the notice to
the
Registrar.
8.
Directions of the Court as to service (O. 59, r.
8)
(1)
The Court of Appeal or a single judge may in any case direct that a notice
of appeal or respondent’s notice be served on any party to the proceedings in
the court below on whom it has not been served, or on any person not party to
those proceedings.
(2)
Where a direction is given under paragraph (1) the hearing of the appeal
may be postponed or adjourned for such period and on such terms as may be just
and such judgment may be given and such order made on the appeal as might have
been given or made if the persons served in pursuance of the direction had
originally been
parties.
9.
Documents to be lodged by appellant (O. 59, r.
9)
(1)
Not less than 14 days before the date on which the appeal is listed for
hearing the appellant must cause to be lodged with the Registrar the number of
copies for which paragraph (2) provides of each of the following documents,
namely—
(a)
the notice of appeal;
(b)
the respondent’s notice;
(c)
any supplementary notice served under rule 7;
(d)
the judgment or order of the court below;
(e)
the originating process by which the proceedings in the court below
were begun, any interlocutory or other related process which is the subject
of the appeal, the pleadings (including particulars), if any, and, in the
case of an appeal in an Admiralty cause or matter, the preliminary acts, if
any;
(f)
the transcript of the official shorthand note, if any, of the judgment
or order of the court below or, in the absence of such a note, the judge’s
note of his reasons for giving the judgment or making the order;
(g)
such parts of the transcript of the official shorthand note, if any, of
the evidence given in the court below as are relevant to any question at
issue on the appeal or, in the absence of such a note, such parts of the
judge’s note of the evidence as are relevant to any such question;
(h)
any list of exhibits made under
Order
35, rule 11, or the schedule of evidence, as the
case may be;
(i)
such documents, affidavits, exhibits, or parts of exhibits, as were in
evidence in the court below and as are relevant to any question at issue on
the appeal.
(2)
Unless otherwise directed the number of copies to be lodged in accordance
with paragraph (1) is three copies except—
(a)
where the appeal is to be heard by two judges in which case it is two
copies; or
(b)
in the case of an appeal in an Admiralty cause or matter, in which case
it is four copies or, if the Court of Appeal is to hear the appeal with
assessors, six copies.
(2A)
When the transcripts, if any, referred to in items (f) and (g) of paragraph
(1) have been bespoken by the appellant and paid for, the number of such
transcripts required in accordance with paragraph (2) shall be sent by the
appellant direct to the Registrar.
(3)
At any time after an appeal has been set down in accordance with rule
5 the Registrar may give such directions in relation to the documents
to be produced at the appeal, and the manner in which they are to be presented,
and as to other matters incidental to the conduct of the appeal, as appear best
adapted to secure the just, expeditious and economical disposal of the
appeal.
(4)
The directions referred to in paragraph (3) may be given without a hearing
provided always that the Registrar may at any time issue a summons requiring the
parties to an appeal to attend before him and any party to an appeal may apply
at any time for an appointment before the
Registrar.
10.
General powers of the Court (O. 59, r.
10)
(1)
In relation to an appeal the Court of Appeal shall have all the powers and
duties as to amendment and otherwise of the Court of First Instance.
(2)
The Court of Appeal shall have power to receive further evidence on
questions of fact, either by oral examination in court, by affidavit, or by
deposition taken before an examiner, but no such further evidence (other than
evidence as to matters which have occurred after the date of the trial or
hearing) shall be admitted except on special grounds.
(3)
The Court of Appeal shall have power to draw inferences of fact and to give
any judgment and make any order which ought to have been given or made, and to
make such further or other order as the case may require.
(4)
The powers of the Court of Appeal under the foregoing provisions of this
rule may be exercised notwithstanding that no notice of appeal or respondent’s
notice has been given in respect of any particular part of the decision of the
court below or by any particular party to the proceedings in that court, or that
any ground for allowing the appeal or for affirming or varying the decision of
that court is not specified in such a notice; and the Court of Appeal may make
any order, on such terms as the Court thinks just, to ensure the determination
on the merits of the real question in controversy between the parties.
(5)
The Court of Appeal may, in special circumstances, order that such security
shall be given for the costs of an appeal as may be just.
(6)
The powers of the Court of Appeal in respect of an appeal shall not be
restricted by reason of any interlocutory order from which there has been no
appeal.
(7)
Documents impounded by order of the Court of Appeal shall not be delivered
out of the custody of that Court except in compliance with an order of that
Court:
Provided that where a Law
Officer or the Director of Public Prosecutions makes a written request in that
behalf, documents so impounded shall be delivered into his custody.
(8)
Documents impounded by order of the Court of Appeal, while in the custody
of that Court, shall not be inspected except by a person authorized to do so by
an order of that Court.
(9)
In any proceedings incidental to any cause or matter pending before the
Court of Appeal, the powers conferred by this rule on the Court may be exercised
by a single judge:
Provided that the said powers of the Court of Appeal shall be exercisable
only by that Court or a single judge in relation to—
(a)
the grant, variation, discharge or enforcement of an injunction, or an
undertaking given in lieu of an injunction; and
(b)
the grant or lifting of a stay of execution or proceedings.
11.
Powers of the Court as to new trials (O. 59, r.
11)
(1)
On the hearing of any appeal the Court of Appeal may, if it thinks fit,
make any such order as could be made in pursuance of an application for a new
trial or to set aside a verdict, finding or judgment of the court
below.
(2)
The Court of Appeal shall not be bound to order a new trial on the ground
of misdirection, or of the improper admission or rejection of evidence, or
because the verdict of the jury was not taken upon a question which the judge at
the trial was not asked to leave to them, unless in the opinion of the Court of
Appeal some substantial wrong or miscarriage has been thereby
occasioned.
(3)
A new trial may be ordered on any question without interfering with the
finding or decision on any other question; and if it appears to the Court of
Appeal that any such wrong or miscarriage as is mentioned in paragraph (2)
affects part only of the matter in controversy, or one or some only of the
parties, the Court may order a new trial as to that part only, or as to that
party or those parties only, and give final judgment as to the
remainder.
(4)
In any case where the Court of Appeal has power to order a new trial on the
ground that damages awarded by a jury are excessive or inadequate, the Court
may, in lieu of ordering a new trial—
(a)
with the consent of all parties concerned, substitute for the sum
awarded by the jury such sum as appears to the Court to be proper;
(b)
with the consent of the party entitled to receive or liable to pay the
damages, as the case may be, reduce or increase the sum awarded by the jury
by such amount as appears to the Court to be proper in respect of any
distinct head of damages erroneously included in or excluded from the sum so
awarded;
but except as aforesaid the Court of Appeal shall not have power to
reduce or increase the damages awarded by a jury.
(5)
A new trial shall not be ordered by reason of the ruling of any judge that
a document is sufficiently stamped or does not require to be
stamped.
12.
Evidence on appeal (O. 59, r.
12)
Where any question of fact is involved in an appeal, the evidence taken in the
court below bearing on the question shall, subject to any direction of the Court of
Appeal or a single judge, be brought before that Court as follows—
(a)
in the case of evidence taken by affidavit, by the production of a true
copy of such affidavit;
(b)
in the case of evidence given orally, by a copy of so much of the
transcript of the official shorthand note as is relevant or by a copy of the
judge’s note, where he has intimated that in the event of an appeal his note
will be sufficient, or by such other means as the Court of Appeal or a single
judge, may direct.
12A.
Non-disclosure of payment into court (O. 59, r.
12A)
(1)
Where—
(a)
any question on an appeal in an action for a debt, damages or salvage
relates to liability for the debt, damages or salvage or to the amount
thereof, and
(b)
money was paid into court under
Order
22, in the proceedings in the court below before
judgment,
neither the fact of the payment nor the amount thereof nor the terms of
any relevant offer made in accordance with
Order
22 shall be stated in the notice of appeal or the respondent’s notice
or in any supplementary notice or be communicated to the Court of Appeal until
all such questions have been decided. This rule shall not apply in the case of
an appeal as to costs only or an appeal in an action to which a defence of
tender before action was pleaded.
(2)
For the purpose of complying with this rule the appellant must cause to be
omitted from the copies of the documents lodged by him under rule
9(d) and (f) every part thereof which states that money was paid into
court in the proceedings in that court before
judgment.
13.
Stay of execution, etc. (O. 59, r.
13)
(1)
Except so far as the court below or the Court of Appeal or a single judge
may otherwise direct—
(a)
an appeal shall not operate as a stay of execution or of proceedings
under the decision of the court below;
(b)
no intermediate act or proceeding shall be invalidated by an
appeal.
(2)
On an appeal from the court below, interest for such time as execution has
been delayed by the appeal shall be allowed unless the court below otherwise orders.
14.
Applications to the Court of Appeal (O. 59, r.
14)
(1)
Unless otherwise directed, every application to the Court of Appeal or a
single judge which is not made ex parte must be made by summons and such summons
must be served on the party or parties affected at least 2 clear days before the
day on which it is heard or, in the case of an application which is made after
the expiration of the time for appealing, at least 7 days before the day on
which the summons is heard.
(1A)
In support of any application (whether made ex parte or inter partes) the
applicant shall lodge with the Registrar such documents as the Court of Appeal
or a single judge may direct, and rule 9(3) and (4) shall apply, with
any necessary modifications, to applications as they apply to appeals.
(2)
(Repealed L.N. 152 of
2008)
(2A)-(2B)
(Repealed L.N. 152 of
2008)
(3)
Where an ex parte application has been refused by the court below, an
application for a similar purpose may be made to the Court of Appeal ex parte
within 7 days after the date of the refusal.
(3A)
Where an application made to the Court of Appeal ex parte under paragraph
(3) is granted, notice of the order granting the application must be served on
the party or parties affected.
(3B)
A party on whom a notice has been served is entitled, within 7 days after
service of the notice, to apply to the Court of Appeal to have the order
granting the application reconsidered inter partes in open court.
(4)
Wherever under these rules an application may be made either to the court
below or to the Court of Appeal, it shall not be made in the first instance to
the Court of Appeal, except where there are special circumstances which make it
impossible or impracticable to apply to the court below.
(5)-(6)
(Repealed 17 of 2010 s. 112)
(6A)
(Repealed 17 of 2010 s. 112)
(7)
An application which may be heard by a single judge, shall, unless
otherwise directed, be heard in chambers.
(8)-(9)
(Repealed L.N. 404 of
1991)
(10)
A single judge may refer to the Court of Appeal any matter which he thinks
should properly be decided by that Court, and, following such reference, that
Court may either dispose of the matter or refer it back to a single judge or the
Registrar, with such directions as that Court thinks fit.
(11)
(Repealed L.N. 404 of
1991)
(12)
An appeal shall lie to the Court of Appeal from any determination by a
single judge and shall be brought by way of fresh application made within 10
days of the determination appealed against.
(13)
This rule does not apply in relation to an application for leave to appeal.
14A.
Determination of
interlocutory
application (O. 59, r.
14A)
(1)
The Court of Appeal (including a single judge thereof) may, in relation to
a cause or matter pending before the Court of Appeal, determine an interlocutory
application without a hearing on the basis of written submissions
only.
(2)
Where it considers it necessary or expedient, the Court of Appeal
(including a single judge thereof) may direct that the interlocutory application
shall be heard before the Court of Appeal consisting of 2 or 3 Justices of
Appeal.
(3)
For the avoidance of doubt, nothing in this rule precludes a judge of the
Court of First Instance from sitting as an additional judge of the Court of
Appeal in accordance with section 5(2) of the Ordinance.
15.
Extension of time (O. 59, r.
15)
Without prejudice to the power of the Court of Appeal or a single judge under
Order
3, rule 5, to extend or abridge the time prescribed by
any provision of this Order, the period for serving notice of appeal under rule
4 or
for
making application ex parte under rule 14(3) may be
extended or abridged by the court below on application made
before or
after the expiration of that period.
Special
Provisions as to Particular Appeals
16.
Appeal against decree nisi (O. 59, r.
16)
(1)
The following provisions of this rule shall apply to any appeal to the
Court of Appeal in a matrimonial cause against a decree nisi of divorce or
nullity of marriage.
(1A)
An appeal lies as of right to the Court of Appeal from a decree nisi
granted by the Court.
(2)
(3)
The appellant must, within the period mentioned in paragraph (2) produce to
the Registrar a sealed copy of the decree appealed against and leave with him a
copy of that decree and two copies of the notice of appeal (one of which shall
be indorsed with the amount of the fee paid and the other indorsed with a
certificate of the date of service of the notice); and the appeal shall not be
competent unless this paragraph has been complied with.
(4)
(5)
A party who intends to apply ex parte to the Court of Appeal to extend the
period referred to in paragraphs (2) and (3) must give notice of his intention
to the appropriate Registrar before the application is made; and where any order
is made by the Court of Appeal extending the said period, it shall be the duty
of the Registrar forthwith to give notice of the making of the order and of the
terms thereof to the appropriate Registrar.
(6)
(a)
in relation to a cause pending in a district court, the registrar
of that
court.
19.
Appeal from District Court (O. 59, r.
19)
(1)
The following provisions of this rule shall apply to any appeal to the
Court of Appeal from a District Court other than an appeal against a decree nisi
of divorce or nullity of marriage.
(2)
The notice of appeal must be served on the registrar of the District Court
as well as on the party or parties required to be served under rule
3.
(3)
(Repealed L.N. 152 of
2008)
(4)
Except where the Court of Appeal or a single judge otherwise directs, an
affidavit or note by a person present in the District Court shall not be used in
evidence before the Court of Appeal unless it was previously submitted to the
judge for his comments.
(4A)
Rule 12A shall apply in any case where money was paid into court
by the defendant before judgment in district court proceedings in satisfaction
of the plaintiff’s cause of action or of one or more causes joined in one action
or on account of a sum admitted by the defendant to be due to the
plaintiff.
(4B)
Rule 12A(1) applies as if a reference to
Order
22 were a reference to
Order
22 of the Rules of the District Court (Cap.
336 sub. leg. H).
(5)
Rule 13(1)(a) shall apply subject to the provisions of
section 66 of the District Court Ordinance (Cap.
336).
20.
Appeals in cases of contempt of court (O. 59, r.
20)
(1)
In the case of an appeal to the Court of Appeal against an order of
committal or other punishment for contempt of Court made by a judge of the Court
of First Instance, the notice of appeal must be served on the Registrar as well
as on the party or parties required to be served under rule 3.
(See
App. A, Form
99)
This paragraph shall not apply in relation to an appeal to which
rule 19 applies.
(2)
Where, in the case of such an appeal as is mentioned in paragraph (1), the
appellant is in custody, the Court of Appeal may order his release on his giving
security (whether by recognizance, with or without sureties, or otherwise and
for such reasonable sum as that Court may fix) for his appearance within 10 days
after the judgment of the Court of Appeal on the appeal shall have been given,
before the court from whose order or decision the appeal is brought unless the
order or decision is reversed by that judgment.
(3)
An application for the release of a person under paragraph (2) pending an
appeal to the Court of Appeal must be made by motion, and the notice of the
motion must, at least 24 hours before the day named therein for the hearing, be
served on the Registrar and on all parties to the proceedings who are directly
affected by the
appeal.
Cases where Leave to Appeal is not required for Interlocutory
Appeals
21.
Judgments and orders to which section
14AA(1)
of the Ordinance not apply (O. 59, r.
21)
(1)
Judgments and orders to which section 14AA(1) of the Ordinance
(leave to appeal required for interlocutory appeals) does not apply and
accordingly an appeal lies as of right from them are the following—
(a)
a judgment or order determining in a summary way the substantive rights
of a party to an action;
(b)
an order made under section 52A(4) of the
Ordinance;
(c)
an order prohibiting a debtor from leaving Hong Kong under
Order
44A, rule 3(1);
(d)
an order for the imprisonment of a judgment debtor under
Order
49B;
(e)
an order of committal for contempt of court under
Order
52, rule 1;
(f)
an order granting any relief made at the hearing of an application for
judicial review;
(g)
an order under
Order
53, rule 3 refusing to grant leave to apply for
judicial review;
(h)
an order granting an application for a writ of habeas corpus ad
subjiciendum;
(i)
(j)
a judgment given inter partes under
Order
83A, rule 4, or
Order
84A, rule 3 or in a mortgage action within the
meaning of
Order
88, rule 1;
(k)
an order under
Order
121; and
(l)
a decree nisi of divorce or nullity of marriage.
(2)
Without affecting the generality of paragraph (1)(a), the
following are judgments and orders determining in a summary way the substantive
rights of a party—
(b)
an order striking out an action or other proceedings or a pleading or
any part of a pleading under
Order
18, rule 19 or under the inherent jurisdiction
of the Court;
(c)
a judgment or order determining any question of law or the construction
of any document under
Order
14A, rule 1(1);
(d)
a judgment or order made under
Order
14A, rule 1(2) dismissing any cause or matter
upon determination of a question of law or construction of any
document;
(e)
a judgment on any question or issue tried pursuant to an order under
Order
33, rule 3;
(f)
an order dismissing or striking out an action or other proceedings for
want of prosecution;
(g)
a judgment obtained pursuant to an “unless” order;
(h)
an order refusing to set aside a judgment in default;
(i)
an order refusing to allow an amendment of a pleading to introduce a
new claim or defence or any other new issue; and
(j)
a judgment or order on admissions under
Order
27, rule 3.
(3)
A direction as to whether a judgment or order is one that is referred to in
paragraph (1)(a) may be sought from the judge who made or will make
the judgment or order.
(4)
A reference to an order specified in paragraph (1)(b), (c), (d),
(e), (f), (h), (i), (k) and (l) includes an order refusing, varying or
discharging the order.
Order
60A
Appeals
from Tribunals to Court of Appeal on a Question of Law other than by way of Case
Stated
1.
Application of Order (O. 60A, r.
1)
This Order applies to appeals that lie from any tribunal to the Court of Appeal
on a question of law other than by way of case
stated.
2.
Notice of appeal from tribunal (O. 60A, r.
2)
(1)
An appeal to which the Order applies must be brought by motion, notice of
which is referred to in this Order as
notice
of
appeal.
(2)
A notice of appeal must specify the grounds of the appeal, together with
the question of law to be decided by the Court of
Appeal.
3.
Time for appealing (O. 60A, r.
3)
Subject to the provisions of any Ordinance, a notice of appeal must be served on all parties to the proceedings before the tribunal, and on the tribunal, within 28 days of the date on which the judgment or order of the tribunal was given.
4.
Setting down appeal (O. 60A, r.
4)
(1)
The appellant must, within 7 days after service of the notice of appeal, or within such further time as may be allowed by the Registrar, produce to the Registrar—
(a)
a copy of the sealed judgment or order of the tribunal and a copy of its reasoned decision (if any);
(b)
2 copies of the notice of appeal, one of which shall be endorsed with the amount of the fee paid, and the other endorsed with a certificate of the date of service of the notice.
(2)
Upon the said documents being left, the Registrar shall file one copy of
the notice of appeal and cause the appeal to be set down in the list of appeals;
and the appeal shall come on to be heard according to its order in that list
unless the Court of Appeal or a single judge or the Registrar otherwise
orders.
5.
Application of Order 59 (O. 60A, r.
5)
6.
Duty of Registrar to notify tribunal
of result (O. 60A, r.
6)
The Registrar shall notify the tribunal of the decision of the Court of Appeal
on the appeal and of any direction given by the Court therein.
Order
61
Appeals
from Tribunals to Court of Appeal by way of Case Stated
2.
Statement of case by tribunals (O. 61, r.
2)
(1)
Where any tribunal is empowered or may be required to state a case on a
question of law for determination by the Court of Appeal, any party to the
proceedings who is aggrieved by the tribunal’s refusal to state a case may apply
to the Court of Appeal or a single judge of that Court for an order requiring
the tribunal to state a case.
(2)
An application under this rule must be made by motion and the notice of the
motion, stating in general terms the grounds of the application, together with
the question of law on which it is desired that a case shall be stated and any
reasons given by the tribunal for its refusal, must within 28 days after the
refusal, be served on the clerk or registrar of the tribunal and on every other
party to the proceedings before the tribunal.
(3)
Within 2 days after service of the notice of motion, the applicant must
lodge two copies of the notice with the Registrar who shall enter the motion in
the list of appeals.
(4)
Where a tribunal is ordered under this rule to state a case, the tribunal
must, within such period as may be specified in the order, state a case stating
the facts on which the decision of the tribunal was based and the decision, sign
it and cause it to be sent by post to the applicant.
(4A)
Where the decision of the tribunal in respect of which a case is stated
states all the relevant facts found by the tribunal and indicates the questions
of law to be decided by the Court of Appeal, a copy of the decision signed by
the person who presided at the hearing shall be annexed to the case, and the
facts so found and the question of law to be decided shall be sufficiently
stated in the case by referring to the statement thereof in the
decision.
3.
Proceedings on case stated (O. 61, r.
3)
(1)
The party at whose instance a case has been stated by any tribunal to which
this Order applies must, within 28 days after receiving the
case—
(a)
serve on every other party to the proceedings before the tribunal a
copy of the case, together with a notice setting out his contentions on the
question of law, and
(b)
serve a copy of the notice on the clerk or registrar of the
tribunal.
(2)
Within 2 days after service of the notice, the said party must lodge the
case and two copies of the notice with the Registrar who shall enter the case in
the list of appeals, and the case shall not be heard until after the expiration
of 28 days from the date of entry.
(3)
Where any enactment under which the case is stated provides that a
government department shall have a right to be heard in the proceedings on the
case, a copy of the case and of the notice served under paragraph (1) must be
served on that department and on the Secretary for Justice.
(4)
On the hearing of the case, the Court of Appeal may amend the case or order
it to be sent back to the tribunal for amendment.
(5)
Order 59, rule 10, shall, so far as applicable, apply in
relation to a case stated by a tribunal to which this Order applies.
(6)
The Registrar shall notify the clerk or registrar of the tribunal of the
decision of the Court of Appeal on the case and of any directions given by that
Court thereon.
Costs
Order
62
Costs
Preliminary
1.
Interpretation (O. 62, r.
1)
(1)
In this Order—
certificate
(證明書
) includes allocatur;contentious
business
(爭議事務
) means business done, whether as a
barrister, solicitor or advocate, in or for the purpose of proceedings begun
before the Court or before an arbitrator, umpire or arbitral tribunal under the
Arbitration Ordinance (Cap. 609) not being common
form probate business;
costs
(訟費
) include fees, charges,
disbursements, expenses and remuneration;District
Court
(區域法院
) means the District Court
established under the provisions of the District Court Ordinance (Cap. 336), and any judge of that court;
legal
representative
(法律代表
), in relation to a party to
proceedings, means a counsel or solicitor conducting litigation on behalf of the party;
mentally
disordered
person
(精神紊亂的人
) means a person who is so far
disabled in mind or who is so mentally ill or subnormal due to arrested or
incomplete development of mind as to render it either necessary or expedient
that he, either for his own sake or in the public interest, should be placed and
kept under control;
non-contentious
business
(非爭議事務
) means any business done by and as
a solicitor which is not contentious business;
party
entitled to be heard on
taxation
(有權在訟費評定中獲聆聽的一方
) means—(a)
a party entitled to payment of costs;
(b)
a party who has acknowledged service or taken any part in the
proceedings which gave rise to the taxation proceedings, and who is
directly liable under a costs order made against him;
(c)
a person who has given the party entitled to payment of costs and
the Registrar written notice that he has a financial interest in the
outcome of the taxation; or
(d)
a person in respect of whom a direction has been given under
rule 21(3);
taxed
costs
(經評定的訟費
) means costs taxed in accordance
with this Order;the Court
(法院
、法庭
) means the High Court or
any one or more judges thereof, whether sitting in Court or in chambers, the
Registrar or assistant registrar or master; (2)
In this Order, references to a fund, being a fund out of which costs are to
be paid or which is held by a trustee or personal representative, include
references to any estate or property whether immovable or personal held for the
benefit of any person or class of persons; and references to a fund held by a
trustee or personal representative include references to any fund to which he is
entitled (whether alone or together with any other person) in that capacity,
whether the fund is for the time being in his possession or
not.
2.
Application (O. 62, r.
2)
(1)
This Order shall apply to all proceedings in the Court, except
non-contentious or common form probate proceedings and proceedings in matters of prize.
(2)
Where by virtue of any Ordinance the costs of or incidental to any
proceedings before an arbitrator or umpire or before a tribunal or other body
constituted by or under any Ordinance, not being proceedings in the High Court,
are taxable in the Court of First Instance, the following provisions of this
Order, that is to say, rule 7(4), rule 8D (except
paragraph (4)), rule 8E, rule 9D(1) and (4), rules
13 and 13A, rules 14 to 16, rule
17(1), rules 17A and 17B, rule 18,
rules 21 (except paragraph (4)), 21A, 21B, 21C and 21D,
rules 22 to 26, rule 28A (except paragraphs (4) and
(7)), rules 32A and 32B and rules 33 to 35,
shall have effect in relation to proceedings for taxation of those costs as they
have effect in relation to proceedings for taxation of the costs of or arising
out of proceedings in the High Court.
(2A)
Where rule 22 has effect under paragraph (2), a reference to the
Court of First Instance in rule 22(9)(a) is to be construed as a
reference to the arbitrator, umpire, tribunal or other body, as the case may be.
(3)
This Order shall have effect subject to the provisions of the District
Court Ordinance (Cap. 336) and to any rules made
thereunder and to any other enactment.
(4)
The powers and discretion of the Court as to costs under sections
52A and 52B of the Ordinance and under the enactments
relating to the costs of criminal proceedings to which this Order applies shall
be exercised subject to and in accordance with this Order.
Entitlement to Costs
3.
Order as to entitlement to costs (O. 62, r. 3)
(1)
Subject to the provisions of this Order, no party shall be entitled to
recover any costs of or incidental to any proceedings from any other party to
the proceedings except under an order of the Court.
(2)
If the Court in the exercise of its discretion sees fit to make any order
as to the costs of or incidental to any proceedings (other than interlocutory
proceedings), the Court shall, subject to this Order, order the costs to follow
the event, except when it appears to the Court that in the circumstances of the
case some other order should be made as to the whole or any part of the costs.
(2A)
If the Court in the exercise of its discretion sees fit to make any order
as to the costs of or incidental to any interlocutory proceedings, it may,
subject to this Order, order the costs to follow the event or make such other
order as it sees fit.
(3)
The costs of and occasioned by any amendment made without leave in the writ
of summons or any pleading shall be borne by the party making the amendment,
unless the Court otherwise orders.
(4)
The costs of and occasioned by any application to extend the time fixed by
these rules, or any direction or order thereunder, for serving or filing any
document or the doing of any other act (including the costs of any order made on
the application) shall be borne by the party making the application, unless the
Court otherwise orders.
(5)
If a party on whom a notice to admit facts is served under Order 27,
rule 2, refuses or neglects to admit the facts within 7 days
after the service on him of the notice or such longer time as may be allowed by
the Court, the costs of proving the facts shall be paid by him, unless the Court
otherwise orders.
(6)
If a party—
(a)
on whom a list of documents is served in pursuance of any provision of
Order 24, or
(b)
on whom a notice to admit documents is served under Order 27, rule
5,
(7)
Where a defendant by notice in writing and without leave discontinues his
counterclaim against any party or withdraws any particular claim made by him
therein against any party, that party shall, unless the Court otherwise directs,
be entitled to his costs of the counterclaim or his costs occasioned by the
claim withdrawn, as the case may be, incurred to the time of receipt of the
notice of discontinuance or withdrawal.
(8)
(Repealed L.N. 152 of
2008)
(9)
Where any person claiming to be a creditor—
(a)
seeks to establish his claim to a debt under any judgment or order in
accordance with Order 44, or
(b)
comes in to prove his title, debt or claim in relation to a company in
pursuance of any such notice as is mentioned in Order 102, rule
13,
he shall, if his claim succeeds, be entitled to his costs incurred in
establishing it, unless the Court otherwise directs, and, if his claim or any
part of it fails, may be ordered to pay the costs of any person incurred in
opposing it.
(10)
Where a claimant is entitled to costs under paragraph (9), the amount of
the costs shall be fixed by the Court unless it thinks fit to direct taxation,
and the amount fixed or allowed shall be added to the claimant’s debt.
(11)
Where a claimant (other than a person claiming to be a creditor) having
established a claim to be entitled under a judgment or order in accordance with
Order 44 has been served with notice of the judgment or order pursuant to
rule 3 or 15 of that Order, he shall, if he
acknowledges service of the notice be entitled as part of his costs of action
(if allowed) to costs incurred in establishing his claim, unless the Court
otherwise directs; and where such a claimant fails to establish his claim or any
part of it he may be ordered to pay the costs of any person incurred in opposing
it.
(12)
Where an application is made in accordance with Order 24, rule
7A or Order 29, rule 7A, for an order under section
41, 42 or 44 of the Ordinance, the person
against whom the order is sought shall be entitled, unless the Court otherwise
directs, to his costs of and incidental to the application and of complying with
any order made thereon and he may, after giving the applicant 7 days’ notice of
his intention to do so, tax such costs and, if they are not paid within 4 days
after taxation, sign judgment for
them.
4.
Stage of proceedings at which costs
to be dealt with (O. 62, r.
4)
(1)
Costs may be dealt with by the Court at any stage of the proceedings or
after the conclusion of the proceedings; and any order of the Court for the
payment of any costs may, if the Court thinks fit, and the person against whom
the order is made is not an assisted person, require the costs to be paid
forthwith notwithstanding that the proceedings have not been
concluded.
(2)
In the case of an appeal the costs of the proceedings giving rise to the
appeal, as well as the costs of the appeal and of the proceedings connected with
it, may be dealt with by the Court hearing the appeal; and in the case of any
proceedings transferred or removed to the Court of First Instance from any other
court or tribunal, the costs of the whole proceedings, both before and after the
transfer or removal, may (subject to any order of the court or tribunal ordering
the transfer or removal) be dealt with by the Court to which the proceedings are
transferred or removed.
(3)
Where under paragraph (2) the Court makes an order as to the costs of any
proceedings before another court or tribunal, rules 28, 31
and 32 shall not apply in relation to those costs, but, except in
relation to costs of proceedings transferred or removed from the District Court
or the Lands Tribunal, the order—
(a)
shall specify the amount of the costs to be allowed, or
(b)
shall direct that the costs shall be assessed by the court or tribunal
before which the proceedings took place or taxed by an officer of that court
or tribunal, or
(c)
if the order is made on appeal from the District Court or the Lands
Tribunal in relation to proceedings in that court or tribunal, may direct
that the costs shall be taxed by the taxing master.
5.
Special matters to be taken into account
in exercising discretion (O. 62, r.
5)
(1)
The Court in exercising its discretion as to costs shall, to such extent, if
any, as may be appropriate in the circumstances, take into
account—
(aa)
the underlying objectives set out in Order 1A, rule 1;
(a)
any such offer of contribution as is mentioned in Order 16, rule
10, which is brought to its attention in pursuance of a reserved
right to do so;
(b)
any payment of money into court and the amount of such
payment;
(c)
any written offer made under Order 33, rule 4A(2);
(d)
any written offer which is expressed to be “without prejudice save as
to costs” and which relates to any issue in the proceedings, but the Court
may not take the offer into account if, at the time it is made, the party
making it could have protected his position as to costs by means of a
sanctioned payment or a sanctioned offer under Order 22;
(e)
the conduct of all the parties;
(f)
whether a party has succeeded on part of his case, even if he has not
been wholly successful; and
(g)
any admissible offer to settle made by a party, which is drawn to the
Court’s attention.
(2)
For the purpose of paragraph (1)(e), the conduct of the parties
includes—
(a)
whether it was reasonable for a party to raise, pursue or contest a
particular allegation or issue;
(b)
the manner in which a party has pursued or defended his case or a
particular allegation or issue;
(c)
whether a claimant who has succeeded in his claim, in whole or in part,
exaggerated his claim; and
(d)
conduct before, as well as during, the proceedings.
6.
Restriction of discretion to order costs (O. 62, r.
6)
(1)
Notwithstanding anything in this Order or in section 52A of the
Ordinance—
(c)
unless the Court is of opinion that there was no reasonable ground for
opposing the will, no order shall be made for the costs of the other side to
be paid by the party opposing a will in a probate action who has given
notice with his defence to the party setting up the will that he merely
insists upon the will being proved in solemn form of law and only intends to
cross-examine the witnesses produced in support of the will.
(2)
Where a person is or has been a party to any proceedings in the capacity of
trustee, personal representative or mortgagee, he shall, unless the Court
otherwise orders, be entitled to the costs of those proceedings, in so far as
they are not recovered from or paid by any other person, out of the fund held by
the trustee or personal representative or the mortgaged property, as the case
may be; and the Court may otherwise order only on the ground that the trustee,
personal representative or mortgagee has acted unreasonably or, in the case of a
trustee or personal representative, has in substance acted for his own benefit
rather than for the benefit of the
fund.
6A.
Costs orders in favour
of
or against
non-parties
(O. 62, r.
6A)
(1)
Where the Court is considering whether to exercise its power under
section 52A or 52B of the Ordinance to make a costs
order in favour of or against a person who is not a party to the relevant
proceedings—
(a)
that person must be joined as a party to the proceedings for the
purposes of costs only; and
(b)
that person must be given a reasonable opportunity to attend a hearing
at which the Court shall consider the matter further.
(2)
This rule does not apply where the Court is considering whether to
make—
(a)
a wasted costs order; or
(b)
an order under section 41 or 42 of the
Ordinance.
7.
Costs arising from misconduct or neglect (O. 62, r.
7)
(1)
Where in any cause or matter any thing is done or omission is made
improperly or unnecessarily by or on behalf of a party, the Court may direct
that any costs to that party in respect of it shall not be allowed to him and
that any costs occasioned by it to other parties shall be paid by him to
them.
(2)
Without prejudice to the generality of paragraph (1), the Court shall for
the purpose of that paragraph have regard in particular to the following
matters, that is to say—
(aa)
the underlying objectives set out in Order 1A, rule 1;
(a)
the omission to do any thing the doing of which would have been
calculated to save costs;
(b)
the doing of any thing calculated to occasion, or in a manner or at a
time calculated to occasion, unnecessary costs;
(c)
any unnecessary delay in the proceedings.
(3)
The Court may, instead of giving a direction under paragraph (1) in
relation to any thing done or omission made, direct the taxing master to inquire
into it and, if it appears to him that such a direction as aforesaid should have
been given in relation to it, to act as if the appropriate direction had been
given.
(4)
The taxing master shall, in relation to any thing done or omission made in
the course of taxation, have the same power to disallow or to award costs as the
Court has under paragraph (1) to direct that costs shall be disallowed to or
paid by any party.
(5)
(Repealed L.N. 152 of
2008)
8.
Personal liability of legal
representative
for
costs—wasted
costs
order
(O. 62, r.
8)
(1)
The Court may make a wasted costs order against a legal representative, only
if—
(a)
the legal representative, whether personally or through his employee or
agent, has caused a party to incur wasted costs as defined in section
52A(6) of the Ordinance; and
(b)
it is just in all the circumstances to order the legal representative
to compensate the party for the whole or part of those costs.
(2)
A wasted costs order may—
(a)
disallow the costs as between the legal representative and his client;
and
(b)
direct the legal representative to—
(i)
repay to his client costs which the client has been ordered to pay
to other parties to the proceedings; or
(ii)
indemnify other parties against costs incurred by them.
(3)
The Court shall give the legal representative a reasonable opportunity to
attend a hearing to give reasons why it should not make the order.
(4)
When the Court makes a wasted costs order, it shall—
(a)
specify the amount to be disallowed or paid; or
(b)
direct a master to decide the amount of costs to be disallowed or
paid.
(5)
The Court may give directions about the procedure that should be followed
in each case in order to ensure that the issues are dealt with in a way that is
fair and is as simple and summary as the circumstances permit.
(6)
The Court may direct that notice must be given to the legal representative’s
client, in such manner as the Court may direct—
(a)
of any proceedings under this rule; or
(b)
of any order made under this rule against his legal
representative.
(7)
Before making a wasted costs order, the Court may direct a master to
inquire into the matter and report to the Court.
(8)
The Court may refer the question of wasted costs to a master, instead of
making a wasted costs order.
(9)
The Court may, if it thinks fit, direct or authorize the Official Solicitor
to attend and take part in any proceedings or inquiry under this rule, and may
make such order as it thinks fit as to the payment of his costs.
8A.
Court may make wasted
costs
order on its own motion
or
on application (O. 62, r.
8A)
(1)
The Court may make a wasted costs order against a legal representative on
its own motion.
(2)
A party may apply for a wasted costs order—
(a)
orally in the course of a hearing; or
(b)
by making an interlocutory application by summons.
(3)
Where a party applies for a wasted costs order by making an interlocutory
application by summons, the party shall serve the summons on—
(a)
the legal representative concerned;
(b)
any party represented by that legal representative; and
(c)
any other person as may be directed by the Court,
not less than 2 clear days before the day specified in the summons for
its hearing.
(4)
An application for a wasted costs order shall not be made or dealt with
until the conclusion of the proceedings to which the order relates, unless the
Court is satisfied that there is reasonable cause for the application to be made
or dealt with before the conclusion of the proceedings.
(5)
Unless there are exceptional circumstances making it inappropriate to do
so, an application for a wasted costs order shall be heard by the judge or
master who conducted the proceedings to which the order relates.
8B.
Stages of considering
whether
to make a wasted costs
order
(O. 62, r.
8B)
(1)
The Court shall consider whether to make a wasted costs order in 2
stages—
(a)
in the first stage, the Court must be satisfied that—
(i)
it has before it evidence or other material which, if unanswered,
would be likely to lead to a wasted costs order being made;
and
(ii)
the wasted costs proceedings are justified notwithstanding the
likely costs involved; and
(b)
in the second stage (even if the Court is satisfied under sub-paragraph
(a)), the Court shall consider, after giving the legal representative an
opportunity to give reasons why the Court should not make a wasted costs
order, whether it is appropriate to make the order in accordance with
rule 8.
(2)
On an application for a wasted costs order, the Court may proceed to the
second stage described in paragraph (1)(b) without first adjourning
the hearing if it is satisfied that the legal representative has already had a
reasonable opportunity to give reasons why the Court should not make a wasted
costs order. In other cases the Court shall adjourn the hearing before
proceeding to the second stage.
(3)
On an application for a wasted costs order, any evidence in support must
identify—
(a)
what the legal representative is alleged to have done or failed to do;
and
(b)
the costs that he may be ordered to pay or which are sought against
him.
8C.
Application for wasted
costs
order not to be used
as
means of
intimidation
(O. 62, r.
8C)
(1)
A party shall not by himself or by another person on his behalf threaten
another party or any of that party’s legal representatives with an application
for a wasted costs order with a view to coercing or intimidating either of them
to do or refrain from doing anything.
(2)
A party shall not indicate to another party or any of that party’s legal
representatives that he intends to apply for a wasted costs order unless he is
satisfied that he is able to—
(a)
particularize the behaviour of the legal representative from which the
wasted costs concerned are alleged to result; and
(b)
identify the evidence or other materials on which he relies in support
of the allegation.
8D.
Personal liability of legal
representative
for costs-supplementary
provisions
(O. 62, r.
8D)
(1)
Where in any proceedings before a taxing master, the legal representative
representing any party is guilty of neglect or delay or puts any other party to
any unnecessary expense in relation to those proceedings, the taxing master may
direct the legal representative personally to pay costs to any of the parties to
those proceedings.
(2)
Where any legal representative fails to file a bill of costs (with the
documents required by this Order) for taxation within the time fixed by or under
this Order or otherwise delays or impedes the taxation, then, unless the taxing
master otherwise directs, the legal representative shall not be allowed the fees
to which he would otherwise be entitled for drawing the bill of costs and for
attending the taxation.
(3)
If, on the taxation of costs to be paid out of a fund other than funds
provided by the Legislative Council pursuant to section 27 of the
Legal Aid Ordinance (Cap. 91), one-sixth or more of
the amount of the bill for those costs is taxed off, the legal representative
whose bill it is shall not be allowed the fees to which he would otherwise be
entitled for drawing the bill and for attending the taxation.
(4)
In any proceedings in which the party by whom the fees prescribed by any
enactment relating to court fees are payable is represented by a legal
representative, if the fees or any part of the fees payable under that enactment
are not paid as prescribed, the Court may, on the application of the Official
Solicitor by summons, order the legal representative personally to—
(a)
pay that amount in the manner so prescribed; and
(b)
pay the costs of the Official Solicitor of the application.
(5)
A legal representative shall not be directed or ordered under this rule to
pay any costs or fees, nor shall he be disallowed under this rule any fees,
unless he has been given a reasonable opportunity to give reasons why—
(a)
the direction or order should not be made; or
(b)
he should not be disallowed the fees.
(6)
When a taxing master makes a direction under paragraph (1), he—
(a)
shall specify the amount to be paid; and
(b)
may give directions about the procedure that should be followed in each
case in order to ensure that the issues are dealt with in a way that is fair
and is as simple and summary as the circumstances permit.
(7)
The Court or a taxing master may direct that notice must be given to the
legal representative’s client, in such manner as the Court or the taxing master
may direct, of any direction or order made under this rule against his legal
representative.
8E.
Stages of considering
whether
to make direction under
rule
8D(1) (O. 62, r.
8E)
(1)
The taxing master shall consider whether to make a direction under rule
8D(1) in 2 stages—
(a)
in the first stage, the taxing master must be satisfied that—
(i)
he has before him evidence or other material which, if unanswered,
would be likely to lead to a direction under rule 8D(1) being
made; and
(ii)
the direction is justified notwithstanding the likely costs
involved; and
(b)
in the second stage (even if the taxing master is satisfied under
sub-paragraph (a)), the taxing master shall consider, after giving the legal
representative an opportunity to give reasons why the taxing master should
not make the direction, whether it is appropriate to make the
direction.
(2)
On an application for a direction under rule 8D(1), the taxing
master may proceed to the second stage described in paragraph (1)(b)
without first adjourning the hearing if he is satisfied that the legal
representative has already had a reasonable opportunity to give reasons why the
taxing master should not make the direction. In other cases the taxing master
shall adjourn the hearing before proceeding to the second stage.
(3)
On an application for a direction under rule 8D(1), any evidence
in support must identify—
(a)
what the legal representative is alleged to have done or failed to do;
and
(b)
the costs that he may be directed to pay or which are sought against
him.
9.
Taxed costs, fractional taxed costs or costs
summarily
assessed for non-interlocutory
applications
(O. 62, r. 9)
(1)
Subject to this order, where by or under these rules or any order or
direction of the Court costs are to be paid to any person, that person shall be
entitled to his taxed costs.
(2)
Paragraph (1) shall not apply to costs which by or under any order or
direction of the Court—
(a)
are to be paid to a receiver appointed by the Court of First Instance
under section 21L of the Ordinance in respect of his
remuneration, disbursements or expenses; or
(b)
are to be assessed or settled by a taxing master,
(3)
Where a writ in an action is endorsed in accordance with Order 6, rule
2(1)(b), and judgment is entered on failure to give notice of
intention to defend or in default of defence for the amount claimed for costs
(whether alone or together with any other amount claimed), paragraph (1) of this
rule shall not apply to those costs, but if the amount claimed for costs as
aforesaid is paid in accordance with the indorsement (or is accepted by the
plaintiff as if so paid) the defendant shall nevertheless be entitled to have
those costs taxed.
(4)
The Court in awarding costs to any person may direct that, instead of taxed
costs, that person shall be entitled—
(a)
to a proportion specified in the direction of the taxed costs or to the
taxed costs from or up to a stage of the proceedings so specified;
or
(b)
to a sum of money summarily assessed in lieu of taxed costs.
(5)
This rule does not apply to costs of an interlocutory application.
9A.
Summary assessment of costs
of
interlocutory
application
(O. 62, r.
9A)
(1)
Where the Court has determined an interlocutory application at any stage of
proceedings and orders a party to pay costs in respect of the interlocutory
application to any other party, it may, if it considers it appropriate to do so
but subject to rule 9C—
(a)
make a summary assessment of the costs by ordering payment of a sum of
money to that other party in lieu of taxed costs;
(b)
make a summary assessment of the costs by ordering payment of a sum of
money to that other party in lieu of taxed costs but subject to the right of
either party to have the costs taxed pursuant to paragraph (2); or
(c)
order that the costs be taxed in accordance with this Order.
(2)
Where the Court has made an order under paragraph (1)(b), either
party to the interlocutory application is entitled to have the costs in respect
of the interlocutory application taxed in accordance with this Order.
(3)
Upon taxation pursuant to paragraph (2)—
(a)
if the amount of the taxed costs in respect of the interlocutory
application equals the amount paid pursuant to an order made under paragraph
(1)(b), the taxing master shall direct that no further amount
is payable in respect of the taxed costs;
(b)
if the amount of the taxed costs in respect of the interlocutory
application exceeds the amount paid pursuant to an order made under
paragraph (1)(b), the taxing master may—
(i)
direct the party against whom the order was made to pay the
shortfall; or
(ii)
set off the shortfall against any other costs to which the party
against whom the order was made is entitled and direct payment of any
balance; and
(c)
if the amount paid pursuant to an order made under paragraph
(1)(b) exceeds the amount of the taxed costs in respect of
the interlocutory application, the taxing master may—
(i)
direct the party in whose favour the order was made to pay the
difference; or
(ii)
set off the difference against any other costs to which the party
in whose favour the order was made is entitled and direct payment of any
balance.
(4)
Where—
(a)
the amount paid pursuant to an order made under paragraph
(1)(b) equals or exceeds the amount of the taxed costs in
respect of the interlocutory application; or
(b)
the taxed costs in respect of the interlocutory application do not
materially exceed the amount paid pursuant to an order made under paragraph
(1)(b),
the taxing master may make such order as to the costs of the taxation or
such other order as he considers appropriate.
(5)
In determining whether the taxed costs materially exceed the amount paid
pursuant to an order made under paragraph (1)(b), the taxing master
shall, in addition to any other matter that he may consider relevant, have
regard to—
(a)
the amount by which the taxed costs exceed the amount paid pursuant to
the order made under paragraph (1)(b); and
(b)
whether the exceeded amount is disproportionate to the costs of the
taxation.
9B.
Time for complying with
direction
or order for summary
assessment
(O. 62, r.
9B)
(1)
A party shall comply with a direction or order under rule 9(4)(b)
or 9A(1)(a) or (b) for payment of a sum of money—
(a)
within 14 days of the date of the direction or order; or
(b)
by such date as the Court may specify.
(2)
Paragraph (1) does not apply if the party is an aided person.
9C.
When summary assessment not
allowed
(O. 62, r.
9C)
(1)
No direction or order may be made under rule 9(4)(b) or
9A(1)(a) or (b) for the payment of a sum of money if—
(a)
the paying party shows substantial grounds for disputing the sum
claimed for costs that cannot be dealt with summarily;
(b)
the receiving party is an aided person, and the legal representative
acting for the receiving party has not waived the right to any further sum
of money in respect of the costs of the interlocutory application;
or
(c)
the receiving party is a person under disability as defined in Order
80, rule 1, and the legal representative (or the next friend or
guardian ad litem) acting for the person under disability has not waived the
right to any further sum of money in respect of the costs of the
interlocutory application.
(2)
In this rule—
paying
party
(支付方
) means the party against whom a
direction or order under rule 9(4)(b) or 9A(1)(a) or (b)
is made;receiving
party
(收取方
) means the party in whose favour a
direction or order under rule 9(4)(b) or 9A(1)(a) or (b)
is made.9D.
When to tax
costs
(O. 62, r.
9D)
(1)
Subject to paragraphs (2) and (4), the costs of any proceedings shall not
be taxed until the conclusion of the action.
(2)
If it appears to the Court when making a costs order that all or any part
of the costs ought to be taxed at an earlier stage it may order
accordingly.
(3)
No order may be made under paragraph (2) in a case where the person against
whom the costs order is made is an aided person.
(4)
Where it appears to a taxing master that there is no likelihood of any
further order being made in a cause or matter, he may order the person entitled
to payment of the costs of any interlocutory proceedings which have taken place
to commence taxation proceedings in accordance with rule
21.
10.
When a party may sign judgment for
costs without an order (O. 62, r.
10)
(1)
Where a plaintiff by notice in writing and without leave either wholly
discontinues his action against any defendant or withdraws any particular claim
made or question raised by him therein as against any defendant, the defendant
may tax his costs of the action or his costs occasioned by the matter withdrawn,
as the case may be, and, if the taxed costs are not paid within 4 days after
taxation, may sign judgment for them. (See
App. A, Form 50)
(2)-(4)
(Repealed L.N. 152 of
2008)
(5)
In the circumstances mentioned in this rule, Order 22, rules 20
and 21 and Order 25, rule 1C(6) an order for costs shall
be deemed to have been made to the effect described and, for the purposes of
section 49 of the Ordinance, the order shall be deemed to have
been entered up on the date on which the event which gave rise to the
entitlement to costs occurred.
11.
When order for taxation of costs
not required (O. 62, r.
11)
(1)
Where an action, petition or summons is dismissed with costs, or a motion
is refused with costs, or an order of the Court directs the payment of any
costs, or any party is entitled under rule 10 to tax his costs, no
order directing the taxation of those costs need be made.
(2)
Where a summons is taken out to set aside with costs any proceeding on the
ground of irregularity and the summons is dismissed but no direction is given as
to costs, the summons is to be taken as having been dismissed with
costs.
11A.
Commencement of
costs-only
proceedings (O. 62, r.
11A)
(1)
Proceedings under section 52B(2) of the Ordinance may be
commenced by originating summons in Form No. 10 in Appendix A.
(2)
The originating summons must be accompanied by—
(a)
an affidavit exhibiting the agreement referred to in section
52B(1) of the Ordinance; and
(b)
the plaintiff ‘s bill of costs or statement of costs.
(3)
An acknowledgment of service of the originating summons must be in Form No.
15A in Appendix A.
(4)
A master may make a summary assessment of or an order for taxation of the
costs that are the subject matter of the proceedings commenced in accordance
with paragraph (1).
(5)
Powers of Taxing Officers
12.
Powers of taxing masters to tax costs (O. 62, r.
12)
(1)
A taxing master shall have power to tax—
(a)
the costs of or incidental to any proceedings in the High Court;
(aa)
the costs that are the subject matter of the proceedings commenced in
accordance with rule 11A(1);
(b)
the costs directed by an award made in an arbitration under any
enactment or pursuant to an arbitration agreement to be paid; and
(c)
any other costs the taxation of which is directed by an order of the
Court.
13.
Powers of certain judicial clerks
to tax costs (O. 62, r.
13)
(1)
A Chief Judicial Clerk shall have power to transact all such business and
exercise all such authority as under rule 21B of this Order may be
transacted and exercised by the taxing master and to issue a certificate for any
costs taxed by him.
(1A)
Paragraph (1) only applies if the amount of the bill of costs does not
exceed the sum of $200,000.
(2)
Paragraph (1) shall not be taken as empowering a Chief Judicial Clerk to
tax any costs the taxation of which is set down for hearing under rule
21B(4) or 21C(1).
(3)
In exercising the powers conferred on him by this Order, a Chief Judicial
Clerk shall comply with any directions given to him by a taxing
master.
13A.
Taxing master may give
directions
(O. 62, r.
13A)
(1)
A taxing master may give directions—
(a)
for the just and expeditious disposal of the taxation of a bill of
costs; and
(b)
for saving the costs of taxation.
(2)
Without limiting the generality of paragraph (1), a taxing master may give
directions as to—
(a)
the form and contents of a bill of costs;
(b)
the filing of papers and vouchers;
(c)
the manner in which—
(i)
any objections to a bill of costs may be raised; and
(ii)
any reply to those objections may be made; and
(d)
the steps to be taken or things to be done at any stage of the taxation
proceedings.
14.
Supplementary powers of taxing masters (O. 62, r.
14)
A taxing master may, in the discharge of his functions with respect to the
taxation of costs—
(a)
take an account of any dealing in money made in connection with the payment
of the costs being taxed, if the Court so directs;
(b)
require any party represented jointly with any other party in any
proceedings before him to be separately represented;
(c)
examine any witness in those proceedings;
(d)
direct the production of any document which may be relevant in connection
with those proceedings;
(e)
correct any clerical mistake in any certificate or order, or any error
arising therein from any accidental slip or
omission.
15.
Disposal of business by one taxing
master for another (O. 62, r.
15)
(1)
If, apart from this paragraph, a taxing master has power to tax any costs,
the taxation of which has been assigned to some other taxing master, he may tax
those costs and if, apart from this paragraph, he has power to issue a
certificate for the taxed costs he shall issue a certificate for them.
(2)
Any taxing master may assist any other taxing master in the taxation of any
costs the taxation of which has been assigned to that other officer.
(3)
On an application in that behalf made by a party to any cause or matter, a
taxing master may, and if the circumstances require it shall, hear and dispose
of any application in the cause or matter on behalf of the taxing master by whom
the application would otherwise be
heard.
16.
Extension etc., of time (O. 62, r.
16)
(1)
A taxing master may—
(a)
extend the period within which a party is required by or under this
Order to begin proceedings for taxation or to do anything in or in
connection with proceedings before that master;
(b)
extend the period provided by rule 33(2) beyond the signing
of the taxing officer’s certificate by setting the certificate
aside;
(c)
where no period is specified by or under this Order or by the Court for
the doing of anything in or in connection with such proceedings, specify the
period within which the thing is to be done.
(2)
Where an order of the Court specifies a period within which anything is to
be done by or before a taxing master, then unless the Court otherwise directs,
the taxing master may from time to time extend the period so specified on such
terms (if any) as he thinks just.
(3)
A taxing master may extend any such period as is referred to in the
foregoing provisions of this rule although the application for extension is not
made until after the expiration of that
period.
17.
Interim certificates (O. 62, r.
17)
(1)
A taxing master may from time to time in the course of the taxation of any
costs by him issue an interim certificate for any part of those costs which has
been taxed.
(2)
If, in the course of the taxation of a solicitor’s bill to his own client,
it appears to the taxing master that in any event the solicitor will be liable
in connection with that bill to pay money to the client, he may from time to
time issue an interim certificate specifying an amount which in his opinion is
payable by the solicitor to his client.
(3)
On the filing of a certificate issued under paragraph (2), the Court may
order the amount specified therein to be paid forthwith to the client or into
court.
17A.
Final certificate (O. 62, r.
17A)
(1)
A taxing master shall, after the conclusion of taxation proceedings before
him, issue a final certificate specifying the amount of taxed costs and the
amount of money payable under rule 32B.
(2)
A taxing master shall not issue a final certificate unless the period
within which an application for review of his decision may be made under
rule 33(2) has expired.
(3)
A taxing master may set aside a final certificate for good reasons and on
such terms as he thinks fit.
17B.
Taxing master may set aside
his
own decision (O. 62, r.
17B)
If a party entitled to be heard on taxation fails to raise any objection to a
bill of costs or to appear at a hearing set down under rule 21B(4) or
21C(1), a decision of a taxing master made against that party may be
set aside or varied by the taxing master for good reasons and on such terms as he
thinks fit.
18.
Power of taxing master where party liable
to be paid and to pay costs (O. 62, r.
18)
Where a party entitled to be paid costs is also liable to pay costs, the taxing
master may—
(a)
tax the costs which that party is liable to pay and set off the amount
allowed against the amount he is entitled to be paid and direct payment of any
balance, or
(b)
delay the issue of a certificate for the costs he is entitled to be paid
until he has paid or tendered the amount he is liable to
pay.
19.
Taxation of bill of costs comprised
in account (O. 62, r.
19)
(1)
Where the Court directs an account to be taken and the account consists in
part of a bill of costs, the Court may direct a taxing master to tax those costs
and the taxing master shall tax the costs in accordance with the direction and
shall return the bill of costs, after taxation thereof, together with his report
thereon to the Court.
(2)
A taxing master taxing a bill of costs in accordance with a direction under
this rule shall have the same powers, and the same fees shall be payable in
connection with the taxation, as if an order for taxation of the costs had been
made by the
Court.
Procedure on Taxation
21.
Mode of commencing proceedings
for taxation (O. 62, r.
21)
(1)
A party entitled to payment of the costs of any action to be taxed may
commence proceedings for the taxation of those costs by filing in the
Court—
(a)
a notice of commencement of taxation; and
(b)
his bill of costs.
(2)
The party shall serve a copy of the notice of commencement of taxation and
of the bill of costs on every other party entitled to be heard on taxation
within 7 days after the notice and the bill of costs were filed in the
Court.
(3)
The Court may give directions as to the service of a copy of the notice of
commencement of taxation and of the bill of costs on any other person who may
have a financial interest in the outcome of the taxation.
(4)
It is not necessary for a copy of the notice of commencement of taxation or
of the bill of costs to be served on any party who has not acknowledged service
in the proceedings which gave rise to the taxation, except where—
(a)
an order for the taxation of the bill of costs of a solicitor is made
under section 67 of the Legal Practitioners Ordinance (Cap. 159) at the instance of the solicitor;
or
(b)
the Court otherwise orders.
(5)
A party shall, when he files a notice of commencement of taxation, pay to
the Court a prescribed taxing fee.
(6)
A person who has been served with a copy of the notice of commencement of
taxation and of the bill of costs pursuant to paragraph (3) shall, within 7 days
of the service, give notice in writing to the taxing master and all other
parties entitled to be heard on taxation, stating—
(a)
his financial interest in the outcome of the taxation; and
(b)
whether he intends to take part in the taxation proceedings.
(7)
A person who fails to comply with paragraph (6) is not entitled to—
(a)
receive from the Registrar or from any other party entitled to be heard
on taxation any notice, application or other document relating to the
taxation; and
(b)
take part in the taxation proceedings.
21A.
Application for taxation to
be
set down (O. 62, r.
21A)
(1)
(2)
The party shall, within 7 days after making an application under paragraph
(1), serve a copy of the application on every other party entitled to be heard
on taxation.
(3)
A taxing master may refuse to proceed with taxation if he is of the opinion
that any direction referred to in paragraph (1) has not been complied
with.
21B.
Provisional taxation (O. 62, r.
21B)
(1)
Unless the taxation is set down for hearing under rule 21C(1),
the taxing master may—
(a)
tax the bill of costs without a hearing; and
(b)
make an order nisi as to—
(i)
the amount which he allows in respect of the whole or part of the
bill of costs; and
(ii)
the costs of the taxation.
(2)
Where the taxing master has taxed the bill of costs without a hearing and
made an order nisi under paragraph (1), the party who has applied for setting
down the taxation under rule 21A(1) shall serve a copy of the order
nisi on every other party entitled to be heard on taxation.
(3)
The order nisi becomes absolute 14 days after it is made unless a party
entitled to be heard on taxation applies to the taxing master within the 14-day
period for a hearing.
(4)
The taxing master shall set down the taxation for hearing upon application
made by a party under paragraph (3) and that party shall serve a notice of the
hearing on every other party entitled to be heard on taxation.
(5)
The taxing master may order that party to pay any costs of the hearing if
the taxed costs do not materially exceed the amount allowed under paragraph
(1)(b)(i).
(6)
In determining whether the taxed costs materially exceed the amount allowed
under paragraph (1)(b)(i), the taxing master shall, in addition to
any other matter that he may consider relevant, have regard to—
(a)
the amount by which the costs taxed at the hearing exceed the amount
allowed under paragraph (1)(b)(i); and
(b)
whether the exceeded amount is disproportionate to the costs of the
hearing.
21C.
Taxation with a
hearing
(O. 62, r.
21C)
(1)
Where the taxing master is satisfied that there is a good reason to do so,
he may, either of his own motion or on application by a party entitled to be
heard on taxation, set down for hearing the taxation of the whole or part of the
bill of costs.
(2)
Upon notification by the taxing master of the date of hearing, the party
who applied for setting down shall serve a notice of the hearing on every other
party entitled to be heard on taxation within 7 days after the
notification.
21D.
Withdrawal of bill of
costs
(O. 62, r.
21D)
(1)
A party who has filed a bill of costs shall pay the prescribed fee to the
Court if he withdraws the bill of costs within 7 days after his application to
the taxing master for setting down the taxation under rule 21A(1) is
made.
(2)
The Court shall deduct the fee payable under paragraph (1) from the amount
paid under rule 21(5) and refund the balance to the party.
(3)
The party is not entitled to any refund of the balance of the amount paid
under rule 21(5) except—
(a)
under paragraph (2); or
(b)
where the Court otherwise directs.
22.
Delay in service of notice of
commencement
of taxation
or
in proceeding with
taxation
(O. 62, r.
22)
(1)
If, within 3 months after the completion date, the person entitled to
payment of costs has neither—
(a)
agreed the amount of those costs with the person liable to pay them;
nor
(b)
served upon such person a copy of a notice of commencement of taxation
in accordance with rule 21(2),
the taxing master, on the application of the person liable to pay such
costs and on not less than 7 days’ notice to the person entitled to payment of
those costs, may make an order under paragraph (3).
(2)
If, after the proceedings for the taxation of a bill of costs have commenced
in accordance with rule 21(1), the person entitled to payment of
costs has neither—
(a)
agreed the amount of those costs with the person liable to pay them;
nor
(b)
proceeded with the taxation,
the taxing master, on the application of the person liable to pay such
costs and on not less than 7 days’ notice to the person entitled to payment of
those costs, may make an order under paragraph (3).
(3)
The taxing master—
(a)
may order that the person entitled to payment of the costs must
commence taxation proceedings in accordance with rule 21 or
proceed with the taxation, within such period as may be specified in the
order; and
(b)
may further order that that person shall not be entitled to commence
those taxation proceedings or proceed with the taxation unless the person
does commence those taxation proceedings or proceed with the taxation within
the specified period or such extended period as may be allowed by the taxing
master.
(4)
The taxing master may make an order under paragraph (3) subject to such
conditions as he thinks fit, including a condition that the person liable to pay
the costs to be taxed shall pay a sum of money into court.
(5)
On the taxation of a bill of costs, whether or not an order has been made
under paragraph (3), the taxing master, if he is satisfied that there has been
undue delay in commencing taxation proceedings or in proceeding with the
taxation—
(a)
may make such order as he thinks fit as to the costs of any application
or as to the costs of the taxation;
(b)
may disallow any part of the costs to be taxed pursuant to the costs
order; and
(c)
may, in relation to the taxed costs or any part of those costs,
disallow interest or reduce the period for which interest is payable or the
rate at which interest is payable.
(6)
Where a party entitled to payment of costs fails to proceed with taxation
after filing the notice of commencement of taxation under rule 21(1),
the taxing master in order to prevent any other parties being prejudiced by that
failure, may—
(a)
allow the party so entitled a nominal or other sum for costs;
or
(b)
certify the failure and the costs of the other parties.
(7)
A party is not entitled to commence taxation proceedings under rule
21—
(a)
after the expiry of 2 years from the completion date; or
(b)
where the Court has extended the period specified in sub-paragraph (a),
after the expiry of the period as extended,
whichever is the later.
(8)
(9)
In this rule,
completion
date
(完結日期
) means—(a)
in relation to a costs order made by the Court of First
Instance—
(i)
the date of the judgment or order of the Court of First
Instance which disposes of the action;
(ii)
the date on which the Court of First Instance makes the costs
order, or if the order is an order nisi, the date on which the order
is made absolute or varied (as the case may be);
(iii)
the date on which the taxing master orders under rule
9D(4) the person entitled to payment of the costs of any
interlocutory proceedings in the Court of First Instance to commence
taxation proceedings; or
(iv)
where the person entitled to payment of costs is entitled to
tax those costs without an order of the Court of First Instance
directing the taxation of them, the date on which he becomes
entitled to tax those costs,
whichever is the later; and
(b)
in relation to a costs order made by the Court of Appeal—
(i)
the date of the judgment or order of the Court of Appeal which
disposes of the appeal;
(ii)
the date on which the Court of Appeal makes the costs order, or
if the order is an order nisi, the date on which the order is made
absolute or varied (as the case may be);
(iii)
the date on which the taxing master orders under rule
9D(4) the person entitled to payment of the costs of any
interlocutory proceedings in the Court of Appeal to commence
taxation proceedings; or
(iv)
where the person entitled to payment of costs is entitled to
tax those costs without an order of the Court of Appeal directing
the taxation of them, the date on which he becomes entitled to tax
those costs,
whichever is the later.
Editorial Note:
*
Commencement date: 2 April 2009.
23.
(Repealed L.N. 152 of
2008)
24.
Taxation (O. 62, r.
24)
(1)
The taxing master may proceed to taxation of a bill of costs under
rule 21B(1) notwithstanding that a party entitled to be heard on
taxation has failed to comply with any direction given by him relating to the
steps to be taken or things to be done before the taxation proceeds under
rule 21B, if the taxing master is satisfied that a copy of the
notice of commencement of taxation and of the bill of costs were duly served in
accordance with rule 21(2) on the party.
(2)
If, at the date and time of a hearing under rule 21B(4) or
21C(2), a party entitled to be heard on taxation does not appear
before the taxing master in person or by his representative, the taxing master
may proceed to taxation of the bill of costs in the absence of the party or of
his representative, if the taxing master is satisfied that the party has been
served with a notice of the hearing in accordance with rule 21B(4) or
21C(2), or has been otherwise informed of the hearing.
(3)
If the taxing master is not so satisfied, he—
(a)
must adjourn the hearing for such period as he may consider necessary
to enable service of the notice of the adjourned hearing or of the bill of
costs or both to be effected on the party; and
(b)
may make such order as he may consider appropriate in relation to costs
thrown away by the adjournment.
25.
(Repealed L.N. 152 of
2008)
26.
Power to adjourn (O. 62, r.
26)
(1)
The taxing master by whom any taxation proceedings are being conducted may,
if he thinks it necessary to do so, adjourn those proceedings from time to time.
(2)
If the taxation proceedings are adjourned because a party has failed to
comply with any directions given under rule 13A, the taxing master
may make such order as he may consider appropriate in relation to costs thrown
away by the adjournment.
27.
Powers of taxing master taxing costs
payable out of fund (O. 62, r.
27)
(1)
Where any costs are to be paid out of a fund the taxing master may give
directions as to the parties who are entitled to attend on the taxation of those
costs and may disallow the costs of attendance of any party not entitled to
attend by virtue of the directions and whose attendance he considers
unnecessary.
(2)
Where the Court has directed that a bill of costs be taxed for the purpose
of being paid out of a fund the taxing master by whom the bill is being taxed
may, if he thinks fit, adjourn the taxation for a reasonable period and direct
the party whose bill it is to send to any person having an interest in the fund
a copy of the bill, or of any part thereof, free of charge together with a
letter containing the following information, that is to say—
(a)
that the bill of costs, a copy of which or of part of which is sent
with the letter, has been referred to a taxing master for
taxation;
(b)
the name of the taxing master and the address of the office at which
the taxation is proceeding;
(c)
the time appointed by the taxing master at which the taxation will be
continued; and
(d)
such other information, if any, as the taxing master may
direct.
Bases and Scales for Taxation and Assessment of Costs
28.
Costs payable to one party by another
or out of a fund (O. 62, r.
28)
(1)
This rule applies to costs which by or under these rules or any order or
direction of the Court are to be paid to a party to any proceedings either by
another party to those proceedings or out of any fund (other than a fund which
the party to whom the costs are to be paid holds as trustee or personal
representative).
(2)
Subject to the following provisions of this rule, costs to which this rule
applies shall be taxed on the party and party basis, and on a taxation on that
basis there shall be allowed all such costs as were necessary or proper for the
attainment of justice or for enforcing or defending the rights of the party
whose costs are being taxed.
(3)
The Court in awarding costs to which this rule applies may in any case in
which it thinks fit to do so order or direct that the costs shall be taxed on
the common fund basis or on the indemnity basis.
(4)
On a taxation on the common fund basis, being a more generous basis than
that provided for by paragraph (2), there shall be allowed a reasonable amount
in respect of all costs reasonably incurred, and paragraph (2) shall not apply;
and accordingly in all cases where costs are to be taxed on the common fund
basis the ordinary rules applicable on a taxation as between solicitor and
client where the costs are to be paid out of a common fund in which the client
and others are interested shall be applied, whether or not the costs are in fact
to be so paid.
(4A)
On a taxation on the indemnity basis all costs shall
be allowed except insofar as they are of an unreasonable amount or have been
unreasonably incurred and any doubts which the taxing master may have as to
whether the costs were reasonably incurred or were reasonable in amount shall be
resolved in favour of the receiving party; and in these rules the term
the
indemnity
basis
(彌償基準
) in relation to the taxation of
costs shall be construed accordingly.
(5)
The Court in awarding costs to which this rule applies to any person may if
it thinks fit and if—
(a)
the costs are to be paid out of a fund, or
(b)
the person to whom the costs are to be paid is or was a party to the
proceedings in the capacity of trustee or personal representative,
order or direct that the costs shall be taxed as if that person were a
trustee of the fund or as if the costs were to be paid out of a fund held by
that person, as the case may be, and where the Court so orders or directs
rule 31(2) shall have effect in relation to the taxation in
substitution for paragraph (2) of this rule.
(6)
The foregoing provisions of this rule shall be without prejudice to the
powers of the Court under section 44A of the District Court Ordinance
(Cap. 336).
28A.
Costs of a litigant in person (O. 62, r.
28A)
(1)
On a taxation of the costs of a litigant in person there may, subject to
the provisions of this rule, be allowed such costs as would have been allowed if
the work and disbursements to which the costs relate had been done or made by a
solicitor on the litigant’s behalf.
(2)
The amount allowed in respect of any item shall be such sum as the taxing
master thinks fit not exceeding, except in the case of a disbursement,
two-thirds of the sum which in the opinion of the taxing master would have been
allowed in respect of that item if the litigant had been represented by a
solicitor.
(3)
Where in the opinion of the taxing master the litigant has not suffered any
pecuniary loss in doing any work to which the costs relate, he shall not be
allowed in respect of the time reasonably spent by him on the work more than
$200 an hour.
(4)
A litigant who is allowed costs in respect of attending court to conduct
his own case shall not be entitled to a witness allowance in addition.
(5)
Nothing in Order 6, rule 2(1)(b), or rule 32(4) of
this Order or the Second Schedule to this Order shall, unless
otherwise specified therein, apply to the costs of a litigant in person.
(6)
For the purposes of this rule a litigant in person does not include a
litigant who is a practising solicitor but includes a company or other
corporation which is acting without a legal representative.
(7)
This rule applies, with the necessary modifications, to a summary
assessment under rules 9(4)(b), 9A(1)(a) and (b) and
11A(4), as it applies to the taxation of the costs of a litigant in person, if
the party entitled to the sum is a litigant in person.
29.
Costs payable to a solicitor by
his own client (O. 62, r.
29)
(1)
On the taxation of a solicitor’s bill to his own client (except a bill to
be paid out of funds provided by the Legislative Council pursuant to
section 27 of the Legal Aid Ordinance (Cap.
91), or a bill with respect to non-contentious business) all costs
shall be allowed except in so far as they are of an unreasonable amount or have
been unreasonably incurred.
(2)
For the purposes of paragraph (1), all costs incurred with the express or
implied approval of the client shall, subject to paragraph (3), be conclusively
presumed to have been reasonably incurred and, where the amount thereof has been
expressly or impliedly approved by the client, to have been reasonable in
amount.
(3)
For the purposes of paragraph (1), any costs which in the circumstances of
the case are of an unusual nature and such that they would not be allowed on a
taxation of costs in a case to which rule 28(2) applies, shall,
unless the solicitor expressly informed his client before they were incurred
that they might not be so allowed, be presumed, until the contrary is shown, to
have been unreasonably incurred.
(4)
In paragraphs (2) and (3), the references to the client shall be
construed—
(a)
if the client was at the material time a mentally disordered person
within the meaning of the Mental Health Ordinance (Cap. 136) and represented by a person acting as guardian ad litem
or next friend, as references to that person acting, where necessary, with
the authority of the Court;
(b)
if the client was at the material time a minor and represented by a
person acting as guardian ad litem or next friend, as references to that
person.
30.
Costs payable to solicitor where money recovered
by or on behalf of infant, etc. (O. 62, r.
30)
(1)
This rule applies to—
(a)
any proceedings in which money is claimed or recovered by or on behalf
of, or adjudged or ordered or agreed to be paid to, or for the benefit of, a
person who is a minor or a mentally disordered person within the meaning of
the Mental Health Ordinance (Cap. 136) or in
which money paid into court is accepted by or on behalf of such a person;
and
(b)
any proceedings under the Fatal Accidents Ordinance (Cap. 22), in which money is recovered by or on
behalf of, or adjudged or ordered or agreed to be paid to, or for the
benefit of, the widow of the person whose death gave rise to the proceedings
in satisfaction of a claim under the said Ordinance or in which money paid
into court is accepted by her or on her behalf in satisfaction of such a
claim, if the proceedings were for the benefit also of a person who, when
the money is recovered, or adjudged or ordered or agreed to be paid, or
accepted, is a minor; and
(c)
any proceedings in the Court of Appeal on an application or appeal made
in connection with any such proceedings to which this rule applies by virtue
of the foregoing provisions of this paragraph.
(2)
Unless the Court otherwise directs the costs payable to his solicitor by
any plaintiff in any proceedings to which this rule applies by virtue of
paragraph (1)(a) or (b), being the costs of those proceedings or
incident to the claim therein or consequent thereon, shall be taxed under
rule 29; and no costs shall be payable to the solicitor of any
plaintiff in respect of those proceedings, except such amount of costs as may be
certified in accordance with this rule on the taxation under rule 29
of the solicitor’s bill to that plaintiff.
(3)
On the taxation under rule 29 of a solicitor’s bill to any
plaintiff in any proceedings to which this rule applies by virtue of paragraph
(1)(a) or (b) who is his own client, the taxing master shall also
tax any costs payable to that plaintiff in those proceedings and shall
certify—
(a)
the amount allowed on the taxation under rule 29, the amount
allowed on that taxation of any costs payable to the plaintiff in those
proceedings and the amount (if any), by which the first-mentioned amount
exceeds the other, and
(b)
where necessary, the proportion of the amount of the excess payable
respectively by, or out of money belonging to, any party to the proceedings
who is a minor or a mentally disordered person within the meaning of the
Mental Health Ordinance (Cap. 136) or the widow
of the man whose death gave rise to the proceedings and any other
party.
(4)
Paragraphs (2) and (3) shall apply in relation to any proceedings to which
this rule applies by virtue of paragraph (1)(c) as if for references
to a plaintiff there were substituted references to the party, whether appellant
or respondent, who was the plaintiff in the proceedings which gave rise to the
first-mentioned proceedings.
(5)
Nothing in the foregoing provisions of this rule shall prejudice a
solicitor’s lien for costs.
(6)
Where in any proceedings to which this rule applies directions given by the
Court under Order 80, rule 12 provide for the transfer or payment of
money to or into a District Court and for the payment to the solicitor of any
plaintiff in the proceedings of an amount in respect of costs out of the money
so transferred or paid, the taxing master by whom those costs are taxed shall
send a copy of his certificate to the registrar of the District Court.
(7)
The foregoing provisions of this rule shall apply in relation to—
(a)
a counterclaim by or on behalf of a person who is a minor or a mentally
disordered person within the meaning of the Mental Health Ordinance (Cap. 136) and a counterclaim consisting of or
including a claim under the Fatal Accidents Ordinance (Cap. 22) by or on behalf of the widow of the man whose death gave
rise to the claim; and
(b)
a claim made by or on behalf of a person who is a minor or a mentally
disordered person as aforesaid in an action by any other person for relief
under section 504 of the Merchant Shipping Act, 1894 (1894 c. 60
U.K.)*,
and a claim consisting of or including a claim under the Fatal Accidents
Ordinance (Cap. 22) made by or on behalf of that
widow in such an action,
as if for references to a plaintiff there were substituted references to
a defendant.
Editorial Note:
| * | Please also see following— | |
| (a) | in relation to the Merchant Shipping Act 1894, Part 3 of Schedule 5 to Cap. 415 and s. 1 of Schedule 2 to Cap. 508; | |
| (b) | in relation to the Merchant Shipping Acts 1894 to 1979, s. 117 of Cap. 281, s. 103 of Cap. 415 and s. 142 of Cap. 478. | |
31.
Costs payable to a trustee out of the
trust funds, etc. (O. 62, r.
31)
(1)
This rule applies to every taxation of the costs which a person who is or
has been a party to any proceedings in the capacity of trustee or personal
representative is entitled to be paid out of any fund which he holds in that
capacity.
(2)
On any taxation to which this rule applies, no costs shall be disallowed
except in so far as those costs or any part of their amount should not, in
accordance with the duty of the trustee or personal representative as such, have
been incurred or paid, and should for that reason be borne by him
personally.
32.
Scales of costs (O. 62, r.
32)
(1)
Subject to the foregoing rules and the following provisions of this rule,
the scale of costs contained in the First Schedule of this Order,
together with the notes and general provisions contained in that
Schedule, shall apply to the taxation of all costs incurred in
relation to contentious business done after the commencement of these
rules.
(2)
On a taxation in relation to which rule 29 or rule
31(2) has effect and in other special cases costs may at the
discretion of the taxing master be allowed—
(a)
in relation to items not mentioned in the said scale; or
(b)
of an amount higher than that prescribed by the said scale.
(3)
Where the amount of a solicitor’s remuneration in respect of
non-contentious business connected with sales, purchases, leases, mortgages and
other matters of conveyancing or in respect of any other non-contentious
business is regulated (in the absence of agreement to the contrary) by any rules
for the time being in force under the Legal Practitioners Ordinance (Cap. 159), the amount of the costs to be allowed on
taxation in respect of the like contentious business shall be the same,
notwithstanding anything in the scale contained in the First Schedule.
(4)
Notwithstanding paragraph (1), costs shall, unless the Court otherwise
orders, be allowed in the cases to which the Second Schedule to this
Order applies in accordance with the provisions of that
Schedule.
32A.
Liability for costs of
taxation
(O. 62, r.
32A)
(1)
A party entitled to payment of any costs to be taxed is also entitled to his
costs of the taxation except where—
(a)
any Ordinance, any of these rules or any relevant practice direction
provides otherwise; or
(b)
the Court makes some other order in relation to all or part of the
costs of the taxation.
(2)
In deciding whether to make some other order, the Court shall have regard to
the underlying objectives set out in Order 1A, rule 1 and all the
circumstances, including—
(a)
the conduct of all the parties in relation to the taxation;
(b)
the amount, if any, by which the bill of costs has been reduced;
and
(c)
whether it was reasonable for a party to claim the costs of a
particular item or to dispute that item.
32B.
Reimbursement for taxing
fees
(O. 62, r.
32B)
Upon the issue of a final certificate under rule 17A, the party
liable to pay costs shall pay to the party entitled to payment of the costs an
amount of money equivalent to the prescribed taxing fee calculated on the basis of
the amount of costs allowed.
32C.
Court’s powers in relation
to
misconduct (O. 62, r.
32C)
(1)
The Court may make an order under this rule where—
(a)
a party or his legal representative, in connection with a summary
assessment or taxation of costs, fails to comply with a rule, practice
direction or an order of the Court; or
(b)
it appears to the Court that the conduct of a party or his legal
representative, before or during the proceedings which gave rise to the
summary assessment or taxation, was unreasonable or improper.
(2)
For the purpose of paragraph (1), the conduct of a party or his legal
representative does not include any conduct before the commencement of the
action.
(3)
Where paragraph (1) applies, the Court may—
(a)
by order disallow all or part of the costs being summarily assessed or
taxed; or
(b)
order the party at fault or his legal representative, to pay costs that
he has caused any other party to incur.
(4)
Where—
(a)
the Court makes an order under paragraph (3) against a legally
represented party; and
(b)
the party is not present when the order is made,
the party’s solicitor shall notify his client in writing of the order not
later than 7 days after the solicitor receives notice of the order and shall
inform the Court in writing that he has done so.
(5)
In this rule,
client
(當事人
) includes a person on whose behalf
the solicitor acts and any other person who has instructed the solicitor to act
or who is liable to pay the solicitor’s costs.Review
33.
Application to taxing master for review (O. 62, r.
33)
(1)
Any party to any taxation proceedings who is dissatisfied with the allowance
or disallowance in whole or in part of any item by a taxing master, or with the
amount allowed by a taxing master in respect of any item—
(a)
may apply to the taxing master to review his decision in respect of
that item; and
(b)
may not apply to a judge for an order to review the decision until
after its review by the taxing master.
(2)
An application under this rule for review of a taxing master’s decision
may be made at any time within 14 days after the conclusion of the taxation
in which that decision was made or such shorter period as may be fixed by
the taxing master:
Provided that no
application under this rule for review of a decision in respect of any item
may be made after the signing of the taxing master’s final certificate
dealing with that item.
(3)
Every applicant for review under this rule must at the time of making his
application deliver to the taxing master objections in writing specifying by a
list the items or parts of items the allowance or disallowance of which or the
amount allowed in respect of which, is objected to and stating concisely the
nature and grounds of the objection in each case, and must deliver a copy of the
objections to each other party (if any) who attended on the taxation of those
items or to whom the taxing master directs that a copy of the objections shall
be delivered.
(3A)
If an applicant fails to comply with paragraph (3), the taxing master may
dismiss the application.
(4)
Any party to whom a copy of the objections is delivered under this rule
may, within 14 days after delivery of the copy to him or such shorter period as
may be fixed by the taxing master, deliver to the taxing master answers in
writing to the objections stating concisely the grounds on which he will oppose
the objections, and shall at the same time deliver a copy of the answers to the
party applying for review and to each other party (if any) to whom a copy of the
objections has been delivered or to whom the taxing master directs that a copy
of the answers shall be delivered.
(5)
An application under this rule for review of the taxing master’s decision
in respect of any item shall not prejudice the power of the taxing master under
rule 17 to issue an interim certificate in respect of items his
decision as to which is not objected
to.
34.
Review by taxing master (O. 62, r.
34)
(1)
A review under rule 33 shall be carried out by the taxing master
to whom the taxation was originally assigned.
(2)
On reviewing any decision in respect of any item, a taxing master may
receive further evidence and may exercise all the powers which he might exercise
on an original taxation in respect of that item, including the power to award
costs of and incidental to the proceedings before him; and any costs awarded by
him to any party may be taxed by him and may be added to or deducted from any
other sum payable to or by that party in respect of costs.
(3)
On a hearing of a review under rule 33 a party to whom a copy of
objections was delivered under paragraph (4) of that rule shall be entitled to
be heard in respect of any item to which the objections relate notwithstanding
that he did not deliver written answers to the objections under that
paragraph.
(4)
A taxing master who has reviewed a decision in respect of any item shall
issue his certificate accordingly and, if requested to do so by any party to the
proceedings before him, shall state in his certificate or otherwise in writing
by reference to the objections to that decision the reasons for his decision on
the review, and any special facts or circumstances relevant to it. A request
under this paragraph must be made within 14 days after the review or such
shorter period as may be fixed by the taxing
master.
35.
Review of taxing master’s certificate
by a judge (O. 62, r.
35)
(1)
Any party who is dissatisfied with the decision of a taxing master to allow
or to disallow any item in whole or in part on review under rule 34,
or with the amount allowed in respect of any item by a taxing master on any such
review, may apply to a judge for an order to review the taxation as to that item
or part of an item if, but only if, one of the parties to the proceedings before
the taxing master requested that officer in accordance with rule
34(4) to state the reasons for his decision in respect of that item or
part on the review.
(2)
An application under this rule for review of a taxing master’s decision in
respect of any item may be made at any time within 14 days after the taxing
master’s certificate in respect of that item is signed, or such longer time as
the taxing master at the time when he signs the certificate, or the Court at any
time, may allow.
(3)
An application under this rule shall be made by summons and shall, except
where the judge thinks fit to adjourn into court, be heard in
chambers.
(4)
Unless the judge otherwise directs, no further evidence shall be received
on the hearing of an application under this rule, and no ground of objection
shall be raised which was not raised on the review by the taxing master but,
save as aforesaid, on the hearing of any such application the judge may exercise
all such powers and discretion as are vested in the taxing master in relation to
the subject-matter of the application.
(5)
If the judge thinks fit to exercise in relation to an application under
this rule the power of the Court to appoint assessors under section
53 of the Ordinance, the judge shall appoint not less than 2
assessors, of whom one shall be a taxing master.
(6)
On an application under this rule the judge may make such order as the
circumstances require, and in particular may order the taxing master’s
certificate to be amended or, except where the dispute as to the item under
review is as to amount only, order the item to be remitted to the same or
another taxing master for taxation.
(7)
In this rule
Judge
(法官
) means a judge in
person.Transitional
36.
Transitional provision
relating
to Part 16 of Amendment
Rules 2008 (O. 62, r.
36)
Editorial Note:
* Commencement date: 2
April 2009.
37.
Transitional provisions relating to
Part 23 of Amendment
Rules
2008 (O. 62, r.
37)
(1)
Where a party entitled to require any costs to be taxed has filed his bill
of costs before the
commencement*
of the Amendment Rules 2008, nothing in Part 23 of the
Amendment Rules 2008 applies in relation to the taxation, and Order
62 as in force immediately before the commencement applies in relation to the
taxation as if it had not been amended by that Part.
(2)
Where—
(a)
a party entitled to require any costs to be taxed files his bill of
costs after the commencement of the Amendment Rules 2008;
but
(b)
any item of work to which the costs or charges specified in the
First Schedule or Part III of the Second Schedule
of this Order relate was undertaken before the commencement,
then the First Schedule or Part III of the Second
Schedule of this Order as in force immediately before the commencement
applies in relation to that item of work as if it had not been amended by
Part 23 of the Amendment Rules 2008.
(3)
Where—
(a)
a party entitled to require any costs to be taxed files his bill of
costs after the commencement of the Amendment Rules 2008;
but
(b)
the writ of summons was issued before the commencement,
then Part I and Part II of the Second Schedule of this Order
as in force immediately before the commencement applies in relation to the writ
of summons issued before the commencement as if they had not been amended by
Part 23 of the Amendment Rules 2008.
(4)
No costs for work undertaken before the commencement of the Amendment
Rules 2008 are to be disallowed if those costs would have been
allowed under this Order as in force immediately before the
commencement.
Editorial Note:
* Commencement date: 2
April
2009.
First Schedule
[rule 32]
Part I
Scale of Costs
| Item | Particulars | Charges | |
|---|---|---|---|
|
1.
|
Preparation of a bundle of copies of documents, including the costs of copying and collating the documents and compiling (including indexing and pagination) the bundle, per page of whatever size | $4 per page in respect of the first bundle, and $1 per page in respect of each subsequent bundle | |
|
1A.
|
Copying of documents, per page of whatever size | $1 | |
|
2.
|
Attendance suitable for unqualified staff, such as for filing of documents, delivery or collection of pages and to make appointments, whether such attendance are made by qualified or unqualified persons, for each attendance | $110 | |
|
3.
|
Attendance for necessary search and
inquires—such
fee as the Registrar thinks proper but not less than $50 for
each attendance.
|
||
|
4.
|
Service of any
documents—such
fee as the Registrar thinks proper but not less than $50 in each
case.
|
||
|
5.
|
The Registrar may allow such fee as he thinks proper in respect
of every other matter or thing not hereinbefore specially
mentioned.
|
||
|
Note to item 5: This item is intended to cover—
|
|||
|
(a) the doing of any work not otherwise provided for and
which was properly done in preparing for a trial, hearing or
appeal, or before a settlement of the matters in dispute,
including— |
|||
| (i) |
The client: taking instructions to sue, defend, counter-claim,
appeal or oppose etc.; attending upon and corresponding with
client;
|
||
| (ii) |
Witnesses: interviewing and corresponding with witnesses and
potential witnesses, taking and preparing proofs of evidence
and, where appropriate, arranging attendance at Court, including
issue of subpoena;
|
||
| (iii) |
Expert evidence: obtaining and considering reports or advice from
experts and plans, photographs and models; where appropriate
arranging their attendance at Court, including issue of
subpoena;
|
||
| (iv) |
Inspections: inspecting any property or place material to the
proceedings;
|
||
| (v) |
Searches and Inquiries: making searches in Government Registries
and elsewhere for relevant documents;
|
||
| (vi) |
Special damages: obtaining details of special damages and making
or obtaining any relevant calculations;
|
||
| (vii) |
Other parties: attending upon and corresponding with other
parties or their solicitors;
|
||
| (viii) |
Discovery: perusing, considering or collating documents for
affidavit or list of documents; attending to inspect or produce
for inspection any documents required to be produced or
inspected by order of the Court or by virtue of Order 24;
|
||
| (ix) |
Documents: drafting, perusing, considering and collating any
relevant documents (including pleadings, affidavits, cases and
instructions to and advice from counsel, orders and judgments)
and any law involved;
|
||
| (x) |
Negotiations: work done in connection with negotiations with a
view to settlement;
|
||
| (xi) |
Attendances: attendances at Court (whether in Court or chambers)
for the hearing of any summons or other application, on
examination of any witness, on the trial or hearing of a cause
or matter, on any appeal and on delivery of any judgment;
attendances on counsel in conference, and any other necessary
attendances;
|
||
| (xii) |
Interest: where relevant the calculation of interest on damages;
and
|
||
| (xiii) |
Notices: preparation and service of miscellaneous notices,
including notices to witnesses to attend court; and
|
||
|
(b) the general care and conduct of the
proceedings. |
|||
Part II
General
Discretionary costs
1.
(1)
(Repealed L.N. 152 of
2008)
(2)
In exercising his discretion under this paragraph or under rule
32(2) in relation to any item, the taxing master shall have regard
to all relevant circumstances, and in particular to—
(a)
the complexity of the item or of the cause or matter in which it
arises and the difficulty or novelty of the questions
involved;
(b)
the skill, specialized knowledge and responsibility required of,
and the time and labour expended by, the solicitor or counsel;
(c)
the number and importance of the documents (however brief) prepared
or perused;
(d)
the place and circumstances in which the business involved is
transacted;
(e)
the importance of the cause or matter to the client;
(f)
where money or property is involved, its amount or value;
(g)
any other fees and allowances payable to the solicitor or counsel
in respect of other items in the same cause or matter, but only where
work done in relation to those items has reduced the work which would
otherwise have been necessary in relation to the item in
question.
Fees to counsel
2.
(1)
Except in the case of taxation under the Legal Aid Ordinance (Cap. 91) and taxations of fees payable by the
Crown, no fee to counsel shall be allowed unless—
(a)
before taxation its amount has been agreed by the solicitor
instructing counsel; and
(b)
before the taxing master issues his certificate a receipt for the
fees signed by counsel is produced to him.
(2)
No retaining fee to counsel shall be allowed on any taxation of costs
in relation to which rule 28(2) has effect.
(3)
No costs shall be allowed in respect of counsel appearing before a
master in chambers, or of more counsel than one appearing before a master in
open court or a judge or the Court of Appeal, unless the master or judge or
the Court of Appeal, as the case may be, has certified the attendance as
being proper in the circumstances of the case.
(4)
A refresher fee, the amount of which shall be in the discretion of the
taxing master, shall be allowed to counsel, either for each period of five
hours (or part thereof), after the first, during which a trial or hearing is
proceeding or, at the discretion of the taxing master, in respect of any
day, after the first day, on which the attendance of counsel at the place of
trial is necessary.
(5)
The amount of fees to be allowed to counsel is in the discretion of the
taxing master who shall, in exercising his discretion, have regard to all
relevant circumstances and in particular to the matters set out in
paragraph 1(2).
Items to be authorized, certified etc.
4.
(1)
In an action arising out of an accident on land due to a collision or
apprehended collision, the costs of preparing a plan (other than a sketch
plan) of the place where the accident happened shall not be allowed
unless—
(a)
before the trial the Court authorized the preparation of the plan,
or
(b)
notwithstanding the absence of an authorization under sub-paragraph
(a) the taxing officer is satisfied that it was reasonable to prepare
the plan for use at the trial.
(2)
The costs of calling an expert witness with regard to any question as
to which a court expert is appointed under Order 40 (or a scientific adviser
is appointed under Order
103,
rule
26
or Order 122, rule 13) must
not
be allowed on a taxation of costs in relation to which rule 28(2)
or (3) has effect unless the Court at the trial has certified that the
calling of the witness was reasonable.
(3)
(Repealed L.N. 89 of
2025)
Attendances in
Chambers—equity
jurisdiction
5.
(1)
The following provisions of this paragraph apply in relation to every
hearing in chambers in the equity jurisdiction of the Court.
(3)
Where on any such hearing as aforesaid the Court certifies that the
speedy and satisfactory disposal of the proceedings required and received
from the solicitor engaged in them exceptional skill and labour in the
preparation for the hearing, the taxing master in taxing the costs to be
allowed for instructions in relation to the summons or application shall
take the certificate into account.
Copies of documents
7.
(1)
There shall be allowed for printing copies of any document the amount
properly paid to the printer; and where any part of a document is properly
printed in a foreign language or as a facsimile or in any unusual or special
manner, or where any alteration becomes necessary after the first proof of
the document, there shall be allowed such an amount as the taxing master
thinks reasonable, such amount to include any attendances on the
printer.
(2)
The solicitor for a party entitled to take printed copies of any
documents shall be allowed the amount he pays for such number of copies as
he necessarily or properly takes.
(3)
The allowance for printed copies of documents under item 1 of Part I of
this Schedule shall be made in addition to the allowances under
the foregoing provisions of this paragraph and shall, subject to
sub-paragraph (4), be made for such printed copies as may be necessary or
proper—
(a)
of any pleading, for service on the opposite party;
(b)
of any special case, for filing;
(c)
of any pleading or special case, for the use of the
Court;
(d)
of any affidavit, for attestation in print;
(e)
of any pleading, special case or evidence for the use of counsel in
court; or
(f)
of any other document necessarily and properly copied and not
otherwise provided for.
(4)
The allowance under item 1 of Part I shall not be made in relation to
printed copies of documents for the use of the Court or of counsel where
written copies have been made before printing, and shall not be made more
than once in the same cause or matter.
Second Schedule
[rule 32]
Part I
Costs on Judgment without Trial
for
a
Liquidated Sum or
under
Order 13A
1.
The scale of costs set out in Part II of this Schedule (which
includes the scale prescribed pursuant to section 72 of the District
Court Ordinance (Cap. 336) shall apply in relation
to the following cases if the writ of summons therein was issued after the
commencement*
of the Amendment Rules 2008, and was indorsed with a claim for a debt
or liquidated demand only, that is to say—
(a)
cases in which the defendant pays the amount claimed within the time
and in the manner required by the indorsement of the writ;
(b)
(c)
(Repealed L.N. 152 of
2008)
1A.
The scale of costs set out in Part II of this Schedule applies
in relation to cases in which the plaintiff obtains judgment under Order 13A
without a hearing.
2.
Notwithstanding anything in paragraph 1 or 1A of this
Schedule or in the said scale, no costs shall be allowed in any
case to which the said paragraph 1 or 1A applies
unless—
(a)
the Court orders costs to be allowed; or
(b)
in a case to which sub-paragraph (b) of paragraph 1 applies,
judgment or an order for judgment, as the case may be, is obtained within 28
days after the service of the writ or within such further time as the Court
may allow.
3.
In every case to which the said scale applies there shall be added to the
basic costs set out in the said scale the fee which would have been payable on
the issue of a writ for the amount recovered.
Editorial Note:
*
Commencement date: 2 April 2009.
Part II
Scale of Costs
| Item | Scale |
|---|---|
| $ | |
|
Basic Costs
|
|
|
To be allowed in cases under—
|
|
|
sub-paragraph (a) of paragraph
1
|
9,000 if the plaintiff is legally represented and 500 if the
plaintiff is not legally represented
|
|
sub-paragraph (b) of paragraph
1
|
10,000 if the plaintiff is legally represented and 600 if the
plaintiff is not legally represented
|
|
10,000 if the plaintiff is legally represented and 600 if the
plaintiff is not legally represented
|
|
|
Additional Costs
|
|
|
1. For each additional defendant after the first |
500
|
|
2. Where substituted service is ordered
and effected, for each defendant served |
1,000
|
|
3-7. (Repealed L.N. 152 of
2008) |
Part III
Miscellaneous
| Item | Scale |
|---|---|
| $ | |
|
1. Where a plaintiff or defendant signs judgment for costs
under rule 10, there shall be
allowed— cost of the judgment |
1,000
|
|
2. Where upon the application of any person who has
obtained a judgment or order against a debtor for the
recovery or payment of money a garnishee order is made under
Order 49 against a garnishee attaching debts owing or
accruing from him to the debtor, the following costs shall
be allowed— |
|
|
(a) to the garnishee, to be deducted by him from any debt
owing by him as aforesaid before payments to the
applicant— |
|
|
(i) if no affidavit used |
100
|
|
(ii) if affidavit used |
300
|
|
(b) (Repealed L.N. 152 of
2008) |
|
|
3. (Repealed L.N. 152 of
2008) |
|
|
4. Where a writ of execution within the meaning of Order
46, rule 1 is issued against any party, there
shall be allowed— cost of issuing execution |
600
|
Order
62A
Costs
Offer and Payments into Court
I. Preliminary
1.
Interpretation and
application
(O. 62A, r.
1)
(1)
In this Order—
costs
offer
(訟費提議
) means an offer to
settle—(a)
a party’s entitlement to costs that are the subject of a taxation;
and
(b)
the costs of the taxation;
offeree
(受提議者
) means the party to whom a costs
offer is made;offeror
(提議者
) means the party who makes a costs
offer;paying
party
(支付方
) means the party liable to pay costs;receiving
party
(收取方
), in relation to a paying party,
means the party who is entitled to payment of costs from that paying
party;relevant
date
(有關日期
), in relation to a taxation,
means—(a)
the date on which the bill of costs is taxed under Order 62,
rule 21B(1); or
(b)
the date set down under Order 62, rule 21C(1) for
hearing the taxation;
sanctioned
offer
(附帶條款和解提議
) means a costs offer made
(otherwise than by way of a payment into court) in accordance with this
Order;sanctioned
payment
(附帶條款付款
) means a costs offer made by way
of a payment into court in accordance with this Order;sanctioned
payment
notice
(附帶條款付款通知書
) means the notice relating to
a sanctioned payment required to be filed under rule 8(2).(2)
This Order does not apply to or in relation to a party who is or has been
an aided person in the relevant
proceedings.
2.
Offer to settle with
specified
consequences (O. 62A, r.
2)
(1)
Any party to a taxation may make a costs offer in accordance with this
Order.
(2)
(3)
Nothing in this Order prevents a party from making a costs offer in
whatever way he chooses, but if that costs offer is not made in accordance with
this Order, it does not have the consequences specified in this Order, unless
the Court so orders.
II. Manner
of Making Sanctioned Offer or Sanctioned
Payment
3.
Paying party’s costs
offer
requires sanctioned
payment
(O. 62A, r.
3)
(1)
A costs offer by a paying party does not have the consequences specified in
this Order unless it is made by way of a sanctioned payment.
(2)
A sanctioned payment may be made at any time before the relevant
date.
4.
Receiving party’s costs
offer
requires sanctioned
offer
(O. 62A, r.
4)
A costs offer by a receiving party does not have the consequences specified in
this Order unless it is made by way of a sanctioned
offer.
5.
Form and content of sanctioned
offer
(O. 62A, r.
5)
(1)
A sanctioned offer must be in writing.
(2)
A sanctioned offer may relate to the whole or part of the costs.
(3)
A sanctioned offer must state whether it relates to the whole or part of
the costs, and if it relates to part of the costs, to which part does it
relate.
(4)
A sanctioned offer may be made at any time before the relevant
date.
(5)
A sanctioned offer must provide that after the expiry of 14 days from the
date the sanctioned offer is made, the offeree may only accept it if—
(a)
the parties agree on the liability for and quantum of costs of taxation
incurred after the period; or
(b)
the Court grants leave to accept
it.
6.
Service of sanctioned
offer
(O. 62A, r.
6)
A receiving party who makes a sanctioned offer shall serve the sanctioned offer
on the paying
party.
7.
Withdrawal or diminution
of
sanctioned offer (O. 62A, r.
7)
(1)
A sanctioned offer may not be withdrawn or diminished before the expiry of
14 days from the date the sanctioned offer is made unless the Court grants leave
to withdraw or diminish it.
(2)
If there is subsisting an application to withdraw or diminish a sanctioned
offer, the sanctioned offer may not be accepted unless the Court grants leave to
accept it.
(3)
If the Court dismisses an application to withdraw or diminish a sanctioned
offer or grants leave to diminish the sanctioned offer, it may by order specify
the period within which the sanctioned offer or diminished sanctioned offer may
be accepted.
(4)
If a sanctioned offer is withdrawn, it does not have the consequences
specified in this
Order.
8.
Notice of sanctioned
payment
(O. 62A, r.
8)
(1)
A sanctioned payment may relate to the whole or part of the
costs.
(2)
A paying party who makes a sanctioned payment shall file with the Court a
notice in Form No. 93 in Appendix A, that—
(a)
states the amount of the payment;
(b)
states whether the payment relates to the whole or part of the costs,
and if it relates to part of the costs, to which part it relates;
(c)
if an interim payment of costs has been made, states that the paying
party has taken into account the interim payment;
(d)
if it is expressed not to be inclusive of interest, states—
(i)
whether interest is offered; and
(ii)
if so, the amount offered, the rate or rates offered and the period
or periods for which it is offered; and
(e)
if a sum of money has been paid into court as security for the costs of
the action, cause or matter, states whether the sanctioned payment has taken
into account that sum of
money.
9.
Service of sanctioned
payment
(O. 62A, r.
9)
A paying party who makes a sanctioned payment shall—
(a)
serve the sanctioned payment notice on the receiving party; and
(b)
file with the Court a certificate of service of the
notice.
10.
Withdrawal or diminution
of
sanctioned
payment
(O. 62A, r.
10)
(1)
A sanctioned payment may not be withdrawn or diminished before the expiry
of 14 days from the date the sanctioned payment is made unless the Court grants
leave to withdraw or diminish it.
(2)
If there is subsisting an application to withdraw or diminish a sanctioned
payment, the sanctioned payment may not be accepted unless the Court grants
leave to accept it.
(3)
If the Court dismisses an application to withdraw or diminish a sanctioned
payment or grants leave to diminish the sanctioned payment, it may by order
specify the period within which the sanctioned payment or diminished sanctioned
payment may be accepted.
(4)
If a sanctioned payment is withdrawn, it does not have the consequences
specified in this
Order.
11.
Time when sanctioned offer
or
sanctioned payment is made
and
accepted (O. 62A, r.
11)
(1)
A sanctioned offer is made when it is served on the offeree.
(2)
A sanctioned payment is made when a sanctioned payment notice is served on
the offeree.
(3)
An amendment to a sanctioned offer is effective when its details are served
on the offeree.
(4)
An amendment to a sanctioned payment is effective when notice of the
amendment is served on the offeree.
(5)
A sanctioned offer or a sanctioned payment is accepted when notice of its
acceptance is served on the
offeror.
12.
Clarification of sanctioned
offer
or sanctioned payment
notice
(O. 62A, r.
12)
(1)
The offeree may, within 7 days of a sanctioned offer or sanctioned payment
being made, request the offeror to clarify the offer or payment
notice.
(2)
If the offeror does not give the clarification requested under paragraph
(1) within 7 days of service of the request, the offeree may, before the
relevant date, apply for an order that he does so.
(3)
If the Court makes an order pursuant to an application made under paragraph
(2), it shall specify the date when the sanctioned offer or sanctioned payment
is to be treated as having been made.
III. Acceptance of Sanctioned Offer or Sanctioned
Payment
13.
Time for acceptance of
paying
party’s sanctioned
payment
(O. 62A, r.
13)
(1)
Subject to rule 10(2) and paragraph (2), a receiving party may
accept a sanctioned payment at any time before the relevant date without
requiring the leave of the Court if he files with the Court and serves on the
paying party a written notice of acceptance not later than 14 days after the
payment was made.
(2)
If the receiving party does not accept a paying party’s sanctioned payment
within the 14-day period specified in paragraph (1), then the receiving party
may—
(a)
if the parties agree on the liability for and quantum of costs of
taxation incurred after the expiry of the period, accept the payment without
the leave of the Court; and
(b)
if the parties do not agree on the liability for and quantum of costs
of taxation incurred after the expiry of the period, only accept the payment
with the leave of the Court.
(3)
Where the leave of the Court is required under paragraph (2), the Court
shall, if it grants leave, make an order as to costs.
(4)
A notice of acceptance of a sanctioned payment must be in Form No. 93A in
Appendix
A.
14.
Time for acceptance of
receiving
party’s sanctioned
offer
(O. 62A, r.
14)
(1)
Subject to rule 7(2) and paragraph (2), a paying party may
accept a sanctioned offer at any time before the relevant date without requiring
the leave of the Court if he files with the Court and serves on the receiving
party a written notice of acceptance not later than 14 days after the offer was
made.
(2)
If the paying party does not accept a receiving party’s sanctioned offer
within the 14-day period specified in paragraph (1), then the paying party
may—
(a)
if the parties agree on the liability for and quantum of costs of
taxation incurred after the expiry of the period, accept the offer without
the leave of the Court; and
(b)
if the parties do not agree on the liability for and quantum of costs
of taxation incurred after the expiry of the period, only accept the offer
with the leave of the Court.
(3)
Where the leave of the Court is required under paragraph (2), the Court
shall, if it grants leave, make an order as to
costs.
15.
Payment out of a sum in court
on
acceptance of sanctioned
payment
(O. 62A, r.
15)
Subject to rule 16(4), where a sanctioned payment is accepted, the
receiving party may obtain payment out of the sum in court by making a request for
payment in Form No. 93B in Appendix
A.
16.
Acceptance of sanctioned
payment
made by one or more, but not
all,
paying parties (O. 62A, r.
16)
(1)
This rule applies where the receiving party wishes to accept a sanctioned
payment made by one or more, but not all, of a number of paying
parties.
(2)
If the paying parties are jointly and severally liable to pay costs, the
receiving party may accept the payment in accordance with rule 13
if—
(a)
he discontinues the proceedings for taxation against those paying
parties who have not made the payment; and
(b)
those paying parties give written consent to the acceptance of the
payment.
(3)
If the paying parties are not jointly, but severally liable to pay costs,
the receiving party may—
(a)
accept the payment in accordance with rule 13; and
(b)
continue with his proceedings for taxation against the other paying
parties.
(4)
In all other cases the receiving party shall apply to the Court
for—
(a)
an order permitting a payment out to him of any sum in court;
and
(b)
such order as to costs relating to the taxation as the Court considers
appropriate.
17.
Cases where court order is
required
to enable acceptance of
sanctioned
offer or sanctioned
payment
(O. 62A, r.
17)
Where a sanctioned offer or a sanctioned payment is made in proceedings to which
Order 80, rule 10 (Compromise, etc., by person under disability)
applies—
(a)
the offer or payment may be accepted only with the leave of the Court;
and
(b)
no payment out of any sum in court may be made without a court
order.
IV. Consequences
of Sanctioned Offer or Sanctioned
Payment
18.
Consequences of acceptance
of
sanctioned offer or
sanctioned
payment (O. 62A, r.
18)
(1)
If a sanctioned offer or a sanctioned payment relates to the whole costs
and is accepted, the taxation is stayed.
(2)
In the case of acceptance of a sanctioned offer which relates to the whole
costs—
(a)
the stay is upon the terms of the offer; and
(b)
either party may apply to enforce those terms without the need to
commence new proceedings.
(3)
If a sanctioned offer or a sanctioned payment which relates to part only of
the costs is accepted, the taxation is stayed as to that part.
(4)
If the approval of the Court is required before a settlement as to costs
can be binding, any stay which would otherwise arise on the acceptance of a
sanctioned offer or a sanctioned payment takes effect only when that approval
has been given.
(5)
Any stay arising under this rule does not affect the power of the
Court—
(a)
to enforce the terms of a sanctioned offer;
(b)
to deal with any question of costs (including interest on costs)
relating to the taxation; or
(c)
to order payment out of court of any sum paid into court.
(6)
Where—
(a)
a sanctioned offer has been accepted; and
(b)
a party alleges that—
(i)
the other party has not honoured the terms of the offer;
and
(ii)
he is therefore entitled to a remedy for breach of
contract,
the party may claim the remedy by applying to the Court without the need
to commence new proceedings unless the Court orders
otherwise.
19.
Costs consequences where
receiving
party fails to better
sanctioned
payment (O. 62A, r.
19)
(1)
This rule applies where upon taxation a receiving party fails to better a
sanctioned payment.
(2)
The taxing master may by order disallow all or part of any interest
otherwise payable under section 49 of the Ordinance on the whole or
part of the amount of the costs awarded to the receiving party for some or all
of the period after the latest date on which the payment could have been
accepted without requiring the leave of the Court.
(3)
The taxing master may also—
(a)
order the receiving party to pay the costs of the taxation on the
indemnity basis after the date on which the payment was made; and
(b)
order that the paying party is entitled to interest on those costs at a
rate not exceeding 10% above judgment rate.
(4)
Where this rule applies, the taxing master shall make the orders referred
to in paragraphs (2) and (3) unless he considers it unjust to do so.
(5)
In considering whether it would be unjust to make the orders referred to in
paragraphs (2) and (3), the taxing master shall take into account all the
circumstances of the case including—
(a)
the terms of the sanctioned payment;
(b)
the stage in the proceedings at which the sanctioned payment was
made;
(c)
the information available to the parties at the time when the
sanctioned payment was made; and
(d)
the conduct of the parties with regard to the giving or refusing to
give information for the purposes of enabling the payment to be made or
evaluated.
(6)
The power of the taxing master under this rule is in addition to any other
power he may have to award or disallow
interest.
20.
Costs and other consequences
where
receiving party does better
than
he proposed in his sanctioned
offer
(O. 62A, r.
20)
(1)
This rule applies where upon taxation a paying party is held liable for
more than the proposals contained in a receiving party’s sanctioned
offer.
(2)
The taxing master may order interest on the whole or part of the amount of
the costs allowed to the receiving party at a rate not exceeding 10% above
judgment rate for some or all of the period after the date on which the
sanctioned offer was served on the paying party.
(3)
The taxing master may also order that the receiving party is entitled
to—
(a)
his costs on the indemnity basis after the date on which the sanctioned
offer was served on the paying party; and
(b)
interest on those costs at a rate not exceeding 10% above judgment
rate.
(4)
Where this rule applies, the taxing master shall make the orders referred
to in paragraphs (2) and (3) unless he considers it unjust to do so.
(5)
In considering whether it would be unjust to make the orders referred to in
paragraphs (2) and (3), the taxing master shall take into account all the
circumstances of the case including—
(a)
the terms of the sanctioned offer;
(b)
the stage in the proceedings at which the sanctioned offer was
made;
(c)
the information available to the parties at the time when the
sanctioned offer was made; and
(d)
the conduct of the parties with regard to the giving or refusing to
give information for the purposes of enabling the offer to be made or
evaluated.
(6)
The power of the taxing master under this rule is in addition to any other
power he may have to award interest.
V. Miscellaneous
21.
Restriction on disclosure
of
sanctioned offer or
sanctioned
payment (O. 62A, r.
21)
(1)
A sanctioned offer is treated as “without prejudice save as to
costs”.
(2)
The fact that a sanctioned payment has been made must not be communicated
to the taxing master until the amount of the costs to be allowed have been
decided.
(3)
Paragraph (2) does not apply—
(a)
where the taxation has been stayed under rule 18 following
acceptance of a sanctioned payment; and
(b)
where the fact that there has or has not been a sanctioned payment may
be relevant to the question of the costs of the issue of
liability.
22.
Interest (O. 62A, r.
22)
(1)
Unless—
(a)
a receiving party’s sanctioned offer; or
(b)
a sanctioned payment notice,
indicates to the contrary, any such offer or payment is to be treated as
inclusive of all interest until the last date on which it could be accepted
without requiring the leave of the Court.
(2)
Where a receiving party’s sanctioned offer or a sanctioned payment notice is
expressed not to be inclusive of interest, the offer or notice must
state—
(a)
whether interest is offered; and
(b)
if so, the amount offered, the rate or rates offered and the period or
periods for which it is offered.
General
and Administrative Provisions
Order
63
The
Registry
2.
Practice master (O. 63, r.
2)
Subject to the direction of the Registrar one of the masters shall be present
at the Registry on every day on which the Registry is open for the purpose of
superintending the business performed there and giving any directions which may be
required on questions of practice and
procedure.
3.
Date of filing to be marked, etc. (O. 63, r.
3)
(1)
Any document filed in the Registry in any proceedings must be marked
showing the date on which the document was filed.
(2)
Particulars of the time of delivery at the Registry of any document for
filing, the date of the document and the title of the cause or matter of which
the document forms part of the record shall be entered in books kept in the
Registry for the
purpose.
3A.
Filing of documents in the Registry
(O. 63, r.
3A)
(1)
Subject to paragraph (2) and to Order 12, rule 1(3), any
document to be filed in court in accordance with these rules or by order of the
Court shall be filed by delivering such document to the Registry by
hand.
(2)
When any document is to be filed by a litigant in person, not being a
director representing a body corporate by leave of the Court given pursuant to
Order 5, rule 6(3) or Order 12, rule 1(2A), such document
may be filed by sending it by post to the Registry, and the date of filing
thereof shall be the date the document is received by the Registry.
4.
Right to inspect, etc. certain documents
filed in the Registry (O. 63, r.
4)
(1)
Any person shall, on payment of the prescribed fee, be entitled during such
hours as the Registrar may direct to search for, inspect and obtain a copy of
any of the following documents filed in the Registry, namely—
(a)
the copy of any writ of summons or other originating process,
(b)
any judgment or order given or made in court or the copy of any such
judgment or order, and
(c)
with the leave of the Court, which may be granted on an application
made ex parte, any other document.
(2)
Nothing in the foregoing provisions shall be taken as preventing any party
to a cause or matter searching for, inspecting and obtaining a copy of any
affidavit or other document filed in the Registry in that cause or matter or
filed therein before the commencement of that cause or matter but made with a
view to its
commencement.
5.
Deposit of documents (O. 63, r.
5)
Where the Court orders any documents to be lodged in court, they must, unless
otherwise directed, be deposited in the
Registry.
8.
Inspection, etc. of powers of attorney (O. 63, r.
8)
(1)
An index shall be kept in the Registry of all powers of attorney which have
been deposited in the Registry prior to 1 October 1972.
(2)
Any person shall, on payment of the prescribed fee, be entitled to—
(a)
search the index;
(b)
inspect any power of attorney and any document which has been deposited
together with the power of attorney; and
(c)
office copies of the power of attorney and any document relating
thereto,
and a copy of such power of attorney and document may be presented at the
Registry to be marked as office copies.
(3)
Any person shall, on payment of the prescribed fee, be entitled to—
(a)
search the register of enduring powers of attorney kept under
section 9(4) of the Enduring Powers of Attorney Ordinance
(Cap. 501);
(b)
inspect any enduring power of attorney lodged under section
9(3) of that Ordinance; and
(c)
office copies of the enduring power of attorney,
and a copy of such enduring power of attorney may be presented at the
Registry to be marked as an office copy.
9.
Restriction on removal of documents (O. 63, r.
9)
No document filed in or in the custody of the Registry of the High Court shall
be taken out of that Registry without the leave of the Court.
10.
Enrolment of instruments (O. 63, r.
10)
Any deed which by virtue of any written law is required or authorized to be
enrolled in the High Court may be enrolled in the Registry.
In this rule
deed
(契據
) includes assurances and other
instruments.Order
64
Sittings,
Vacations and Office Hours
1.
Sittings of the Supreme Court (O. 64, r.
1)
(1)
The sittings of the Court of Appeal and of the Court of First Instance shall
be three in every year, that is to say—
(a)
the Winter sittings which shall begin on 4 January and end on the
Thursday before Easter Sunday;
(b)
the Spring sittings which shall begin on the second Monday after Easter
Sunday and end on 31 July;
(c)
the Autumn sittings which shall begin on 1 September and end on 23 December.
2.
Court of Appeal (O. 64, r.
2)
(1)
The Court of Appeal shall sit in vacation on such days as the Chief Justice
may, from time to time direct to hear such appeals or applications as require to
be immediately or promptly heard and to hear other appeals and applications if
the Chief Justice determines that sittings are necessary for that
purpose.
(2)
Any party to an appeal may at any time apply to the Court of Appeal for an
order that the appeal be heard in vacation and, if that Court is satisfied that
the appeal requires to be immediately or promptly heard, it may make an order
accordingly and fix a date for the hearing.
(3)
The Court of Appeal may hear such other appeals in vacation as that Court
may direct.
(4)
The provisions of O. 59, r. 10(9) shall apply to the powers conferred on
the Court of Appeal by this
rule.
3.
Court of First Instance (O. 64, r.
3)
(1)
One or more judges of the Court of First Instance shall sit in vacation on
such days as the Chief Justice may, from time to time direct, to hear such
causes, matters or applications as require to be immediately or promptly heard
and to hear other causes, matters or applications if the Chief Justice
determines that sittings are necessary for that purpose.
(2)
Any party to a cause or matter may at any time apply to the Court for an
order that such cause or matter be heard in vacation and, if the Court is
satisfied that the cause or matter requires to be immediately or promptly heard,
it may make an order accordingly and fix a date for the hearing.
(3)
Any judge of the Court of First Instance may hear such other causes or
matters in vacation as the Court may direct.
3A.
Business in vacation (O. 64, r.
3A)
(1)
Upon application by any party to an action or matter, the Court may, if it thinks fit—
(a)
complete such action or matter in vacation if it is partheard; and
(b)
deliver judgment in such action or matter in
vacation.
7.
High Court Offices: days on which open
and office hours (O. 64, r.
7)
(1)
The offices of the High Court shall be open on every day of the year
except
Saturdays and general
holidays.
(1A)
However, the Registrar or the Chief Justice may from time to time direct an
office of the High Court to be open or closed on any day.
(2)
The hours during which any office of the High Court shall be open to the
public shall be such
as the
Registrar or the Chief Justice may from time to time
direct.
Order
65
Service
of Documents
1.
When personal service required (O. 65, r.
1)
(1)
Any document which by virtue of these rules is required to be served on any
person need not be served personally unless the document is one which by an
express provision of these rules or by order of the Court is required to be so
served.
(2)
Paragraph (1) shall not affect the power of the Court under any provision
of these rules to dispense with the requirement for personal
service.
2.
Personal service: how effected (O. 65, r.
2)
Personal service of a document is effected by leaving a copy of the document
with the person to be
served.
3.
Personal service on body corporate (O. 65, r.
3)
(1)
Personal service of a document on a body corporate may, in cases for which
provision is not otherwise made by any written law, be effected by serving it in
accordance with rule 2 on the chairman or president of the body, or
the clerk, secretary, treasurer or other similar officer thereof.
(2)
Where a writ is served on a body corporate in accordance with Order 10,
rule 1(2), that rule shall have effect as if for the reference to
the usual or last known address of the defendant there were substituted a
reference to the registered or principal office of the body corporate and as if
for the reference to the knowledge of the defendant there were substituted a
reference to the knowledge of a person mentioned in paragraph
(1).
4.
Substituted service (O. 65, r.
4)
(1)
If, in the case of any document which by virtue of any provision of these
rules is required to be served personally or in the case of a document to which
Order 10, rule 1, applies, it appears to the Court that it is
impracticable for any reason to serve that document in the manner prescribed on
that person, the Court may make an order for substituted service of that
document.
(2)
An application for an order for substituted service may be made by an
affidavit stating the facts on which the application is founded.
(3)
Substituted service of a document, in relation to which an order is made
under this rule, is effected by taking such steps as the Court may direct to
bring the document to the notice of the person to be
served.
5.
Ordinary service: how effected (O. 65, r.
5)
(1)
Service of any document, not being a document which by virtue of any
provision of these rules is required to be served personally or a document to
which Order 10, rule 1, applies, may be effected—
(a)
by leaving the document at the proper address of the person to be
served, or
(b)
by post, or
(c)
where the proper address for service includes a numbered box at a
document exchange, by leaving the document at that document exchange or at a
document exchange which transmits documents every business day to that
document exchange, or
(d)
in such other manner as the court may direct.
In these rules
document exchange
(文件轉遞處
) means any document exchange, or
exchanges under the control of the same operator, for the time being approved by
the Chief Justice. (2)
For the purposes of this rule, and of section 8 of the
Interpretation and General Clauses Ordinance (Cap.
1), in its application to this rule, the proper address of any person on
whom a document is to be served in accordance with this rule shall be the
address for service of that person, but if at the time when service is effected
that person has no address for service his proper address for the purposes
aforesaid shall be—
(a)
in any case, the business address of the solicitor (if any) who is
acting for him in the proceedings in connection with which service of the
document in question is to be effected, or
(b)
in the case of an individual, his usual or last known address,
or
(c)
in the case of individuals who are suing or being sued in the name of a
firm, the principal or last known place of business of the firm within the
jurisdiction, or
(d)
in the case of a body corporate, the registered or principal office of
the body.
(2A)
Any such document which is left at a document exchange in accordance with
paragraph (1)(c) shall, unless the contrary is proved, be deemed to
have been served on the business day following the day on which it is
left.
(3)
Nothing in this rule shall be taken as prohibiting the personal service of
any document or as affecting any enactment which provides for the manner in
which documents may be served on bodies corporate.
(4)
In this rule
business
day
(工作天
) means a day other than a general
holiday.6.
Service on Secretary for Justice in proceedings which
are not by or against the Crown (O. 65, r.
6)
Where for the purpose of or in connection with any proceedings in the High
Court, not being civil proceedings by or against the Crown within the meaning of
Part III of the Crown Proceedings Ordinance (Cap. 300),
any document is required by any written law or these rules to be served on the
Secretary for Justice, section 14 of the said Ordinance and Order 77,
rule 4, shall apply in relation to the service of the document as
they apply in relation to the service of documents required to be served on the
Crown for the purpose of or in connection with any civil proceedings by or against
the Crown.
7.
Effect of service at certain time (O. 65, r. 7)
(1)
This rule applies if a document (other than a writ of summons or other
originating process) is served under rule 2 or
5(1)(a)—
(a)
on a specified day; or
(b)
after 4 p.m. on another day.
(2)
For computing a period of time after service of the document, the document
is deemed to be served on the next following day, not being a specified
day.
(3)
In this rule—
specified day
(指明日子
) means—(a)
a Saturday;
(b)
a general holiday;
(c)
a gale warning day as defined by section 71(2) of the
Interpretation and General Clauses Ordinance (Cap.
1); or
(d)
a black rainstorm warning day as defined by that section.
8.
Affidavit of service (O. 65, r.
8)
Except as provided in Order 10, rule 1(3)(b) and Order 81, rule
3(2)(b), an affidavit of service of any document must state by whom the
document was served, the day of the week and date on which it was served, where it
was served and
how.
9.
No service required in certain cases (O. 65, r.
9)
Where by virtue of these rules any document is required to be served on any
person but it is not required to be served personally or in accordance with Order
10, rule 1(2), and at the time when service is to be effected that person
is in default as to acknowledgment of service or has no address for service, the
document need not be served on that person unless the Court otherwise directs or any
of these rules otherwise
provides.
10.
Service of process on Sunday (O. 65, r.
10)
(1)
No process shall be served or executed within the jurisdiction on a Sunday,
except, in case of urgency, with the leave of the Court.
(1A)
Paragraph (1) does not apply in relation to the service of any process
under the Court Proceedings (Electronic Technology) (High Court Civil
Proceedings) Rules.
(2)
For the purposes of this rule
process
(法律程序文件
) includes a writ, judgment,
notice, order, petition, originating or other summons or warrant.Order
66
Paper,
Printing, Notices and Copies
1.
Quality of paper (O. 66, r.
1)
Unless the nature of the document renders it impracticable, every document
prepared by a party for use in the Court must be on paper of durable quality, having
a margin not less than 35 mm wide, to be left blank on the left side of the face of
the paper and on the right side of the
reverse.
2.
Regulations as to printing, etc. (O. 66, r.
2)
(1)
Except where these rules otherwise provide, every document prepared by a
party for use in the High Court must be produced by one of the following means,
that is to say, printing, writing (which must be clear and legible) and
typewriting otherwise than by means of a carbon, and may be produced partly by
one of those means and partly by another or others of them.
(2)
For the purposes of these rules a document shall be deemed to be printed if
it is produced by type lithography or stencil duplicating.
(3)
Any type used in producing a document for use as aforesaid must be such as
to give a clear and legible impression and must be not smaller than 11 point
type for printing or elite type for type lithography, stencil duplicating or
typewriting.
(4)
Any document produced by a photographic or similar process giving a
positive and permanent representation free from blemishes shall, to the extent
that it contains a facsimile of any printed, written or typewritten matter, be
treated for the purposes of these rules as if it were printed, written or
typewritten, as the case may be.
(5)
Any notice required by these rules may not be given orally except with the
leave of the
Court.
3.
Copies of documents for other party (O. 66, r.
3)
(1)
Where a document prepared by a party for use in the High Court is printed
the party by whom it was prepared must, on receiving a written request from any
other party entitled to a copy of that document and on payment of the proper
charges, supply him with such number of copies thereof, not exceeding ten, as
may be specified in the request.
(2)
Where a document prepared by a party for use in the High Court is written or
typewritten, the party by whom it was prepared must supply any other party
entitled to a copy of it, not being a party on whom it has been served, with one
copy of it and, where the document in question is an affidavit, of any document
exhibited to
it.
The copy must be ready for delivery within 48 hours after a written
request for it, together with an undertaking to pay the proper charges, is
received and must be supplied thereafter on payment of those
charges.
4.
Requirements as to copies (O. 66, r.
4)
(2)
Before a copy of a document is supplied to a party under these rules, it
must be indorsed with the name and address of the party or solicitor by whom it
was supplied.
(3)
The party by whom a copy is supplied under rule 3, or, if he
sues or appears by a solicitor, his solicitor, shall be answerable for the copy
being a true copy of the original or of an office copy, as the case may
be.
Order
67
Change
of Solicitor
1.
Notice of change of solicitor (O. 67, r.
1)
(1)
A party to any cause or matter who sues or defends by a solicitor may change his solicitor without an order for that purpose but, unless and until notice of the change is filed and copies of the notice are lodged and served in accordance with this rule, the former solicitor shall, subject to rules 5 and 6, be considered the solicitor of the party until the final conclusion of the cause or matter, whether in the Court of First Instance or the Court of Appeal.
(2)
Notice of a change of solicitor must be filed, and a copy thereof lodged in the Registry.
(3)
The party giving the notice must serve on every other party to the cause or matter (not being a party in default as to acknowledgment of service) and on the former solicitor a copy of the notice indorsed with a memorandum stating that the notice has been duly filed in the Registry.
(4)
The party giving the notice may perform the duties prescribed by this rule
in person or by his new
solicitor.
3.
Notice of appointment of solicitor (O. 67, r.
3)
Where a party, after having sued or defended in person, appoints a solicitor to
act in the cause or matter on his behalf, the change may be made without an order
for that purpose and rule 1(2), (3) and (4) shall, with the necessary
modifications, apply in relation to a notice of appointment of a solicitor as they
apply in relation to a notice of change of
solicitor.
4.
Notice of intention to act in person (O. 67, r.
4)
Where a party, after having sued or defended by a solicitor, intends and is
entitled to act in person, the change may be made without an order for that purpose
and rule 1 shall, with the necessary modifications, apply in relation to
a notice of intention to act in person as it applies in relation to a notice of
change of solicitor except that the notice of intention to act in person must
contain an address for service of the party giving
it.
5.
Removal of solicitor from record at instance
of another party (O. 67, r.
5)
(1)
Where—
(a)
a solicitor who has acted for a party in a cause or matter has died or become bankrupt or cannot be found or has failed to take out a practising certificate or has been struck off the roll of solicitors or has been suspended from practising or has for any other reason ceased to practise, and
(b)
the party has not given notice of change of solicitor or notice of intention to act in person in accordance with the foregoing provisions of this Order,
any other party to the cause or matter may apply to the Court, or if an appeal to the Court of Appeal is pending in the cause or matter, to the Court of Appeal, for an order declaring that the solicitor has ceased to be the solicitor acting for the first-mentioned party in the cause or matter, and the Court or Court of Appeal, as the case may be, may make an order accordingly.
(2)
An application for an order under this rule must be made by summons and the summons must, unless the Court or Court of Appeal, as the case may be, otherwise directs, be served on the party to whose solicitor the application relates.
The application must be supported by an affidavit stating the grounds of the application.
The application must be supported by an affidavit stating the grounds of the application.
(3)
Where an order is made under this rule the party on whose application it was made must—
(a)
serve on every other party to the cause or matter (not being a party in default as to acknowledgment of service) a copy of the order, and
(b)
procure the order to be entered in the Registry, and
(c)
leave at the Registry a copy of the order and a certificate signed by him or his solicitor that the order has been duly served as aforesaid.
(4)
An order made under this rule shall not affect the rights of the solicitor
and the party for whom he acted as between
themselves.
6.
Withdrawal of solicitor who has ceased
to act for party (O. 67, r.
6)
(1)
Where a solicitor who has acted for a party in a cause or matter has ceased so to act and the party has not given notice of change in accordance with rule 1, or notice of intention to act in person in accordance with rule 4, the solicitor may apply to the Court for an order declaring that the solicitor has ceased to be the solicitor acting for the party in the cause or matter, and the Court or Court of Appeal, as the case may be, may make an order accordingly, but, unless and until the solicitor—
(a)
serves on every party to the cause or matter (not being a party in default as to acknowledgment of service) a copy of the order, and
(b)
procures the order to be entered in the Registry, and
(c)
leaves at the Registry a copy of the order and a certificate signed by him that the order has been duly served as aforesaid,
he shall, subject to the foregoing provisions of this Order, be considered the solicitor of the party till the final conclusion of the cause or matter whether in the Court of First Instance or Court of Appeal.
(2)
An application for an order under this rule must be made by summons which must, unless the Court or the Court of Appeal, as the case may be, otherwise directs, be served on the party for whom the solicitor acted. The application must be supported by an affidavit stating the grounds of the application.
(3)
An order made under this rule shall not affect the rights of the solicitor and the party for whom he acted as between themselves.
(4)
Notwithstanding anything in paragraph (1), where the certificate of an
assisted person within the meaning of the Legal Aid Ordinance (Cap. 91) is revoked or discharged, the solicitor who
acted for the assisted person shall cease to be the solicitor acting in the
cause or matter as soon as his retainer is determined under that Ordinance; and
if the assisted person whose certificate has been revoked or discharged desires
to proceed with the cause or matter without legal aid and appoints that
solicitor or another solicitor to act on his behalf, the provisions of rule
3 shall apply as if that party had previously sued or defended in
person.
6A.
Leave required to inspect affidavits
(O. 67, r.
6A)
7.
Address for service of party whose solicitor
is removed, etc. (O. 67, r.
7)
Where—
(a)
an order is made under rule 5, or
(c)
the certificate of an assisted person within the meaning of the Legal Aid Ordinance (Cap. 91) is revoked or discharged,
then, unless and until the party to whose solicitor or to whom, as the case
may be, the order or certificate relates either appoints another solicitor and
complies with rule 3 or, being entitled to act in person, gives notice of
his intention so to do and complies with rule 4, his last known address
or, where the party is a body corporate, its registered or principal office shall,
for the purpose of the service on him of any document not required to be served
personally, be deemed to be his address for
service.
9.
Order to apply to matrimonial causes
and matters (O. 67, r.
9)
This Order shall have effect in relation to matrimonial causes and matters and, in its application to such a cause or matter, any reference in rules 4 and 7 to an address for service shall be construed as a reference to the address for service required by the rules in force by virtue of the provisions of section 10 or made under section 54 of the Matrimonial Causes Ordinance (Cap. 179).
Order
68
Official
Shorthand Note
1.
Official shorthand note of all evidence,
etc.(O.
68, r.
1)
(1)
In every action or other proceeding in the Court of First Instance which is
tried or heard with witnesses, an official shorthand note shall, unless the
judge otherwise directs, be taken of any evidence given orally in court and of
any summing up by the judge and of any judgment delivered by him, and, if any
party so requires the note so taken shall be transcribed and such number of
transcripts as any party may demand shall be supplied to him at the charges
authorized by any scheme in force providing for the taking of official shorthand
notes of proceedings in the Court of First Instance.
(2)
Nothing in this rule shall be construed as prohibiting the supply of
transcripts to persons not parties to the proceedings.
(3)
The powers of the Court of Appeal under this Order may be exercised by a
single judge of that Court or by the registrar of civil
appeals.
2.
Evidence when not to be transcribed (O. 68, r.
2)
(1)
If the judge intimates that in the event of an appeal his note will be
sufficient, the shorthand note of the evidence need not be transcribed for the
purposes of an appeal.
(2)
If the parties agree or the judge is of opinion that the evidence or some
part of the evidence of any witness would, in the event of an appeal, be of no
assistance to the Court of Appeal, the shorthand note of such evidence need not
be transcribed for the purposes of an appeal.
(3)
If any party requires a transcript of any such evidence as aforesaid the
charge therefor shall be borne by that party in any
event.
3.
Payment for transcripts out of public funds:
excepted proceedings (O. 68, r.
3)
4.
Payment for transcripts for the Court
of Appeal (O. 68, r.
4)
(1)
An appellant shall not be required to pay for the transcript to which a
certificate given under this rule relates but, except as aforesaid, any
transcript required for the Court of Appeal shall be paid for by the appellant
in the first instance.
(2)
Where the judge by whom any such proceeding as is referred to in rule
1 was tried or heard or the Court of Appeal is satisfied that an
appellant in that proceeding is in such poor financial circumstances that the
cost of a transcript would be an excessive burden on him, and, in the case of a
transcript of evidence, that there is reasonable ground for the appeal, the
judge or the Court of Appeal, as the case may be, may certify that the case is
one in which it is proper that the said cost should be borne by public
funds.
(3)
An application for a certificate under this rule must be made in the first
instance to the judge; if the application is refused, the application (if any)
to the Court of Appeal must be made within 7 days after the refusal.
(4)
Where an application is made to the Court of Appeal for a certificate under
this rule, then, if the Court of Appeal is of opinion that for the purpose of
determining the application it is necessary for that Court to see a transcript
of the summing up and judgment, with or without a transcript of the evidence,
the Court of Appeal may certify that both transcripts or, as the case may be,
only a transcript of the summing up and judgment may properly be supplied for
the use of that Court at the expense of public funds.
(5)
No transcript supplied for the use of the Court of Appeal under a
certificate given under paragraph (4) shall be handed to the appellant except by
direction of the Court of Appeal.
(6)
Where the judge or the Court of Appeal certifies under paragraph (2) that
there is reasonable ground for the appeal, the appellant may be supplied with as
many free copies of the transcript referred to in the certificate as will,
together with any free copies already supplied under a certificate given under
paragraph (4), make up a total of one for his own use and three for the use of
the Court of Appeal.
(7)
References in this rule to an appellant include references to an intending
appellant.
5.
Payment for transcript for poor respondent
(O. 68, r.
5)
(1)
Where the judge by whom any such proceeding as is referred to in rule
1 was tried or heard or the Court of Appeal is satisfied that the
respondent to an appeal in that proceeding is in such poor financial
circumstances that the cost of obtaining a transcript, or a specified part
thereof, for the purpose of resisting the appeal would be an excessive burden on
him, the judge or the Court of Appeal, as the case may be, may certify that the
case is one in which it is proper that the cost of the transcript or that part
thereof, as the case may be, should be borne by public funds, and where such a
certificate is given the respondent shall not be required to pay the said
cost.
(2)
Rule 4(3) shall apply in relation to an application for a
certificate under this rule as it applies in relation to an application for a
certificate under that
rule.
8.
Mechanical,
digital, electronic or optical recording (O. 68, r.
8)
In this Order any reference to a shorthand note of any proceedings shall be
construed as including a reference to a record of the proceedings made by
mechanical,
digital, electronic or optical
means.
8A.
Definition (O. 68, r.
8A)
In this Order
transcript
(謄本
) includes the transcript of the official
shorthand note and any official typescript of the Judge’s manuscript note.Provisions
as to Proceedings of a Country or Place Outside Hong Kong
Order
69
Service
of Process from a Country or Place Outside Hong Kong
1.
Definitions (O. 69, r.
1)
In this Order—
a
convention
country
(協約國
) means a foreign country in relation to
which there subsists a civil procedure convention providing for service in that
country of process of the Court of First Instance, and includes a country which is a
party to the Convention on the Service Abroad of Judicial and Extra-Judicial
Documents in Civil or Commercial Matters signed at The Hague on 15 November
1965; process
(法律程序文件
) includes a citation;2.
Applications (O. 69, r. 2)
This Order applies to the service on a person in Hong Kong of any process
related to civil or commercial proceedings in a court or tribunal of a country or
place outside Hong Kong if the Registrar receives a written request for
service—
(a)
from the Chief Secretary for Administration with a recommendation by the
Chief Secretary for Administration that service should be effected;
(b)
if the court or tribunal is in a convention country—from a consular or
other authority of that country;
(c)
if the court or tribunal is in the Mainland—from the judicial authorities
of the Mainland; or
(d)
if the court or tribunal is in Macao—from the judicial authorities of
Macao.
3.
Service of process (O. 69, r.
3)
(1)
If the request is in a language other than either or both of Hong Kong’s
official languages, it shall be accompanied by a translation of the request in
either of Hong Kong’s official languages, 2 copies of the process and, unless
the court or tribunal of a country or place outside Hong Kong certifies that the
person to be served understands the language of the process, 2 copies of the
translation of the process.
(2)
Subject to paragraphs (3) and (5) and to any enactment providing for the
manner of service of documents on corporate bodies, the process shall be served
by the process server’s leaving a copy of the process and a copy of the
translation or certificate, as the case may be, with the person to be
served.
(3)
The provisions of Order 10, rule 1(2)(b) regarding service by
insertion through a letter-box shall apply to the service of process from a
country or place outside Hong Kong as they apply to the service of writs, except
that service may be proved by an affidavit or by a certificate or report in such
form as the Registrar may direct.
(4)
The process server shall send to the Registrar a copy of the process and an
affidavit, certificate or report proving due service of process or stating the
reason why service could not be effected, as the case may be, and shall, if the
Court so directs, specify the costs incurred in effecting or attempting to
effect service.
(5)
Order 65, rule 4 (substituted service) shall apply to the
service of process from a country or place outside Hong Kong as it applies to
the service of writs, except that the Registrar may make an order for
substituted service of process from a country or place outside Hong Kong on the
basis of the process server’s affidavit, certificate or report, without an
application being made to him in that behalf.
(6)
The Registrar shall send a certificate, together with a copy of the process,
to the consular or other authority, the judicial authorities
or
the Chief Secretary for Administration, as the case may be,
stating—
(a)
when and how service was effected or the reason why service could not
be effected, as the case may be;
(b)
where appropriate, the amount certified by the taxing master to be the
costs of effecting or attempting to effect service.
(7)
The certificate under paragraph (6) shall be sealed with the seal of the
High Court for use out of the jurisdiction.
4.
Appointment of process server (O. 69, r.
4)
The process server for the purposes of this Order shall be the Chief
Bailiff.
Order
70
Obtaining
Evidence for Requesting Courts
1.
Interpretation and exercise of jurisdiction (O. 70, r.
1)
(1)
In this Order
the
Ordinance
(條例
) means the Evidence Ordinance (Cap. 8) and expressions used in this Order which are
used in the Ordinance shall have the same meaning as in the Ordinance.(2)
The power of the Court of First Instance to make an order under
section 76 or section 76 as extended by section
77B of the Ordinance may be exercised by the Registrar.
2.
Application for order (O. 70, r.
2)
(1)
Subject to rule 3 an application for an order under the
Ordinance must be made ex parte and must be supported by affidavit.
(2)
There shall be exhibited to the affidavit the request in pursuance of which
the application is made, and if the request is not in the English language, a
translation thereof in that
language.
3.
Application by Law Officer (International Law)
in certain cases (O. 70 r.
3)
Where a request—
(a)
is received by the Chief Secretary for Administration and sent by him to
the Registrar with an intimation that effect should be given to the request
without requiring an application for that purpose to be made by the agent in
Hong Kong of any party to the matter pending or contemplated before the
requesting
court; or
(b)
is received by the Registrar in pursuance of a Civil Procedure Convention
providing for the taking of the evidence of any person in Hong Kong for the
assistance of
the
requesting court, and no person is named in the document as
the person who will make the necessary application on behalf of such
party,
the Registrar shall send the document to the Law Officer (International Law)
and the Law Officer (International Law) may make an application for an order under
the Ordinance, and take such other steps as may be necessary, to give effect to the
request.
Editorial Note:
Please see the transitional provision in rule 2 of L.N. 322 of 1998.
4.
Person to take and manner of taking examination
(O. 70, r.
4)
(1)
Any order made in pursuance of this Order for the examination of a witness
may order the examination to be taken before any fit and proper person nominated
by the person applying for the order or before such other qualified person as to
the Court seems fit.
(2)
If
the examination of a witness is to be taken other than by way of a
live
audio-visual
link
by the requesting court, subject to rule 6 and to any special
directions contained in any order made under this Order for the
examination, the examination shall be taken in manner provided
by Order 39,
rules
5, 6, 7, 8, 9,
10 and 11(1), (2) and (3), and an
order may be made under
Order
39, rule 14, for payment of the fees and expenses
due to the examiner, and those rules shall apply accordingly with any necessary modifications.
(2A)
If the examination of a witness is to be taken by way of a
live
audio-visual
link
by the requesting court, subject to any special directions contained in any
order made under this Order for the examination, Order 39, rules 5,
6, 7, 8, 9, 10,
11(1), (2) and (3) and 14 apply with any necessary
modifications.
(3)
Any order made in pursuance of this Order for the examination of a
witness
(other than by way of a
live
audio-visual
link
by the requesting court) shall permit the cross-examination of
the witness by a person who—
(a)
has the examiner’s approval to do so; and
(b)
is affected by the examination or his legal representative.
5.
Dealing with deposition (O. 70, r.
5)
(1)
Unless any order made in pursuance of this Order for the examination of any
witness otherwise directs, the examiner before whom the examination was taken
must send the deposition of that witness to the Registrar, and the Registrar shall—
(a)
give a certificate sealed with the Seal of the Court for use out of the
jurisdiction identifying the documents annexed thereto, that is to say, the
request, the order of the Court for examination and the deposition taken in
pursuance of the order; and
(b)
send the certificate with the documents annexed thereto to the Chief
Secretary for Administration, or, where the request was sent to the
Registrar by some other person in accordance with a Civil Procedure
Convention, to that other person, for transmission to the
requesting court.
(2)
Paragraph (1) does not apply if the examination was taken by way of a
live
audio-visual
link
by the requesting court.
6.
Claim to privilege (O. 70, r.
6)
(1)
The provisions of this rule shall have effect where a claim by a
witness
(other than a witness who is giving evidence to the requesting court by way of a
live
audio-visual
link)
to be exempt from giving any evidence on the ground specified in section
77(1)(b) of the Ordinance is not supported or conceded as mentioned in
subsection (2) of that section.
(2)
The examiner may, if he thinks fit, require the witness to give the
evidence to which the claim relates and, if the examiner does not do so, the
Court may do so, on the ex parte application of the person who obtained the
order under section 76.
(3)
If such evidence is taken—
(a)
it must be contained in a document separate from the remainder of the
deposition of the witness;
(b)
the examiner shall send to the Registrar with the deposition a
statement signed by the examiner setting out the claim and the ground on
which it was made;
(c)
on receipt of the statement the Registrar shall, notwithstanding
anything in rule 5, retain the document containing the part of
the witness’s evidence to which the claim relates and shall send the
statement and a request to determine the claim to the
requesting
court with the documents mentioned in rule 5;
(d)
if the claim is rejected by the
requesting
court, the Registrar shall send to
the
requesting court the document containing that part of the
witness’s evidence to which the claim relates, but if the claim is upheld he
shall send the document to the witness, and shall in either case notify the
witness and the person who obtained the order under section 76 of
the
requesting
court’s determination.
7.
Minutes of examination taken by way of
live
audio-visual
link
(O. 70, r. 7)
(1)
If an order made under this Order is for the examination of a witness by way
of a
live
audio-visual
link
by the requesting court, the person before whom the examination is taken must be
present at the place where the witness is present during the examination and
must on the conclusion of the examination—
(a)
draw up minutes indicating—
(i)
unless otherwise directed by the order, the identity of the
witness;
(ii)
the date on which, and the time at which, the examination is
taken;
(iii)
the place where the examination is taken; and
(iv)
whether or not an oath or affirmation has been administered to the
witness;
(b)
certify that the minutes were drawn up by the person; and
(c)
cause the minutes so certified to be sent to the Registrar.
(2)
The Registrar must, after receiving the minutes sent under paragraph
(1)(c), cause the minutes to be sent—
(a)
if the request was sent to the Registrar by the Chief Secretary for
Administration, to the Chief Secretary for Administration; or
(b)
if the request was sent to the Registrar by some other person in
accordance with a Civil Procedure Convention, to that other
person.
Order
71
Reciprocal
Enforcement of Foreign Judgments
2.
Application for registration (O. 71, r.
2)
(1)
An application under section 4 of the Foreign Judgments
(Reciprocal Enforcement) Ordinance (Cap. 319), (in
this Order referred to as
the
Ordinance)
in respect of a judgment to which the Ordinance applies to have the judgment
registered in the Court may be made ex parte, but the Court may direct a summons
to be issued. (See
App. A, Form 63)
(2)
If the Court directs a summons to be issued, the summons shall be an
originating summons.
(3)
An originating summons under this rule shall be in Form No. 10 in Appendix
A.
3.
Evidence in support of application (O. 71, r.
3)
(1)
An application for registration must be supported by an affidavit—
(a)
exhibiting the judgment or a verified or certified or otherwise duly
authenticated copy thereof and, where the judgment is not in the English
language, a translation thereof in that language certified by a notary
public or authenticated by affidavit;
(b)
stating the name, trade or business and the usual or last known place
of abode or business of the judgment creditor and the judgment debtor
respectively, so far as known to the deponent;
(c)
stating to the best of the information or belief of the
deponent—
(i)
that the judgment creditor is entitled to enforce the
judgment;
(ii)
as the case may require, either that at the date of the application
the judgment has not been satisfied, or the amount in respect of which
it remains unsatisfied;
(iv)
that at the date of the application the judgment can be enforced by
execution in the country of the original court and that, if it were
registered, the registration would not be, or be liable to be, set aside
under section 6 of the Ordinance;
(d)
specifying the amount of the interest, if any, which under the law of
the country of the original court has become due under the judgment up to
the time of registration.
(2)
Where a judgment sought to be registered is in respect of different
matters, and some, but not all, of the provisions of the judgment are such that
if those provisions had been contained in separate judgments, those judgments
could properly have been registered, the affidavit must state the provisions in
respect of which it is sought to register the judgment.
(3)
The affidavit must be accompanied by such other evidence with respect to
the enforceability of the judgment by execution in the country of the original
court, and of the law of that country under which any interest has become due
under the judgment, as may be required having regard to the provisions of the
Order in Council extending the Ordinance to that
country.
4.
Security for costs (O. 71, r.
4)
Save as otherwise provided by any relevant Order in Council, the Court may
order the judgment creditor to give security for the costs of the application for
registration and of any proceedings which may be brought to set aside the
registration.
5.
Order for registration (O. 71, r.
5)
(1)
An order giving leave to register a judgment must be drawn up by, or on
behalf of, the judgment creditor.
(2)
Except where the order is made on summons, no such order need be served on
the judgment debtor.
(3)
Every such order shall state the period within which an application may be
made to set aside the registration and shall contain a notification that
execution on the judgment will not issue until after the expiration of that
period.
(4)
The Court may, on an application made at any time while it remains
competent for any party to apply to have the registration set aside, extend the
period (either as originally fixed or as subsequently extended) within which an
application to have the registration set aside may be
made.
6.
Register of judgments (O. 71, r.
6)
(1)
There shall be kept in the Registry under the direction of the Registrar a
register of the judgments ordered to be registered under the
Ordinance.
(2)
There shall be included in each such register particulars of any execution
issued on a judgment ordered to be so
registered.
7.
Notice of registration (O. 71, r.
7)
(1)
Notice of the registration of a judgment must be served on the judgment
debtor by delivering it to him personally or by sending it to him at his usual
or last known place of abode or business or in such other manner as the Court
may direct.
(2)
(3)
The notice of registration must state—
(a)
full particulars of the judgment registered and the order for
registration,
(b)
the name and address of the judgment creditor or of his solicitor or
agent on whom, and at which, any summons issued by the judgment debtor may
be served,
(c)
the right of the judgment debtor to apply to have the registration set
aside, and
(d)
the period within which an application to set aside the registration
may be
made.
9.
Application to set aside registration (O. 71, r.
9)
(1)
An application to set aside the registration of a judgment must be made by
summons supported by affidavit.
(2)
The Court hearing such application may order any issue between the judgment
creditor and the judgment debtor to be tried in any manner in which an issue in
an action may be ordered to be tried.
(3)
The Court may, either of its own motion or on an application made by the
judgment creditor, and if, having regard to all the circumstances of the case it
thinks it just to do so, impose such terms, as to giving security or otherwise,
as a condition of the further conduct of an application under this rule, as it
thinks fit.
10.
Issue of execution (O. 71, r.
10)
(1)
Execution shall not issue on a judgment registered under the Ordinance
until after the expiration of the period which, in accordance with rule
5(3), is specified in the order for registration as the period within
which an application may be made to set aside the registration or, if that
period has been extended by the Court, until after the expiration of that period
as so extended.
(2)
If an application is made to set aside the registration of a judgment,
execution on the judgment shall not issue until after such application is
finally determined.
(3)
Any party wishing to issue execution on a judgment registered under the
Ordinance must produce to the Registrar an affidavit of service of the notice of
registration of the judgment and any order made by the Court in relation to the
judgment.
11.
Determination of certain questions (O. 71, r.
11)
If, in any case under the Ordinance, any question arises whether a foreign
judgment can be enforced by execution in the country of the original court, or what
interest is payable under a foreign judgment under the law of the original court,
that question shall be determined in accordance with the provisions in that behalf
contained in the Order in Council extending the Ordinance to that
country.
12.
Rules to have effect subject to Orders in
Council
(O. 71, r.
12)
The foregoing rules shall, in relation to any judgment registered or sought to
be registered under the Ordinance, have effect subject to any such provisions
contained in the Order in Council extending the Ordinance to the country of the
original court as are declared by the Order to be necessary for giving effect to the
agreement made between Hong Kong and that country in relation to matters with
respect to which there is power to make those
rules.
13.
Certified copy of judgment (O. 71, r.
13)
(1)
An application under section 12 of the Ordinance for a certified
copy of a judgment entered in the Court of First Instance must be made ex parte
to the Registrar on affidavit.
(3)
An affidavit by which an application under section 12 of the
Ordinance is made must—
(a)
give particulars of the proceedings in which the judgment was
obtained;
(b)
(Repealed L.N. 103 of
1994)
(c)
state whether the defendant did or did not object to the jurisdiction,
and, if so, on what grounds;
(d)
show that the judgment is not subject to any stay of
execution;
(e)
state that the time for appealing has expired or, as the case may be,
the date on which it will expire and in either case whether notice of appeal
against the judgment has been entered; and
(f)
state the rate at which the judgment carries interest.
(4)
The certified copy of the judgment shall be an office copy sealed with the
Seal of the High Court and indorsed with a certificate signed by the Registrar
certifying that the copy is a true copy of a judgment obtained in the Court of
First Instance of Hong Kong and that it is issued in accordance with
section 12 of the Ordinance.
(5)
There shall also be issued a certificate (signed by the Registrar and sealed
with the Seal of the High Court) having annexed to it a copy of the writ,
originating summons or other process by which the proceedings were begun, and
stating—
(a)
the manner in which the writ or such summons or other process was
served on the defendant or that the defendant acknowledged service
thereof,
(b)
what objections, if any, were made to the jurisdiction,
(c)
what pleadings, if any, were served,
(d)
the grounds on which the judgment was based,
(e)
that the time for appealing has expired or, as the case may be, the
date on which it will expire,
(f)
whether notice of appeal against the judgment has been entered,
and
(g)
such other particulars as it may be necessary to give to the court in
the foreign country in which it is sought to obtain execution of the
judgment,
and a certificate (signed and sealed as aforesaid) stating the rate at
which the judgment carries interest.
Enforcement
of Recommendations etc. under the Merchant
Shipping
(Liner Conferences) Ordinance (Cap.
482)
41.
Application for registration (O. 71, r.
41)
An application under section 10 of the Merchant Shipping (Liner
Conferences) Ordinance (Cap. 482)
(in this Order referred to as
the
Liner Conferences
Ordinance)
for the registration of a recommendation, determination or award shall be made by
originating summons, which shall be in Form No. 10 in Appendix A.
42.
Evidence in support of application (O. 71, r.
42)
(1)
An application under section 10 of the Liner Conferences
Ordinance for the registration of a recommendation must be supported by an
affidavit—
(a)
exhibiting a verified or certified or otherwise duly authenticated copy
of the recommendation and the reasons therefor and of the record of
settlement;
(b)
where the recommendation and reasons or the record of settlement or the
acceptance of the recommendation is not in the English language, a
translation thereof into English certified by a notary public or
authenticated by affidavit;
(c)
exhibiting copies of the acceptance of the recommendation by the
parties upon whom it is binding, where the acceptance was in writing, or
otherwise verifying the acceptance;
(d)
giving particulars of the failure to implement the recommendations;
and
(e)
verifying that none of the grounds which would render the
recommendation unenforceable under section 10(2) of the Liner
Conferences Ordinance is applicable.
(2)
An application under section 10 of the Liner Conferences
Ordinance for the registration of a determination or award as to costs must be
supported by an affidavit—
(a)
exhibiting a verified or certified or otherwise duly authenticated copy
of the recommendation or other document containing the pronouncement on
costs; and
(b)
stating that such costs have not been
paid.
43.
Order for registration (O. 71, r.
43)
(1)
An order giving leave to register a recommendation, determination or award
under section 10 of the Liner Conferences Ordinance must be drawn up
by or on behalf of the party making the application for registration.
(2)
Such an order shall contain a provision that the reasonable costs of
registration be
taxed.
44.
Register of recommendations etc. (O. 71, r.
44)
(1)
There shall be kept in the Registry under the direction of the Registrar a
register of the recommendations, determinations and awards ordered to be
registered under section 10 of the Liner Conferences Ordinance.
(2)
There shall be included in such register particulars of the enforcement of
a recommendation, determination or award so registered.
Order
71A
Reciprocal
Enforcement of Mainland Judgments
1.
Interpretation (O. 71A, r.
1)
In this Order—
choice
of Mainland court
agreement
(選用內地法院協議
),
judgment
creditor
(判定債權人
),
judgment
debtor
(判定債務人
),
Mainland
(內地
),
Mainland
judgment
(內地判決
),
original
court
(原審法院
) and
registered
judgment
(已登記判決
) have the meanings assigned to them by
section 2 of the Ordinance;2.
Application for registration (O. 71A, r.
2)
(1)
An application under section 5(1) of the Ordinance to have a
Mainland judgment registered in the Court may be made ex parte, but the Court
may direct a summons to be issued.
(2)
If the Court directs a summons to be issued, the summons shall be an
originating summons.
(3)
An originating summons under this rule shall be in Form No. 10 in Appendix
A.
3.
Evidence in support of application
for
registration of Mainland
judgments
(O. 71A, r.
3)
(1)
An application for registration of a Mainland judgment shall be supported by
an affidavit—
(a)
exhibiting—
(i)
a copy of the Mainland judgment duly sealed by the original
court;
(ii)
the original or a verified or certified or otherwise duly
authenticated copy of the relevant choice of Mainland court
agreement;
(iii)
a certificate issued by the original court certifying that the
judgment is final and enforceable in the Mainland; and
(iv)
where the judgment creditor is a body of persons, the documents
specified for the purposes of this sub-subparagraph in paragraph
(2);
(b)
stating the name, trade or business and the usual or last known place
of abode or business of the judgment creditor and the judgment debtor
respectively, so far as known to the deponent;
(c)
stating to the best of the information or belief of the
deponent—
(i)
that at the date of the application, the judgment is enforceable in
the Mainland;
(ii)
that the judgment creditor is entitled to enforce the
judgment;
(iii)
whether any action has been taken to enforce the judgment in the
Mainland and, if so, the details of such enforcement;
(iv)
as the case may require, either that at the date of the application
the judgment has not been satisfied or the amount in respect of which it
remains unsatisfied at that date; and
(v)
if the judgment were registered, the registration would not be, or
be liable to be, set aside under section 18 or 19
of the Ordinance;
(d)
specifying the amount of the interest, if any, which by the law of the
Mainland has become due under the judgment up to the time of registration
together with the costs duly certified by the original court for the
judgment.
(2)
The documents specified for the purposes of paragraph (1)(a)(iv)
are—
(a)
if the judgment creditor is a body of persons incorporated, formed or
established under the law of Hong Kong, a verified or certified or otherwise
duly authenticated copy of its certificate of incorporation or similar
documents;
(b)
if the judgment creditor is a body of persons incorporated, formed or
established under the law of any place other than Hong Kong, a verified or
certified or otherwise duly authenticated copy of documents stating that its
incorporation, formation or establishment was in accordance with the law of
the place where it was so incorporated, formed or established.
(3)
Where a Mainland judgment sought to be registered is in respect of
different matters, and that some, but not all, of the provisions of the judgment
would, if contained in separate Mainland judgments that are the subjects of
applications for registration under section 5(1) of the Ordinance,
satisfy the requirements specified in section 5(2)(a) to (e) of the
Ordinance, the affidavit shall state the provisions in respect of which it is
sought to register the judgment.
(4)
The affidavit shall be accompanied by any evidence relevant to the
enforceability of the Mainland judgment, and of the law of the Mainland under
which any interest has become due under the
judgment.
4.
Security for costs (O. 71A, r.
4)
The Court may order the judgment creditor to give security for the costs of the
application for registration of a Mainland judgment and of any proceedings which may
be brought to set aside the
registration.
5.
Order for registration (O. 71A, r.
5)
(1)
An order for registration of a Mainland judgment shall be drawn up by or on
behalf of the judgment creditor, and the order so drawn up shall—
(a)
state the period within which an application may be made to set aside
the registration; and
(b)
contain a notification that execution on the judgment will not be
issued until after the expiration of that period.
(2)
Except where the order is made on summons, the order so drawn up is not
required to be served on the judgment
debtor.
6.
Register of Mainland judgments (O. 71A, r.
6)
(1)
The Registrar shall keep in the Registry a register of the Mainland
judgments ordered to be registered under the Ordinance.
(2)
There shall be included in such register particulars of any execution
issued on a Mainland
judgment.
7.
Notice of registration (O. 71A, r.
7)
(1)
The judgment creditor shall serve a notice of registration of a Mainland
judgment on the judgment debtor by delivering it to him personally or by sending
it to him at his usual or last known place of abode or business or in such other
manner as the Court may direct.
(2)
(3)
The notice of registration shall set out—
(a)
full particulars of the registered judgment and the order for
registration;
(b)
the name and address of the judgment creditor or of his solicitor or
agent on whom, and at which, any summons issued by the judgment debtor may
be served;
(c)
the right of the judgment debtor to apply to have the registration set
aside; and
(d)
the period within which an application to set aside the registration
may be
made.
8.
Application to set aside
registration
(O. 71A, r.
8)
(1)
An application to set aside the registration of a registered judgment shall
be made by summons supported by affidavit.
(2)
The Court hearing such application may order any issue between the judgment
creditor and the judgment debtor to be tried in any manner in which an issue in
an action may be ordered to be tried.
(3)
The Court may, either of its own motion or on an application made by the
judgment creditor, and if having regard to all the circumstances of the case it
thinks it just to do so, impose such terms (whether as to giving security or
otherwise) as it thinks fit as a condition of the further conduct of an
application under this
rule.
9.
Issue of execution (O. 71A, r.
9)
Any party wishing to issue execution on a registered judgment shall produce to
the Registrar an affidavit of service of the notice of registration of the judgment
and any order made by the Court in relation to the
judgment.
10.
Application for registration of part
of
Mainland judgments (O. 71A, r.
10)
In the case of an application for registration of any part of a Mainland
judgment under section 5(1) of the Ordinance—
(a)
rule 2 applies to such an application;
(b)
unless the context otherwise requires, a reference to a Mainland judgment
(however described) in this Order shall be construed as a reference to that part
of the Mainland judgment; and
(c)
the other provisions of this Order shall, subject to all necessary
modifications, be construed and have application
accordingly.
11.
Evidence in support of application
for
registration of part of
Mainland
judgments (O. 71A, r.
11)
(1)
Subject to paragraph (2), in the case of an application for registration of
any part of a Mainland judgment under section 5(1) of the Ordinance,
in addition to the information specified in rule 3(1), the affidavit
submitted in support of the application shall also state to the best of the
information or belief of the deponent that the sum of money ordered to be paid
under that part of the judgment is due.
(2)
Where—
(a)
the Court has under section 5(2) of the Ordinance ordered a
part of a Mainland judgment to be registered; and
(b)
the registration has not been set aside under section 18 or
19 of the Ordinance,
then notwithstanding rule 3, any application subsequently made
for registration of any other part of the judgment under section 5(1)
of the Ordinance shall be supported by an affidavit specified for the purposes
of this paragraph in paragraph (3).
(3)
An affidavit specified for the purposes of paragraph (2) shall—
(a)
cite the Mainland judgment;
(b)
state to the best of the information or belief of the deponent—
(i)
that the sum of money ordered to be paid under the part of the
judgment sought to be registered under the application is due;
and
(ii)
any other information relevant to the application; and
(c)
exhibit a copy of the last order made by the Court under section
5(2) of the Ordinance for registration of any other part of the
judgment.
Order
71B
Certified
Copies of Judgments Given by Court of Final Appeal and High
Court
1.
Interpretation (O. 71B, r.
1)
In this Order—
choice
of Hong Kong court
agreement
(選用香港法院協議
) has the meaning assigned to it by
section 2 of the Ordinance;judgment
(判決
) includes any judgment, order and
allocatur in civil or commercial matters;2.
Certified copies of judgments (O. 71B, r.
2)
(1)
An application under section 21 of the Ordinance for a certified
copy of a judgment given by the Court of Final Appeal or the High Court shall be
made ex parte to the Registrar on affidavit.
(2)
The affidavit shall—
(a)
exhibit the original or a verified or certified or otherwise duly
authenticated copy of the relevant choice of Hong Kong court
agreement;
(b)
give particulars of the proceedings in which the judgment was
obtained;
(c)
state the amount in respect of which the judgment remains unsatisfied
at the date of the application;
(d)
state whether the defendant did or did not object to the jurisdiction
and, if he objected, on what grounds;
(e)
state whether any action has been taken to enforce the judgment in Hong
Kong and, if so, the details of such enforcement;
(f)
show that the judgment is not subject to any stay of
execution;
(g)
state that the time for appealing has expired or, as the case may be,
the date on which it will expire and in either case whether any notice of
appeal against the judgment has been entered; and
(h)
state the rate at which the judgment carries interest.
(3)
The certified copy of the judgment shall be an office copy sealed with the
seal of the High Court and indorsed with a certificate signed by the Registrar
certifying that the copy is a true copy of a judgment obtained in the Court of
Final Appeal or the High Court, as the case may be, and that it is issued in
accordance with section 21 of the Ordinance.
(4)
The certificate issued by the High Court under section 21(3) of
the Ordinance shall have annexed to it a copy of the writ, originating summons
or other process by which the proceedings were begun and a copy of the reasoned
judgment (if any), and state—
(a)
what pleadings, if any, were served;
(b)
the manner in which the writ or such summons or other process was
served on the defendant or that the defendant acknowledged service of the
writ or summons or process;
(c)
the amount in respect of which the judgment remains unsatisfied at the
date of the application as stated by the deponent in the affidavit by which
the application is made;
(d)
what objections, if any, were made to the jurisdiction;
(e)
the date from which the judgment takes effect;
(f)
whether any action has been taken to enforce the judgment in Hong Kong
and, if so, the details of such enforcement;
(g)
that the time for appealing has expired or, as the case may be, the
date on which it will expire;
(h)
whether any notice of appeal against the judgment has been
entered;
(i)
the rate at which the judgment carries interest; and
(j)
such other particulars as it may be necessary to give to the court in
the Mainland in which it is sought to obtain execution of the
judgment.
(5)
The certificate shall be signed by the Registrar and sealed with the seal
of the High Court.
Special
Provisions as to Particular Proceedings
Order
72
Particular
Proceedings
1.
Application and interpretation (O. 72, r.
1)
(1)
This Order applies to particular proceedings, and the other provisions of
these rules apply to those actions subject to the provisions of this
Order.
(2)
In this Order
particular
proceedings
(特定法律程序
) means a type of proceedings for
which provision has been made by the Chief Justice for separate
listing.2.
The Various Lists (O. 72, r.
2)
(1)
There may be lists, in which actions and other proceedings may be entered
in accordance with the provisions of this Order, and a judge shall be in charge
of each list.
(2)
In this Order references to the judge shall be construed as references to
the judge for the time being in charge of a particular list.
(3)
The judge shall have control of the proceedings in his particular list and,
subject to the provisions of this Order and to any directions of the judge, the
powers of a judge in chambers (including those exercisable by the Registrar)
shall, in relation to any proceedings in such an action (including any appeal
from any judgment, order or decision of the Registrar, given or made prior to
the transfer of the action or proceedings to the relevant list) be exercisable
by the judge.
(4)
Paragraph (3) shall not be construed as preventing the powers of the judge
being exercised by some other
judge.
4.
Entry of action in particular list when action begun
(O. 72, r.
4)
(1)
Before a writ or originating summons by which particular proceedings are to
be begun is issued out of the Registry, it may be marked in the top left hand
corner with words identifying the relevant list, and on the issue of a writ or
summons so marked the action begun thereby shall be entered in that
list.
(2)
If the plaintiff intends to issue the writ or originating summons by which
particular proceedings are to be begun out of the Registry and to mark it in
accordance with paragraph (1), and the writ or the originating summons, as the
case may be, is to be served out of the jurisdiction, an application for leave
to issue the writ or summons and to serve the writ or the summons out of the
jurisdiction may be made to the judge.
(3)
The affidavit in support of an application made to the judge by virtue of
paragraph (2) must, in addition to the matters required by Order 11, rule
4(1), to be stated, state that the plaintiff intends to mark the writ
or originating summons in accordance with paragraph (1) of this rule.
(4)
If the judge hearing an application made to him by virtue of paragraph (2)
is of opinion that the action in question should not be entered in the list in
question, he may adjourn the application to be heard by the
Registrar.
5.
Transfer of action to particular list after
action begun (O. 72, r.
5)
(1)
At any stage of the proceedings in any action any party thereto may apply
by summons to the judge to transfer the action to a particular list.
(3)
If, at any stage of the proceedings in any action, it appears to the Court
that the action may be one suitable for trial in a particular list and any party
wishes the action to be transferred to that list, then the Court may adjourn any
hearing so that it can proceed before the judge and be treated by him as a
summons to transfer the action to that
list.
6.
Removal of action from particular list (O. 72, r.
6)
(1)
The judge may, of his own motion or on the application of any party, order
an action in a particular list to be removed from that list.
(2)
Where an action is in a particular list by virtue of rule 4, an
application by a defendant or third party for an order under this rule must be
made within 7 days after giving notice of intention to
defend.
7.
Pleadings in particular proceedings (O. 72, r.
7)
(1)
The pleadings in an action in a particular list may be in the form of
points of claim, or of defence, counterclaim, defence to counterclaim or reply,
as the case may be, and must be as brief as possible.
(2)
Without prejudice to Order 18, rule 12(1), no particulars shall
be applied for or ordered in an action in the particular list designated the
commercial list except such particulars as are necessary to enable the party
applying to be informed of the case he has to meet or as are for some other
reason necessary to secure the just, expeditious and economical disposal of any
question at issue in the proceedings.
(3)
The foregoing provisions are without prejudice to the power of the judge to
order that an action in a particular list shall be tried without pleadings or
further pleadings, as the case may
be.
8.
Directions in particular proceedings (O. 72, r.
8)
(1)
Notwithstanding anything in Order 25, rule 1(1B)(b), any party
to particular proceedings may take out a case management summons before the
pleadings are deemed to be closed.
(2)
Where an application is made to transfer an action to a particular list,
Order 25, rules 2 to 7, shall, with the omission of so much of
rule 7(1) as requires the parties to serve a notice specifying
the orders and directions which they desire and with any other necessary
modifications, apply as if the application were a case management
summons.
9.
(Repealed 13 of 1995 s. 20)
10.
Production of certain documents in marine
insurance actions (O. 72, r.
10)
(1)
Where in an action in a particular list relating to a marine insurance
policy an application for an order under Order 24, rule 3, is made by
the insurer, then, without prejudice to its powers under that rule, the Court,
if satisfied that the circumstances of the case are such that it is necessary or
expedient to do so, may make an order, either in Form No. 94 in Appendix A or in
such other form as it thinks fit, for the production of such documents as are
therein specified or described.
(2)
An order under this rule may be made on such terms, if any, as to staying
proceedings in the action or otherwise, as the Court thinks fit.
(3)
In this rule
the
Court
(法庭
) means the judge.Order
73
Arbitral
Proceedings
1.
Applications under Arbitration Ordinance (O. 73, r.
1)
Subject to the following rules of this Order, an application, request or appeal
to the Court under the Arbitration Ordinance (Cap. 609)
must be made by originating summons in Form No. 10 in Appendix A to a single judge
in court.
2.
Applications in pending actions (O. 73, r.
2)
An application, request or appeal to which rule 1 applies must, if
an action is pending, be made by summons in the action.
3.
Applications in relation to
proceedings
under Arbitration Ordinance (O. 73, r.
3)
An application in relation to proceedings referred to in section 16
of the Arbitration Ordinance (Cap. 609) must be made to
a judge in chambers.
4.
Applications for interim measures or other orders in relation
to
arbitral proceedings outside Hong Kong (O. 73, r.
4)
If an application for an interim measure under section 45(2) of the
Arbitration Ordinance (Cap. 609) or for an order under
section 60(1) of that Ordinance is in relation to any arbitral
proceedings outside Hong Kong, rules 1, 2, 3,
4, 7(1), 7A and 8 of Order 29 apply
with any necessary modifications to the application as they apply to an application
for interlocutory relief in an action or proceeding in the High Court.
5.
Time limits and other special provisions for
certain
applications under Arbitration Ordinance (O. 73, r.
5)
(1)
An application to challenge an arbitral award on the ground of serious
irregularity under section 4 of Schedule 2 to the Arbitration
Ordinance (Cap. 609) must be made, and the
originating summons or summons must be served, within 30 days after the award is
delivered.
(2)
An application for leave to appeal on a question of law arising out of an
arbitral award under section 6 of Schedule 2 to the Arbitration
Ordinance (Cap. 609) must be made, and the
originating summons or summons must be served, within 30 days after the award is
delivered and, if there is a correction or interpretation of the award under
section 69 of that Ordinance, the period of 30 days runs from the
date on which the award with the correction made or interpretation given is
delivered.
(3)
An application to decide any question of law arising in the course of the
arbitral proceedings under section 3 of Schedule 2 to the Arbitration
Ordinance (Cap. 609) must be made, and the
originating summons or summons must be served, within 30 days after the arbitral
tribunal has given permission in writing for the making of the application or
all the other parties to the arbitral proceedings have agreed in writing to the
making of the application.
(4)
In relation to an application to which paragraph (1), (2) or (3) applies or
an application to set aside an arbitral award under section 81 of the
Arbitration Ordinance (Cap. 609)—
(a)
the originating summons or summons must state the grounds of
application; and
(b)
if the application—
(i)
is founded on evidence by affidavit, a copy of every affidavit
intended to be used must be served with the originating summons or
summons; or
(ii)
is made with the permission of the arbitral tribunal or agreement
of all the other parties to the arbitral proceedings, a copy of every
permission or agreement in writing must be served with the originating
summons or summons.
(5)
In relation to—
(a)
an application to which paragraph (1) applies;
(b)
a request for the Court to decide on a challenge to an arbitrator or
umpire under section 26(1) of the Arbitration Ordinance (Cap. 609) or to decide on the termination of the
mandate of an arbitrator or umpire under section 27 of that
Ordinance;
(c)
an application for the Court to decide that the umpire is to replace
the arbitrators as the arbitral tribunal under section 31(8) of
that Ordinance or that the arbitrator or umpire is not entitled to or must
repay fees or expenses under section 62 of that
Ordinance;
(d)
an application to extend the time limit for making an award under
section 72(2) of that Ordinance;
(e)
an application to set aside an arbitral award under section
81 of that Ordinance; or
(f)
an appeal on a question of law arising out of an arbitral award or
application for leave to appeal under section 5, 6 or 7 of Schedule
2 to that Ordinance,
the originating summons or summons must be served on the arbitrator or
umpire, the arbitral tribunal and on all the other parties to the arbitral
proceedings.
(6)
An appeal on a question of law arising out of an arbitral award under
section 5 of Schedule 2 to the Arbitration Ordinance (Cap. 609) may be included in the application for
leave to appeal, if leave is required.
6.
Applications, requests and
appeals
to be heard in Construction
and
Arbitration List (O. 73, r.
6)
(1)
(2)
Nothing in paragraph (1) is to be construed as preventing the powers of the
judge in charge of the Construction and Arbitration List from being exercised by
any judge of the Court of First Instance.
7.
Service out of jurisdiction
of
originating summons,
summons
or order (O. 73, r.
7)
(1)
Subject to paragraphs (2) and (3), service out of the jurisdiction
of—
(a)
any originating summons or summons under this Order; or
(b)
any order made on such originating summons or summons,
is permissible with the leave of the Court if the arbitration to which
the originating summons, summons or order relates is governed by Hong Kong law
or has been, is being, or is to be held within the jurisdiction.
(2)
Service out of the jurisdiction of an originating summons or summons by
which an application for leave to enforce an award is made is permissible with
the leave of the Court, whether or not the arbitration is governed by Hong Kong
law.
(3)
Service out of the jurisdiction of an originating summons or summons by
which an application for an interim measure under section 45(2) of
the Arbitration Ordinance (Cap. 609) or for an
order under section 60(1) of that Ordinance is made is permissible
with the leave of the Court.
(4)
An application for the grant of leave under this rule must be supported by
an affidavit stating—
(a)
the grounds on which the application is made; and
(b)
in what place the person to be served is, or probably may be
found.
(5)
No leave may be granted under this rule unless it is made sufficiently to
appear to the Court that the case is a proper one for service out of the
jurisdiction under this rule.
(6)
8-9.
(Repealed 17 of 2010 s. 112)
10.
Enforcement of settlement agreement, award, order, direction or emergency
relief under Arbitration Ordinance (O. 73, r. 10)
(1)
An application for leave—
(a)
under section 2C of the Arbitration Ordinance (Cap. 341)
(the
repealed
Ordinance)
repealed by the Arbitration Ordinance (Cap.
609)
(the
Arbitration
Ordinance)
to enforce a settlement agreement entered into before the
commencement*
of the Arbitration Ordinance;
(b)
under section 2GG of the repealed Ordinance to enforce an
award, order or direction made or given by an arbitral tribunal before the
commencement of the Arbitration Ordinance;
(ba)
under section 22B(1) of the Arbitration Ordinance to enforce
any emergency relief;
(c)
under section 61(1) of the Arbitration Ordinance to enforce
an order or direction (including an interim measure) of an arbitral
tribunal; or
(d)
under section 84(1) of the Arbitration Ordinance, or in
accordance with section 84 of the Arbitration Ordinance as
provided by section 87(1)(b), 92(1)(b) or
98A(1)(b) of that Ordinance, to enforce an arbitral award,
in the same manner as a judgment, order or direction may be made ex parte
but the Court hearing the application may direct a summons to be issued.
(2)
If the Court directs a summons to be issued, the summons may be an
originating summons which shall be in Form No. 10 in Appendix A.
(3)
An application for leave must be supported by affidavit—
(a)
exhibiting—
(i)
if the application is under section 2C of the repealed
Ordinance, the arbitration agreement (or a copy of it) and the original
settlement agreement (or a copy of it);
(ii)
if the application is under section 2GG of the repealed
Ordinance, the arbitration agreement (or a copy of it) and the original
award, order or direction (or a copy of it);
(iiaa)
if the application is under section 22B(1) of the
Arbitration Ordinance, the arbitration agreement (or a copy of it) and
the original instrument of grant of emergency relief (or a copy of it);
(iia)
if the application is under section 61(1) of the
Arbitration Ordinance, the arbitration agreement (or a copy of it) and
the original order or direction (or a copy of it);
(iii)
subject to sub-subparagraphs (iv), (v) and (vi), if the application
is under section 84(1) of the Arbitration Ordinance, the
documents required to be produced under section 85 of that Ordinance;
(iv)
if the application is in accordance with section 84 of
the Arbitration Ordinance as provided by section 87(1)(b) of
that Ordinance, the documents required to be produced under section
88 of that Ordinance;
(v)
if the application is in accordance with section 84 of
the Arbitration Ordinance as provided by section 92(1)(b) of
that Ordinance, the documents required to be produced under section
94 of that Ordinance;
(vi)
if the application is in accordance with section 84 of
the Arbitration Ordinance as provided by section 98A(1)(b) of
that Ordinance, the documents required to be produced under section
98C of that Ordinance;
(b)
stating the name and the usual or last known place of abode or business
of the applicant (hereinafter referred to as
the
creditor)
and the person against whom it is sought to enforce the settlement
agreement, award, order, direction or emergency relief (hereinafter referred
to as
the
debtor)
respectively,
(c)
as the case may require, either that the settlement agreement, award,
order, direction or emergency relief has not been complied with or the
extent to which it has not been complied with at the date of the application.
(4)
An order giving leave must be drawn up by or on behalf of the creditor and
must be served on the debtor by delivering a copy to him personally or by
sending a copy to him at his usual or last known place of abode or business or
in such other manner as the Court may direct.
(5)
(6)
Within 14 days after service of the order made under paragraph (4) or, if
the order made under paragraph (4) is to be served out of the jurisdiction,
within such other period as the Court may fix, the debtor may apply to set aside
that order, and the settlement agreement, award, order, direction or emergency
relief shall not be enforced until after the expiration of that period or, if
the debtor applies within that period to set aside the order made under
paragraph (4), until after the application is finally disposed of.
(6A)
An application under paragraph (6) to set aside the order made under
paragraph (4) must be made by summons supported by affidavit, and such affidavit
must be filed at the same time as the summons.
(7)
The copy of the order made under paragraph (4) served on the debtor shall
state the effect of paragraph (6).
(8)
In relation to a body corporate this rule shall have effect as if for any
reference to the place of abode or business of the creditor or the debtor there
were substituted a reference to the registered or principal address of the body
corporate; so, however, that nothing in this rule shall affect any enactment
which provides for the manner in which a document may be served on a body
corporate.
Editorial Note:
* Commencement date: 1 June
2011.
10A.
Other provisions as to applications
to set aside an order made under
rule 10(4) (O. 73, r. 10A)
Where a debtor has applied under rule 10(6) to set aside an order made
under rule 10(4), the Court may, either of its own motion or on an
application made by the creditor, and if, having regard to all the circumstances of
the case it thinks it just to do so, impose such terms, as to giving security or
otherwise, as a condition of the further conduct of the application, as it thinks
fit.
11-18.
(Repealed 17 of 2010 s. 112)
19.
Transitional provision
relating
to Arbitration Ordinance (O. 73, r.
19)
If, immediately before the
commencement*
of the Arbitration Ordinance (Cap. 609), an
application, request or appeal by originating motion, summons or notice made under
this Order as in force immediately before the commencement of that Ordinance is
pending, then the application, request or appeal is to be determined as if that
Ordinance had not been enacted.
Editorial Note:
* Commencement
date: 1
June 2011.
Order 74
(Repealed L.N. 343 of 1989)
Order
75
Admiralty
Proceedings
1.
Application and interpretation (O. 75, r.
1)
(1)
This Order applies to Admiralty causes and matters, and the other
provisions of these rules apply to those causes and matters subject to the
provisions of this Order. (See
App. B, Form 14)
(2)
In this Order—
action
in
rem
(對物訴訟
) means an Admiralty action in
rem;caveat
against release and
payment
(針對發還及付款的知會備忘
) means a caveat entered in
the caveat book under rule 14;caveat
book
(知會備忘登記冊
) means the book kept in the
Registry in which caveats issued under this Order are entered;collision
regulations
(碰撞規例
) means the regulations made or
deemed to be made under section 93 of the Merchant Shipping (Safety)
Ordinance (Cap. 369);limitation
action
(局限法律責任的訴訟
) means an action by shipowners
or other persons under the Merchant Shipping Acts 1894 to
1984*, the Merchant Shipping
(Liability and Compensation for Oil Pollution) Ordinance (Cap. 414), the Merchant Shipping (Limitation of Shipowners Liability)
Ordinance (Cap. 434) or the Bunker Oil Pollution
(Liability and Compensation) Ordinance (Cap. 605)
for the limitation of the amount of their liability in connection with a ship or
other property;
ship
(船舶
) includes any description of vessel
used in
navigation.Editorial Note:
| * | Please also see following— | |
| (a) | in relation to the Merchant Shipping Act 1894, Part 3 of Schedule 5 to Cap. 415 and s. 1 of Schedule 2 to Cap. 508; | |
| (b) | in relation to the Merchant Shipping Acts 1894 to 1979, s. 117 of Cap. 281, s. 103 of Cap. 415 and s. 142 of Cap. 478. | |
2A.
Proceedings against, or concerning, the International
Oil Pollution Compensation Fund (O. 75, r.
2A)
(2)
For the purposes of section 27(1) of the Merchant Shipping
(Liability and Compensation for Oil Pollution) Ordinance (Cap. 414) any party to proceedings brought against an owner or
guarantor in respect of liability under section 6 of that Ordinance
may give notice to the Fund of such proceedings by serving notice in writing on
the Fund together with a copy of the writ and copies of the pleadings (if any)
served in the action.
(3)
The Court shall, on the application made ex parte by the Fund grant leave
to the Fund to intervene in any proceedings to which the preceding paragraph
applies, whether notice of such proceedings has been served on the Fund or not,
and paragraphs (3) and (4) of rule 17 shall apply to such an
application.
(4)
Where judgment is given against the Fund in any proceedings under
section 25 of the Merchant Shipping (Liability and Compensation
for Oil Pollution) Ordinance (Cap. 414), the
Registrar shall cause a stamped copy of the judgment to be sent by post to the Fund.
(5)
The Fund shall notify the Registrar of the matters set out in section
25(11)(b) of the Merchant Shipping (Liability and Compensation for Oil
Pollution) Ordinance (Cap. 414) by a notice in
writing sent by post to, or delivered at, the Registry.
3.
Issue of writ and acknowledgment
of service (O. 75, r.
3)
(1)
An action in rem may be begun by writ; and the writ must be in Form No. 1
in Appendix B.
(2)
The writ by which an Admiralty action in personam is begun must be in Form
No. 1 in Appendix A.
(3)
The writ by which a limitation action is begun must be in Form No. 2 in
Appendix B.
(4)
Subject to the following paragraphs Order 6, rule 7, shall apply
in relation to a writ by which an Admiralty action is begun.
(5)
An acknowledgment of service in an action in rem or a limitation action
shall be in Form No. 2B in Appendix B.
(6)
A defendant to an action in rem in which the writ has not been served, or a
defendant to a limitation action who has not been served with the writ, may, if
he desires to take part in the proceedings, acknowledge the issue of the writ by
handing in at, or sending to, the Registry an acknowledgment of issue in the
same form as an acknowledgment of service but with the substitution for the
references therein to service of references to issue of the writ.
(7)
These rules shall apply, with the necessary modifications, in relation to
an acknowledgment of issue or service in Form 2B in Appendix B as they apply in
relation to an acknowledgment of service in Form No. 14 in Appendix A which
contains a statement to the effect that the defendant intends to contest the
proceedings to which the acknowledgment
relates.
4.
Service of writ out of jurisdiction (O. 75, r.
4)
(1)
Subject to the following provisions of this rule, service out of the
jurisdiction of a writ containing any claim for damage, loss of life or personal
injury arising out of a collision between ships or the carrying out of or
omission to carry out a manoeuvre in the case of one or more of two
or
more ships or non-compliance on the part of one or more of two or more ships
with the collision regulations, every limitation action and every action to
enforce a claim under section 6 or 25 of the Merchant
Shipping (Liability and Compensation for Oil Pollution) Ordinance (Cap. 414) or section 5 of the Bunker Oil
Pollution (Liability and Compensation) Ordinance (Cap.
605) is permissible with the leave of the Court if, but only
if—
(a)
the defendant has his habitual residence or a place of business in Hong
Kong; or
(b)
the cause of action arose within the territorial waters of Hong Kong;
or
(c)
an action arising out of the same incident or series of incidents is
proceeding in the Court or has been heard and determined in the Court;
or
(d)
the defendant has submitted or agreed to submit to the jurisdiction of
the Court.
(2)
(3)
Paragraph (1) shall not apply to an action in rem.
5.
Warrant of arrest (O. 75, r.
5)
(1)
After a writ has been issued in an action in rem a warrant in Form No. 3 in
Appendix B for the arrest of the property against which the action or any
counterclaim in the action is brought may, subject to the provisions of this
rule, be issued at the instance of the plaintiff or of the defendant, as the
case may be.
(3)
A party applying for the issue out of the Registry of a warrant to arrest
any property shall procure a search to be made in the caveat book for the
purpose of ascertaining whether there is a caveat against arrest in force with
respect to that property.
(4)
A warrant of arrest shall not be issued until the party applying for it has
filed an affidavit requesting issue of the warrant together with an affidavit
made by him or his agent containing the particulars required by paragraph (8)
so, however, that the Court may, if it thinks fit, allow the warrant to issue
notwithstanding that the affidavit does not contain all those
particulars.
(5)
Except with the leave of the Court, a warrant of arrest shall not be issued
in an action in rem against a foreign ship belonging to a port of a State having
a consulate in Hong Kong, being an action for possession of the ship or for
wages, until notice that the action has been begun has been sent to the
consul.
(6)
Except with the leave of the Court, a warrant of arrest shall not be issued
in an action in rem in which there is a claim arising out of bottomry until the
bottomry bond and, if the bond is in a foreign language, a notarial translation
thereof is produced to the Registrar.
(7)
Where, by, or under, any convention or treaty, Hong Kong has undertaken to
minimise the possibility of arrest of ships of another state, no application
shall be made for the issue of a warrant of arrest in an action in rem against a
ship owned by that state until a notice in Form No. 15 in Appendix B has been
served on a consular officer at the consular office of, or acting on behalf of,
that state in Hong Kong.
(8)
An affidavit required by paragraph (4) must state—
(a)
in every case—
(i)
the nature of the claim or counterclaim and that it has not been
satisfied and, if it arises in connection with a ship, the name of that
ship; and
(ii)
the nature of the property to be arrested and, if the property is a
ship, the name of the ship and her port of registry; and
(b)
in the case of a claim against a ship in rem by virtue of paragraph
(10)—
(i)
the name of the person who would be liable on the claim in an
action in personam
(the
relevant
person);
and
(ii)
that the relevant person was when the cause of action arose the
owner or charterer of, or in possession or in control of, the ship in
connection with which the claim arose; and
(iii)
that at the time of the issue of the writ the relevant person was
either the beneficial owner of all the shares in the ship in respect of
which the warrant is required or (where appropriate) the charterer of it
under a charter by demise; and
(c)
in the case of a claim for possession of a ship or for wages, the
nationality of the ship in respect of which the warrant is required and that
the notice (if any) required by paragraph (5) has been sent;
(e)
in the case of a claim in respect of a liability incurred under
section 6 of the Merchant Shipping (Liability and
Compensation for Oil Pollution) Ordinance (Cap.
414), the facts relied on as establishing that the Court is not
prevented from entertaining the action by reason of section 18(1)
of that Ordinance; and
(f)
in the case of a claim in respect of a liability incurred under
section 5 of the Bunker Oil Pollution (Liability and
Compensation) Ordinance (Cap. 605), the facts
relied on as establishing that the Court is not prevented from entertaining
the action by reason of section 18(2) of that Ordinance.
(9)
The following documents shall, where appropriate, be exhibited to an
affidavit required by paragraph (4)—
(a)
a copy of any notice sent to a consul under paragraph (5);
(b)
a certified copy of any bottomry bond, or of the translation thereof,
produced under paragraph (6);
(c)
a copy of any notice served on a consular officer under paragraph
(7).
(10)
The claims against a ship in rem coming within the provisions of
sub-paragraph (b) (whether or not the claim gives rise to a maritime lien on
that ship) are—
(a)
for damage done by a ship;
(b)
for loss of life or personal injury sustained in consequence of any
defect in a ship or in her apparel or equipment or in consequence of the
wrongful act, neglect or default of the owners, charterers or persons in
possession or control of a ship or the master or crew of a ship or any other
person for whose wrongful acts, neglects or defaults the owners, charterers
or persons in possession or control of a ship are responsible, being an act,
neglect or default in the navigation or management of a ship in the loading,
carriage or discharge of goods on, in or from the ship or in the
embarkation, carriage or disembarkation of persons on, in or from the
ship;
(c)
for loss of or damage to goods carried in a ship;
(d)
those arising out of any agreement relating to the carriage of goods in
a ship or to the use or hire of a ship;
(e)
(f)
those in the nature of towage or pilotage in respect of a ship or an
aircraft when an action in rem may be brought against that aircraft if, at
the time when the action is brought, it is beneficially owned by the person
who would be liable on the claim in an action in personam;
(g)
those in respect of goods or materials supplied to a ship for her
operation or maintenance;
(h)
those in respect of the construction, repair or equipment of a ship or
dock charges or dues;
(i)
those by a master or member of a crew of a ship for wages (including
any sum allotted out of wages or adjudged by a superintendent to be due by
way of wages);
(j)
those by a master, shipper, charterer or agent in respect of
disbursements made on account of a ship;
(k)
those arising out of an act which is or is claimed to be a general
average act;
(l)
those arising out of bottomry.
And where the person who would be liable on the claim in an action in
personam
(the
relevant
person)
was, when the cause of action arose, the owner or charterer of, or in possession
or in control of, the ship and at the time when the action is brought is either
the beneficial owner of that ship as respects all the shares in it or the
charterer of it under a charter by demise or, in the case of any other ship,
where the relevant person is the beneficial owner as respects all the shares in
it at the time when the action is
brought.
6.
Caveat against arrest (O. 75, r.
6)
(1)
A person who desires to prevent the arrest of any property must file in the
Registry a praecipe, in Form No. 5 in Appendix B, signed by him or his solicitor
undertaking—
(a)
to acknowledge issue or service (as may be appropriate) of the writ in
any action that may be begun against the property described in the praecipe,
and
(b)
within 3 days after receiving notice that such an action has been
begun, to give bail in the action in a sum not exceeding an amount specified
in the praecipe or to pay the amount so specified into court,
and on the filing of the praecipe a caveat against the issue of a warrant
to arrest the property described in the praecipe shall be entered in the caveat
book.
(2)
The fact that there is a caveat against arrest in force shall not prevent
the issue of a warrant to arrest the property to which the caveat
relates.
7.
Remedy where property protected by
caveat is arrested (O. 75, r.
7)
Where any property with respect to which a caveat against arrest is in force is
arrested in pursuance of a warrant of arrest, the party at whose instance the caveat
was entered may apply to the Court by motion for an order under this rule and, on
the hearing of the application, the Court, unless it is satisfied that the party
procuring the arrest of the property had a good and sufficient reason for so doing,
may by order discharge the warrant and may also order the last-mentioned party to
pay to the applicant damages in respect of the loss suffered by the applicant as a
result of the
arrest.
8.
Service of writ in action in rem (O. 75, r.
8)
(1)
Subject to paragraph (2), a writ by which an action in rem is begun must be
served on the property against which the action is brought save that—
(a)
where that property is freight it must be served on the cargo in
respect of which the freight is payable or on the ship in which that cargo
was carried, or
(b)
where the property has been sold by the bailiff, the writ may not be
served on that property, but a sealed copy of it must be filed in the
Registry and the writ shall be deemed to have been duly served on the day on
which it was filed.
(2)
A writ need not be served or filed as mentioned in paragraph (1) if the
writ is deemed to have been duly served on the defendant by virtue of Order 10,
rule 1(4) or (5).
(3)
Where by virtue of this rule a writ is required to be served on any
property, then, if the plaintiff wishes service of the writ to be effected by
the bailiff, he must file in the Registry a praecipe in Form No. 6 in Appendix B
and lodge—
(a)
the writ and a copy thereof, and
(b)
an undertaking to pay on demand all expenses incurred by the bailiff or
his substitute in respect of the service of the writ,
and thereupon the bailiff or his substitute shall serve the writ on the
property described in the praecipe.
(3A)
Where a writ is served on any property by the bailiff or his substitute the
person effecting service must indorse on the writ the following particulars,
that is to say, where it was served, the property on which it was served, the
day of the week and the date on which it was served, the manner in which it was
served and the name and the address of the person effecting service, and the
indorsement shall be evidence of the facts stated therein.
(4)
Where the plaintiff in an action in rem, or his solicitor, becomes aware
that there is in force a caveat against arrest with respect to the property
against which the action is brought, he must serve the writ forthwith on the
person at whose instance the caveat was entered.
(5)
Where a writ by which an action in rem is begun is amended under Order 20,
rule 1, after service thereof, Order 20, rule 1(2),
shall not apply and, unless the Court otherwise directs on an application made
ex parte, the amended writ must be served on any intervener and any defendant
who has acknowledged issue or service of the writ in the action or, if no
defendant has acknowledged issue or service of the writ, it must be served in
accordance with paragraph (1) of this
rule.
9.
Committal of solicitor failing to comply with
undertaking (O. 75, r.
9)
Where the solicitor of a party to an action in rem fails to comply with a
written undertaking given by him to any other party or his solicitor to acknowledge
issue or service of the writ in the action, give bail or pay money into court in
lieu of bail, he shall be liable to
committal.
10.
Execution, etc., of warrant of arrest (O. 75, r.
10)
(1)
A warrant of arrest is valid for 12 months beginning with the date of its
issue.
(2)
A warrant of arrest may be executed only by the bailiff or his
substitute.
(3)
A warrant of arrest shall not be executed until an undertaking to pay on
demand the fees of the bailiff and all expenses incurred by him or on his behalf
in respect of the arrest of the property and the care and custody of it while
under arrest has been lodged in the bailiff’s office.
(4)
A warrant of arrest shall not be executed if the party at whose instance it
was issued lodges a written request to that effect with the bailiff.
(5)
A warrant of arrest issued against freight may be executed by serving the
warrant on the cargo in respect of which the freight is payable or on the ship
in which that cargo was carried or on both of them.
(6)
Subject to paragraph (5), a warrant of arrest must be served on the
property against which it is issued.
(7)
Within 7 days after the service of a warrant of arrest, the warrant must be
filed, in the Registry by the
bailiff.
11.
Service on ships, etc.: how effected (O. 75, r.
11)
(1)
Subject to paragraph (2), service of a warrant of arrest or writ in an
action in rem against a ship, freight or cargo shall be effected by—
(a)
affixing the warrant or writ for a short time on any mast of the ship
or on the outside of any suitable part of the ship’s superstructure,
and
(b)
on removing the warrant or writ, leaving a copy of it affixed (in the
case of the warrant) in its place or (in the case of the writ) on a
sheltered, conspicuous part of the ship.
(2)
Service of a warrant of arrest or writ in an action in rem against freight
or cargo or both shall, if the cargo has been landed or transhipped, be
effected—
(a)
by placing the warrant or writ for a short time on the cargo and, on
removing the warrant or writ, leaving a copy of it on the cargo,
or
(b)
if the cargo is in the custody of a person who will not permit access
to it, by leaving a copy of the warrant or writ with that person.
(3)
Order 65, rule 10, shall not apply to a warrant of arrest or a
writ in
rem.
12.
Applications with respect to property
under arrest (O. 75, r.
12)
(1)
The bailiff may at any time apply to the Court for directions with respect
to property under arrest in an action and may, or, if the Court so directs,
shall, give notice of the application to any or all of the persons referred to
in paragraph 2.
(2)
The bailiff shall send by hand or by post a copy of any order made on an
application under paragraph (1) to all those persons who, in relation to that
property, have—
(a)
entered a caveat which is still in force; or
(b)
caused a warrant for the arrest of the property to be executed by the
bailiff; or
(c)
acknowledged issue or service of the writ in any action in which the
property is under arrest; or
(d)
intervened in any action in which the property is under
arrest.
(3)
A person other than the bailiff may make an application under this rule by
summons or motion in the action in which the property is under arrest and the
summons or notice of motion together with copies of any affidavits in support
must be served upon the bailiff and all persons referred to in paragraph (2)
unless the court otherwise orders on an application made ex parte.
(4)
Unless otherwise directed by the Registrar, the bailiff shall serve a copy
of any notice of motion or summons on the property under
arrest.
13.
Release of property under arrest (O. 75, r.
13)
(1)
Except where property arrested in pursuance of a warrant of arrest is sold
under an order of the Court, property which has been so arrested shall only be
released under the authority of an instrument of release (in this rule referred
to as a
release),
in Form No. 7 in Appendix B, issued out of the Registry.
(3)
A release shall not be issued with respect to property as to which a caveat
against release is in force, unless, either
(a)
at the time of the issue of the release the property is under arrest in
one or more other actions, or
(b)
the Court so orders.
(4)
A release may be issued at the instance of any party to the action in which
the warrant of arrest was issued if the Court so orders, or, subject to
paragraph (3), if all the other parties, except any defendant who has not
acknowledged issue or service of the writ, consent.
(6)
Before a release is issued, the party applying for its issue must, unless
paragraph (3)(a) applies, give notice to any person at whose instance
a subsisting caveat against release has been entered, or to his solicitor,
requiring the caveat to be withdrawn.
(7)
Before property under arrest is released in compliance with a release issued
under this rule, the party at whose instance it was issued must, in accordance
with the directions of the bailiff, either—
(a)
pay the fees of the bailiff already incurred and lodge in the bailiff’s
office an undertaking to pay on demand the other fees and expenses in
connection with the arrest of the property and the care and custody of it
while under arrest and of its release, or
(b)
lodge in the bailiff’s office an undertaking to pay on demand all such
fees and expenses, whether incurred or to be incurred.
(8)
The Court, on the application of any party who objects to directions given
to him by the bailiff under paragraph (7), may vary or revoke the
directions.
14.
Caveat against release etc. (O. 75, r.
14)
(1)
Where a person claiming to have a right of action in rem against any
property which is under arrest or the proceeds of sale thereof wishes to be
served with notice of any application to the Court in respect of that property
or those proceeds, he must file in the Registry a praecipe in Form No. 9 in
Appendix B and, on the filing of the praecipe, a caveat shall be entered in the
caveat book.
(2)
Where the release of any property under arrest is delayed by the entry of a
caveat under this rule, any person having an interest in that property may apply
to the Court by motion for an order requiring the person who procured the entry
of the caveat to pay to the applicant damages in respect of the loss suffered by
the applicant by reason of the delay, and the Court, unless it is satisfied that
the person procuring the entry of the caveat had a good and sufficient reason
for so doing, may make an order
accordingly.
15.
Duration of caveats (O. 75, r.
15)
(1)
Every caveat entered in the caveat book is valid for 12 months beginning
with the date of its entry but the person at whose instance a caveat was entered
may withdraw it by filing a praecipe in Form No. 10 in Appendix B.
(2)
The period of validity of a caveat may not be extended, but this provision
shall not be taken as preventing the entry of successive
caveats.
16.
Bail (O. 75, r.
16)
(1)
Bail on behalf of a party to an action in rem must be given by bond in Form
No. 11 in Appendix B; and the sureties to the bond must enter into the bond
before a commissioner for oaths or a solicitor exercising the powers of a
commissioner for oaths under section 7A of the Legal Practitioners
Ordinance (Cap. 159) not being a solicitor who, or
whose partner, is acting as solicitor or agent for the party on whose behalf the
bail is to be given.
(2)
Subject to paragraph (3), a surety to a bail bond must make an affidavit
stating that he is able to pay the sum for which the bond is given.
(3)
Where a corporation is a surety to a bail bond given on behalf of a party,
no affidavit shall be made under paragraph (2) on behalf of the corporation
unless the opposite party requires it, but where such an affidavit is required
it must be made by a director, manager, secretary or other similar officer of
the corporation.
(4)
The party on whose behalf bail is given must serve on the opposite party a
notice of bail containing the names and addresses of the persons who have given
bail on his behalf and of the commissioner before whom the bail bond was entered
into; and after the expiration of 24 hours from the service of the notice (or
sooner with the consent of the opposite party) he may file the bond and must at
the same time file the affidavits (if any) made under paragraph (2) and an
affidavit proving due service of the notice of bail to which a copy of that
notice must be
exhibited.
17.
Interveners (O. 75, r.
17)
(1)
Where property against which an action in rem is brought is under arrest or
money representing the proceeds of sale of that property is in court, a person
who has an interest in that property or money but who is not a defendant to the
action may, with the leave of the Court, intervene in the action.
(2)
An application for the grant of leave under this rule must be made ex parte
by affidavit showing the interest of the applicant in the property against which
the action is brought or in the money in court.
(3)
A person to whom leave is granted under this rule shall thereupon become a
party to the action.
(4)
The Court may order that a person to whom it grants leave to intervene in
an action shall, within such period or periods as may be specified in the order,
serve on any other party to the action such notice of his intervention and such
pleadings as may be so
specified.
18.
Preliminary acts (O. 75, r.
18)
(1)
In an action to enforce a claim for damage, loss of life or personal injury
arising out of a collision between ships, the following provisions of this rule
shall apply unless the Court otherwise orders.
(2)
The plaintiff must within 2 months after service of the writ on any defendant
and the defendant must within 2 months of acknowledging issue or service of the
writ file in the Registry a document in two parts (in these rules referred to as
a
preliminary act) containing a statement of the following—
Part One
(i)
the names of the ships which came into collision and their ports of
registry;
(ii)
the length, breadth, gross tonnage, horsepower and draught at the
material time of the ship and the nature and tonnage of any cargo carried by
the ship;
(iii)
the date and time (including the time zone) of the collision;
(iv)
the place of the collision;
(v)
the direction and force of the wind;
(vi)
the state of the weather;
(vii)
the state, direction and force of the tidal or other current;
(viii)
the position, the course steered and speed through the water of the
ship when the other ship was first seen or immediately before any measures
were taken with reference to her presence, whichever was the
earlier;
(ix)
the lights or shapes (if any) carried by the ship;
(x)
(a)
the distance and bearing of the other ship if and when her echo was
first observed by radar;
(b)
the distance, bearing and approximate heading of the other ship
when first seen;
(xi)
what light or shape or combination of lights or shapes (if any) of the
other ship was first seen;
(xii)
what other lights or shapes or combinations of lights or shapes (if
any) of the other ship were subsequently seen before the collision, and
when;
(xiii)
what alterations (if any) were made to the course and speed of the ship
after the earlier of the two times referred to in article (viii) up to the
time of the collision, and when, and what measures (if any) other than
alterations of course or speed, were taken to avoid the collision, and
when;
(xiv)
the heading of the ship, the parts of each ship which first came into
contact and the approximate angle between the two ships at the moment of
contact;
(xv)
what sound signals (if any) were given, and when;
(xvi)
what sound signals (if any) were heard from the other ship, and
when.
Part Two
(i)
a statement that the particulars in Part One are incorporated in Part
Two;
(ii)
any other facts and matters upon which the party filing the preliminary
act relies;
(iii)
all allegations of negligence or other fault which the party filing the
preliminary act makes;
(iv)
the remedy or relief which the party filing the preliminary act
claims.
(3)
Part Two of the preliminary act shall be deemed to be the pleading of the
person filing the preliminary act (in the case of the plaintiff his statement of
claim and in the case of the defendant his defence and, where appropriate, his
counterclaim) and the provisions of these rules relating to pleadings shall
apply to it save insofar as this rule and rule 20 provide
otherwise.
(4)
The Court may order that Part Two of the preliminary act need not be filed
by the plaintiff or defendant and give directions for the further conduct of the
action.
(5)
Every preliminary act shall before filing be sealed by the proper officer
and be filed in a sealed envelope which shall not be opened except as provided
in paragraph (7) or by order of the Court.
(6)
A plaintiff must serve notice of filing his preliminary act on every
defendant who acknowledges issue or service of the writ within 3 days of
receiving notice of that acknowledgment or upon filing his preliminary act,
whichever is the later. A defendant must, upon filing his preliminary act, serve
notice that he has done so on the plaintiff and on every other defendant who has
acknowledged issue or service of the writ.
(7)
Any party may inspect and bespeak a copy of the preliminary act of any
other party upon filing in the Registry a consent signed by that other party or
his solicitor.
(8)
Order 18, rule 20 (close of pleadings) shall not apply; and for
the purposes of Order 18, rule 14 (denial by joinder of issue), Order
20, rule 3 (amendment of pleadings without leave) and Order 24,
rules 1 and 2 (discovery of documents) the pleadings
shall be deemed to be closed—
(a)
at the expiration of 7 days after service of the reply or, if there is
no reply but only a defence to counterclaim, after service of the defence to
counterclaim pursuant to leave given under rule 20; or
(b)
if neither a reply nor a defence to counterclaim is served, at the
expiration of 7 days after the last preliminary act in the action was served
pursuant to paragraph (9).
(9)
Within 14 days after the last preliminary act in the action is filed each
party must serve on every other party a copy of his preliminary act.
(10)
At any time after all preliminary acts have been filed any party may apply
to the Court for an order that—
(a)
one or more parties file in the Registry particulars of the damages
claimed by them and serve a copy thereof on every other party; and
(b)
that the damages be assessed prior to or at the trial on
liability.
The application must be made by summons to the Registrar even if it is
made after the issue of a case management summons.
(11)
19.
Failure to lodge preliminary act: proceedings against party in default (O. 75,
r. 19)
(1)
Where in such an action as is referred to in rule 18(1) the
plaintiff fails to lodge a preliminary act within the prescribed period, any
defendant who has lodged such an act may apply to the Court by summons for an
order to dismiss the action, and the Court may by order dismiss the action or
make such other order on such terms as it thinks just.
(2)
Where in such an action, being an action in personam, a defendant fails to
lodge a preliminary act within the prescribed period, Order 19, rules
2 and 3, shall apply as if the defendant’s failure to lodge
the preliminary act within that period were a failure by him to serve a defence
on the plaintiff within the period fixed by or under these rules for service
thereof, and the plaintiff, if he has lodged a preliminary act may, subject to
Order 77, rule 9, accordingly enter judgment against that defendant
in accordance with the said rule 2 or the said rule 3, as
the circumstances of the case require.
(3)
Where in such an action, being an action in rem, a defendant fails to lodge
a preliminary act within the prescribed period, the plaintiff, if he has lodged
such an act, may apply to the Court by motion for judgment against that
defendant, and it shall not be necessary for the plaintiff to file or serve a
statement of claim or an affidavit before the hearing of the motion.
(4)
On the hearing of a motion under paragraph (3) the Court may make such order
as it thinks just, and where the defendant does not appear on the hearing and
the Court is of opinion that judgment should be given for the plaintiff provided
he proves his case, it shall order the plaintiff’s preliminary act to be opened
and require the plaintiff to satisfy the Court that his claim is well
founded.
The plaintiff’s evidence may, unless the Court otherwise orders, be given
by affidavit without any order or direction in that behalf.
(5)
Where the plaintiff in accordance with a requirement under paragraph (4)
satisfies the Court that his claim is well founded, the Court may give judgment
for the claim with or without a reference to the Registrar and may at the same
time order the property against which the action is brought to be appraised and
sold and the proceeds to be paid into court or make such order as it thinks
just.
(6)
The Court may, on such terms as it thinks just, set aside any judgment
entered in pursuance of this rule.
(7)
In this rule references to the prescribed period shall be construed as
references to the period within which by virtue of rule 18(2) or of
any order of the Court the plaintiff or defendant, as the context of the
reference requires, is required to lodge a preliminary act.
20.
Special provisions as to pleadings in collision, etc. actions (O. 75, r.
20)
(1)
(2)
Subject to paragraph (3), in any such action Order 18, rule 13(3)
shall not apply to any allegation of fact in—
(a)
a statement of claim contained in Part Two of a preliminary act;
or
(b)
a counterclaim (whether contained in Part Two of a preliminary act or
not),
and notwithstanding Order 18, rule 14(3) but without prejudice
to the other provisions of that rule, there is an implied joinder of issue on
the statement of claim or counterclaim.
(3)
Paragraph (2) does not apply to a counterclaim if the plaintiff has served
a defence to counterclaim pursuant to leave given under paragraph (1).
21.
Judgment by default (O. 75, r. 21)
(1)
Where a writ is served under rule 8(4) on a party at whose
instance a caveat against arrest was issued, then if—
(a)
the sum claimed in the action begun by the writ does not exceed the
amount specified in the undertaking given by that party or his solicitor to
procure the entry of that caveat, and
(b)
that party or his solicitor does not within 14 days after service of
the writ fulfil the undertaking given by him as aforesaid,
the plaintiff may, after filing an affidavit verifying the facts on which
the action is based, apply to the Court for judgment by default.
(2)
Judgment given under paragraph (1) may be enforced by the arrest of the
property against which the action was brought and by committal of the party at
whose instance the caveat with respect to that property was entered.
(3)
Where a defendant to an action in rem fails to acknowledge service of the
writ within the time limited for doing so, then, on the expiration of 14 days
after service of the writ and upon filing an affidavit proving due service of
the writ, an affidavit verifying the facts on which the action is based and, if
a statement of claim was not indorsed on the writ, a copy of the statement of
claim, the plaintiff may apply to the Court for judgment by default.
Where the writ is deemed to have been duly served on the defendant by
virtue of Order 10, rule 1(4), or was served by the bailiff or his
substitute under rule 8 of this Order, an affidavit proving due
service of the writ need not be filed under this paragraph, but the writ
indorsed as mentioned in the said rule 1(4) or indorsed as mentioned
in rule 8(3A) must be lodged with the affidavit verifying the facts
on which the action is based.
(4)
Where a defendant to an action in rem fails to serve a defence on the
plaintiff, then, after the expiration of the period fixed by or under these
rules for service of the defence and upon filing an affidavit stating that no
defence was served on him by that defendant during that period, an affidavit
verifying the facts on which the action is based and, if a statement of claim
was not indorsed on the writ, a copy of the statement of claim, the plaintiff
may apply to the Court for judgment by default.
(5)
Where a defendant to a counterclaim in an action in rem fails to serve a
defence to counterclaim on the defendant making the counterclaim, then, subject
to paragraph (6), after the expiration of the period fixed by or under these
rules for service of the defence to counterclaim and upon filing an affidavit
stating that no defence to counterclaim was served on him by the first-mentioned
defendant during that period, an affidavit verifying the facts on which the
counterclaim is based and a copy of the counterclaim, the defendant making the
counterclaim may apply to the Court for judgment by default.
(6)
No application may be made under paragraph (5) against the plaintiff in any
action to enforce a claim for damage, loss of life or personal injury arising
out of a collision between ships or the carrying out of or omission to carry out
a manoeuvre in the case of one or more of two or more ships or non-compliance on
the part of one or more of two or more ships with the collision
regulations.
(7)
An application to the Court under this rule must be made by motion and if,
on the hearing of the motion, the Court is satisfied that the applicant’s claim
is well founded it may give judgment for the claim with or without a reference
to the Registrar and may at the same time order the property against which the
action or, as the case may be, counterclaim is brought to be appraised and sold
and the proceeds to be paid into court or may make such other order as it thinks
just.
(8)
In default actions in rem evidence may, unless the Court otherwise orders,
be given by affidavit without any order or direction in that behalf.
(9)
The Court may, on such terms as it thinks just, set aside or vary any
judgment entered in pursuance of this rule.
(10)
Order 13 and Order 19 (except rule 1) shall not apply to actions
in rem.
22.
Order for sale of ship: determination of priority of claims (O. 75, r.
22)
(1)
Where in an action in rem against a ship the Court has ordered the ship to
be sold, any party who has obtained or obtains judgment against the ship or
proceeds of sale of the ship may—
(a)
in a case where the order for sale contains the further order referred
to in paragraph (2), after the expiration of the period specified in the
order under paragraph (2)(a), or
(b)
in any other case, after obtaining judgment,
apply to the Court by motion for an order determining the order of
priority of the claims against the proceeds of sale of the ship.
(2)
Where in an action in rem against a ship the Court orders the ship to be
sold, it may further order—
(a)
that the order of priority of the claims against the proceeds of sale
of the ship shall not be determined until after the expiration of 90 days,
or of such other period as the Court may specify, beginning with the day on
which the proceeds of sale are paid into court;
(b)
that any party to the action or to any other action in rem against the
ship or the proceeds of sale thereof may apply to the Court in the action to
which he is a party to extend the period specified in the Order;
(c)
that within 7 days after the date of payment into court of the proceeds
of sale the bailiff shall send for publication in the Gazette and such other
newspaper, if any, as the Court may direct, a notice complying with
paragraph (3).
(3)
The notice referred to in paragraph (2)(c) must state—
(a)
that the ship (naming her) has been sold by order of the Court in an
action in rem, identifying the action;
(b)
that the gross proceeds of the sale, specifying the amount thereof,
have been paid into court;
(c)
that the order of priority of the claims against the said proceeds will
not be determined until after the expiration of the period (specifying it)
specified in the order for sale; and
(d)
that any person with a claim against the ship or the proceeds of sale
thereof, on which he intends to proceed to judgment should do so before the
expiration of that period.
(4)
The bailiff must lodge in the Registry a copy of each newspaper in which
the notice referred to in paragraph (2)(c) appeared.
(5)
The expenses incurred by the bailiff in complying with an order of the
Court under this rule shall be included in his expenses relating to the sale of
the ship.
(6)
An application to the Court to extend the period referred to in paragraph
(2)(a) must be made by motion, and a copy of the notice of motion
must, at least 3 days before the day fixed for the hearing thereof, be served on
each party who has begun an action in rem against the ship or the proceeds of
sale thereof.
(7)
In this rule
the Court
(法庭
) means the judge in person.23.
Appraisement and sale of property (O. 75, r. 23)
(1)
A commission for the appraisement and sale of any property under an order
of the Court shall not be issued until the party applying for it has filed a
praecipe in Form No. 12 in Appendix B.
(2)
Such a commission must, unless the Court otherwise orders, be executed by
the bailiff and must be in Form No. 13 in Appendix B.
(3)
A commission for appraisement and sale shall not be executed until an
undertaking in writing satisfactory to the bailiff to pay the fees and expenses
of the bailiff on demand has been lodged in the bailiff’s office.
(4)
The bailiff shall pay into court the gross proceeds of the sale of any
property sold by him under a commission for sale and shall bring into court the
account relating to the sale (with vouchers in support) for taxation.
(5)
On the taxation of the bailiff’s account relating to a sale any person
interested in the proceeds of the sale shall be entitled to be heard, and any
decision of the Registrar made on the taxation to which objection is taken may
be reviewed in the same manner and by the same persons as any decision of the
Registrar made in taxation proceedings under Order 62, and rules 33 to
35 of that Order shall apply accordingly with the necessary
modifications.
23A.
Undertaking as to expenses, etc. (O. 75, r. 23A)
(1)
(2)
(3)
The Court may, on the application of any party who is dissatisfied with a
direction or determination of the bailiff under rule 13(7) or this
rule, vary or revoke the direction or determination.
24.
Payment into and out of court (O. 75, r. 24)
(1)
Subject to this rule, Order 22 shall apply in relation to an Admiralty
action (other than a limitation action) as it applies to an action for a debt or
damages.
(2)
Subject to paragraphs (3) and (4), money paid into court shall not be paid
out except in pursuance of an order of the judge in person.
(3)
The Registrar may, with the consent of the parties interested in money paid
into court, order the money to be paid out to the person entitled thereto in the
following cases, that is to say—
(a)
where a claim has been referred to the Registrar for decision and all
the parties to the reference have agreed to accept the Registrar’s decision
and to the payment out of any money in court in accordance with that
decision;
(b)
where property has been sold and the proceeds of sale thereof paid into
court and the parties are agreed as to the persons to whom the proceeds
shall be paid and the amount to be paid to each of those persons;
(c)
where in any other case there is no dispute between the
parties.
(4)
Where in an Admiralty action money has been paid into court pursuant to an
order made under Order 29, rule 12, the Registrar may make an order
under rule 13(1) of that Order for the money to be paid out to the
person entitled thereto.
25.
Case management summons (O. 75, r. 25)
(1)
Order 25 shall apply to Admiralty actions (other than limitation actions) as
it applies to other actions, except that—
(a)
the case management summons shall be returnable in not less than 7
weeks;
(b)
any notice under Order 25, rule 7(1), must be served within
21 days after service of the case management summons on the party giving the
notice; and
(c)
unless a judge in person otherwise directs, the case management summons
shall be heard by a judge in person.
On or before the day on which any party serves on any other party a
notice under Order 75, rule 7, he must lodge 2 copies of the notice
in the Registry.
(2)
An order made on the case management summons shall determine whether the
trial is to be without assessors or with one or more assessors.
(3)
The trial shall be before a judge without a jury unless, on the ground that
there are special reasons to the contrary, an order made on the case management
summons otherwise provides.
(5)
Any such order or direction as is referred to in paragraph (2) or (3)
(including an order made on appeal) may be varied or revoked by a subsequent
order or direction made or given at or before the trial by the judge in person
or, with the judge’s consent by the Registrar.
26.
Fixing date for trial, etc. (O. 75, r. 26)
(1)
Subject to paragraph (2), the date for trial of an Admiralty action shall
be fixed by the judge at the hearing of the case management summons, unless a
judge in person otherwise directs.
(2)
Where an action is ordered to be tried without pleadings or a case
management summons is directed to be heard by the Registrar the date for trial
shall be fixed by the Registrar.
(3)
Order 34 shall apply to Admiralty actions subject to the following and any
other necessary modifications—
(a)
the bundles referred to in rule 3(1) shall include any
preliminary acts and any particulars filed pursuant to an order under
rule 18(10)(a) of this Order, and where trial with one or
more assessors has been ordered an additional bundle shall be lodged for the
use of each assessor;
(b)
the proper officer
(恰當人員
) shall mean the chief judicial clerk
of the Registry; and(c)
in an action which has been ordered to be tried with an assessor or
assessors the solicitor to the party setting it down must file in the
Registry an undertaking to pay the proper fee and expenses of such assessor
or assessors.
(4)
If all the parties to an action consent, the action may be withdrawn
without the leave of the Court at any time before trial by filing in the
Registry a written consent to the action being withdrawn signed by all the
parties.
27.
Stay of proceedings in collision, etc. actions until security given (O. 75, r.
27)
Where an action in rem, being an action to enforce any such claim as is referred
to in rule 2(l)(a), is begun and a cross action in rem arising out of the
same collision or other occurrence as the first mentioned action is subsequently
begun, or a counterclaim arising out of that occurrence is made in the first
mentioned action, then—
(a)
if the ship in respect of or against which the first mentioned action is
brought has been arrested or security given to prevent her arrest, but
(b)
the ship in respect of or against which the cross action is brought or the
counterclaim made cannot be arrested and security has not been given to satisfy
any judgment given in favour of the party bringing the cross action or making
the counterclaim,
the Court may stay proceedings in the first mentioned action until security
is given to satisfy any judgment given in favour of that party.
28.
Inspection of ship, etc. (O. 75, r. 28)
Without prejudice to its powers under Order 29, rules 2 and
3, and Order 35, rule 8, the Court may, on the application
of any party, make an order for the inspection by the assessors (if the action is
tried with assessors), or by any party or witness, of any ship or other property,
whether real or personal, the inspection of which may be necessary or desirable for
the purpose of obtaining full information or evidence in connection with any issue
in the action.
30.
Examination of witnesses and other persons (O. 75, r. 30)
(1)
The power conferred by Order 39, rule 1, shall extend to the
making of an order authorizing the examination of a witness or person on oath
before a judge sitting in court as if for the trial of the cause or matter,
without that cause or matter having been set down for trial or called on for
trial.
(2)
The power conferred by the said rule 1 shall also extend to the
making of an order, with the consent of the parties, providing for the evidence
of a witness being taken as if before an examiner, but without an examiner
actually being appointed or being present.
(3)
Where an order is made under paragraph (2), it may make provision for any
consequential matters and, subject to any provision so made, the following
provisions shall have effect—
(a)
the party whose witness is to be examined shall provide a shorthand
writer to take down the evidence of the witness;
(b)
any representative, being counsel or solicitor, of either of the
parties shall have authority to administer the oath to the
witness;
(c)
the shorthand writer need not himself be sworn but shall certify in
writing as correct a transcript of his notes of the evidence and deliver it
to the solicitor for the party whose witness was examined, and that
solicitor must file it in the Registry;
(d)
unless the parties otherwise agree or the Court otherwise orders, the
transcript or a copy thereof shall, before the transcript is filed, be made
available to the counsel or other persons who acted as advocates at the
examination, and if any of those persons is of opinion that the transcript
does not accurately represent the evidence he shall make a certificate
specifying the corrections which in his opinion should be made therein, and
that certificate must be filed with the transcript.
31.
Trial without pleadings (O. 75, r. 31)
Order 18, rule 21 shall apply to Admiralty as it applies to other
actions except that the summons must be served on every other party not less than 7
days before the day specified in the summons for the hearing thereof.
32.
Further provisions with respect to evidence (O. 75, r. 32)
(3)
(Repealed 2 of 1999 s. 6)
(7)
Unless the Court otherwise directs, an affidavit for the purposes of
rule 19(4), 21 or 38(2) may, except in so
far as it relates to the service of a writ, contain statements of information or
belief with the sources and grounds thereof.
33.
Proceedings for apportionment of salvage (O. 75, r. 33)
(1)
Proceedings for the apportionment of salvage the aggregate amount of which
has already been ascertained shall be begun by originating motion.
(3)
On the hearing of the motion the judge may exercise any of the jurisdiction
conferred by section 556 of the Merchant Shipping Act 1894 (1894 c.
60 U.K.)*.
Editorial Note:
| * | Please also see following— | |
| (a) | in relation to the Merchant Shipping Act 1894, Part 3 of Schedule 5 to Cap. 415 and s. 1 of Schedule 2 to Cap. 508; | |
| (b) | in relation to the Merchant Shipping Acts 1894 to 1979, s. 117 of Cap. 281, s. 103 of Cap. 415 and s. 142 of Cap. 478. | |
34.
Notice of motion in actions in rem (O. 75, r. 34)
(1)
The affidavits, if any, in support of a motion in an action in rem must be
filed in the Registry before the notice of motion is issued, unless the Court
gives leave to the contrary.
(2)
A notice of motion, except a motion for judgment in default, must be served
on all caveators together with copies of the affidavits, if any, in support of
the motion 2 clear days at least before the hearing, unless the Court gives
leave to the contrary.
35.
Agreement between solicitors may be made order of court (O. 75, r.
35)
(1)
Any agreement in writing between the solicitors of the parties to a cause
or matter, dated and signed by those solicitors, may, if the Registrar thinks it
reasonable and such as the judge would under the circumstances allow, be filed
in the Registry, and the agreement shall thereupon become an order of court and
have the same effect as if such order had been made by the judge in
person.
37.
Limitation action: parties (O. 75, r. 37)
(1)
In a limitation action the person seeking relief shall be the plaintiff and
shall be named in the writ by his name and not described merely as the owner of,
or as bearing some other relation to, a particular ship or other
property.
(2)
The plaintiff must make one of the persons with claims against him in
respect of the casualty to which the action relates defendant to the action and
may make any or all of the others defendants also.
(3)
At least one of the defendants to the action must be named in the writ by
his name but the other defendants may be described generally and not named by
their names.
(4)
The writ must be served on one or more of the defendants who are named by
their names therein and need not be served on any other defendant.
(5)
In this rule and rules 38, 39 and
40
name
(姓名或名稱
) includes a firm
name or the name under which a person carries on his business, and where any
person with a claim against the plaintiff in respect of the casualty to which
the action relates has described himself for the purposes of his claim merely as
the owner of, or as bearing some other relation to, a ship or other property, he
may be so described as defendant in the writ and, if so described, shall be
deemed for the purposes of the rules aforesaid to have been named in the writ by
his name.38.
Limitation action: summons for decree or directions (O. 75, r. 38)
(1)
Within 7 days after the acknowledgment of issue or service of the writ by
one of the defendants named therein by their names or, if none of them
acknowledges issue or service, within 7 days after the time limited for
acknowledging service, the plaintiff, without serving a statement of claim, must
take out a summons returnable in chambers before the Registrar asking for a
decree limiting his liability or, in default of such a decree, for directions as
to the further proceedings in the action.
(2)
The summons must be supported by an affidavit or affidavits
proving—
(a)
the plaintiff’s case in the action, and
(b)
if none of the defendants named in the writ by their names has
acknowledged service, service of the writ on at least one of the defendants
so named.
(3)
The affidavit in support of the summons must state—
(a)
the names of all the persons who, to the knowledge of the plaintiff,
have claims against him in respect of the casualty to which the action
relates, not being defendants to the action who are named in the writ by
their names, and
(b)
the address of each of those persons, if known to the
plaintiff.
(4)
The summons and every affidavit in support thereof must, at least 7 clear
days before the hearing of the summons, be served on any defendant who has
acknowledged issue or service of the writ.
(5)
On the hearing of the summons the Registrar, if it appears to him that it
is not disputed that the plaintiff has a right to limit his liability, shall
make a decree limiting the plaintiff’s liability and fix the amount to which the
liability is to be limited.
(6)
On the hearing of the summons the Registrar, if it appears to him that any
defendant has not sufficient information to enable him to decide whether or not
to dispute that the plaintiff has a right to limit his liability, shall give
such directions as appear to him to be appropriate for enabling the defendant to
obtain such information and shall adjourn the hearing.
(7)
If on the hearing or resumed hearing of the summons the Registrar does not
make a decree limiting the plaintiff’s liability, he shall give such directions
as to the further proceedings in the action as appear to him to be appropriate
including, in particular, a direction requiring the taking out of a case
management summons under Order 25 and, if he gives no such direction, a
direction fixing the period within which any notice under Order 38, rule
21, must be served.
(8)
Any defendant who, after the Registrar has given directions under paragraph
(7), ceases to dispute the plaintiff’s right to limit his liability must
forthwith file a notice to that effect in the Registry, and serve a copy on the
plaintiff and on any other defendant who has acknowledged issue or service of
the writ.
(9)
If every defendant who disputes the plaintiff’s right to limit his
liability serves a notice on the plaintiff under paragraph (8), the plaintiff
may take out a summons returnable in chambers before the Registrar, asking for a
decree limiting his liability; and paragraphs (4) and (5) shall apply to a
summons under this paragraph as they apply to a summons under paragraph
(1).
39.
Limitation action: proceedings under decree (O. 75, r. 39)
(1)
Where the only defendants in a limitation action are those named in the writ
by their names and all the persons so named have either been served with the
writ or acknowledged the issue thereof, any decree in the action limiting the
plaintiff’s liability (whether made by the Registrar or on the trial of the
action)—
(a)
need not be advertised, but
(b)
shall only operate to protect the plaintiff in respect of claims by the
persons so named or persons claiming through or under them.
(2)
In any case not falling within paragraph (1), any decree in the action
limiting the plaintiff’s liability—
(a)
shall be advertised by the plaintiff in such manner and within such
time as may be provided by the decree;
(b)
shall fix a time within which persons with claims against the plaintiff
in respect of the casualty to which the action relates may file their
claims, and, in cases to which rule 40 applies, take out a
summons, if they think fit, to set the order aside.
(3)
The advertisement to be required under paragraph (2)(a) shall,
unless for special reasons the Registrar thinks fit otherwise to provide, be a
single advertisement in each of 3 newspapers specified in the decree,
identifying the action, the casualty and the relation of the plaintiff thereto
(whether as owner of a ship involved in the casualty or otherwise as the case
may be), stating that the decree has been made and specifying the amounts fixed
thereby as the limits of the plaintiff’s liability and the time allowed thereby
for the filing of claims and the taking out of summonses to set the decree
aside.
(4)
The time to be allowed under paragraph (2)(b) shall, unless for
special reasons the Registrar thinks fit otherwise to provide, be not less than
2 months from the latest date allowed for the appearance of the advertisements;
and after the expiration of the time so allowed no claim may be filed or summons
taken out to set aside the decree except with the leave of the
Registrar.
(5)
Save as aforesaid, any decree limiting the plaintiff’s liability (whether
made by the Registrar or on trial of the action) may make any such provisions as
is authorized by section 504 of the Merchant Shipping Act, 1894 (1894
c. 60 U.K.)*.
Editorial Note:
| * | Please also see following— | |
| (a) | in relation to the Merchant Shipping Act 1894, Part 3 of Schedule 5 to Cap. 415 and s. 1 of Schedule 2 to Cap. 508; | |
| (b) | in relation to the Merchant Shipping Acts 1894 to 1979, s. 117 of Cap. 281, s. 103 of Cap. 415 and s. 142 of Cap. 478. | |
40.
Limitation action: proceedings to set aside decree (O. 75, r. 40)
(1)
Where a decree limiting the plaintiff’s liability (whether made by Registrar
or on trial of the action) fixes a time in accordance with rule
39(2), any person with a claim against the plaintiff in respect of the
casualty to which the action relates, who—
(a)
was not named by his name in the writ as a defendant to the action,
or
(b)
if so named, neither was served with the writ nor has acknowledged the
issue thereof,
may, within that time, after acknowledging issue of the writ, take out a
summons returnable in chambers before the Registrar, asking that the decree be
set aside.
(2)
The summons must be supported by an affidavit or affidavits showing that
the defendant in question has a bona fide claim against the plaintiff in respect
of the casualty in question and that he has sufficient prima facie grounds for
the contention that the plaintiff is not entitled to the relief given him by the
decree.
(3)
The summons and every affidavit in support thereof must, at least 7 clear
days before the hearing of the summons, be served on the plaintiff and any
defendant who has acknowledged issue or service of the writ.
(4)
On the hearing of the summons the Registrar, if he is satisfied that the
defendant in question has a bona fide claim against the plaintiff and sufficient
prima facie grounds for the contention that the plaintiff is not entitled to the
relief given him by the decree, shall set the decree aside and give such
directions as to the further proceedings in the action as appear to him to be
appropriate including, in particular, a direction requiring the taking out of a
case management summons under Order 25.
41.
References to Registrar (O. 75, r. 41)
(1)
Any party (hereafter in this rule referred to as the
claimant) making a claim which is referred to the Registrar for
decision must within 2 months after the order is made, or, in a limitation
action, within such other period as the Court may direct, file his claim and,
unless the reference is in such an action, serve a copy of the claim on every
other party.
(2)
At any time after the claimant’s claim has been filed or, where the
reference is in a limitation action, after the expiration of the time limited by
the Court for the filing of claims but, in any case, not less than 28 days
before the day appointed for the hearing of the reference, any party to the
cause or matter may apply to the Registrar by case management summons as to the
proceedings on the reference, and the Registrar shall give such directions, if
any, as he thinks fit including, without prejudice to the generality of the
foregoing words, a direction requiring any party to serve on any claimant,
within such period as the Registrar may specify, a defence to that claimant’s
claim.
(3)
The reference shall be heard on a day appointed by the Registrar and,
unless the reference is in a limitation action or the parties to the reference
consent to the appointment of a particular day, the appointment must be made by
order on an application by summons made by any party to the cause or
matter.
(4)
An appointment for the hearing of a reference shall not be made until after
the claimant has filed his claim or, where the reference is in a limitation
action, until after the expiration of the time limited by the Court for the
filing of claims.
(5)
Not later than 7 days after an appointment for the hearing of a reference
has been made the claimant or, where the reference is in a limitation action,
the plaintiff must enter the reference for hearing by lodging in the Registry a
praecipe requesting the entry of the reference in the list for hearing on the
day appointed.
(6)
Not less than 14 days before the day appointed for the hearing of the
reference the claimant must file—
(a)
a list, signed by him and every other party, of the items (if any) of
his claim which are not disputed, stating the amount (if any) which he and
the other parties agree should be allowed in respect of each such item,
and
(b)
such affidavits or other documentary evidence as is required to support
the items of his claim which are disputed;
and, unless the reference is in a limitation action, he must at the same
time serve on every other party a copy of every document filed under this
paragraph.
(7)
If the claimant fails to comply with paragraph (1) or (6)(b),
the Court may, on the application of any other party to the cause or matter,
dismiss the claim.
42.
Hearing of reference (O. 75, r. 42)
(1)
Unless a judge in person otherwise orders, a reference shall be heard in
public.
(2)
The Registrar may adjourn the hearing of a reference from time to time as
he thinks fit.
(3)
Subject to paragraph (2), evidence may be given orally or by affidavit or
in such other manner as may be agreed upon.
(4)
When the hearing of the reference has been concluded, the Registrar
shall—
(a)
reduce to writing his decision on the question arising in the reference
(including any order as to costs) and cause it to be filed;
(b)
cause to be filed either with his decision or subsequently such
statement (if any) of the grounds of the decision as he thinks fit;
and
(c)
send to the parties to the reference notice that he has done
so.
(5)
Where no statement of the grounds of the Registrar’s decision is filed with
his decision and no intimation has been given by the Registrar that he intends
to file such a statement later, any party to the reference may, within 14 days
after the filing of the decision, make a written request to the Registrar to
file such a statement.
43.
Objection to decision on reference (O. 75, r. 43)
(1)
Any party to a reference to the Registrar may, by motion in objection,
apply to set aside or vary the decision of the Registrar on the reference, but
notice of the motion, specifying the points of objection to the decision, must
be filed within 28 days after the date on which notice of the filing of the
decision was sent to that party under rule 42(4) or, if a notice of
the filing of a statement of the grounds of the decision was subsequently sent
to him thereunder, within 28 days after the date on which the notice was
sent.
(2)
The decision of the Registrar shall be deemed to be given on the date on
which it is filed, but, unless he or the judge otherwise directs, the decision
shall not be acted upon until the time has elapsed for filing notice of a motion
in objection thereto.
(3)
A direction shall not be given under paragraph (2) without the parties
being given an opportunity of being heard but may, if the Registrar announces
his intended decision at the conclusion of the hearing of the reference, be
incorporated in his decision as reduced to writing under rule
42(4).
45.
Drawing up and entry of judgments and orders (O. 75, r. 45)
Every judgment given or order made in an Admiralty cause or matter, except an
order which by virtue of Order 42, rule 4, is not required to be drawn
up, shall be drawn up in the Registry and shall be entered by an officer of the
Registry in the book kept for the purpose.
46.
Inspection of documents filed in Registry (O. 75, r. 46)
(1)
Order 63, rule 4, shall apply in relation to documents filed in
the Registry.
Order
76
Contentious
Probate Proceedings
1.
Application and interpretation (O. 76, r.
1)
(1)
This Order applies to probate causes and matters, and the other provisions
of these rules apply to those causes and matters including applications for the
rectification of a will subject to the provisions of this Order.
(2)
In these rules
probate
action
(遺囑認證訴訟
) means an action for the grant of
probate of the will, or letters of administration of the estate, of a deceased
person or for the revocation of such a grant or for a decree pronouncing for or
against the validity of an alleged will, not being an action which is
non-contentious or common form probate business.(3)
In this Order,
will
(遺囑
) includes a
codicil.2.
Requirements in connection with
issue of writ (O. 76, r.
2)
(1)
A probate action may be begun by writ.
(2)
Before a writ beginning a probate action is issued it must be indorsed with
a statement of the nature of the interest of the plaintiff and of the defendant
in the estate of the deceased to which the action
relates.
3.
Parties to action for revocation of grant (O. 76, r.
3)
Every person who is entitled or claims to be entitled to administer the estate
of a deceased person under or by virtue of an unrevoked grant of probate of his will
or letters of administration of his estate shall be made a party to any action for
revocation of the
grant.
4.
Lodgment of grant in action for revocation (O. 76, r.
4)
(1)
Where, at the commencement of an action for the revocation of a grant of
probate of the will or letters of administration of the estate of a deceased
person, the probate or letters of administration, as the case may be, have not
been lodged in court, then—
(a)
if the action is commenced by a person to whom the grant was made, he
shall lodge the probate or letters of administration in the Registry within
7 days after the issue of the writ;
(b)
if any defendant to the action has the probate or letters of
administration in his possession or under his control, he shall lodge it or
them in the Registry within 14 days after the service of the writ upon
him.
(2)
Any person who fails to comply with paragraph (1) may, on the application
of any party to the action, be ordered by the Court to lodge the probate or
letters of administration in the Registry within a specified time; and any
person against whom such an order is made shall not be entitled to take any step
in the action without the leave of the Court until he has complied with the
order.
5.
Affidavit of testamentary scripts (O. 76, r.
5)
(1)
Unless the Court otherwise directs, the plaintiff and every defendant who
has acknowledged service of the writ in a probate action must swear an
affidavit—
(a)
describing any testamentary script of the deceased person, whose estate
is the subject of the action, of which he has any knowledge or, if such be
the case, stating that he knows of no such script; and
(b)
if any such script of which he has knowledge is not in his possession
or under his control, giving the name and address of the person in whose
possession or under whose control it is or, if such be the case, stating
that he does not know the name or address of that person.
(2)
Any affidavit required by this rule must be filed, and an office copy
thereof and any testamentary script referred to therein which is in the
possession or under the control of the deponent, must be lodged in the Registry
within 14 days after the acknowledgment of service by a defendant to the action
or, if no defendant acknowledges service and the Court does not otherwise
direct, before an order is made for the trial of the action.
(3)
Where any testamentary script required by this rule to be lodged in the
Registry or any part thereof is written in pencil, then, unless the Court
otherwise directs, a facsimile copy of that script, or of the page or pages
thereof containing the part written in pencil, must also be lodged in the
Registry and the words which appear in pencil in the original must be underlined
in red ink in the copy.
(4)
Except with the leave of the Court, a party to a probate action shall not
be allowed to inspect an affidavit filed, or any testamentary script lodged, by
any other party to the action under this rule, unless and until an affidavit
sworn by him containing the information referred to in paragraph (1) has been
filed.
(5)
In this rule
testamentary
script
(遺囑性質的文稿
) means a will or draft thereof,
written instructions for a will made by or at the request or under the
instructions of the testator and any document purporting to be evidence of the
contents, or to be a copy, of a will which is alleged to have been lost or
destroyed.6.
Failure to acknowledge service (O. 76, r.
6)
(1)
Order 13 shall not apply in relation to a probate action.
(2)
Where any of several defendants to a probate action fails to acknowledge
service of the writ, the plaintiff may, after the time for acknowledging service
has expired and upon filing an affidavit proving due service of the writ, or
notice of the writ, on that defendant proceed with the action as if that
defendant had acknowledged service.
(3)
Where the defendant, or all the defendants, to a probate action, fails or
fail to acknowledge service of the writ, then, unless on the application of the
plaintiff the Court orders the action to be discontinued, the plaintiff may
after the time limited for acknowledging service by the defendant apply to the
Court for an order for trial of the action.
(4)
Before applying for an order under paragraph (3) the plaintiff must file an
affidavit proving due service of the writ, or notice of the writ, on the
defendant and, if no statement of claim is indorsed on the writ, he must lodge a
statement of claim in the judge’s chambers.
(5)
Where the Court grants an order under paragraph (3), it may direct the
action to be tried on affidavit
evidence.
7.
Service of statement of claim (O. 76, r.
7)
The plaintiff in a probate action must, unless the Court gives leave to the
contrary or unless a statement of claim is indorsed on the writ, serve a statement
of claim on every defendant who acknowledges service of the writ in the action and
must do so before the expiration of 6 weeks after acknowledgment of service by that
defendant or of 8 days after the filing by that defendant of an affidavit under
rule 5, whichever is the
later.
8.
Counterclaim (O. 76, r.
8)
(1)
Notwithstanding anything in Order 15, rule 2(1), a defendant to
a probate action who alleges that he has any claim or is entitled to any relief
or remedy in respect of any matter relating to the grant of probate of the will,
or letters of administration of the estate, of the deceased person which is the
subject of the action must add to his defence a counterclaim in respect of that
matter.
(2)
If the plaintiff fails to serve a statement of claim, any such defendant
may, with the leave of the Court, serve a counterclaim and the action shall then
proceed as if the counterclaim were the statement of
claim.
9.
Contents of pleadings (O. 76, r.
9)
(1)
Where the plaintiff in a probate action disputes the interest of a
defendant he must allege in his statement of claim that he denies the interest
of that defendant.
(2)
In a probate action in which the interest by virtue of which a party claims
to be entitled to a grant of letters of administration is disputed, the party
disputing that interest must show in his pleading that if the allegations made
therein are proved he would be entitled to an interest in the estate.
(3)
Without prejudice to Order 18, rule 7, any party who pleads that
at the time when a will, the subject of the action, was alleged to have been
executed the testator did not know and approve of its contents must specify the
nature of the case on which he intends to rely, and no allegation in support of
that plea which would be relevant in support of any of the following other
pleas, that is to say—
(a)
that the will was not duly executed;
(b)
that at the time of the execution of the will the testator was not of
sound mind, memory and understanding; and
(c)
that the execution of the will was obtained by undue influence or
fraud,
shall be made by that party unless that other plea is also
pleaded.
10.
Default of pleadings (O. 76, r.
10)
(1)
Order 19 shall not apply in relation to a probate action.
(2)
Where any party to a probate action fails to serve on any other party a
pleading which he is required by these rules to serve on that other party, then,
unless the Court orders the action to be discontinued or dismissed, that other
party may, after the expiration of the period fixed by or under these rules for
service of the pleading in question, apply to the Court for an order for trial
of the action; and if an order is made the Court may direct the action to be
tried on affidavit
evidence.
11.
Discontinuance and dismissal (O. 76, r.
11)
(1)
Order 21 shall not apply in relation to a probate action.
(2)
At any stage of the proceedings in a probate action the Court may, on the
application of the plaintiff or of any party to the action who has acknowledged
service of the writ therein, order the action to be discontinued or dismissed on
such terms as to costs or otherwise as it thinks just, and may further order
that a grant of probate of the will, or letters of administration of the estate,
of the deceased person, as the case may be, which is the subject of the action,
be made to the person entitled thereto.
(3)
An application for an order under this rule may be made by summons or by
notice under Order 25, rule 7.
12.
Compromise of action: trial on affidavit
evidence (O. 76, r.
12)
Where, whether before or after the service of the defence in a probate action,
the parties to the action agree to a compromise, the Court may order the trial of
the action on affidavit
evidence.
13.
Application for order to bring in will, etc. (O. 76, r.
13)
(1)
Any application in a probate action for an order under section
7(1) of the Probate and Administration Ordinance (Cap. 10) shall be for an order requiring a person to
bring a will or other testamentary paper into the Registry or to attend in court
for examination.
(2)
An application under paragraph (1) shall be made by summons in the action,
which must be served on the person against whom the order is sought.
(3)
Any application in a probate action for the issue of a subpoena under
section 7(3) of the Probate and Administration Ordinance (Cap. 10) shall be for the issue of a subpoena
requiring a person to bring into the Registry a will or other testamentary
paper.
(4)
An application under paragraph (3) may be made ex parte and must be
supported by an affidavit setting out the grounds of the application.
(5)
An application under paragraph (3) shall be made to a master who may, if
the application is granted, authorize the issue of a subpoena
accordingly.
(6)
Any person against whom a subpoena is issued under section 7(3)
of the Probate and Administration Ordinance (Cap.
10) and who denies that the will or other testamentary paper referred to
in the subpoena is in his possession or under his control may file an affidavit
to that
effect.
14.
Administration pendente lite (O. 76, r.
14)
(1)
An application under section 40 of the Probate and
Administration Ordinance (Cap. 10) for an order for
the grant of administration may be made by summons.
(2)
Where an order for a grant of administration is made under the said
section 40, Order 30, rules 2, 4 and
6 and (subject to section 60 of the Probate and
Administration Ordinance (Cap. 10)) rule
3 shall apply as if the administrator were a receiver appointed by the
Court.
15.
Probate counterclaim in other
proceedings (O. 76, r.
15)
(1)
In this rule
probate
counterclaim
(遺囑認證反申索
) means a counterclaim in any
action other than a probate action by which the defendant claims any such relief
as is mentioned in rule 1(2).(2)
Subject to the following paragraphs, this Order shall apply with the
necessary modifications to a probate counterclaim as it applies to a probate
action.
(3)
A probate counterclaim must contain a statement of the nature of the
interest of the defendant and of the plaintiff in the estate of the deceased to
which the counterclaim relates.
(4)
Before it is served a probate counterclaim must be indorsed with a
memorandum signed by a master showing that the counterclaim has been produced to
him for examination and that three copies of it have been lodged with
him.
16.
Rectification of wills (O. 76, r.
16)
(1)
Where an application is made for rectification of a will, and the grant has
not been lodged in court, rule 4 shall apply, with the necessary
modifications, as if the proceedings were a probate action.
(2)
A copy of every order made for the rectification of a will shall be sent to
the principal Registry for filing, and a memorandum of the order shall be
endorsed on, or permanently annexed to, the grant under which the estate is
administered.
Order
77
Proceedings
by and against the Crown
1.
Application and interpretation (O. 77, r.
1)
(1)
These rules apply to civil proceedings to which the Crown is a party
subject to the following rules of this Order.
(2)
In this Order—
civil
proceedings by the
Crown
(由官方提出的民事法律程序
) and
civil
proceedings against the
Crown
(針對官方提出的民事法律程序
) have the same respective
meanings as in Part III of the Crown Proceedings Ordinance (Cap. 300), and do not include any of the proceedings
specified in section 19(3) of that Ordinance;civil
proceedings to which the Crown is a
party
(以官方作為一方的民事法律程序
) has the same meaning as
it has for the purposes of Part V of the Crown Proceedings Ordinance (Cap. 300), by virtue of section 2(4) of
that Ordinance;order
(命令
)
includes a judgment, decree, rule, award or declaration;order
against the
Crown
(針對官方的命令
) means any order (including an
order for costs) made in any civil proceedings by or against the Crown, or in
connection with any arbitration to which the Crown is a party, in favour of any
person against the Crown or against a government department or against an
officer of the Crown as
such.3.
Particulars to be included in indorsement
of claim (O. 77, r.
3)
(1)
In the case of a writ which begins proceedings against the Crown the
indorsement of claim required by Order 6, rule 2, shall include a
statement of the circumstances in which the Crown’s liability is alleged to have
arisen and as to the government department and officers of the Crown
concerned.
(2)
If in civil proceedings against the Crown a defendant considers that the
writ does not contain a sufficient statement as required by this rule, he may,
before the expiration of the time limited for acknowledging service of the writ,
apply to the plaintiff by notice for a further and better statement containing
such information as may be specified in the notice.
(3)
Where a defendant gives a notice under this rule, the time limited for
acknowledging service of the writ shall not expire until 4 days after the
defendant has notified the plaintiff in writing that the defendant is satisfied
with the statement supplied in compliance with the notice, or 4 days after the
Court has, on the application of the plaintiff by summons served on the
defendant not less than 7 days before the return day, decided that no further
information as to the matters referred to in paragraph (1) is reasonably
required.
4.
Service on the Crown (O. 77, r.
4)
(1)
Order 10, Order 11 and any other provision of these rules relating to
service out of the jurisdiction shall not apply in relation to the service of
any process by which civil proceedings against the Crown are begun.
(2)
Personal service of any document required to be served on the Crown for the purpose of or in connection with any civil proceedings is not requisite; but where the proceedings are by or against the Crown service on the Crown must be effected by service on the Secretary for Justice.
(3)
In relation to the service of any document required to be served on the
Crown for the purpose of or in connection with any civil proceedings by or
against the Crown, Order 65, rules 5 and 9, shall not
apply, and Order 65, rule 7, shall apply as if the reference therein
to rules 2 and 5(1)(a) of that Order were a reference to
paragraph (2) of this
rule.
6.
Counterclaim and set-off (O. 77, r.
6)
(1)
Notwithstanding Order 15, rule 2, and Order 18, rules
17 and 18, a person may not in any proceedings by the Crown
make any counterclaim or plead a set-off if the proceedings are for the recovery
of, or the counterclaim or set-off arises out of a right or claim to repayment
in respect of, any taxes, duties or penalties.
(2)
Notwithstanding Order 15, rule 2, and Order 18, rules
17 and 18, no counterclaim may be made, or set-off pleaded,
without the leave of the Court, by the Crown in proceedings against the Crown,
or by any person in proceedings by the Crown—
(a)
if the Crown is sued or sues in the name of a government department and
the subject-matter of the counterclaim or set-off does not relate to that
department; or
(b)
if the Crown is sued or sues in the name of the Secretary for Justice.
(3)
Any application for leave under this rule must be made by
summons.
7.
Summary judgment (O. 77, r.
7)
(1)
No application shall be made against the Crown—
(b)
under Order 14, rule 5, in any proceedings by the Crown;
or
(c)
under Order 14A, rule 1, in any proceedings by or against the Crown.
(2)
Where an application is made by the Crown under Order 14, rule 1,
Order 14, rule 5, or Order 86, rule 1, the affidavit
required in support of the application must be made by—
(a)
the solicitor acting for the Crown, or
(b)
an officer duly authorized by the solicitor so acting or by the
department concerned;
and the affidavit shall be sufficient if it states that in the deponent’s
belief the applicant is entitled to the relief claimed and there is no defence
to the claim or part of a claim to which the application relates or no defence
except as to the amount of any damages
claimed.
9.
Judgment in default (O. 77, r.
9)
(1)
Except with the leave of the Court, no judgment in default of notice of
intention to defend or of pleading shall be entered against the Crown in civil
proceedings against the Crown or in third party proceedings against the
Crown.
(2)
Except with the leave of the Court, Order 16, rule 5(1)(a),
shall not apply in the case of third party proceedings against the
Crown.
(3)
An application for leave under this rule may be made by summons and the
summons must be served not less than 7 days before the return day.
10.
Third party notices (O. 77, r.
10)
(1)
Notwithstanding anything in Order 16, a third party notice (including a
notice issuable by virtue of Order 16, rule 9) for service on the
Crown shall not be issued without the leave of the Court, and the application
for the grant of such leave must be made by summons, and the summons must be
served on the plaintiff and the Crown.
(2)
Leave to issue such a notice for service on the Crown shall not be granted
unless the Court is satisfied that the Crown is in possession of all such
information as it reasonably requires as to the circumstances in which it is
alleged that the liability of the Crown has arisen and as to the departments and
officers of the Crown
concerned.
11.
Interpleader: application for order
against Crown (O. 77, r.
11)
No order shall be made against the Crown under Order 17, rule 5(3),
except upon an application by summons served not less than 7 days before the return
day.
12.
Discovery and interrogatories (O. 77, r.
12)
(2)
In any civil proceedings to which the Crown is a party any order of the Court made under the power conferred by section 24(1) of the Crown Proceedings Ordinance (Cap. 300), shall be construed as not requiring the disclosure of the existence of any document the existence of which it would, in the opinion of the Chief Secretary for Administration, be injurious to the public interest to disclose.
(3)
Where in any such proceedings an order of the Court directs that a list of
documents made in answer to an order for discovery against the Crown shall be
verified by affidavit, the affidavit shall be made by such officer of the Crown
as the Court may direct.
(4)
Where in any such proceedings an order is made under the said section
24 for interrogatories to be answered by the Crown, the Court shall
direct by what officer of the Crown the interrogatories are to be
answered.
(5)
(Repealed L.N. 404 of
1991)
14.
Evidence (O. 77, r.
14)
(1)
Civil proceedings against the Crown may be instituted under Order 39,
rule 15, in any case in which the Crown is alleged to have an
interest or estate in the honour, title, dignity or office or property in
question.
(2)
For the avoidance of doubt it is hereby declared that any powers
exercisable by the Court in regard to the taking of evidence are exercisable in
proceedings between
subjects.
15.
Execution and satisfaction of orders (O. 77, r.
15)
(1)
Nothing in Orders 45 to 52 shall apply in respect of any order against the
Crown. (See
App. A, Form
96)
(2)
An application under the proviso to subsection (1) of section 21
of the Crown Proceedings Ordinance (Cap. 300), for
a direction that a separate certificate shall be issued under that subsection
with respect to the costs (if any) ordered to be paid to the applicant, may be
made to the Court ex parte without summons.
(3)
Any such certificate must be in Form No. 95 or 96 in Appendix A, whichever
is
appropriate.
16.
Attachment of debts, etc. (O. 77, r.
16)
(1)
No order—
(a)
for the attachment of debts under Order 49, or
(b)
for the appointment of a sequestrator under Order 45, or
(c)
for the appointment of a receiver under Order 30 or 51,
shall be made or have effect in respect of any money due or accruing due,
or alleged to be due or accruing due, from the Crown.
(1A)
No application shall be made under paragraph (2) unless the order of the
Court to be enforced is for a sum of money amounting in value to at least
$5,000.
(2)
Every application to the Court for an order under section 23(1)
of the Crown Proceedings Ordinance (Cap. 300),
restraining any person from receiving money payable to him by the Crown and
directing payment of the money to the applicant or some other person must be
made by summons and, unless the Court otherwise directs, served—
(a)
on the Crown at least 15 days before the return day, and
(b)
on the person to be restrained or his solicitor at least 7 days after
the summons has been served on the Crown and at least 7 days before the
return day.
(2A)
An application under paragraph (2) must be supported by an
affidavit—
(a)
setting out the facts giving rise to the application;
(b)
stating the name and last known address of the person to be
restrained;
(c)
identifying the order to be enforced and stating the amount of such
order and the amount remaining unpaid under it at the time of the
application, and
(d)
identifying the particular debt from the Crown in respect of which the
application is made.
(3)
Order 49, rules 5 and 6, shall apply in relation to
such an application as is mentioned in paragraph (2) for an order restraining a
person from receiving money payable to him by the Crown as those rules apply to
an application under Order 49, rule 1, for an order for the
attachment of a debt owing to any person from a garnishee, except that the Court
shall not have power to order execution to issue against the
Crown.
17.
Proceedings relating to postal packets (O. 77, r.
17)
(1)
An application by any person under section 7(3) of the Crown
Proceedings Ordinance (Cap. 300), for leave to
bring proceedings in the name of the sender or addressee of a postal packet or
his personal representatives must be made by originating summons.
(2)
The Crown and the person in whose name the applicant seeks to bring
proceedings must be made defendants to a summons under this rule.
(3)
A summons under this rule shall be in Form No. 10 in Appendix
A.
18.
Applications under section 25 of Crown Proceedings
Ordinance (O. 77, r.
18)
(2)
An application such as is referred to in section 25(2) of the
Crown Proceedings Ordinance (Cap. 300) may be made
to the Court at any time before trial by summons, or may be made at the trial of
the proceedings.
Order
78
District
Court Proceedings Transferred or Removed to Court of First
Instance
1.
Application and interpretation (O. 78, r.
1)
(1)
This Order applies where an order has been made under section 41
or 42 of the District Court Ordinance (Cap.
336), for the transfer, or under section 15 of the Crown
Proceedings Ordinance (Cap. 300), for the removal,
of proceedings from the District Court to the Court of First Instance.
(2)
Where only the proceedings on a counterclaim are transferred, this Order
shall apply as if the party setting up the counterclaim were the plaintiff and
the party resisting it the defendant, and references in this Order to the
plaintiff and the defendant shall be construed accordingly.
(3)
References in the following provisions of this Order to the plaintiff and
the defendant shall, in relation to proceedings begun in the District Court
otherwise than by writ, be construed as references to the applicant and the
respondent respectively.
2.
Duties of officer (O. 78, r.
2)
On receipt by the Registrar of the documents relating to the transfer or
removal, the Registrar must forthwith—
(a)
file the said documents and make an entry of the filing thereof in the
cause book,
(c)
give notice to all parties to the proceedings in the District Court that
the action is proceeding in the Court of First Instance and that the defendant
is required to acknowledge service of the notice in writing.
3.
Acknowledgment of service (O. 78, r.
3)
(1)
The defendant must, within 7 days after receipt of the
notice referred to in rule 2, acknowledge service in writing of the
notice of transfer or removal.
(2)
Where the defendant has not, before the proceedings are transferred or
removed to the Court, acknowledged service of the writ or the originating
summons by which the proceedings were begun in the District Court, he shall file
an acknowledgement of service in accordance with Order 12, rules 1,
3, 5 and 9 within 14 days after receipt of
the notice referred to in rule 2.
4.
Judgment on failure to give notice of
intention to defend (O. 78, r.
4)
(1)
If the defendant fails, or all the defendants (if more than one) fail, to
give notice of intention to defend within the period prescribed by rule
3(2), the plaintiff, after having caused an address for service to be
entered in the cause book, may, with the leave of the Court, enter judgment
against the defendant or defendants, as the case may be, with costs.
(2)
An application for leave under this rule must be made by summons which
must, notwithstanding anything in Order 65, rule 9, be served on the
defendant, and the address for service of the defendant shall be his address for
service in the proceedings in the District Court.
5.
Case management summons or summary
judgment (O. 78, r. 5)
(1)
Unless the plaintiff has entered judgment against a defendant under
rule 4(1) or has entered judgment (final or interlocutory) or
applied for judgment against a defendant under Order 19, the plaintiff must,
within 7 days after a notice under rule 2 is given, cause an address
for service to be entered in the cause book and either—
(a)
take out and serve on the defendant a case management summons
returnable in not less than 21 days, or
(b)
except where the defendant is the Crown, make an application under
Order 14, rule 1, for judgment against the defendant;
and where a summons is served on the defendant under sub-paragraph (a)
Order 25, rules 2 to 7, shall, with any necessary modifications,
apply as if that summons were a case management summons under that
Order.
(2)
If the plaintiff fails either to take out such a summons, or make such an
application, as is referred to in paragraph (1) within the period prescribed
thereby the defendant or any defendant may take out such a summons or may apply
for an order dismissing the action.
(3)
On the hearing of an application to dismiss the action the Court may either
dismiss the action on such terms as may be just or may deal with the application
as if it were a case management summons.
Order
78A
Transfer of
Proceedings from Court of First Instance to
Competition
Tribunal under Competition
Ordinance
(Cap. 619)
1.
Interpretation of this Order (O. 78A, r. 1)
In this Order—
transfer order
(移交令
) means an order made by the Court for the transfer of proceedings
from the Court to the Competition Tribunal under section 113 of the
Competition Ordinance (Cap. 619).2.
Transfer of proceedings from Court to Competition Tribunal (O. 78A, r.
2)
(1)
A transfer order may be made by the Court either of its own motion or on
application of a party.
(2)
The application must be made by filing a summons setting out the scope of
the proceedings, or the part of the proceedings, to be transferred to the
Competition Tribunal.
3.
Duties of Registrar of the High Court after transfer of proceedings from Court
to Competition Tribunal (O. 78A, r. 3)
If the Court has made a transfer order, the Registrar of the High Court must, as
soon as practicable after the transfer order has been sealed, send to the Registrar
of the Competition Tribunal—
(a)
all documents issued out of, or filed or lodged in, the Court in the
proceedings transferred by the transfer order;
(b)
any notes of the proceedings made by a judge of the Court or the Registrar
or a master of the High Court; and
(c)
any transcripts or other records of the proceedings.
4.
Proceedings transferred from Court to Competition Tribunal: effects of transfer
(O. 78A, r. 4)
(1)
On making a transfer order, the Court may give further directions as to the
transfer of suitors’ fund to the Competition Tribunal.
(2)
The making of a transfer order does not affect—
(a)
any right of appeal to the Court or the Court of Appeal
against—
(i)
the transfer order itself; or
(ii)
any judgment, decision, determination or order made by the Court in
the proceedings before the transfer order was made; or
(b)
the right to enforce in the Court any judgment, decision, determination
or order made by the Court before the transfer.
Order
78B
Transfer of
Proceedings from Competition Tribunal to Court of
First
Instance under Competition
Ordinance
(Cap. 619)
1.
Interpretation of this Order (O. 78B, r. 1)
In this Order—
transfer order
(移交令
) means an order made by the Competition Tribunal for the transfer of
proceedings from the Tribunal to the Court under section 114 of the
Competition Ordinance (Cap. 619).2.
Procedures after transfer of proceedings from Competition Tribunal to Court (O.
78B, r. 2)
(1)
The Registrar of the High Court must, as soon as practicable after the
receipt of the documents sent under rule 48 of the
Competition
Tribunal Rules
(Cap.
619 sub. leg.
D)
in relation to a transfer order—
(a)
give notice of the transfer and the receipt of the documents
to—
(i)
all the parties to the proceedings transferred by the transfer
order;
(ii)
the Competition Commission; and
(iii)
the Communications Authority if it performs the functions of the
Commission under section 159 of the Competition Ordinance
(Cap. 619); and
(b)
appoint a date for a hearing before the Court for giving directions as
to the further conduct of the proceedings.
(2)
A party must, within 14 days after the receipt of the notice given under
paragraph (1)(a), in writing acknowledge receipt of the
notice.
(3)
At the hearing mentioned in paragraph (1)(b), the Court may give
any directions as to the further conduct of the proceedings, including the
procedures to be adopted in the proceedings.
3.
Proceedings transferred from Competition Tribunal to Court: effects of transfer
(O. 78B, r. 3)
(1)
Proceedings transferred by a transfer order are regarded as having been
transferred to the Court on the date on which the order is made, unless the
Court otherwise directs.
(2)
On the transfer of the proceedings—
(a)
a document issued, served, filed or lodged on a date in relation to the
proceedings before the transfer is regarded as having been issued, served,
filed or lodged, as may be applicable, on that date for the purpose of the
proceedings in the Court; and
(b)
a step taken by a party on a date in relation to the proceedings before
the transfer is regarded as having been taken on that date for the purpose
of the proceedings in the Court.
(3)
On the transfer of the proceedings, a judgment, decision, determination or
order made by the Competition Tribunal in relation to the proceedings before the
transfer has effect in the Court as if the judgment, decision, determination or
order had been made by the Court on the date on which it was made by the
Tribunal, unless the Court otherwise directs.
(4)
The transfer of the proceedings does not affect—
(a)
any right of appeal to the Competition Tribunal or the Court of Appeal
against—
(i)
the transfer order itself; or
(ii)
any judgment, decision, determination or order made by the Tribunal
in the proceedings before the transfer; or
(b)
the right to enforce in the Tribunal any judgment, decision,
determination or order made by the Tribunal before the transfer.
(5)
If, before the transfer of the proceedings, an application had been made to
the Competition Tribunal in relation to the proceedings but not yet been
determined, the application is regarded as having been made to the Court and to
be dealt with by the Court accordingly.
(6)
If the application referred to in paragraph (5) is
part-heard
in the Competition Tribunal, the Court may either—
(a)
continue to hear the application as if the earlier proceedings relating
to the application had taken place before the Court; or
(b)
require the application to be heard afresh.
Order
79
Tribunal
Proceedings Transfer or Removal to the Court of First
Instance
1.
Tribunal proceedings; transfer or removal to the
Court of First Instance (O. 79, r.
1)
Save as is otherwise provided by Ordinance or rules of court when a matter is
transferred or removed from a tribunal to the Court of First Instance it shall be
set down before a master who shall make such directions as he sees fit for the
further conduct of the proceedings.
Order
80
Disability
1.
Interpretation (O. 80, r.
1)
In this Order—
mentally
incapacitated
person
(精神上無行為能力的人
) means a mentally disordered
person or a mentally handicapped person (within the meaning of the Mental Health
Ordinance (Cap. 136)) who, by reason of mental disorder
or mental handicap, as the case may be, is incapable of managing and administering
his property and affairs;
person
under
disability
(無行為能力的人
) means a person who is a minor or a
mentally incapacitated person;
2.
Person under disability must sue, etc. by next friend or
guardian ad litem (O. 80, r.
2)
(1)
A person under disability may not bring, or make a claim in, any proceedings except by his next friend and may not acknowledge service, defend, make a counterclaim or intervene in any proceedings, or appear in any proceedings under a judgment or order notice of which has been served on him, except by his guardian ad litem.
(2)
Subject to the provision of these rules, anything which in the ordinary conduct of any proceedings is required or authorized by a provision of these rules to be done by a party to the proceedings shall or may, if the party is a person under disability, be done by his next friend or guardian ad litem.
(3)
Except where the Official Solicitor is acting as next friend or guardian ad
litem, a next friend or guardian ad litem of a person under disability must act
by a solicitor.
3.
Appointment of next friend or guardian
ad litem (O. 80, r.
3)
(2)
Except as provided by paragraph (4) or (5) or by rule 6, an order appointing a person next friend or guardian ad litem of a person under disability is not necessary.
(3)
Where a person is authorized under Part II of the Ordinance to conduct legal proceedings in the name of a mentally incapacitated person or on his behalf, that person shall be entitled to be next friend or guardian ad litem, as the case may be, of the mentally incapacitated person in any proceedings to which his authority extends unless, in a case to which paragraph (4) or (5) or rule 6 applies, some other person is appointed by the Court under that paragraph or rule to be next friend or guardian ad litem, as the case may be, of the mentally incapacitated person in those proceedings.
(4)
Where a person has been or is next friend or guardian ad litem of a person under disability in any proceedings, no other person shall be entitled to act as such friend or guardian, as the case may be, of the person under disability in those proceedings unless the Court makes an order appointing him such friend or guardian in substitution for the person previously acting in that capacity.
(5)
Where, after any proceedings have been begun, a party to the proceedings becomes a mentally incapacitated person, an application must be made to the Court for the appointment of a person to be next friend or guardian ad litem, as the case may be, of that party.
(6)
Except where the next friend or guardian ad litem, as the case may be, of a person under disability has been appointed by the Court—
(a)
the name of any person shall not be used in a cause or matter as next friend of a person under disability,
(b)
service shall not be acknowledged in a cause or matter for a person under disability, and
(c)
a person under disability shall not be entitled to appear by his guardian ad litem on the hearing of a petition, summons or motion which, or notice of which, has been served on him,
unless and until the documents listed in paragraph (8) have been filed in the Registry.
(8)
The documents referred to in paragraph (6) are the following—
(a)
a written consent to be next friend or guardian ad litem, as the case may be, of the person under disability in the cause or matter in question given by the person proposing to be such friend or guardian; and
(b)
where the person proposing to be such friend or guardian of the person under disability, being a mentally incapacitated person, is authorized under Part II of the Ordinance to conduct the proceedings in the cause or matter in question in the name of the mentally incapacitated person or on his behalf, an office copy, sealed with the seal of the High Court, of the order or other authorization made or given under the said Part II by virtue of which he is so authorized; and
(c)
except where the person proposing to be such friend or guardian of the person under disability, being a mentally incapacitated person, is authorized as mentioned in sub-paragraph (b) a certificate made by the solicitor for the person under disability certifying—
(i)
that he knows or believes, as the case may be, that the person to whom the certificate relates is a minor or a mentally incapacitated person, giving (in the case of a mentally incapacitated person) the grounds of his knowledge or belief; and
(ii)
where the person under disability is a mentally incapacitated person, that there is no person authorized as aforesaid; and
(iii)
except where the person named in the certificate as next friend or
guardian ad litem, as the case may be, is the Official Solicitor, that
the person so named has no interest in the cause or matter in question
adverse to that of the person under disability.
6.
Appointment of guardian where person under disability
does not acknowledge service (O. 80, r.
6)
(1)
Where—
(a)
in an action against a person under disability begun by writ, or by originating summons, no acknowledgment of service is given in the action for that person, or
(b)
the defendant to an action serves a defence and counterclaim on a person under disability who is not already a party to the action, and no acknowledgment of service is given for that person,
an application for the appointment by the Court of a guardian ad litem of that person must be made by the plaintiff or defendant, as the case may be, after the time limited (as respects that person) for acknowledging service and before proceeding further with the action or counterclaim.
(2)
Where a party to an action has served on a person under disability who is not already a party to the action a third party notice within the meaning of Order 16 and no acknowledgment of service is given for that person to the notice, an application for the appointment by the Court of a guardian ad litem of that person must be made by that party after the time limited (as respects that person) for acknowledging service and before proceeding further with the third party proceedings.
(3)
Where in any proceedings against a person under disability begun by petition or motion, that person does not appear by a guardian ad litem at the hearing of the petition or motion, as the case may be, the Court hearing it may appoint a guardian ad litem of that person in the proceedings or direct that an application be made by the petitioner or applicant, as the case may be, for the appointment of such a guardian.
(5)
An application under paragraph (1) or (2) must be supported by evidence proving—
(a)
that the person to whom the application relates is a person under disability,
(b)
that the person proposed as guardian ad litem is willing and a proper person to act as such and has no interest in the proceedings adverse to that of the person under disability,
(c)
that the writ, originating summons, defence and counterclaim or third party notice, as the case may be, was duly served on the person under disability, and
(d)
subject to paragraph (6), that notice of the application was, after the expiration of the time limited for acknowledging service and at least 7 days before the day named in the notice for hearing of the application, so served on him.
(6)
If the Court so directs, notice of an application under paragraph (1) or (2) need not be served on a person under disability.
(7)
An application for the appointment of a guardian ad litem made in
compliance with a direction of the Court given under paragraph (3) must be
supported by evidence proving the matters referred to in paragraph
(5)(b).
7.
Application to discharge or vary
certain orders (O. 80, r.
7)
An application to the Court on behalf of a person under disability served with an order made ex parte under Order 15, rule 7, for the discharge or variation of the order must be made—
(a)
if a next friend or guardian ad litem is acting for that person in the cause or matter in which the order is made, within 14 days after the service of the order on that person;
(b)
if there is no next friend or guardian ad litem acting for that person in
that cause or matter, within 14 days after the appointment of such a friend or
guardian to act for
him.
8.
Admission not to be implied from pleading of person
under disability (O. 80, r.
8)
Notwithstanding anything in Order 18, rule 13(1), a person under
disability shall not be taken to admit the truth of any allegation of fact made in
the pleading of the opposite party by reason only that he has not traversed it in
his
pleadings.
9.
Discovery and interrogatories (O. 80, r.
9)
Orders 24 and 26 shall apply to a person under disability and to his next
friend or guardian ad
litem.
10.
Compromise, etc., by person under
disability (O. 80, r.
10)
Where in any proceedings money is claimed by or on behalf of a person under
disability, no settlement, compromise or payment and no acceptance of money paid
into court, whenever entered into or made, shall so far as it relates to that
person’s claim be valid without the approval of the
Court.
11.
Approval of settlement (O. 80, r.
11)
(1)
Where, before proceedings in which a claim for money is made by or on behalf of a person under disability (whether alone or in conjunction with any other person) are begun, an agreement is reached for the settlement of the claim, and it is desired to obtain the Court’s approval to the settlement, then the claim may be made in proceedings begun by originating summons, and in the summons an application may also be made for—
(a)
the approval of the Court to the settlement and such orders or directions as may be necessary to give effect to it or as may be necessary or expedient under rule 12, or
(b)
alternatively, directions as to the further prosecution of the claim.
(2)
Where in proceedings under this rule a claim is made under the Fatal Accidents Ordinance (Cap. 22), the originating summons must include the particulars mentioned in section 5(4) of the Fatal Accidents Ordinance (Cap. 22).
(4)
An originating summons under this rule shall be in Form No. 10 in Appendix A.
(5)
In this rule
settlement
(和解
) includes a
compromise.12.
Control of money recovered by person
under disability (O. 80, r.
12)
(1)
Where in any proceedings—
(a)
money is recovered by or on behalf of, or adjudged or ordered or agreed to be paid to, or for the benefit of, a person under disability, or
(b)
money paid into court is accepted by or on behalf of a plaintiff who is a person under disability,
the money shall be dealt with in accordance with directions given by the Court, under this rule and not otherwise.
(2)
Directions given under this rule may provide that the money shall, as to the whole or any part thereof, be paid into the Court and invested or otherwise dealt with there.
(3)
Without prejudice to the foregoing provisions of this rule, directions given under this rule may include any general or special directions that the Court thinks fit to give and, in particular, directions as to how the money is to be applied or dealt with and as to any payment to be made, either directly or out of the amount paid into court and whether before or after the money is transferred to or paid into a District Court, to the plaintiff, or to the next friend in respect of moneys paid or expenses incurred for or on behalf or for the benefit of the person under disability or for his maintenance or otherwise for his benefit or to the plaintiff’s solicitor in respect of costs.
(4)
Where in pursuance of directions given under this rule money is paid into the Court of First Instance to be invested or otherwise dealt with there, the money (including any interest thereon) shall not be paid out, nor shall any securities in which the money is invested, or the dividends thereon, be sold, transferred or paid out of court, except in accordance with an order of the Court.
(5)
The foregoing provisions of this rule shall apply in relation to a
counterclaim by or on behalf of a person under disability, as if for references
to a plaintiff and a next friend there were substituted references to a
defendant and to a guardian ad litem respectively.
13.
Provisions supplementary to rule 12 (O. 80, r.
13)
(3)
Where money is ordered to be transferred to or paid into a District Court,
the Registrar shall send a sealed copy of the judgment or order to the Registrar
of the District
Court.
15.
Proceedings under Fatal Accidents Ordinance:
apportionment by Court (O. 80, r.
15)
(1)
Where a single sum of money is paid into court under Order 22, in satisfaction of a cause of action under the Fatal Accidents Ordinance (Cap. 22) and a cause of action under Part IV or IVA of the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23), and that sum is accepted, the money shall be apportioned between the different causes of action by the Court either when giving directions for dealing with it under rule 12 (if that rule applies) or when authorizing its payment out of court.
(2)
Where, in an action in which a claim under the Fatal Accidents Ordinance
(Cap. 22) is made by or on behalf of more than
one person, a sum in respect of damages is adjudged or ordered or agreed to be
paid in satisfaction of the claim, or a sum of money paid into court under Order
22, is accepted in satisfaction of the cause of action under the said Ordinance,
then, unless the sum has been apportioned between the persons entitled thereto
by a jury, it shall be apportioned between those persons by the
Court.
The reference in this paragraph to a sum of money paid into court shall
be construed as including a reference to part of a sum so paid, being the part
apportioned by the Court under paragraph (1) to the cause of action under the
said Ordinances.
16.
Service of certain documents on person
under disability (O. 80, r.
16)
(1)
Where in any proceedings a document is required to be served personally or in accordance with Order 10, rule 1(2) on any person and that person is a person under disability this rule shall apply.
(2)
Subject to the following provisions of this rule and to Order 24, rule 16(3) and Order 26, rule 6(3) the document must be served—
(a)
in the case of a minor who is not also a mentally incapacitated person, on his father or guardian or, if he has no father or guardian, on the person with whom he resides or in whose care he is;
(b)
in the case of a mentally incapacitated person, on the person (if any) who is authorized under Part II of the Ordinance to conduct in the name of the mentally incapacitated person or on his behalf the proceedings in connection with which the document is to be served or, if there is no person so authorized, on the person with whom he resides or in whose care he is;
and must be served in the manner required by these rules with respect to the document in question.
(3)
Notwithstanding anything in paragraph (2), the Court may order that a document which has been, or is to be, served on the person under disability or on a person other than a person mentioned in that paragraph shall be deemed to be duly served on the person under disability.
(4)
A judgment or order requiring a person to do, or refrain from doing, any
act, a notice of motion or summons for the committal of any person, and a writ
of subpoena against any person, must, if that person is a person under
disability, be served personally on him unless the Court otherwise
orders.
This paragraph shall not apply to an order for interrogatories or for
discovery or inspection of documents.
Order
81
Partners
1.
Actions by and against firms within
jurisdiction (O. 81, r.
1)
Subject to the provisions of any written law, any 2 or more persons claiming to
be entitled, or alleged to be liable, as partners in respect of a cause of action
and carrying on business within the jurisdiction may sue, or be sued, in the name of
the firm (if any) of which they were partners at the time when the cause of action
accrued.
2.
Disclosure of partners’ names (O. 81, r.
2)
(1)
Any defendant to an action brought by partners in the name of a firm may
serve on the plaintiffs or their solicitor a notice requiring them or him
forthwith to furnish the defendant with a written statement of the names and
places of residence of all the persons who were partners in the firm at the time
when the cause of action accrued; and if the notice is not complied with the
Court may order the plaintiffs or their solicitor to furnish the defendant with
such a statement and to verify it on oath or otherwise as may be specified in
the order, or may order that further proceedings in the action be stayed on such
terms as the Court may direct.
(2)
When the names of the partners have been declared in compliance with a
notice or order given or made under paragraph (1), the proceedings shall
continue in the name of the firm but with the same consequences as would have
ensued if the persons whose names have been so declared had been named as
plaintiffs in the writ.
(3)
Paragraph (1) shall have effect in relation to an action brought against
partners in the name of a firm as it has effect in relation to an action brought
by partners in the name of a firm but with the substitution, for references to
the defendant and the plaintiffs, of references to the plaintiff and the
defendants respectively, and with the omission of the words “or may order” to
the
end.
3.
Service of writ (O. 81, r.
3)
(1)
Where by virtue of rule 1 partners are sued in the name of a
firm, the writ may, except in the case mentioned in paragraph (3), be
served—
(a)
on any one or more of the partners, or
(b)
at the principal place of business of the partnership within the
jurisdiction, on any person having at the time of service the control or
management of the partnership business there, or
(c)
by sending a copy of the writ by registered post (in accordance with
Order 10, rule 1(2)) to the firm at the principal place of
business of the partnership within the jurisdiction;
and, subject to paragraph (2), where service of the writ is effected in
accordance with this paragraph, the writ shall be deemed to have been duly
served on the firm, whether or not any member of the firm is out of the
jurisdiction.
(2)
Where a writ is served on a firm in accordance with paragraph
(1)(c)—
(a)
the date of service shall, unless the contrary is shown, be deemed to
be the seventh day (ignoring Order 3, rule 2(5)) after the date
on which the copy was sent to the firm, and
(b)
any affidavit proving due service of the writ must contain a statement
to the effect that—
(i)
in the opinion of the deponent (or, if the deponent is the
plaintiff’s solicitor or an employee of that solicitor, in the opinion
of the plaintiff) the copy of the writ, if sent to the firm at the
address in question, will have come to the knowledge of one of the
persons mentioned in paragraph (1)(a) or (b) within 7 days
thereafter, and
(ii)
the copy of the writ has not been returned to the plaintiff through
the post undelivered to the addressee.
(3)
Where a partnership has, to the knowledge of the plaintiff, been dissolved
before an action against the firm is begun, the writ by which the action is
begun must be served on every person within the jurisdiction sought to be made
liable in the action.
(4)
Every person on whom a writ is served under paragraph (1)(a) or
(b) must at the time of service be given a written notice stating whether he is
served as a partner or as a person having the control or management of the
partnership business or both as a partner and as such a person; and any person
on whom a writ is so served but to whom no such notice is given shall be deemed
to be served as a
partner.
4.
Acknowledgment of service in an action
against firm (O. 81, r.
4)
(1)
Where persons are sued as partners in the name of their firm, service may
not be acknowledged in the name of the firm but only by the partners thereof in
their own names, but the action shall nevertheless continue in the name of the
firm.
(2)
Where in an action against a firm the writ by which the action is begun is
served on a person as a partner, that person, if he denies that he was a partner
or liable as such at any material time, may acknowledge service of the writ and
state in his acknowledgment that he does so as a person served as a partner in
the defendant firm but who denies that he was a partner at any material
time.
An acknowledgment of service given in accordance with this paragraph
shall, unless and until it is set aside, be treated as an acknowledgment by the
defendant firm.
(3)
Where an acknowledgment of service has been given by a defendant in
accordance with paragraph (2), then—
(a)
the plaintiff may either apply to the Court to set it aside on the
ground that the defendant was a partner or liable as such at a material time
or may leave that question to be determined at a later stage of the
proceedings;
(b)
the defendant may either apply to the Court to set aside the service of
the writ on him on the ground that he was not a partner or liable as such at
a material time or may at the proper time serve a defence on the plaintiff
denying in respect of the plaintiff’s claim either his liability as a
partner or the liability of the defendant firm or both.
(4)
The Court may at any stage of the proceedings in an action in which a
defendant has acknowledged service in accordance with paragraph (2), on the
application of the plaintiff or of that defendant, order that any question as to
the liability of that defendant or as to the liability of the defendant firm be
tried in such manner and at such time as the Court directs.
(5)
Where in an action against a firm the writ by which the action is begun is
served on a person as a person having the control or management of the
partnership business, that person may not acknowledge service of the writ unless
he is a member of the firm
sued.
5.
Enforcing judgment or order against firm (O. 81, r.
5)
(1)
Where a judgment is given or order made against a firm, execution to
enforce the judgment or order may, subject to rule 6, issue against
any property of the firm within the jurisdiction.
(2)
Where a judgment is given or order made against a firm, execution to enforce
the judgment or order may, subject to
paragraphs
(3) and (6) and rule 6, issue against any person who—
(a)
acknowledged service of the writ in the action as a partner,
or
(b)
having been served as a partner with the writ of summons, failed to
acknowledge service of it in the action, or
(c)
admitted in his pleading that he is a partner, or
(d)
was adjudged to be a partner.
(3)
Execution to enforce a judgment or order given or made against a firm may
not issue against a member of the firm who was out of the jurisdiction when the
writ of summons was issued unless he—
(a)
acknowledged service of the writ in the action as a partner,
or
(b)
was served within the jurisdiction with the writ as a partner,
or
(c)
was, with the leave of the Court given under Order 11, served out of
the jurisdiction with the writ as a partner;
and, except as provided by paragraph (1) and by the foregoing provisions
of this paragraph, a judgment or order given or made against a firm shall not
render liable, release or otherwise affect a member of the firm who was out of
the jurisdiction when the writ was issued.
(4)
Subject
to paragraph (6), where a party who has obtained a judgment or
order against a firm claims that a person is liable to satisfy the judgment or
order as being a member of the firm, and the foregoing provisions of this rule
do not apply in relation to that person, that party may apply to the Court for
leave to issue execution against that person, the application to be made by
summons which must be served personally on that person.
(5)
Where the person against whom an application under paragraph (4) is made
does not dispute his liability, the Court hearing the application may, subject
to paragraph (3), give leave to issue execution against that person, and, where
that person disputes his liability, the Court may order that the liability of
that person be tried and determined in any manner in which any issue or question
in an action may be tried and
determined.
(6)
Execution to enforce a judgment or order given or made against a firm that
is a limited liability partnership may not issue against a member of the firm
unless—
(a)
the member admitted in the pleading in the proceedings that the member
is a partner not protected under Part IIAAA of the Legal
Practitioners Ordinance (Cap. 159) from
liability for the partnership obligation in respect of which the proceedings
are brought; or
(b)
the member is adjudged to be such a partner—
(i)
in the proceedings; or
(ii)
on an application for leave to enforce the judgment or order.
(7)
In paragraph (6)—
limited liability partnership
(有限法律責任合夥
) has the meaning given by
section 7AA(1) of the Legal Practitioners Ordinance (Cap. 159);partnership obligation
(合夥義務
) has the meaning given by section
7AA(1) of the Legal Practitioners Ordinance (Cap. 159). 6.
Enforcing judgment or order in actions
between partners, etc. (O. 81, r.
6)
(1)
Execution to enforce a judgment or order given or made in—
(a)
an action by or against a firm in the name of the firm against or by a
member of the firm, or
(b)
an action by a firm in the name of the firm against a firm in the name
of the firm where those firms have one or more members in common,
shall not issue except with the leave of the Court.
(2)
The Court hearing an application under this rule may give such directions,
including directions as to the taking of accounts and the making of inquiries,
as may be
just.
7.
Attachment of debts owed by firm (O. 81, r.
7)
(1)
An order may be made under Order 49, rule 1, in relation to
debts due or accruing due from a firm carrying on business within the
jurisdiction notwithstanding that one or more members of the firm is resident
out of the jurisdiction.
(2)
An order to show cause under the said rule 1 relating to such
debts as aforesaid must be served on a member of the firm within the
jurisdiction or on some other person having the control or management of the
partnership business.
(3)
Where an order made under the said rule 1 requires a firm to
appear before the Court, an appearance by a member of the firm constitutes a
sufficient compliance with the
order.
8.
Actions begun by originating summons (O. 81, r.
8)
Rules 2 to 7 shall, with the necessary modifications, apply in
relation to an action by or against partners in the name of their firm begun by
originating summons as they apply in relation to such an action begun by
writ.
9.
Application to person carrying on business
in another name (O. 81, r.
9)
An individual carrying on business within the jurisdiction in a name or style
other than his own name, may, whether or not he is within the jurisdiction, be sued
in that name or style as if it were the name of a firm, and rules 2 to 8
shall, so far as applicable, apply as if he were a partner and the name in which he
carries on business were the name of his
firm.
10.
Applications for orders charging partner’s interest in
partnership property, etc. (O. 81, r.
10)
(1)
Every application to the Court by a judgment creditor of a partner for an
order under section 25 of the Partnership Ordinance (Cap. 38) (which authorizes the Court of First
Instance or a judge thereof to make certain orders on the application of a
judgment creditor of a partner, including an order charging the partner’s
interest in the partnership property), and every application to the Court by a
partner of the judgment debtor made in consequence of the first-mentioned
application, must be made by summons.
(2)
A master may exercise the powers conferred on a judge by the said
section 25.
(3)
Every summons issued by a judgment creditor under this rule, and every
order made on such a summons, must be served on the judgment debtor and on such
of his partners as are within the jurisdiction.
(4)
Every summons issued by a partner of a judgment debtor under this rule, and
every order made on such a summons, must be served—
(a)
on the judgment creditor, and
(b)
on the judgment debtor, and
(c)
on such of the other partners of the judgment debtor as do not join in
the application and are within the jurisdiction.
(5)
A summons or order served in accordance with this rule on some only of the
partners shall be deemed to have been served on all the partners of the
partnership.
Order
82
Defamation
Actions
1.
Application (O. 82, r.
1)
These rules apply to actions for libel or slander subject to the following
rules of this
Order.
2.
Indorsement of claim in libel action (O. 82, r.
2)
Before a writ in an action for libel is issued it must be indorsed with a
statement giving sufficient particulars of the publications in respect of which the
action is brought to enable them to be
identified.
3.
Obligation to give particulars (O. 82, r.
3)
(1)
Where in an action for libel or slander the plaintiff alleges that the
words or matters complained of were used in a defamatory sense other than their
ordinary meaning, he must give particulars of the facts and matters on which he
relies in support of such sense.
(2)
Where in an action for libel or slander the defendant alleges that, in so
far as the words complained of consist of statements of fact, they are true in
substance and in fact, and in so far as they consist of expressions of opinion,
they are fair comment on a matter of public interest, or pleads to the like
effect, he must give particulars stating which of the words complained of he
alleges are statements of fact and of the facts and matters he relies on in
support of the allegation that the words are true.
(3)
Where in an action for libel or slander the plaintiff alleges that the
defendant maliciously published the words or matters complained of, he need not
in his statement of claim give particulars of the facts on which he relies in
support of the allegation of malice, but if the defendant pleads that any of
those words or matters are fair comment on a matter of public interest or were
published on a privileged occasion and the plaintiff intends to allege that the
defendant was actuated by express malice, he must serve a reply giving
particulars of the facts and matters from which the malice is to be
inferred.
(4)
This rule shall apply in relation to a counterclaim for libel or slander as
if the party making the counterclaim were the plaintiff and the party against
whom it is made the
defendant.
4.
Provisions as to payment into court (O. 82, r.
4)
(1)
Where in an action for libel or slander against several defendants sued
jointly the plaintiff, in accordance with Order 22, accepts money paid into
court by any of those defendants in satisfaction of his cause of action against
that defendant, then, notwithstanding anything in that Order, the action shall
be stayed as against that defendant only, but—
(a)
the sum recoverable under any judgment given in the plaintiff’s favour
against any other defendant in the action by way of damages shall not exceed
the amount (if any) by which the amount of the damages exceeds the amount
paid into court by the defendant as against whom the action has been stayed,
and
(b)
the plaintiff shall not be entitled to his costs of the action against
the other defendant after the date of the payment into court unless either
the amount of the damages awarded to him is greater than the amount paid
into court and accepted by him or the judge is of opinion that there was
reasonable ground for him to proceed with the action against the other
defendant.
5.
Statement in open court (O. 82, r.
5)
(1)
Where a party wishes to accept money paid into court in satisfaction of a
cause of action for libel or slander, malicious prosecution or false
imprisonment, that party may before or after accepting the money apply to a
judge in chambers by summons for leave to make in open court a statement in
terms approved by the judge.
(2)
Where a party to an action for libel or slander, malicious prosecution or
false
imprisonment
which is settled before trial desires to make a statement in open court, an
application must be made to the Court for an order that an action be set down
for trial, and before the date fixed for the trial a statement must be submitted
for the approval of the judge before whom it is to be made.
6.
Interrogatories not allowed in
certain cases (O. 82, r.
6)
In an action for libel or slander where the defendant pleads that the words or
matters complained of are fair comment on a matter of public interest or were
published on a privileged occasion, no interrogatories as to the defendant’s sources
of information or grounds of belief shall be
allowed.
7.
Evidence in mitigation of damages (O. 82, r.
7)
In an action for libel or slander in which the defendant does not by his
defence assert the truth of the statement complained of, the defendant shall not be
entitled on the trial to give evidence in chief, with a view to mitigation of
damages, as to the circumstances under which the libel or slander was published, or
as to the character of the plaintiff, without the leave of the judge, unless 7 days
at least before the trial he furnishes particulars to the plaintiff of the matters
as to which he intends to give
evidence.
8.
Fulfilment of offer of amends under section 25 of the
Defamation Ordinance (O. 82, r.
8)
(1)
An application to the Court under section 25 of the Defamation
Ordinance (Cap. 21) to determine any question as to
the steps to be taken in fulfilment of an offer of amends made under that
section must, unless the application is made in the course of proceedings for
libel or slander in respect of the publication to which the offer relates, be
made before a judge in chambers.
(2)
An originating summons by which such an application is made shall be in
Form No. 10 in Appendix A.
Order
83A
Money
Lenders’
Actions
1.
Application and interpretation (O. 83A, r.
1)
(1)
These rules apply to a money lender’s action subject to the following rules of this Order.
(2)
In these rules—
money
lender
(放債人
) has the meaning assigned to it by
section 2 of the Money Lenders Ordinance (Cap. 163);money
lender’s
action
(放債人訴訟
) means an action for the recovery
of money lent by a money lender or for the enforcement of any agreement or
security relating to money so lent, being an action brought by the lender or an
assignee.2.
Commencement of money lender’s action (O. 83A, r.
2)
(1)
Every money lender’s action may be begun by writ.
(2)
Before a writ beginning a money lender’s action is issued it must be
indorsed with a statement that at the time of the making of the loan or contract
or the giving of the security in question the lender was licensed as a money
lender.
3.
Particulars to be included in statement
of claim (O. 83A, r.
3)
Every statement of claim in a money lender’s action (whether indorsed on the writ or not) must state—
(a)
the date on which the loan was made;
(b)
the amount actually lent to the borrower;
(c)
the rate per cent per annum of interest charged;
(d)
the date when the contract for repayment was made;
(g)
the amount repaid;
(h)
the amount due but unpaid;
(i)
the date upon which such unpaid sum or sums became due; and
(j)
the amount of interest accrued due and unpaid on every such
sum.
4.
Judgment on failure to give notice of intention to
defend or in default of defence (O. 83A, r.
4)
(1)
In a money lender’s action judgment on failure to give notice of intention to defend or in default of defence shall not be entered except with the leave of the Court.
(2)
(a)
An application for the grant of leave under this rule must be made by summons supported by an affidavit which must—
(i)
prove that the money is due and payable;
(iii)
exhibit a true copy of any agreement or security relating to the money lent,
and the original agreement or security must be produced at the hearing of the summons.
(b)
The summons and a copy of the affidavit in support and of any exhibits referred to therein must, notwithstanding anything in Order 65, rule 9 be served on the defendant not less than 4 clear days before the day fixed for the hearing of the summons.
(3)
If the application is for leave to enter judgment on failure to give notice of intention to defend, the summons shall not be issued until after the time limited for acknowledgment of service of the writ.
(4)
On the hearing of such application, whether the defendant appears or not, the Court—
(a)
may exercise the powers of the court under section 25 of the Money Lenders Ordinance (Cap. 163);
(b)
where it refuses leave under this rule to enter judgment on a claim or
any part of a claim, may make or give any such order or directions as it
might have made or given had the application been an application under Order
14, rule 1, for judgment on the
claim.
5.
(Repealed L.N. 129 of 2000)
Order
84A
Actions
arising out of Hire-purchase or Conditional Sale Agreements
1.
Application and interpretation (O. 84A, r.
1)
(1)
These rules apply to actions to which this Order applies subject to the following Order.
(2)
This Order applies to any action arising out of a hire-purchase agreement or a conditional sale agreement brought against the hirer or buyer of the goods to which the agreement relates or a guarantor, if the writ beginning the action is indorsed with a claim for money, not being—
(a)
a claim for unliquidated damages, or
(b)
a claim for no more than the amount of any instalment or instalments of the hire-purchase price or total purchase price, as the case may be, which is due and unpaid.
(3)
(a)
In this Order—
buyer
(買方
) in
relation to a conditional sale agreement, means the person who agrees to
purchase goods under the agreement and includes a person to whom the rights
or liabilities of that person under the agreement have passed by assignment
or by operation of law;conditional
sale
agreement
(有條件售賣協議
) means an agreement for the
sale of goods under which the purchase price or part of it is payable by
instalments, and the property in the goods
is to remain in the seller (notwithstanding that the buyer
is to be in possession of the goods) until such conditions as to the payment
of instalments or otherwise as may be specified in the agreement are
fulfilled;contract
of
guarantee
(擔保合約
), in relation to a
hire-purchase agreement, credit-sale agreement or conditional sale
agreement, means a contract, made at the request (express or implied) of the hirer or buyer, either
to guarantee the performance of the hirer’s or
buyer’s obligations under the hire-purchase agreement,
credit-sale agreement or conditional sale agreement, or to indemnify the
owner or seller against any loss which he may incur in respect of that
agreement, and
guarantee
(擔保
) shall be considered
accordingly;goods
(貨品
),
buyer
(買方
) (except in
relation to a conditional sale agreement) have the meanings assigned to them
respectively by the Sale of Goods Ordinance (Cap.
26);hire-purchase agreement
(租購協議
) means an agreement for the bailment
of goods under which the bailee may buy the goods, or under which the
property in the goods will or may pass to the bailee;hire-purchase
price
(租購價
) (subject to sub-paragraph (b))
means the total sum payable by the hirer under a hire-purchase agreement in
order to complete the purchase of goods to which the agreement relates,
exclusive of any sum payable as a penalty or as compensation or damages for
a breach of the agreement;hirer
(租用人
)
means the person who takes or has taken goods from an owner under a
hire-purchase agreement and includes a person to whom the hirer’s rights or
liabilities under the agreement have passed by assignment or by operation of
law;total
purchase
price
(總買價
) (subject to sub-paragraph (b))
means the total sum payable by the buyer under a credit-sale agreement or a
conditional sale agreement, exclusive of any sum payable as a penalty or as
compensation or damages for a breach of the
agreement.(b)
For the purposes of this Order, any sum payable by the hirer under a
hire-purchase agreement, or by the buyer under a conditional sale agreement,
by way of a deposit or other initial payment, or credited or to be credited
to him under the agreement on account of any such deposit or payment,
whether that sum is to be or has been paid to the owner or seller or to any
other person or is to be or has been discharged by a payment of money or by
the transfer or delivery of goods or by any other means, shall form part of
the hire-purchase price or total purchase price, as the case may
be.
2.
Particulars to be included in statement
of claim (O. 84A, r.
2)
Every statement of claim in an action to which this Order applies (whether
indorsed on the writ or not) must state the circumstances in which the claim
mentioned in rule 1(2)
arises.
3.
Judgment on failure to give notice of intention to
defend or in default of defence (O. 84A, r.
3)
(1)
In an action to which this Order applies judgment on failure to give notice of intention to defend or in default of defence shall not be entered except with the leave of the Court.
(2)
(a)
An application for the grant of leave under this rule must be made by summons supported by an affidavit which must—
(i)
give the particulars required by rule 2; and
(ii)
exhibit a true copy of the hire-purchase or conditional sale agreement, the original of which must be produced at the hearing of the summons.
(b)
The summons and a copy of the affidavit in support and of any exhibits referred to therein must, notwithstanding anything in Order 65, rule 9, be served on the defendant not less than 4 clear days before the day fixed for the hearing of the summons.
(3)
If the application is for leave to enter judgment on failure to give notice of intention to defend, the summons shall not be issued until after the time limited for acknowledgment of service of the writ.
(4)
The plaintiff must produce to the Court hearing an application for the grant of leave under this rule the hire-purchase or conditional sale agreement to which the action relates.
(5)
Unless the Court hearing such application grants leave to enter judgment for the amount claimed or, having power to do so, transfers the action to a District Court, it shall (whether or not the defendant appears on the hearing) try the action.
Order
85
Administration
and Similar Actions
1.
Interpretation (O. 85, r.
1)
In this Order
administration
action
(遺產管理訴訟
) means an action for the
administration under the direction of the Court of the estate of a deceased person
or for the execution under the direction of the Court of a
trust.2.
Determination of questions, etc., without
administration (O. 85, r.
2)
(1)
An action may be brought for the determination of any question or for any
relief which could be determined or granted, as the case may be, in an
administration action and a claim need not be made in the action for the
administration or execution under the direction of the Court of the estate or
trust in connection with which the question arises or the relief is
sought.
(2)
Without prejudice to the generality of paragraph (1), an action may be
brought for the determination of any of the following questions—
(a)
any question arising in the administration of the estate of a deceased
person or in the execution of a trust;
(b)
any question as to the composition of any class of persons having a
claim against the estate of a deceased person or a beneficial interest in
the estate of such a person or in any property subject to a trust;
(c)
any question as to the rights or interests of a person claiming to be a
creditor of the estate of a deceased person or to be entitled under a will
or on the intestacy of a deceased person or to be beneficially entitled
under a trust.
(3)
Without prejudice to the generality of paragraph (1), an action may be
brought for any of the following reliefs—
(a)
an order requiring an executor, administrator or trustee to furnish
and, if necessary, verify accounts;
(b)
an order requiring the payment into court of money held by a person in
his capacity as executor, administrator or trustee;
(c)
an order directing a person to do or abstain from doing a particular
act in his capacity as executor, administrator or trustee;
(d)
an order approving any sale, purchase, compromise or other transaction
by a person in his capacity as executor, administrator or trustee;
(e)
an order directing any act to be done in the administration of the
estate of a deceased person or in the execution of a trust which the Court
could order to be done if the estate or trust were being administered or
executed, as the case may be, under the direction of the
Court.
3.
Parties (O. 85, r.
3)
(1)
All the executors or administrators of the estate or trustees of the trust,
as the case may be, to which an administration action or such an action as is
referred to in rule 2 relates must be parties to the action, and
where the action is brought by executors, administrators or trustees, any of
them who does not consent to being joined as a plaintiff must be made a
defendant.
(2)
Notwithstanding anything in Order 15, rule 4(2), and without
prejudice to the powers of the Court under that Order, all the persons having a
beneficial interest in or claim against the estate or having a beneficial
interest under the trust, as the case may be, to which such an action as is
mentioned in paragraph (1) relates need not be parties to the action; but the
plaintiff may make such of those persons, whether all or any one or more of
them, parties as, having regard to the nature of the relief or remedy claimed in
the action, he thinks fit.
(3)
Where, in proceedings under a judgment or order given or made in an action
for the administration under the direction of the Court of the estate of a
deceased person, a claim in respect of a debt or other liability is made against
the estate by a person not a party to the action, no party other than the
executors or administrators of the estate shall be entitled to appear in any
proceedings relating to that claim without the leave of the Court, and the Court
may direct or allow any other party to appear either in addition to, or in
substitution for, the executors or administrators on such terms as to costs or
otherwise as it thinks
fit.
4.
Grant of relief in action begun by
originating summons (O. 85, r.
4)
In an administration action or such an action as is referred to in rule
2, the Court may make any certificate or order and grant any relief to
which the plaintiff may be entitled by reason of any breach of trust, wilful default
or other misconduct of the defendant notwithstanding that the action was begun by
originating summons, but the foregoing provision is without prejudice to the power
of the Court to make an order under Order 28, rule 8, in relation to the
action.
5.
Judgments and orders in administration
actions (O. 85, r.
5)
(1)
A judgment or order for the administration or execution under the direction
of the Court of an estate or trust need not be given or made unless in the
opinion of the Court the questions at issue between the parties cannot properly
be determined otherwise than under such a judgment or order.
(2)
Where an administration action is brought by a creditor of the estate of a
deceased person or by a person claiming to be entitled under a will or on the
intestacy of a deceased person or to be beneficially entitled under a trust, and
the plaintiff alleges that no or insufficient accounts have been furnished by
the executors, administrators or trustees, as the case may be, then, without
prejudice to its other powers, the Court may—
(a)
order that proceedings in the action be stayed for a period specified
in the order and that the executors, administrators or trustees, as the case
may be, shall within that period furnish the plaintiff with proper
accounts;
(b)
if necessary to prevent proceedings by other creditors or by other
persons claiming to be entitled as aforesaid, give judgment or make an order
for the administration of the estate to which the action relates and include
therein an order that no proceedings are to be taken under the judgment or
order, or under any particular account or inquiry directed, without the
leave of the judge in
person.
6.
Conduct of sale of trust property (O. 85, r.
6)
Where in an administration action an order is made for the sale of any property
vested in executors, administrators or trustees, those executors, administrators or
trustees, as the case may be, shall have the conduct of the sale unless the Court
otherwise directs.
Order
86
Actions
for Specific Performance, etc.: Summary Judgment
1.
Application by plaintiff for summary
judgment (O. 86, r.
1)
(1)
In any action begun by writ indorsed with a claim—
(a)
for specific performance of an agreement (whether in writing or not) for the sale, purchase, exchange, mortgage or charge of any property, or for the grant or assignment of a lease of any property, with or without an alternative claim for damages, or
(b)
for rescission of such an agreement, or
(c)
for the forfeiture or return of any deposit made under such an agreement,
the plaintiff may, on the ground that the defendant has no defence to the action, apply to the Court for judgment.
(2)
An application may be made against a defendant under this rule whether or
not he has acknowledged service of the
writ.
2.
Manner in which application under
rule 1 must be made (O. 86, r.
2)
(1)
An application under rule 1 shall be made by summons supported by
an affidavit verifying the facts on which the cause of action is based and
stating that in the deponent’s belief there is no defence to the
action.
Unless the Court otherwise directs, an affidavit for the purposes of this
paragraph may contain statements of information or belief with the sources and
grounds thereof.
(2)
The summons must set out or have attached thereto minutes of the judgment sought by the plaintiff.
(3)
The summons, a copy of the affidavit in support and of any exhibit referred
to therein must be served on the defendant not less than 4 clear days before the
return
day.
3.
Judgment for plaintiff (O. 86, r.
3)
(1)
Unless on the hearing of an application under rule 1 either the Court dismisses the application or the defendant satisfies the Court that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of the action, the Court may give judgment for the plaintiff in the action.
(2)
The Court may by order, and subject to such conditions, if any, as may be
just, stay execution of any judgment given against the defendant under this rule
until after the trial of any counterclaim made or raised by the defendant in the action.
4.
Leave to defend (O. 86, r.
4)
(1)
A defendant may show cause against an application under rule 1 by affidavit or otherwise to the satisfaction of the Court.
(2)
The Court may give a defendant against whom such an application is made leave to defend the action either unconditionally or on such terms as to giving security or time or mode of trial or otherwise as it thinks fit.
(3)
On the hearing of such an application the Court may order a defendant showing cause or, where that defendant is a body corporate, any director, manager, secretary or other similar officer thereof, or any person purporting to act in any such capacity—
(a)
to produce any document;
(b)
if it appears to the Court that there are special circumstances which
make it desirable that he should do so, to attend and be examined on
oath.
5.
Directions (O. 86, r.
5)
Where the Court orders that a defendant have leave to defend the action, the Court shall give directions as to the further conduct of the action, and Order 25, rules 2 to 7, shall, with the omission of so much of rule 7(1) as requires parties to serve a notice specifying the orders and directions which they require and with any other necessary modifications, apply as if the application under rule 1 were a case management summons.
6.
Costs (O. 86, r.
6)
If the plaintiff makes an application under rule 1 where the case is
not within this Order, or if it appears to the Court that the plaintiff knew that
the defendant relied on a contention which would entitle him to unconditional leave
to defend, then, without prejudice to Order 62, and, in particular, to rule
4(1) thereof, the Court may dismiss the application with costs and may, if
the plaintiff is not an aided person, require the costs to be paid by him
forthwith.
7.
Setting aside judgment (O. 86, r.
7)
Any judgement given against a defendant who does not appear at the hearing of
an application under rule 1 may be set aside or varied by the Court on
such terms as it thinks
just.
8.
Application for summary judgment on
counterclaim (O. 86, r.
8)
(1)
Where a defendant to an action begun by writ has served a counterclaim
claiming against the plaintiff such relief as appears in rule 1(1)
the defendant may, on the ground that the plaintiff has no defence to a claim
made in the counterclaim or to a particular part of such a claim, apply to the
court for judgment against the plaintiff on that claim or that part.
(2)
Rules 2, 3, 4, 5, 6
and 7 shall apply in relation to an application under this rule as
they apply in relation to an application under rule 1 but with the
following modifications—
(a)
references to the plaintiff and defendant shall be construed as
references to the defendant and plaintiff respectively;
(b)
the words in rule 3(2) “any counterclaim made or raised by
the defendant in” shall be omitted;
(c)
the reference in rule 4(2) to the action shall be construed
as a reference to the counterclaim to which the application under this rule
relates.
9.
Right to proceed with residue of
action or counterclaim (O. 86, r.
9)
(1)
Where on an application under rule 1 the plaintiff obtains
judgment on a claim or a part of a claim against any defendant, he may proceed
with the action as respects any other claim or as respects the remainder of the
claim or against any other defendant.
(2)
Where on an application under rule 8 a defendant obtains
judgment on a claim or part of a claim made in a counterclaim against the
plaintiff, he may proceed with the counterclaim as respects any other claim or
against any other defendant to the counterclaim.
Order
87
Debenture
Holders’
Actions:
Receiver’s
Register
1.
Receiver’s register (O. 87, r.
1)
Every receiver appointed by the Court in an action to enforce registered
debentures or registered debenture stock shall, if so directed by the Court, keep a
register of transfers of, and other transmissions of title to, such debentures or
stock (in this Order referred to as
the
receiver’s
register).
2.
Registration of transfers, etc. (O. 87, r.
2)
(1)
Where a receiver is required by rule 1 to keep a receiver’s
register, then, on the application of any person entitled to any debentures or
debenture stock by virtue of any transfer or other transmission of title, and on
production of such evidence of identity and title as the receiver may reasonably
require, the receiver shall, subject to the following provisions of this rule,
register the transfer or other transmissions of title in that
register.
(2)
Before registering a transfer the receiver must, unless the due execution of
the transfer is proved by affidavit, send by post to the registered holder of
the debentures or debenture stock transferred at his registered address a notice
stating—
(a)
that an application for the registration of the transfer has been made,
and
(b)
that the transfer will be registered unless within the period specified
in the notice the holder informs the receiver that he objects to the
registration,
and no transfer shall be registered until the period so specified has
elapsed.
The period to be specified in the notice shall in no case be less than 7
days after a reply from the registered holder would in the ordinary course of
post reach the receiver if the holder had replied to the notice on the day
following the day when in the ordinary course of post the notice would have been
delivered at the place to which it was addressed.
(3)
On registering a transfer or other transmission of title under this rule
the receiver must indorse a memorandum thereof on the debenture or certificate
of debenture stock, as the case may be, transferred or transmitted, containing a
reference to the action and to the order appointing him
receiver.
3.
Application for rectification of
receiver’s register (O. 87, r.
3)
(1)
Any person aggrieved by any thing done or omission made by a receiver under
rule 2 may apply to the Court for rectification of the receiver’s
register, the application to be made by summons in the action in which the
receiver was appointed.
(2)
The summons shall in the first instance be served only on the plaintiff or
other party having the conduct of the action but the Court may direct the
summons or notice of the application to be served on any other person appearing
to be interested.
(3)
The Court hearing an application under this rule may decide any question
relating to the title of any person who is party to the application to have his
name entered in or omitted from the receiver’s register and generally may decide
any question necessary or expedient to be decided for the rectification of that
register.
4.
Receiver’s register evidence of
transfers, etc. (O. 87, r.
4)
Any entry made in the receiver’s register, if verified by an affidavit made by
the receiver or by such other person as the Court may direct, shall in all
proceedings in the action in which the receiver was appointed be evidence of the
transfer or transmission of title to which the entry relates and, in particular,
shall be accepted as evidence thereof for the purpose of any distribution of assets,
notwithstanding that the transfer or transmission has taken place after the making
of a certificate in the action certifying the holders of the debentures or debenture
stock
certificates.
5.
Proof of title of holder of bearer
debenture, etc. (O. 87, r.
5)
(1)
This rule applies in relation to an action to enforce bearer debentures or
to enforce debenture stock in respect of which the company has issued debenture
stock bearer certificates.
(2)
Notwithstanding that judgment has been given in the action and that a
certificate has been made therein certifying the holders of such debentures or
certificates as are referred to in paragraph (1), the title of any person
claiming to be such a holder shall (in the absence of notice of any defect in
the title) be sufficiently proved by the production of the debenture or
debenture stock certificate, as the case may be, together with a certificate of
identification signed by the person producing the debenture or certificate
identifying the debenture or certificate produced and certifying the person
(giving his name and address) who is the holder thereof.
(3)
Where such a debenture or certificate as is referred to in paragraph (1) is
produced in the Registry, the solicitor of the plaintiff in the action must
cause to be indorsed thereon a notice stating—
(a)
that the person whose name and address is specified in the notice
(being the person named as the holder of the debenture or certificate in the
certificate of identification produced under paragraph (2)) has been
recorded in the Registry as the holder of the debenture or debenture stock
certificate, as the case may be, and
(b)
that that person will, on producing the debenture or debenture stock
certificate, as the case may be, be entitled to receive payment of any
dividend in respect of that debenture or stock unless before payment a new
holder proves his title in accordance with paragraph (2), and
(c)
that if a new holder neglects to prove his title as aforesaid he may
incur additional delay, trouble and expense in obtaining payment.
(4)
The solicitor of the plaintiff in the action must preserve any certificates
of identification produced under paragraph (2) and must keep a record of the
debentures and debenture stock certificates so produced and of the names and
addresses of the persons producing them and of the holders thereof, and, if the
Court requires it, must verify the record by
affidavit.
6.
Requirements in connection with payments (O. 87, r.
6)
(1)
Where in an action to enforce any debentures or debenture stock an order is
made for payment in respect of the debentures or stock, the Registrar shall not
make a payment in respect of any such debenture or stock unless either there is
produced to him the certificate for which paragraph (2) provides or the Court
has in the case in question for special reason dispensed with the need for the
certificate and directed payment to be made without it.
(2)
For the purpose of obtaining any such payment the debenture or debenture
stock certificate must be produced to the solicitor of the plaintiff in the
action or to such other person as the Court may direct, and that solicitor or
other person must indorse thereon a memorandum of payment and must make and sign
a certificate certifying that the statement set out in the certificate has been
indorsed on the debenture or debenture stock certificate, as the case may be,
and send the certificate to the Registrar.
Order
88
Mortgage
Actions
1.
Application and interpretation (O. 88, r.
1)
(1)
This Order applies to any action (whether begun by writ or originating
summons) by a mortgagee or mortgagor or by any person having the right to
foreclose or redeem any mortgage, being an action (other than an action to which
rule 5A applies) in which there is a claim for any of the
following reliefs, namely—
(a)
payment of moneys secured by the mortgage,
(b)
sale of the mortgaged property,
(c)
foreclosure,
(d)
delivery of possession (whether before or after foreclosure or without
foreclosure) to the mortgagee by the mortgagor or by any other person who is
or is alleged to be in possession of the property,
(e)
redemption,
(f)
reconveyance of the property or its release from the
security,
(g)
delivery of possession by the mortgagee.
(2)
In this Order
mortgage
(按揭
) includes a legal and an equitable
mortgage and a legal and an equitable charge, and references to a mortgagor, a
mortgagee and mortgaged property shall be construed accordingly.(3)
An action to which this Order applies is referred to in this Order as a
mortgage action.
(4)
These rules apply to mortgage actions subject to the following provisions
of this
Order.
4.
Claim for possession: failure by a defendant to
acknowledge service (O. 88, r.
4)
(1)
Where in a mortgage action begun by originating summons, being an action in
which the plaintiff is the mortgagee and claims delivery of possession or
payment of moneys secured by the mortgage or both, any defendant fails to
acknowledge service of the originating summons, the following provisions of this
rule shall apply, and references in those provisions to the defendant shall be
construed as references to any such
defendant.
(2)
Not less than 4 clear days before the day fixed for the first hearing of
the originating summons the plaintiff must serve on the defendant a notice of
appointment for the hearing and a copy of the affidavit in support of the
summons.
(3)
Where the plaintiff claims delivery of possession there must be indorsed on
the outside fold of the copy of the affidavit served on the defendant a notice
informing the defendant that the plaintiff intends at the hearing to apply for
an order to the defendant to deliver up to the plaintiff possession of the
mortgaged property and for such other relief (if any) claimed by the originating
summons as the plaintiff intends to apply for at the hearing.
(4)
Where the hearing is adjourned, then, subject to any directions given by the
Court, the plaintiff must serve notice of the appointment for the adjourned
hearing, together with a copy of any further affidavit intended to be used at
that hearing, on the defendant not less than 2 clear days before the day fixed
for the
hearing.
A copy of any affidavit served under this paragraph must be indorsed in
accordance with paragraph (3).
(5)
Service under paragraph (2) or (4), and the manner in which it was effected,
may be proved by a certificate signed by the plaintiff, if he sues in person,
and otherwise by his
solicitor.
The certificate may be indorsed on the affidavit in support of the
summons or, as the case may be, on any further affidavit intended to be used at
an adjourned hearing.
(6)
A copy of any exhibit to an affidavit need not accompany the copy of the
affidavit served under paragraph (2) or (4).
(7)
Where the plaintiff gives notice to the defendant under Order 3, rule
6, of his intention to proceed, service of the notice, and the manner
in which it was effected, may be proved by a certificate signed as mentioned in
paragraph
(5).
5.
Action for possession or payment: evidence (O. 88, r.
5)
(1)
The affidavit in support of the originating summons by which an action to
which this rule applies is begun must comply with the following provisions of
this
rule.
This rule applies to a mortgage action begun by originating summons in
which the plaintiff is the mortgagee and claims delivery of possession or
payment of moneys secured by the mortgage or both.
(2)
The affidavit must exhibit a true copy of the mortgage and the original
mortgage must be produced at the hearing of the summons.
(3)
Where the plaintiff claims delivery of possession the affidavit must show
the circumstances under which the right to possession arises and except where
the Court in any case or class of case otherwise directs, the state of the
account between the mortgagor and mortgagee with particulars of—
(a)
the amount of the advance,
(b)
the amount of the periodic payments required to be made,
(c)
the amount of any interest or instalments in arrear at the date of the
originating summons and at the date of the affidavit, and
(d)
the amount remaining due under the mortgage.
(4)
Where the plaintiff claims delivery of possession, the affidavit must give
particulars of every person who to the best of the plaintiff’s knowledge is in
possession of the mortgaged property.
(5)
If the mortgage creates a tenancy other than a tenancy at will between the
mortgagor and mortgagee, the affidavit must show how and when the tenancy was
determined and if by service of notice when the notice was duly
served.
(6)
Where the plaintiff claims payment of moneys secured by the mortgage, the
affidavit must prove that the money is due and payable and give the particulars
mentioned in paragraph (3).
(7)
Where the plaintiff’s claim includes a claim for interest to judgment, the
affidavit must state the amount of a day’s
interest.
5A.
Action for the enforcement of charging
order by sale (O. 88, r.
5A)
(1)
This rule applies to a mortgage action to enforce a charging order by sale
of the property charged.
(2)
The affidavit in support of the originating summons must—
(a)
identify the
charging
order sought to be enforced and the subject-matter of the charge;
(b)
specify the amount in respect of which the charge was imposed and the
balance outstanding at the date of the affidavit;
(c)
verify, so far as is known, the debtor’s title to the property
charged;
(d)
identify any other incumbrances on the property charged stating, so far
as is known, the names and addresses of the incumbrancers and the amounts
owing to them;
(e)
set out the plaintiff’s proposals as to the manner of sale of the
property charged together with estimates of the gross price which would be
obtained on a sale in that manner and of the costs of such sale;
(f)
where the property charged consists of land in respect of which the
plaintiff claims delivery of possession, give particulars of every person
who to the best of the plaintiff’s knowledge is in possession of the
property charged or any part of
it.
6.
Action by writ: judgment in default (O. 88, r.
6)
(1)
Notwithstanding anything in Order 13 or Order 19, in a mortgage action
begun by writ judgment on failure to give notice of intention to defend or in
default of defence shall not be entered except with the leave of the
Court.
(2)
An application for the grant of leave under this rule must be made by
summons and the summons must, notwithstanding anything in Order 65, rule
9, be served on the defendant.
(3)
Where a summons for leave under this rule is issued, rule 4(2)
to (7) shall apply in relation to the action subject to the modification that
for references therein to the originating summons, and for the reference in
paragraph (2) to the notice of appointment, there shall be substituted
references to the summons.
(4)
Where a summons for leave under this rule is issued in an action to which
rule 5 would apply had the action been begun by originating
summons, the affidavit in support of the summons must contain the information
required by that
rule.
7.
Foreclosure in redemption action (O. 88, r.
7)
Where foreclosure has taken place by reason of the failure of the plaintiff in
a mortgage action for redemption to redeem, the defendant in whose favour the
foreclosure has taken place may apply by summons for an order for delivery to him of
possession of the mortgaged property, and the Court may make such order thereon as
it thinks fit.
Order
89
Proceedings
between Husband and Wife
1.
Determination of questions as to property (O. 89, r. 1)
(1)
2.
Provisions as to actions in tort (O. 89, r. 2)
(1)
This rule applies to any action in tort brought by one of the parties to a
marriage against the other during the subsistence of the marriage.
(2)
On the first application by summons in an action to which this rule applies, the Court shall consider, if necessary of its own motion, whether the power to stay the action under section 5(2) of the Married Persons Status Ordinance (Cap. 182) should or should not be exercised.
(3)
Notwithstanding anything in Order 13 or Order 19, judgment on failure to
give notice of intention to defend or in default of defence shall not be entered
in an action to which this rule applies except with the leave of the
Court.
(4)
An application for grant of leave under paragraph (3) must be made by
summons and the summons must, notwithstanding anything in Order 65, rule
9, be served on the defendant.
(5)
If the summons is for leave to enter judgment on failure to give notice of
intention to defend, the summons shall not be issued before the time limited for
acknowledging service of the writ.
Order
90
Proceedings
concerning Minors
3.
Application to make a minor a
ward of court (O. 90, r.
3)
(1)
Where an action to which a minor is a party is proceeding, an application to make that minor a ward of court may be made by summons in the action; in any other case an application to make a minor a ward of court may be made by originating summons.
(2)
Where there is no person other than the minor who is a suitable defendant, an application may be made ex parte to the Registrar for leave to issue either an ex parte originating summons or an originating summons with the infant as defendant thereto; and, except where such leave is granted, the minor shall not be made a defendant to an originating summons under this rule in the first instance.
(3)
Particulars of any summons under this rule shall be recorded in the register of wards.
(3A)
The date of the minor’s birth shall, unless otherwise directed, be stated in the summons and the plaintiff shall—
(a)
on issuing the summons or before or at the first hearing thereof lodge in the Registry a certified copy of the entry in the birth register book kept under the Births and Deaths Registration Ordinance (Cap. 174) or, as the case may be, in the Adopted Children Register maintained under the Adoption Ordinance (Cap. 290), relating to the minor, or
(b)
at the first hearing of the summons apply for directions as to proof of birth of the minor in some other manner.
(3B)
The name of each party to the proceedings shall be qualified by a brief description in the body of the summons, of his interest in, or relationship to, the minor.
(4)
Unless the Court otherwise directs, the summons shall state the whereabouts of the minor or, as the case may be, that the plaintiff is unaware of his whereabouts.
(5)
Every defendant other than the minor shall, forthwith after being served with the summons—
(a)
lodge in the Registry a notice stating the address of the defendant and the whereabouts of the minor or, as the case may be, that the defendant is unaware of his whereabouts, and
(b)
unless the Court otherwise directs, serve a copy of the notice on the plaintiff.
(6)
Where any party other than the minor changes his address or becomes aware of any change in the whereabouts of the minor after the issue of, as the case may be, service of the summons, he shall, unless the Court otherwise directs, forthwith lodge notice of the change in the Registry and serve a copy of the notice on every other party.
(7)
The summons shall contain a notice to the defendant informing him of the requirements of paragraphs (5) and (6).
(8)
In this rule any reference to the whereabouts of a minor is a reference to
the address at which and the person with whom he is living and any other
information relevant to the question where he may be
found.
3A.
Enforcement of order by bailiff (O. 90, r.
3A)
The power of the Court of First Instance to secure, through an officer attending upon the Court, compliance with any direction relating to a ward of court may be exercised by an order addressed to the bailiff.
4.
When minor ceases to be ward of court (O. 90, r.
4)
(1)
A minor who, by virtue of section 26(2) of the High Court Ordinance, becomes a ward of court on the issue of a summons under rule 3 shall cease to be a ward of court—
(a)
if an application for an appointment for the hearing of the summons is not made within the period of 21 days after the issue of the summons, at the expiration of that period;
(b)
if an application for such an appointment is made within that period, on the determination of the application made by the summons unless the judge hearing it orders that the minor be made a ward of court.
(2)
Nothing in paragraph (1) shall be taken as affecting the power of the Court under section 26(3) of the said Ordinance to order that any minor who is for the time being a ward of court shall cease to be a ward of court.
(3)
If no application for an appointment for the hearing of a summons under
rule 3 is made within the period of 21 days after the issue of
the summons, a notice stating whether the applicant intends to proceed with the
application made by the summons must be left at the Registry immediately after
the expiration of that
period.
4B.
Hearing of an application to make a minor
a ward of Court (O. 90, r.
4B)
An application to make a minor a ward of court may be disposed of in chambers and
shall be heard by a judge.
5.
Applications under the Guardianship of Minors
Ordinance (O. 90, r.
5)
Where there is pending any action or other proceeding by reason of which a minor is a ward of court, any application under the Guardianship of Minors Ordinance (Cap. 13) with respect to that minor may be made by summons in the proceedings; and in any other case any such application may be made by originating summons.
6.
Defendants to summons (O. 90, r.
6)
(1)
Where the minor with respect to whom an application under the Guardianship of Minors Ordinance (Cap. 13) is made is not the plaintiff he shall not, unless the Court otherwise directs, be made a defendant to the summons or, if the application is made by ordinary summons, be served with the summons, but, subject to paragraph (2), any other person appearing to be interested in, or affected by, the application shall be made a defendant or be served with the summons, as the case may be.
(2)
The Court may dispense with service of the summons (whether originating or
ordinary) on any person and may order it to be served on any person not
originally
served.
7.
Hearing of applications as to guardianship,
maintenance, etc. (O. 90, r.
7)
(1)
Applications as to the guardianship of minors may be disposed of in chambers and shall be heard by a judge.
(2)
Applications as to the maintenance and advancement of any minor may be
disposed of in
chambers.
8.
Verification and passing of guardians
accounts (O. 90, r.
8)
A guardian’s account must be verified and passed in the same manner as that provided
by Order 30 in relation to a receiver’s account or in such other manner as the Court
may
direct.
10.
Removal of guardianship proceedings from
the District Court (O. 90, r.
10)
(1)
An application for an order under section 24 of the Guardianship of Minors Ordinance (Cap. 13) for the removal of an application from a District Court into the Court may be made by an originating summons and, unless the Court otherwise directs, the summons need not be served on any person.
(2)
The application may be heard by a master, but, if an order is made for the removal to the Court of the application to the District Court, that application shall be heard by a judge.
(3A)
Section 44, subsections (1), (2) (except the proviso) and (4), of the District Court Ordinance (Cap. 336) shall apply to an application ordered to be transferred to the Court under this rule.
(5)
The application so removed shall proceed in the Court as if it had been
made by originating
summons.
11.
Application of Matrimonial Causes Rules (O. 90, r.
11)
(1)
The provisions of the Matrimonial Causes Rules (Cap. 179 sub. leg. A) relating to proceedings under section 48 of the Matrimonial Causes Ordinance (Cap. 179) shall apply, with the necessary modifications, to proceedings under sections 13(1), 14 and 15 of the Guardianship of Minors Ordinance (Cap. 13).
(2)
The provisions of the Matrimonial Causes Rules (Cap. 179 sub. leg. A) relating to the drawing up and service of orders shall apply to proceedings under this Order as if they were proceedings under those rules.
Order
92
Lodgment,
Investment, etc. of Funds in Court
2.
Payment into court under the Trustee
Ordinance (O. 92, r.
2)
(1)
Subject to paragraph (2), any trustee wishing to make a payment into court
under section 62 of the Trustee Ordinance (Cap.
29) must make and file an affidavit setting out—
(a)
a short description of the trust and of the instrument creating it or,
as the case may be, of the circumstances in which the trust arose,
(b)
the names of the persons interested in or entitled to the money or
securities to be paid into court with their addresses so far as known to
him,
(c)
his submission to answer all such inquiries relating to the application
of such money or securities as the Court may make or direct, and
(d)
an address where he may be served with any summons or order, or notice
of any proceedings, relating to the money or securities paid into
court.
(2)
Where the money or securities represents a legacy, or residue or any share
thereof, to which a minor or a person resident outside Hong Kong is absolutely
entitled, no affidavit need be filed under paragraph (1) and the money or
securities may be paid into court in the manner prescribed by the High Court
Suitors’ Funds Rules (Cap. 4 sub. leg. B) for the
time being in force.
4.
Notice of lodgment (O. 92, r.
4)
Any person who has lodged money or securities in court in accordance with
rule 2 must forthwith send notice of the lodgment to every person
appearing from the affidavit on which the lodgment was made to be entitled to, or to
have an interest in, the money or securities
lodged.
5.
Applications with respect to funds in court (O. 92, r.
5)
(1)
Where an application to the Court—
(a)
for the payment or transfer to any person of any funds in court
standing to the credit of any cause or matter or for the transfer of any
such funds to a separate account or for the payment to any person of any
dividend of or interest on any securities or money comprised in such
funds;
(b)
for the investment, or change of investment, of any funds in
court;
(c)
for payment of the dividends of or interest on any funds in court
representing or comprising money or securities lodged in court under any
enactment; or
(d)
for the payment or transfer out of court of any such funds as are
mentioned in sub-paragraph (c),
is made the application may be disposed of in chambers.
(2)
Subject to paragraph (3), any such application must be made by summons and,
unless the application is made in a pending cause or matter or an application
for the same purpose has previously been made by petition or originating
summons, the summons must be an originating summons.
(3)
Where an application under paragraph (1)(d) is required to be
made by originating summons, then, if the funds to which the application relates
do not exceed $50,000 in value, the application may be made ex parte to a master
and the master may dispose of the application or may direct it to be made by
originating summons. Unless otherwise directed, an ex parte application under
this paragraph shall be made by affidavit.
(5)
This rule does not apply to any application for an order under Order
22A.
Order
93
The
Variation of Trusts Ordinance (Cap.
253)
6.
Application under Variation of
Trusts Ordinance (O. 93, r.
6)
(2)
In addition to any other persons who are necessary and proper defendants to
the originating summons by which an application under section 3 of
the Variation of Trusts Ordinance (Cap. 253), is
made, the settlor and any other person who provided property for the purposes of
the trusts to which the application relates must, if still alive and not the
plaintiff, be made a defendant unless the Court for some special reason
otherwise
directs.
14.
(Repealed 23 of 2002 s. 126)
Order
95
1.
Rectification of register (O. 95, r.
1)
(1)
Every application to the Court under section 20 of the Bills of
Sale Ordinance (Cap. 20) for an order—
(a)
that any omission to register a bill of sale or an affidavit of renewal
thereof within the time prescribed by that Ordinance be rectified by
extending the time for such registration, or
(b)
that any omission or mis-statement of the name, residence or occupation
of any person be rectified by the insertion in the register of his true
name, residence or occupation,
must be made by affidavit ex parte to a master.
(2)
Every application for such an order as is described in paragraph (1) shall
be supported by an affidavit setting out particulars of the bill of sale and of
the omission or mis-statement in question and stating the grounds on which the
application is
made.
2.
Entry of satisfaction (O. 95, r.
2)
(1)
Every application under section 21 of the Bills of Sale Ordinance
(Cap. 20) to a master for an order that a
memorandum of satisfaction be written on a registered copy of a bill of sale
must—
(a)
if a consent to the satisfaction signed by the person entitled to the
benefit of the bill of sale can be obtained, be made ex parte;
(b)
in all other cases, be made by originating summons.
(2)
An ex parte application under paragraph (1)(a) must be supported
by—
(a)
particulars of the consent referred to in that paragraph; and
(b)
an affidavit by a witness who attested the consent verifying the
signature on it.
(3)
An originating summons under paragraph (1)(b) must be served on
the person entitled to the benefit of the bill of sale and must be supported by
evidence that the debt (if any) for which the bill of sale was made has been
satisfied or discharged.
(4)
An originating summons under paragraph (1)(b) shall be in Form
No. 10 in Appendix
A.
3.
Restraining removal on sale of
goods seized (O. 95, r.
3)
An originating summons by which an application to the Court under the proviso
to section 14 of the Bills of Sale Ordinance (Cap.
20) must be made shall be in Form No. 10 in Appendix
A.
4.
Search of register (O. 95, r.
4)
The Registrar shall, on a request in writing giving sufficient particulars, and
on payment of the prescribed fee, cause a search to be made in the register of bills
of sale and issue a certificate of the result of the
search.
6.
Assignment of book debts (O. 95, r.
6)
(1)
There shall continue to be kept in the Registry a register of assignment of
book debts.
(2)
Every application for registration of an assignment of a book debt under
section 48 of the Bankruptcy Ordinance (Cap.
6) shall be made by producing at the Registry—
(a)
a true copy of the assignment, and of every schedule thereto,
and
(b)
an affidavit verifying the date and the time, and the due execution of
the assignment in the presence of the deponent, and setting out the
particulars of the assignment, and of the parties thereto.
(3)
On an application being made in accordance with the preceding paragraph,
the documents there referred to shall be filed and the particulars of the
assignment and the parties to it, shall be entered in the register.
Order
100
Trade
Marks Ordinance (Cap. 559)
1.
Interpretation (O. 100, r. 1)
(1)
In this Order—
Court
(法院
) means
the Court of First Instance;(2)
In this Order, a section referred to by number means the section so
numbered in the Ordinance.
(3)
Expressions used in this Order that are used in the Ordinance have the same
meaning in this Order as in the Ordinance.
2.
Application (O. 100, r. 2)
These rules apply to proceedings brought before the Court under or for the
purposes of the Ordinance subject to the provisions of this Order.
3.
Application under the Ordinance (O. 100, r. 3)
(1)
(a)
writ; or
(b)
originating summons in Form No. 8, 10 or 11 in Appendix A.
(2)
If an application is made in accordance with paragraph (1), the plaintiff
or the plaintiff’s agent must serve a copy of the writ or originating summons by
which the application is made on the Registrar of Trade Marks within 7 days
after the issue of the writ or originating summons.
4.
Application under section 23 or 25 (O. 100, r.
4)
(1)
(a)
originating summons in Form No. 8, 10 or 11 in Appendix A;
(b)
if the application is made in a pending action—summons in that action;
or
(c)
including the application in a writ, statement of claim or
counterclaim.
(2)
If an application under section 25 is made in accordance with
paragraph (1) in respect of any infringing goods, material or articles
(infringing item)—
(a)
the applicant must give a written notice of the application to all
persons who have an interest in the infringing item so far as reasonably
ascertainable at the same time when the application is served under these
rules on the party against whom the application is made; and
(b)
a person who has an interest in the infringing item (whether or not a
notice mentioned in subparagraph (a) is given to the person) is entitled to
appear in proceedings in respect of the application.
(3)
A reference in paragraph (2) to a person who has an interest in an
infringing item includes a person in whose favour an order could be made in
respect of the item under—
(a)
(b)
section 54(1) of the Registered Designs Ordinance (Cap. 522); or
(c)
5.
Proceedings for infringement of registered trade marks: defendants may contest
registration etc. (O. 100, r. 5)
(1)
If in any proceedings begun by writ in respect of a registered trade mark a
claim is made for relief for infringement of the trade mark, the
defendant—
(a)
may contest the registration of the trade mark in the defence;
and
(b)
may make a counterclaim for any one or more of the following
reliefs—
(i)
an order for the revocation of the registration of the trade
mark;
(ii)
a declaration of invalidity of the registration of the trade
mark;
(iii)
an order for the variation of the registration of the trade
mark;
(iv)
an order for rectification of the register.
(2)
The defence or counterclaim must include particulars of the objections to
the registration of the trade mark on which the defendant relies.
(3)
The defendant—
(a)
must serve a copy of the defence or counterclaim on all other parties
to the proceedings; and
(b)
if the defendant makes a counterclaim for a relief under paragraph
(1)(b)—must serve a copy of the counterclaim on the Registrar
of Trade Marks at the same time of filing the counterclaim.
(4)
If the Registrar of Trade Marks takes part in the proceedings, the
Registrar of Trade Marks need not serve any pleading unless ordered to do so by
the Court.
6.
Reference to Court under section 77(1)(b) etc. (O. 100, r.
6)
(1)
This rule applies if—
(a)
the Registrar of Trade Marks refers to the Court under section
77(1)(b) an application on a question concerning a registered
trade mark or an application for registration of a trade mark; and
(b)
the Registrar of Trade Marks has given to the parties and the Court
written notice of the decision of such reference (notice of
decision) of an application (original
application) under rule 51A(2) of the Trade Marks
Rules.
(2)
If the person who made the original application wishes to commence
proceedings before the Court in relation to the original application, the person
must—
(a)
within the specified period, take out an originating summons in Form
No. 10 or 11 in Appendix A; and
(b)
within 7 days after the issue of the originating summons, serve a copy
of the originating summons on the Registrar of Trade Marks.
(3)
Proceedings commenced under paragraph (2) in relation to an original
application are to be treated as the continuation of the original
application.
(4)
As soon as practicable after being served with a copy of the originating
summons, the Registrar of Trade Marks must, for the purpose of the proceedings
commenced under paragraph (2), file with the Court any document or other thing
that was filed with the Registrar of Trade Marks for the purpose of the original
application.
(5)
In this rule—
specified period
(指明限期
) means—(a)
a period of 1 month after the date of the notice of decision given
under rule 51A(2) of the Trade Marks Rules; or
(b)
such period as may be extended by the Registrar of Trade Marks
under rule 94(1) of the Trade Marks Rules.
7.
Service of documents on owners of registered trade marks (O. 100, r.
7)
(1)
This rule applies to the service of a document on the owner of a registered
trade mark in any proceedings relating to the trade mark before the owner has
provided an address for service in an acknowledgement of service under Order 12,
rule 3(2).
(2)
For the service of an originating process, or any other document that is
required to be or may be served in accordance with Order 10, on the owner of a
registered trade mark—
(a)
Order 10 has effect as if in rule 1(2) of that
Order—
(i)
the reference to service on a defendant were a reference to service
on the owner; and
(ii)
the reference to the usual or last known address of the defendant
were a reference—
(A)
to the usual or last known address of the owner; or
(B)
to the owner’s address for service as shown in the register in
relation to the trade mark; and
(3)
For the service of a document other than those mentioned in paragraph (2)
on the owner of a registered trade mark, Order 65 has effect as if the addresses
specified in rule 5(2)(a), (b), (c) and (d) of that Order included
the owner’s address for service as shown in the register in relation to the
trade mark.
(4)
A document served on the owner of a registered trade mark at the owner’s
address for service as shown in the register in relation to the trade mark in
accordance with this rule is treated as having been duly served within the
jurisdiction on the owner even if the owner is not within the jurisdiction on
the date of service mentioned in Order 10, rule 1(3)(a).
8.
Filing of orders etc. with Registrar of Trade Marks (O. 100, r. 8)
If the Court has made an order or a declaration, or has granted a certificate,
under the Ordinance in favour of a person, the person or, if there is more than one
such person, the person directed by the Court, must file a sealed copy of the order,
declaration or certificate with the Registrar of Trade Marks within 14 days after
the date of sealing the order, declaration or certificate.
9.
Transitional (O. 100, r. 9)
For proceedings that are brought under the Ordinance but are pending before the
Court immediately before the commencement date* of the Rules of the High Court (Amendment) (No. 2) Rules
2025 (new rules), the Court may, of its own motion or on
application of a party to the proceedings, give directions that the new rules, or
any part of it, are to be applied to the further conduct of the
proceedings.
Editorial Note:
* Commencement date: 1 October
2025.
Order
102
The
Companies Ordinance (Cap. 622) and The Companies (Winding
Up and Miscellaneous Provisions) Ordinance (Cap.
32)
1.
(Repealed 28 of 2012 ss. 912 & 920)
2.
Applications to be made by originating
summons (O. 102, r.
2)
(1)
Except in the case of applications made in proceedings relating to the
winding up of companies, applications made pursuant to section 724 of
the Companies Ordinance (Cap. 622) and the
applications mentioned in rule 5, every application under that
Ordinance or the Companies (Winding Up and Miscellaneous Provisions) Ordinance
(Cap. 32) may be made by originating summons.
(2)
An originating summons under this rule shall be in Form No. 10 in Appendix A
unless the application made by the summons is—
(a)
an application under section 675 of the Companies Ordinance
(Cap. 622) for an order to make provision
for all or any of the matters mentioned in subsection (2) of that section
where an order sanctioning the compromise or arrangement to which the
application relates has previously been made, or
(b)
an application under section 302 of the Companies (Winding
Up and Miscellaneous Provisions) Ordinance (Cap.
32) for an order directing a receiver or manager of a company to
make good any such default as is mentioned in subsection (1) of that
section, or
(c)
an application under section 306 of the Companies (Winding
Up and Miscellaneous Provisions) Ordinance (Cap.
32) or section 898 of the Companies Ordinance (Cap. 622) for an order directing a company and
any officer thereof to make good any such default as is mentioned in that
section.
(3)
(Repealed 28 of 2003 s. 120)
(4)
An application under section 733 of the Companies Ordinance
(Cap. 622) for leave to dispense with the
service of a written notice required by that section may be made by ex parte
originating summons.
(28 of 2012 ss. 912 & 920)
3-4.
(Repealed L.N. 152 of
2008)
5.
Applications to be made by petition (O. 102, r.
5)
(1)
The following applications must be made by petition, namely
applications—
(28 of 2012 ss. 912 & 920)
(a)
under section 89(5) of the Companies Ordinance (Cap. 622) to cancel the alteration of a private
company’s objects,
(b)
under section 90(4) of the Companies Ordinance (Cap. 622) to cancel the alteration of a
provision contained in the articles of association of a relevant company as
defined by section 90(10) of that Ordinance,
(c)-(e)
(Repealed 28 of 2012 ss. 912 & 920)
(f)
under section 226 of the Companies Ordinance (Cap. 622) to confirm a reduction of the share
capital of a company,
(g)
under section 182 of the Companies Ordinance (Cap. 622) to disallow any variation or
abrogation of the rights attached to shares in any class of shares in a
company,
(ga)
under section 190 of the Companies Ordinance (Cap. 622) to disallow any variation or
abrogation of the rights of any class of members of a company that does not
have a share capital,
(28 of 2012 ss. 912 & 920)
(h)
under section 673 of the Companies Ordinance (Cap. 622) to sanction a compromise or
arrangement between a company and its creditors or any class of them or
between a company and its members or any class of them,
(i)
under section 765 of the Companies Ordinance (Cap. 622) for the restoration of a company to
the Companies Register, where the application is made in conjunction with an
application for the winding up of the company,
(j)
under section 817 of the Companies Ordinance (Cap. 622) to cancel the alteration of the form
of a company’s constitution, and
(k)
under section 904 of the Companies Ordinance (Cap. 622) for relief from liability of an
officer of a company or a person employed by a company as auditor.
(28 of 2012 ss. 912 & 920)
6.
Entitlement of proceedings (O. 102, r.
6)
(2)
Every originating summons and petition by which any such proceedings are
begun and all affidavits, notices and other documents in those proceedings must
be entitled in the matter of the company in question and in the matter of the
Companies Ordinance (Cap. 622) or the Companies
(Winding Up and Miscellaneous Provisions) Ordinance (Cap.
32).
(L.N. 152 of
2008; 28 of 2012 ss. 912 & 920)
(3)
(Repealed 28 of 2003 s. 120)
7.
Case management summons (O. 102, r. 7)
(1)
After presentation of a petition by which any such application as is
mentioned in rule 5 is made, the petitioner, except where his
application is one of those mentioned in paragraph (2), must take out a case
management summons under this rule.
(2)
The applications referred to in paragraph (1) are—
(a)
(Repealed 28 of 2012 ss. 912 & 920)
(b)
an application under section 673 of the Companies Ordinance
(Cap. 622) to sanction an arrangement or
compromise (except where the petition for such sanction includes an
application for an order under section 675 of the Companies
Ordinance (Cap. 622)), and
(c)
an application under section 765 of the Companies Ordinance
(Cap. 622) for the restoration of a company
to the Companies Register.
(28 of 2012 ss. 912 & 920)
(3)
On the hearing of the summons the Court may by order give such directions
as to the proceedings to be taken before the hearing of the petition as it
thinks fit including, in particular, directions for the publication of notices
and the making of any inquiry.
(4)
Where the application made by the petition is to confirm a reduction of the
share capital of a company, then, without prejudice to the generality of
paragraph (3), the Court may give directions—
(28 of 2012 ss. 912 & 920)
(a)
for an inquiry to be made as to the debts of, and claims against, the
company or as to any class or classes of such debts or claims;
(b)
as to the proceedings to be taken for settling the list of creditors
entitled to object to the reduction and fixing the date by reference to
which the list is to be made;
and the power of the Court under section 226(3) of the
Companies Ordinance (Cap. 622) to direct that
section 227 of that Ordinance shall not apply as regards any
class or classes of creditors may be exercised on any hearing of the summons.
(28 of 2012 ss. 912 & 920)
(5)
Rules 8 to 13 shall have effect subject to any directions given
by the Court under this
rule.
8.
Inquiry as to debts: company to make
list of creditors (O. 102, r.
8)
(1)
Where under rule 7 the Court orders such an inquiry as is
mentioned in paragraph (4) thereof, the company in question must, within 7 days
after the making of the order, file in the Registry an affidavit made by an
officer of the company competent to make it verifying a list
containing—
(a)
the name and address of every creditor entitled to any debt or claim to
which the inquiry extends,
(b)
the amount due to each creditor in respect of such debt or claim or, in
the case of a debt or claim which is subject to any contingency or sounds
only in damages or for some other reason does not bear a certain value, a
just estimate of the value thereof, and
(c)
the total of those amounts and values.
(2)
The deponent must state in the affidavit his belief that at the date fixed
by the Court as the date by reference to which the list is to be made there is
no debt or claim which, if that date were the commencement of the winding up of
the company, would be admissible in proof against the company, other than the
debts or claims set out in the list and any debts or claims to which the inquiry
does not extend, and must also state his means of knowledge of the matters
deposed to.
(3)
The list must be left at the office mentioned in paragraph (1) not later
than one day after the affidavit is
filed.
9.
Inspection of list of creditors (O. 102, r.
9)
(1)
Copies of the list made under rule 8 with the omission, unless
the Court otherwise directs, of the amount due to each creditor and the
estimated value of any debt or claim to which any creditor is entitled, shall be
kept at the registered office of the company and at the office of that company’s
solicitor.
(2)
Any person shall be entitled during ordinary business hours, on payment of
a fee of one dollar, to inspect the said list at any such office and to take
extracts
therefrom.
10.
Notice to creditors (O. 102, r.
10)
Within 7 days after filing the affidavit required by rule 8 the
company must send by post to each creditor named in the list exhibited to the
affidavit, at his last known address, a notice stating—
(a)
the amount of the reduction sought to be confirmed,
(b)
the effect of the order directing an inquiry as to debts and
claims,
(c)
the amount or value specified in the list as due or estimated to be due to
that creditor, and
(d)
the time fixed by the Court within which, if he claims to be entitled to a
larger amount, he must send particulars of his debt or claim and the name and
address of his solicitor, if any, to the company’s
solicitor.
11.
Advertisement of petition and list of creditors
(O. 102, r.
11)
After filing the affidavit required by rule 8 the company must
insert, in such newspapers and at such times as the Court directs, a notice
stating—
(a)
the date of presentation of the petition and the amount of the reduction
thereby sought to be confirmed,
(b)
the inquiry ordered by the Court under rule 7,
(c)
the places where the list of creditors may be inspected in accordance with
rule 9, and
(d)
the time within which any creditor not named in the list who claims to be
entitled to any debt or claim to which the inquiry extends must send his name
and address, the name and address of his solicitor, if any, and particulars of
his debt or claim to the company’s
solicitor.
12.
Affidavit as to claims made by creditors
(O. 102, r.
12)
Within such time as the Court directs the company must file in the Registry an
affidavit made by the company’s solicitor and an officer of the company competent to
make it—
(a)
(b)
verifying a list containing the names and addresses of the persons (if any)
who in pursuance of such notices sent in particulars of debts or claims,
specifying the amount of each debt or claim,
(c)
distinguishing in such list those debts or claims which are wholly, or as
to any and what part thereof, admitted by the company, disputed by the company
or alleged by the company to be outside the scope of the inquiry, and
(d)
stating which of the persons named in the list made under rule
8, and which of the persons named in the list made under this rule, have
been paid or consent to the reduction sought to be
confirmed.
13.
Adjudication of disputed claims (O. 102, r.
13)
If the company contends that a person is not entitled to be entered in the list
of creditors in respect of any debt or claim or in respect of the full amount
claimed by him in respect of any debt or claim, then, unless the company is willing
to secure payment of that debt or claim by appropriating the full amount of the debt
or claim, the company must, if the Court so directs, send to that person by post at
his last known address a notice requiring him—
(a)
within such time as may be specified in the notice, being not less than 4
clear days after service thereof, to file an affidavit proving his debt or claim
or, as the case may be, so much thereof as is not admitted by the company,
and
(b)
to attend the adjudication of his debt or claim at the place and time
specified in the notice, being the time appointed by the Court for the
adjudication of debts and
claims.
14.
Certifying lists of creditors entitled to
object to reduction (O. 102, r.
14)
The list of creditors entitled to object to such reduction as is mentioned in
rule 7(4), as settled by the Court under section 227 of
the Companies Ordinance (Cap. 622) shall be certified
and filed by the Registrar and his certificate shall—
(28 of 2012 ss. 912 & 920)
(a)
specify the debts or claims (if any) disallowed by the
Court;
(b)
distinguish the debts or claims (if any) the full amount of which is
admitted by the company, the debts or claims (if any) the full amount of which,
though not admitted by the company, the company is willing to appropriate, the
debts or claims (if any) the amount of which has been fixed by adjudication of
the Court under section 227 of the Companies Ordinance (Cap. 622) and other debts or claims;
(28 of 2012 ss. 912 & 920)
(c)
specify the total amount of the debts or claims payment of which has been
secured by appropriation under section 227 of the Companies Ordinance
(Cap. 622);
(28 of 2012 ss. 912 & 920)
(d)
show which creditors consent to the reduction and the total amount of their
debts or claims;
(e)
specify the creditors who sought to prove their debts or claims under
rule 13 and state which of such debts or claims were
allowed.
15.
Evidence of consent of creditor (O. 102, r.
15)
The consent of a creditor to such reduction as is mentioned in rule
7(4) may be proved in such manner as the Court thinks
sufficient.
16.
Time, etc. of hearing of petition for confirmation
of reduction (O. 102, r.
16)
(1)
(2)
Before the hearing of such a petition, a notice specifying the day
appointed for the hearing must be published at such times and in such newspapers
as the Court may
direct.
17.
(Repealed 28 of 2012 ss. 912 & 920)
Order
103
Patents Ordinance (Cap. 514)
I. Preliminary
1.
Interpretation (O. 103, r. 1)
(1)
In this Order—
Court
(法院
) means
the Court of First Instance;filing date of the patent
application
(專利申請提交日期
)
means—(a)
for a standard patent (R), the deemed date of filing of the
application for the patent, within the meaning of section
38;
(b)
for a standard patent (O) or a short-term patent, the date of
filing of the application for the patent;
(2)
In this Order, a section referred to by number means the section so
numbered in the Ordinance.
(3)
Expressions used in this Order that are used in the Ordinance have the same
meaning in this Order as in the Ordinance.
2.
Application (O. 103, r. 2)
These rules apply to proceedings brought before the Court under or for the
purposes of the Ordinance subject to the provisions of this
Order.
II. Originating
Proceedings
3.
Proceedings to be begun by originating summons (O. 103, r. 3)
(1)
Proceedings under a provision of the Ordinance specified in column (A) of
the Table, which relates to a matter the general description of which is set out
in column (B) of the Table opposite to that provision, must be begun by
originating summons in Form No. 8, 10 or 11 in Appendix A.
|
Table
|
|
Column (A)
|
Column (B)
|
|
Provision of
the Ordinance
|
General description of matter to be
brought before the Court
|
|
13(1)(a)
|
Question as to whether a
person is entitled under section
12 to apply for grant of standard patent (R) for
invention.
|
|
13(1)(b)
|
Question as to whether
any right in or under an application for standard patent (R)
should be transferred or granted to any other person.
|
|
14(5)
|
Question as to whether a
person is entitled to be granted a licence or whether the
period or terms of the licence are reasonable following an
order for transfer of application for standard patent
(R).
|
|
37H(1)(a)
|
Question as to whether a
person is entitled to apply for grant of standard patent (O)
for invention.
|
|
37H(1)(b)
|
Question as to whether
any right in or under an application for standard patent (O)
should be transferred or granted to any other person.
|
|
37K(7)
|
Question as to whether a
person is entitled to be granted a licence or whether the
period or terms of the licence are reasonable following an
order for transfer of application for standard patent
(O).
|
|
46(2)
|
Application to amend
specification of patent.
|
|
53(1)
|
Application for
rectification of register.
|
|
55(1)
|
Question of
proprietorship of patent after it has been granted.
|
|
56(5)
|
Question as to whether a
person is entitled to be granted a licence or whether the
period or terms of the licence are reasonable following a
transfer of patent under section
55.
|
|
58(1) or (2)
|
Application by employee
for compensation.
|
|
59(7)
|
Application for
variation, discharge, etc., of order for compensation made
under section 58.
|
|
63(4)
|
Application for variation
of terms or conditions of certain contracts or licences.
|
|
64(1)
|
Application for
compulsory licence under standard patent.
|
|
66(3)
|
Application for variation
or cancellation of compulsory licence.
|
|
72(1)
|
Dispute as to Government
use.
|
|
72J(1)
|
Application for
determination of amount of remuneration payable under section
72E(2).
|
|
72J(2)
|
Application for payment
of remuneration under section
72E(2).
|
|
72J(6)
|
Application for review of
grant of import compulsory licence, terms or conditions of
the licence, apportionment of the amount of remuneration or
termination of the licence.
|
|
72J(8)
|
Application for
termination of import compulsory licence by proprietor of
patent.
|
|
72R(1)
|
Application for review of
grant of export compulsory licence, terms or conditions of
the licence or termination of the licence.
|
|
72R(5)
|
Application for
termination of export compulsory licence by proprietor of
patent.
|
|
91(1)
|
Application for
revocation of patent.
|
(2)
Paragraph (1) does not apply to a matter to be brought before the Court in
proceedings that are pending before it.
(3)
Proceedings mentioned in rule 25(2) must be begun by originating
summons in Form No. 10 or 11 in Appendix A.
4.
Supplementary provisions relating to originating summons (O. 103, r.
4)
(1)
An originating summons by which any proceedings under or for the purposes of
the Ordinance are begun must, in addition to any other information required to
be included by other provisions of this Order, include—
(a)
a concise statement setting out the nature of the question referred to,
or of the matter brought before, the Court;
(b)
a summary of the facts, laws and nature of the evidence on which the
person who takes out the originating summons relies in support of the
proceedings; and
(c)
the order or relief sought.
(2)
Except as otherwise provided in this Order, Order 10 applies to the service
of a copy of an originating summons required to be served under this Order as
Order 10 applies to the service of an originating process.
III. Who may Apply
for Standard Patent
5.
Reference under section 13(1) or 37H(1) (determination
before grant as to who may apply) (O. 103, r. 5)
(1)
In any proceedings in which a question is referred to the Court under
section 13(1)(a) or 37H(1)(a), the plaintiff or
applicant must—
(a)
serve a copy of the originating summons by which the proceedings are
begun on the Registrar of Patents within 7 days after the issue of the
originating summons; and
(b)
give a written notice of the proceedings to each of the persons
mentioned in paragraph (2) at the person’s usual or last known
address—
(i)
for inter-partes proceedings—at the same time when the originating
summons is served under these rules on the defendant; or
(ii)
for ex-parte proceedings—within 7 days after the issue of the
originating summons.
(2)
The persons are—
(a)
every other person whom the plaintiff or applicant alleges is entitled
to apply for a standard patent for the invention to which the proceedings
relate; and
(b)
every person whom the plaintiff or applicant believes to be the
inventor or joint inventor of the invention.
(3)
In any proceedings in which a question is referred to the Court under
section 13(1)(b) or 37H(1)(b), the plaintiff or
applicant must—
(a)
serve a copy of the originating summons by which the proceedings are
begun on the Registrar of Patents within 7 days after the issue of the
originating summons; and
(b)
give a written notice of the proceedings to each of the persons
mentioned in paragraph (4) at the person’s usual or last known
address—
(i)
for inter-partes proceedings—at the same time when the originating
summons is served under these rules on the defendant; or
(ii)
for ex-parte proceedings—within 7 days after the issue of the
originating summons.
(4)
The persons are—
(a)
every joint proprietor of the application for a standard patent for the
invention to which the proceedings relate who has not indicated consent to
the making of the order sought;
(b)
every person whom the plaintiff or applicant alleges any right in or
under the application for a standard patent should be transferred or
granted; and
(c)
every person whom the plaintiff or applicant believes to be the
inventor or joint inventor of the invention.
(5)
If an application for a standard patent for the invention has been made and
published at the time when the originating summons is issued, the plaintiff or
applicant must give a written notice of the proceedings to every person who is
shown in the register as having a right in or under the application at the
person’s usual or last known address—
(a)
for inter-partes proceedings—at the same time when the originating
summons is served under these rules on the defendant; or
(b)
for ex-parte proceedings—within 7 days after the issue of the
originating summons.
(6)
If an application for a standard patent for the invention has been made but
has not been published at the time when the originating summons is issued, the
plaintiff or applicant must give a written notice of the proceedings
to—
(a)
every applicant of the application; and
(b)
every person who has a right in or under the application as shown in an
application, or a notice, that is mentioned in section 46(1) of
the Patents Rules.
(7)
A written notice required to be given to a person under paragraph
(6)—
(a)
must be given to the person—
(i)
for inter-partes proceedings—at the same time when the originating
summons is served under these rules on the defendant; or
(ii)
for ex-parte proceedings—within 7 days after the issue of the
originating summons; and
(b)
must be given to the person at the following address—
(i)
for a person mentioned in paragraph (6)(a)—the person’s
address for service communicated to the plaintiff or applicant under
section 91A(3) of the Patents Rules; and
(ii)
for a person mentioned in paragraph (6)(b)—the person’s
address communicated to the plaintiff or applicant under that
section.
6.
Reference under section 14(5) or 37K(7) (right to be
granted licence etc.) (O. 103, r. 6)
(1)
In any proceedings in which a question is referred to the Court under
section 14(5) or 37K(7), the plaintiff must—
(a)
serve a copy of the originating summons by which the proceedings are
begun on the Registrar of Patents within 7 days after the issue of the
originating summons; and
(b)
give a written notice of the proceedings to each of the following
persons at the person’s usual or last known address at the same time when
the originating summons is served under these rules on the
defendant—
(i)
a person in whose name the application for a patent is to
proceed;
(ii)
a person who, to the plaintiff’s knowledge, claims to be entitled
to be granted a licence under section 14(3) or
37K(3) or (4) (as the case requires).
(2)
Paragraph (1)(b) does not require a written notice to be given
to a person who is a party to the proceedings.
IV. Provisions on
Patents after Grant
7.
Application under section 46(2) (application to amend specification
of patent after grant) (O. 103, r. 7)
(1)
This rule applies to an application to the Court under section
46(2) to amend the specification of a patent.
(2)
The proprietor of a patent who wishes to make an application under
section 46(2) (intending applicant)
must publish in the Gazette an advertisement (specified
advertisement) that—
(a)
identifies the patent;
(b)
states that on the intending applicant being given prior notice, the
full particulars of the amendment that the intending applicant intends to
seek in the application are available for inspection within 28 days after
publication of the specified advertisement during ordinary business hours at
a place in Hong Kong designated by the intending applicant;
(c)
states that on request made by a person to the intending applicant, a
copy of the specification of the patent with the amendment marked on it is
to be provided free of charge to the person;
(d)
sets out the intending applicant’s address for service in Hong
Kong;
(e)
sets out the matters provided for in paragraph (3); and
(f)
sets out the fact that, subject to paragraph (8), the person who sends
a notice under paragraph (3) will be named as a defendant in the
proceedings.
(3)
If a person intends to oppose the application, the person must, within 42
days after publication of the specified advertisement, send a notice by
registered post to the intending applicant at the intending applicant’s address
for service set out in the specified advertisement—
(a)
indicating an intention to oppose; and
(b)
specifying the person’s address for service in Hong Kong.
(4)
The proceedings must be commenced within 28 days
(relevant period) after the
expiry of the period specified in paragraph (3).
(5)
The relevant period is not extendable.
(6)
However, if the intending applicant fails to commence the proceedings within
the relevant period, the intending applicant—
(a)
may publish in the Gazette another advertisement (new
advertisement) in accordance with paragraph (2);
and
(b)
must, within 3 days after the publication under subparagraph (a), send
a copy of the new advertisement by registered post to the person who has
sent a notice of intention to oppose under paragraph (3) at the person’s
address for service specified in the notice,
and paragraphs (3), (4) and (5) have effect in relation to the
publication of the new advertisement under subparagraph (a) in the same manner
as they have effect in relation to the publication of the specified
advertisement under paragraph (2).
(7)
If a notice has been sent under paragraph (3) in response to the specified
advertisement published under paragraph (2) or to the new advertisement
published under paragraph (6)(a), the intending applicant is to be
the plaintiff and, subject to paragraph (8), the person who sent the notice is
to be named as a defendant in the originating summons by which the inter-partes
proceedings are begun.
(8)
If a person has sent a notice under paragraph (3) in response to the
specified advertisement published under paragraph (2) but fails to send a fresh
notice in accordance with paragraph (3) in response to the new advertisement
published under paragraph (6)(a), the intending applicant need not
name the person as a defendant in the proceedings.
(9)
If no notice has been sent under paragraph (3) in response to the specified
advertisement published under paragraph (2) or to the new advertisement
published under paragraph (6)(a), the intending applicant is to be
the applicant in the originating summons by which the ex-parte proceedings are
begun.
(10)
The originating summons must be accompanied by a copy of the specification
of the patent showing in coloured ink the amendment sought.
(11)
The plaintiff or the applicant must, within 7 days after the issue of the
originating summons, serve on the Registrar of Patents a copy of the originating
summons.
(12)
If the Court makes an order allowing the specification of a patent to be
amended, the plaintiff or the applicant must, within 14 days after the date of
sealing the order, file with the Registrar of Patents—
(a)
a sealed copy of the order; and
(b)
subject to paragraph (13), a new specification as amended, which must be
prepared in accordance with—
(i)
section 12 of the Patents Rules if the patent is a
standard patent (R);
(ii)
section 31Q of the Patents Rules if the patent is a
standard patent (O); or
(iii)
section 62 of the Patents Rules if the patent is a
short-term patent.
(13)
The Court may order that the filing of a copy of the specification with the
amendment marked on it is sufficient compliance with the requirement under
paragraph (12)(b).
(14)
The Registrar of Patents must cause a copy of the order to be published at
least once in the official journal.
V. Property in
Patents and Applications; Registration
8.
Application for purposes of section 53(1) (application for
rectification of register) (O. 103, r. 8)
(1)
In any proceedings relating to an application for the purposes of
section 53(1), the applicant must, within 7 days after the issue
of the originating summons by which the proceedings are begun, serve on the
Registrar of Patents a copy of the originating summons.
(2)
If an application for the purposes of section 53(1) is made by
way of counterclaim in patent infringement proceedings that are pending before
the Court, the applicant must, at the same time of filing the counterclaim,
serve a copy of the counterclaim on the Registrar of Patents.
9.
Reference under section 55(1) (determination of right to patent
after grant) (O. 103, r. 9)
(1)
In any proceedings in which a question is referred to the Court under
section 55(1), the plaintiff must—
(a)
serve a copy of the originating summons by which the proceedings are
begun on the Registrar of Patents within 7 days after the issue of the
originating summons; and
(b)
give a written notice of the proceedings to the following persons at the
same time when the originating summons is served under these rules on the
defendant—
(i)
every person registered as the proprietor of the patent concerned
or as having a right in or under the patent;
(ii)
every person who is alleged in the originating summons to be
entitled to a right in or under the patent.
(2)
A written notice required to be given to a person under paragraph
(1)(b) must be given to the person at the following
address—
(a)
for a person mentioned in paragraph (1)(b)(i)—the person’s
address for service; or
(b)
for a person mentioned in paragraph (1)(b)(ii)—the person’s
usual or last known address.
(3)
Paragraph (1)(b) does not require a written notice to be given
to a person who is a party to the proceedings.
(4)
In this rule—
address for service
(供送達地址
), in relation to a person registered as
the proprietor of a patent, means the person’s address for service as shown in
the register in relation to the patent.10.
Reference under section 56(5) (right to be granted licence etc.
after transfer under section 55) (O. 103, r. 10)
(1)
In any proceedings in which a question is referred to the Court under
section 56(5), the plaintiff must—
(a)
serve a copy of the originating summons by which the proceedings are
begun on the Registrar of Patents within 7 days after the issue of the
originating summons; and
(b)
give a written notice of the proceedings to the following persons at the
same time when the originating summons is served under these rules on the
defendant—
(i)
every new proprietor of the patent concerned;
(ii)
every person who, to the plaintiff’s knowledge, claims to be
entitled to be granted a licence under section 56(3) or (3A)
to continue working or to work the invention concerned.
(2)
A written notice required to be given to a person under paragraph
(1)(b) must be given to the person at the following
address—
(a)
for a person mentioned in paragraph (1)(b)(i)—the person’s
address for service; or
(b)
for a person mentioned in paragraph (1)(b)(ii)—the person’s
usual or last known address.
(3)
Paragraph (1)(b) does not require a written notice to be given
to a person who is a party to the proceedings.
(4)
In this rule—
address for service
(供送達地址
), in relation to a person registered as
the proprietor of a patent, means the person’s address for service as shown in
the register in relation to the patent.VI. Compulsory
Licences for Standard Patents
11.
Application under section 64(1) (grant of compulsory licence) or
66(3) (variation etc. of compulsory licence) (O. 103, r. 11)
(1)
This rule applies to—
(a)
an application to the Court under section 64(1) for a
licence under a standard patent; or
(b)
an application to the Court under section 66(3) for an order
for the variation or cancellation of a licence granted under an order made
under section 64 or 65.
(2)
A person who wishes to make an application under section 64(1) or
66(3) (intending plaintiff) must
publish in the Gazette an advertisement (specified advertisement)
that sets out—
(a)
the particulars of the order that the intending plaintiff intends to
seek in the application;
(b)
the intending plaintiff’s address for service in Hong Kong;
(c)
the matters provided for in paragraph (4); and
(d)
the fact that, subject to paragraph (9), the person who sends a notice
under paragraph (4) will be named as a defendant in the
proceedings.
(3)
The intending plaintiff must, within 3 days from the date of publication of
the specified advertisement, send a copy of the specified advertisement to the
following persons by registered post at their addresses for service as shown in
the register—
(a)
every other person who is registered as the proprietor of the patent
concerned;
(b)
every other person who is shown in the register as having a right in or
under the patent.
(4)
If a person intends to oppose the application, the person must, within 28
days after publication of the specified advertisement, send a notice by
registered post to the intending plaintiff at the intending plaintiff’s address
for service set out in the specified advertisement—
(a)
indicating an intention to oppose; and
(b)
specifying the person’s address for service in Hong Kong.
(5)
The proceedings must be commenced within 28 days (relevant
period) after the expiry of the period specified in paragraph
(4).
(6)
The relevant period is not extendable.
(7)
However, if the intending plaintiff fails to commence the proceedings within
the relevant period, the intending plaintiff—
(a)
may publish in the Gazette another advertisement (new
advertisement) in accordance with paragraph (2);
and
(b)
must, within 3 days after the publication under subparagraph (a), send
a copy of the new advertisement by registered post to the person who has
sent a notice of intention to oppose under paragraph (4) at the person’s
address for service specified in the notice,
and paragraphs (4), (5) and (6) have effect in relation to the
publication of the new advertisement under subparagraph (a) in the same manner
as they have effect in relation to the publication of the specified
advertisement under paragraph (2).
(8)
Subject to paragraph (9), the person who sent a notice under paragraph (4)
in response to the specified advertisement published under paragraph (2) or to
the new advertisement published under paragraph (7)(a) is to be named
as a defendant in the originating summons by which the inter-partes proceedings
are begun.
(9)
If a person has sent a notice under paragraph (4) in response to the
specified advertisement published under paragraph (2) but fails to send a fresh
notice in accordance with paragraph (4) in response to the new advertisement
published under paragraph (7)(a), the intending plaintiff need not
name the person as a defendant in the proceedings.
VII. Import
Compulsory Licences for Patented Pharmaceutical Products
12.
Application under section 72J(2) (order for payment of remuneration)
(O. 103, r. 12)
(1)
This rule applies to proceedings relating to an application to the Court
under section 72J(2) for an order for payment of remuneration under
section 72E(2).
(2)
The plaintiff must, within 7 days after the issue of the originating
summons by which the proceedings are begun, serve on the Director of Health a
copy of the originating summons.
(3)
In the proceedings, the Director of Health is entitled to appear before the
Court or be represented and be heard, and must appear before the Court if so
directed by the Court.
13.
Application under section 72J(6) (review of grant of import
compulsory licence, its terms or conditions, termination, etc.) (O. 103, r.
13)
(1)
This rule applies to proceedings relating to an application to the Court
under section 72J(6) for a review of—
(a)
the grant of an import compulsory licence;
(b)
the terms or conditions of an import compulsory licence;
(c)
the apportionment of the amount of remuneration; or
(d)
the termination of an import compulsory licence.
(2)
The plaintiff must, within 7 days after the issue of the originating
summons by which the proceedings are begun, serve on the Director of Health a
copy of the originating summons.
(3)
If the application is for a review of a matter mentioned in paragraph
(1)(a), (b) or (d), the plaintiff must give a written notice of
the proceedings to the import compulsory licensee concerned (if not a party to
the proceedings) at the licensee’s usual or last known address at the same time
when the originating summons is served under these rules on the
defendant.
(4)
If the application is for a review of the apportionment of the amount of
remuneration, the plaintiff must give a written notice of the proceedings to
every proprietor of the patent concerned (if not a party to the proceedings) at
the proprietor’s address for service at the same time when the originating
summons is served under these rules on the defendant.
(5)
In the proceedings, the Director of Health is entitled to appear before the
Court or be represented and be heard, and must appear before the Court if so
directed by the Court.
(6)
In this rule—
address for service
(供送達地址
), in relation to a person registered as
the proprietor of a patent, means the person’s address for service as shown in
the register in relation to the patent.14.
Application under section 72J(8) (application by proprietor of
patent for termination of import compulsory licence) (O. 103, r. 14)
(1)
This rule applies to an application by the proprietor of a patent to the
Court under section 72J(8) for an order to terminate an import
compulsory licence.
(2)
The proprietor of a patent who wishes to make an application under
section 72J(8) (intending plaintiff)
must publish in the Gazette an advertisement (specified
advertisement) that sets out—
(a)
the particulars of the order that the intending plaintiff intends to
seek in the application;
(b)
the intending plaintiff’s address for service in Hong Kong;
(c)
the matters provided for in paragraph (3); and
(d)
the fact that, subject to paragraph (8), the person who sends a notice
under paragraph (3) will be named as a defendant in the
proceedings.
(3)
If a person intends to oppose the application, the person must, within 28
days after publication of the specified advertisement, send a notice by
registered post to the intending plaintiff at the intending plaintiff’s address
for service set out in the specified advertisement—
(a)
indicating an intention to oppose; and
(b)
specifying the person’s address for service in Hong Kong.
(4)
The proceedings must be commenced within 28 days (relevant
period) after the expiry of the period specified in paragraph
(3).
(5)
The relevant period is not extendable.
(6)
However, if the intending plaintiff fails to commence the proceedings within
the relevant period, the intending plaintiff—
(a)
may publish in the Gazette another advertisement (new
advertisement) in accordance with paragraph (2);
and
(b)
must, within 3 days after the publication under subparagraph (a), send
a copy of the new advertisement by registered post to the person who has
sent a notice of intention to oppose under paragraph (3) at the person’s
address for service specified in the notice,
and paragraphs (3), (4) and (5) have effect in relation to the
publication of the new advertisement under subparagraph (a) in the same manner
as they have effect in relation to the publication of the specified
advertisement under paragraph (2).
(7)
Subject to paragraph (8), the person who sent a notice under paragraph (3)
in response to the specified advertisement published under paragraph (2) or to
the new advertisement published under paragraph (6)(a) is to be named
as a defendant in the originating summons by which the inter-partes proceedings
are begun.
(8)
If a person has sent a notice under paragraph (3) in response to the
specified advertisement published under paragraph (2) but fails to send a fresh
notice in accordance with paragraph (3) in response to the new advertisement
published under paragraph (6)(a), the intending plaintiff need not
name the person as a defendant in the proceedings.
(9)
The plaintiff must, within 7 days after the issue of the originating
summons, serve on the Director of Health a copy of the originating
summons.
(10)
In the proceedings, the Director of Health is entitled to appear before the
Court or be represented and be heard, and must appear before the Court if so
directed by the Court.
VIII. Export
Compulsory Licences for Patented Pharmaceutical Products
15.
Application under section 72R(1) (review of grant of export
compulsory licence, its terms or conditions or termination) (O. 103, r.
15)
(1)
This rule applies to proceedings relating to an application to the Court
under section 72R(1) for a review of—
(a)
the grant of an export compulsory licence;
(b)
the terms or conditions of an export compulsory licence; or
(c)
the termination of an export compulsory licence.
(2)
The plaintiff must, within 7 days after the issue of the originating
summons by which the proceedings are begun, serve on the Director of Health a
copy of the originating summons.
(3)
The plaintiff must give a written notice of the proceedings to the export
compulsory licensee concerned (if not a party to the proceedings) at the
licensee’s usual or last known address at the same time when the originating
summons is served under these rules on the defendant.
(4)
In the proceedings, the Director of Health is entitled to appear before the
Court or be represented and be heard, and must appear before the Court if so
directed by the Court.
16.
Application under section 72R(5) (application by proprietor of
patent for termination of export compulsory licence) (O. 103, r. 16)
(1)
This rule applies to an application by the proprietor of a patent to the
Court under section 72R(5) for an order to terminate an export
compulsory licence.
(2)
The proprietor of a patent who wishes to make an application under
section 72R(5) (intending plaintiff)
must publish in the Gazette an advertisement (specified
advertisement) that sets out—
(a)
the particulars of the order that the intending plaintiff intends to
seek in the application;
(b)
the intending plaintiff’s address for service in Hong Kong;
(c)
the matters provided for in paragraph (3); and
(d)
the fact that, subject to paragraph (8), the person who sends a notice
under paragraph (3) will be named as a defendant in the
proceedings.
(3)
If a person intends to oppose the application, the person must, within 28
days after publication of the specified advertisement, send a notice by
registered post to the intending plaintiff at the intending plaintiff’s address
for service set out in the specified advertisement—
(a)
indicating an intention to oppose; and
(b)
specifying the person’s address for service in Hong Kong.
(4)
The proceedings must be commenced within 28 days (relevant
period) after the expiry of the period specified in paragraph
(3).
(5)
The relevant period is not extendable.
(6)
However, if the intending plaintiff fails to commence the proceedings within
the relevant period, the intending plaintiff—
(a)
may publish in the Gazette another advertisement (new
advertisement) in accordance with paragraph (2);
and
(b)
must, within 3 days after the publication under subparagraph (a), send
a copy of the new advertisement by registered post to the person who has
sent a notice of intention to oppose under paragraph (3) at the person’s
address for service specified in the notice,
and paragraphs (3), (4) and (5) have effect in relation to the
publication of the new advertisement under subparagraph (a) in the same manner
as they have effect in relation to the publication of the specified
advertisement under paragraph (2).
(7)
Subject to paragraph (8), the person who sent a notice under paragraph (3)
in response to the specified advertisement published under paragraph (2) or to
the new advertisement published under paragraph (6)(a) is to be named
as a defendant in the originating summons by which the inter-partes proceedings
are begun.
(8)
If a person has sent a notice under paragraph (3) in response to the
specified advertisement published under paragraph (2) but fails to send a fresh
notice in accordance with paragraph (3) in response to the new advertisement
published under paragraph (6)(a), the intending plaintiff need not
name the person as a defendant in the proceedings.
(9)
The plaintiff must, within 7 days after the issue of the originating
summons, serve on the Director of Health a copy of the originating
summons.
(10)
In the proceedings, the Director of Health is entitled to appear before the
Court or be represented and be heard, and must appear before the Court if so
directed by the Court.
IX. Infringement,
Revocation and Putting Validity in Issue
17.
Patent infringement proceedings (O. 103, r. 17)
(1)
This rule applies to patent infringement proceedings if they are begun by
writ.
(2)
A party to the proceedings who alleges any infringements of a patent in the
party’s pleading must include in the pleading particulars of the infringements
on which the party relies in support of the alleged infringement.
(3)
In proceedings under section 80, the particulars of the
infringements must—
(a)
specify which of the claims in the specification of the patent are
alleged to have been infringed; and
(b)
give at least 1 instance of each type of infringement
alleged.
(4)
In proceedings under section 88, the particulars of the
infringements must—
(a)
specify which of the claims in the specification of the patent and
which of the claims in the specification of the published request to record
or the published patent application are alleged to have been infringed;
and
(b)
give at least 1 instance of each type of infringement
alleged.
(5)
Paragraph (6) applies if a party to the proceedings (relevant
party) alleges, as a defence to the infringement alleged by the
proprietor or exclusive licensee of the patent concerned, that—
(a)
at the time of the alleged infringement, there was in force—
(i)
a contract relating to the patent made by or with the consent of
the proprietor or exclusive licensee; or
(ii)
a licence under the patent granted by the proprietor or exclusive
licensee or with the consent of the proprietor or exclusive licensee;
and
(b)
the contract or the licence contains a condition or term that is void
because of section 62.
(6)
The relevant party must include in the party’s pleading—
(a)
particulars of the date of, and parties to, the contract or licence;
and
(b)
particulars of the void condition or term.
18.
Groundless threats of infringement proceedings (O. 103, r. 18)
(1)
This rule applies to proceedings under section 89 if they are
begun by writ regarding a threat to bring patent infringement
proceedings.
(2)
Paragraph (3) applies if a party to the proceedings alleges in the party’s
pleading that—
(a)
at the time of the alleged infringement, there was in force—
(i)
a contract relating to the patent made by or with the consent of
the proprietor or exclusive licensee of the patent concerned;
or
(ii)
a licence under the patent granted by the proprietor or exclusive
licensee or with the consent of the proprietor or exclusive licensee;
and
(b)
the contract or the licence contains a condition or term that is void
because of section 62.
(3)
The party must include in the party’s pleading—
(a)
particulars of the date of, and parties to, the contract or licence;
and
(b)
particulars of the void condition or term.
(4)
A party to the proceedings who relies on section 89A(1)(a),
(2)(a) or (4)(a) in the party’s pleading must include in the pleading the
particulars of the infringement on which the party relies in support of the
pleading.
(5)
The particulars of the infringement must—
(a)
specify the acts in respect of which the patent infringement
proceedings were threatened that constitute or, if done, would constitute
the infringement of the patent concerned;
(b)
specify which of the claims in the specification of the patent are
alleged to have been infringed; and
(c)
give at least 1 instance of each type of infringement alleged, if the
acts have been done.
19.
Application for revocation under section 91(1)(a) (on ground of
contrary to public order (“ordre public”) or morality) (O. 103, r. 19)
(1)
This rule applies to an application to the Court for an order to revoke a
patent for an invention on the ground that the invention is not a patentable
invention by reason of a matter specified in section 9A(5).
(2)
A person who wishes to make an application for the purposes of section
91(1)(a) (intending plaintiff) must
publish in the Gazette an advertisement (specified advertisement)
that sets out—
(a)
the particulars of the order that the intending plaintiff intends to
seek in the application;
(b)
brief particulars of the ground on which the intending plaintiff relies
in support of the application;
(c)
the intending plaintiff’s address for service in Hong Kong;
(d)
the matters provided for in paragraph (3); and
(e)
the fact that, subject to paragraph (8), the person who sends a notice
under paragraph (3) will be named as a defendant in the
proceedings.
(3)
If a person intends to oppose the application, the person must, within 28
days after publication of the specified advertisement, send a notice by
registered post to the intending plaintiff at the intending plaintiff’s address
for service set out in the specified advertisement—
(a)
indicating an intention to oppose; and
(b)
specifying the person’s address for service in Hong Kong.
(4)
The proceedings must be commenced within 28 days (relevant
period) after the expiry of the period specified in paragraph
(3).
(5)
The relevant period is not extendable.
(6)
However, if the intending plaintiff fails to commence the proceedings within
the relevant period, the intending plaintiff—
(a)
may publish in the Gazette another advertisement (new
advertisement) in accordance with paragraph (2);
and
(b)
must, within 3 days after the publication under subparagraph (a), send
a copy of the new advertisement by registered post to the person who has
sent a notice of intention to oppose under paragraph (3) at the person’s
address for service specified in the notice,
and paragraphs (3), (4) and (5) have effect in relation to the
publication of the new advertisement under subparagraph (a) in the same manner
as they have effect in relation to the publication of the specified
advertisement under paragraph (2).
(7)
Subject to paragraph (8), the person who sent a notice under paragraph (3)
in response to the specified advertisement published under paragraph (2) or to
the new advertisement published under paragraph (6)(a) is, in
addition to the proprietor of the patent, to be named as a defendant in the
originating summons by which the inter-partes proceedings are begun.
(8)
If a person has sent a notice under paragraph (3) in response to the
specified advertisement published under paragraph (2) but fails to send a fresh
notice in accordance with paragraph (3) in response to the new advertisement
published under paragraph (6)(a), the intending plaintiff need not
name the person as a defendant in the proceedings.
(9)
The plaintiff must, within 7 days after the issue of the originating
summons, serve on the Registrar of Patents a copy of the originating
summons.
20.
Proceedings in which validity of patent is put in issue (O. 103, r.
20)
(1)
This rule applies to proceedings in which the validity of a patent is put
in issue as described in section 101(1).
(2)
A party to the proceedings who puts the validity of a patent in issue
must—
(a)
include particulars of the objections to the validity of the patent
concerned in support of the party’s allegation of invalidity—
(i)
in the originating summons or in the party’s affidavit evidence (if
the proceedings are begun by originating summons); or
(ii)
in the party’s pleading (if the proceedings are begun by writ);
and
(b)
serve on the Registrar of Patents (whichever of the following has the
particulars included under subparagraph (a))—
(i)
within 7 days after the issue of the originating summons, a copy of
the originating summons;
(ii)
at the same time of filing the affidavit evidence, a copy of the
affidavit evidence; or
(iii)
at the same time of filing the pleading, a copy of the
pleading.
(3)
The particulars of the objections mentioned in paragraph (2)(a)
must—
(a)
state the grounds on which the validity of the patent is put in issue;
and
(b)
include particulars that clearly define every issue that the party to
the proceedings intends to raise.
(4)
If the validity of a patent is put in issue on the ground that the invention
is not a patentable invention because it is not new or does not involve an
inventive step, the particulars of the objections must—
(a)
state the manner, time and place of the prior publication or the prior
user relied on to support that ground; and
(b)
if prior user is alleged—
(i)
specify the name of every person alleged to have made such
user;
(ii)
state whether such user is alleged to have continued until the
filing date of the patent application or, if priority is claimed, the
earliest priority date of the claim in question or of the invention (as
may be appropriate) and, if not, the earliest and latest date on which
such user is alleged to have taken place;
(iii)
contain a description accompanied by drawings, if necessary, that
is sufficient to identify such user; and
(iv)
if such user relates to machinery or apparatus, state whether the
machinery or apparatus is in existence and where it can be
inspected.
(5)
If the validity of a patent is put in issue on the ground that the invention
is not a patentable invention because it does not involve an inventive step, a
party to the proceedings who intends to establish that the invention involves an
inventive step by relying on the commercial success of the patent must—
(a)
if the proceedings are begun by writ—state the facts of the commercial
success in the party’s pleading; or
(b)
if the proceedings are begun by originating summons—state the facts of
the commercial success and provide the relevant evidence in the party’s
affidavit evidence.
21.
Restrictions on admission of evidence of user of machinery or apparatus (O.
103, r. 21)
(1)
In any proceedings relating to a patent, if a party alleges that—
(a)
any machinery or apparatus has been used before the filing date of the
patent application or priority date mentioned in rule
20(4)(b)(ii); and
(b)
the machinery or apparatus is in existence at the date of service of
the particulars of the objections mentioned in rule
20(2)(a),
evidence of the user of the machinery or apparatus before that filing
date of the patent application or priority date is not admissible unless the
matters mentioned in paragraph (2) are proved.
(2)
The matters are—
(a)
if the machinery or apparatus is in the party’s possession—the party
offered inspection of the machinery or apparatus to the other parties to the
proceedings; and
(b)
if the machinery or apparatus is not in the party’s possession—the
party used all reasonable endeavours to obtain inspection of the machinery
or apparatus for the other parties to the proceedings.
22.
Discovery of documents (O. 103, r. 22)
(1)
This rule applies to the following proceedings if they are begun by
writ—
(a)
patent infringement proceedings (whether or not relief in relation to
any other matter is claimed);
(b)
proceedings under section 89;
(c)
proceedings in which a declaration in relation to a patent is sought
under section 90;
(d)
proceedings in which the validity of a patent is put in
issue.
(2)
Subject to the modifications set out in paragraph (3), Order 24 applies to
any proceedings to which this rule applies.
(3)
The modifications are—
(a)
the list of documents mentioned in Order 24, rule 2, must be
served by each party to the proceedings within 21 days after the pleadings
are deemed to be closed under Order 18; and
(b)
documents from any of the following classes (exempt class)
are not required to be listed—
(i)
subject to the condition set out in paragraph (4), for proceedings
involving an alleged infringement of a patent by a product or
process—documents showing the nature and characteristics of the product
or process and relating to the issue of whether the product or process
falls within the claims in the specification of the patent;
(ii)
documents relating to any ground on which the validity of a patent
is put in issue, except documents that came into existence within the
period beginning 2 years before the filing date of the patent
application or, if priority is claimed, the earliest claimed priority
date and ending 2 years after that date;
(iii)
documents relating to the issue of commercial success of a
patent.
(4)
The condition set out for paragraph (3)(b)(i) is that, before
serving a list of documents, the party against whom the allegation of
infringement is made has served on the other parties full particulars of the
product or process, including, if necessary, drawings or other illustrations,
that are verified by a statement of truth in accordance with Order
41A.
(5)
If the issue of commercial success relating to an article or product arises
in any proceedings, the proprietor of the patent concerned must, within the
period specified in paragraph (3)(a), serve on the other parties to
the proceedings a schedule containing—
(a)
an identification of the article or product (for example by product
code number) that the proprietor asserts has been made in accordance with
the claims in the specification of the patent;
(b)
a summary by convenient periods of sales of any such article or
product;
(c)
a summary for the equivalent periods of sales, if any, of any
equivalent prior article or product marketed before the article or product
mentioned in subparagraph (a); and
(d)
a summary by convenient periods of any expenditure on advertising and
promotion that supported the marketing of the articles or products mentioned
in subparagraphs (a) and (c).
(6)
If the issue of commercial success relating to the use of a process arises
in any proceedings, the proprietor of the patent concerned must, within the
period specified in paragraph (3)(a), serve on the other parties to
the proceedings a schedule containing—
(a)
an identification of the process that the proprietor asserts has been
used in accordance with the claims in the specification of the
patent;
(b)
a summary by convenient periods of the revenues received from the use
of the process;
(c)
a summary for the equivalent periods of the revenues, if any, received
from the use of any equivalent prior process used before the process
mentioned in subparagraph (a); and
(d)
a summary by convenient periods of any expenditure that supported the
use of the processes mentioned in subparagraphs (a) and (c).
(7)
(8)
If a party (Party A) who produces for inspection a document
that belongs to an exempt class is requested in writing by any other party
(Party B) to serve a supplementary list of all other
documents that belong to the same class as the document produced for inspection,
Party A must serve on Party B the supplementary list within 14 days after
receiving the request unless the Court otherwise orders.
(9)
This rule does not create any privilege from production in a document that
belongs to an exempt class.
(10)
This rule does not limit the Court’s power to limit the discovery of
documents on any other ground.
(11)
In this rule—
convenient period
(便利時期
), in relation to an article, a product or
a process, means a period of time for the convenient illustration of the
commercial success of a patent relating to the article, product or
process;equivalent period
(對等時期
), in relation to a convenient period,
means a period that is equivalent to the convenient period.23.
Experiments (O. 103, r. 23)
(1)
This rule applies to—
(a)
patent infringement proceedings (whether or not relief in relation to
any other matter is claimed);
(b)
proceedings under section 89;
(c)
proceedings in which a declaration in relation to a patent is sought
under section 90; and
(d)
proceedings in which the validity of a patent is put in
issue.
(2)
A party to any proceedings that are begun by writ who wishes to establish
any facts by experimental proof must, within 21 days after being served with a
list of documents under rule 22, serve on any other party a notice to
establish facts.
(3)
A party to any proceedings that are begun by originating summons who wishes
to establish any facts by experimental proof must serve on any other party a
notice to establish facts within 21 days after—
(a)
if affidavit evidence in reply is served before the expiry of the
period for the service of such affidavit evidence (specified
period)—the date on which it is served; or
(b)
if no affidavit evidence in reply is served before the expiry of the
specified period—the expiry of the specified period.
(4)
A notice to establish facts must—
(a)
state the facts that the party wishes to establish; and
(b)
give full particulars of the experiments by which the party proposes to
establish the facts.
(5)
A party on whom a notice to establish facts is served (Party
A) must, within 21 days after service of the notice, serve a notice
in reply on the party who served the notice to establish facts (Party
B).
(6)
A notice in reply mentioned in paragraph (5) must, in respect of each fact
specified in the notice to establish facts, state whether the fact is admitted
or not.
(7)
Party A may request Party B to show or carry out any of the experiments
identified in the notice to establish facts in presence of Party A or a person
designated by Party A.
X. General Provisions
on Amendment of Patents
24.
Application for purposes of section 102 (application to amend
specification of patent in infringement or revocation proceedings) (O. 103, r.
24)
(1)
An application by the proprietor of a patent (applicant) to
amend the specification of the patent in any proceeding in which the validity of
the patent is put in issue for the purposes of section 102 must be
made by summons.
(2)
The applicant must state in the summons—
(a)
whether the applicant will contend that the patent is valid based on
the claims in the specification; and
(b)
if so, that the application is made as an alternative if the contention
fails.
(3)
Within 7 days after the issue of the summons, the applicant must serve on
the Registrar of Patents and the other parties to the proceedings—
(a)
a copy of the summons;
(b)
a copy of the specification of the patent showing in coloured ink the
amendment sought; and
(c)
any translation that the Court may require.
(4)
The applicant must, within 1 month after the issue of the summons or within
a further period that the Court may direct, publish in the Gazette an
advertisement that—
(a)
identifies the patent concerned;
(b)
states that on giving prior notice to the applicant, the full
particulars of the amendment that the applicant intends to seek in the
application are available for inspection within 28 days after publication of
the advertisement during ordinary business hours at a place in Hong Kong
designated by the applicant;
(c)
states that on request made by a person to the applicant, a copy of the
specification of the patent with the amendment marked on it is to be
provided free of charge to the person;
(d)
sets out the applicant’s address for service in Hong Kong;
and
(e)
sets out the matters provided for in paragraphs (5) and (6).
(5)
If a person (other than a party to the proceedings) intends to oppose the
application, the person must, within 42 days after publication of the
advertisement, send a notice by registered post to the applicant at the
applicant’s address for service set out in the advertisement—
(a)
indicating an intention to oppose; and
(b)
specifying the person’s address for service in Hong Kong.
(6)
A person who sends a notice under paragraph (5) (intending
opponent) is, subject to the Court’s directions as to costs,
entitled to be heard at the hearing of the application.
(7)
As soon as practicable after the expiry of the period specified in paragraph
(5), the applicant must serve on every intending opponent—
(a)
a copy of the summons;
(b)
a copy of the specification of the patent showing in coloured ink the
amendment sought; and
(c)
any translation that the Court may require.
(8)
Without limiting Order 65, rule 5, service of a document on an
intending opponent under paragraph (7) may be effected by sending the document
by registered post to the intending opponent at the address for service
specified in the notice sent under paragraph (5).
(9)
If the Court makes an order allowing the specification of the patent to be
amended, the applicant must, within 14 days after the date of sealing the order,
file with the Registrar of Patents—
(a)
a sealed copy of the order; and
(b)
subject to paragraph (10), a new specification as amended, which must be
prepared in accordance with—
(i)
section 12 of the Patents Rules if the patent is a
standard patent (R);
(ii)
section 31Q of the Patents Rules if the patent is a
standard patent (O); or
(iii)
section 62 of the Patents Rules if the patent is a
short-term patent.
(10)
The Court may order that the filing of a copy of the specification with the
amendment marked on it is sufficient compliance with the requirement under
paragraph (9)(b).
(11)
The Registrar of Patents must cause a copy of the order to be published at
least once in the official journal.
XI. Proceedings
Arising from References by Registrar of Patents
25.
Proceedings for the purposes of section 44(5), 48(4),
49(2)(b), 127E(3) or 133(1)(b) (O. 103, r.
25)
(1)
This rule applies if—
(a)
the Registrar of Patents—
(i)
refers to the Court under section 44(5) an application
for the revocation of a standard patent (R) made under section
44(4);
(ii)
refers to the Court under section 48(4) a matter
relating to an offer by the proprietor of a patent to surrender the
patent;
(iii)
refers to the Court under section 49(2)(b) a question of
whether an invention is a patentable invention;
(iv)
refers to the Court under section 127E(3) opposition
proceedings against a request to amend the specification of a short-term
patent: or
(v)
refers to the Court under section 133(1)(b)—
(A)
(B)
an application to the Registrar of Patents to amend the
specification of a patent under section 46(2)(b) or (c);
and
(2)
If the person who brought the previous proceedings (intending
plaintiff or applicant) wishes to commence proceedings before
the Court in relation to the application, matter, question or opposition
proceedings, the intending plaintiff or applicant must—
(a)
within the specified period, take out the originating summons by which
the proceedings are to be begun; and
(b)
within 7 days after the issue of the originating summons, serve a copy
of the originating summons on the Registrar of Patents.
(3)
To avoid doubt, rule 5, 6, 7 or
19 does not apply to the proceedings commenced under paragraph
(2) in relation to a question or an application mentioned in paragraph
(1)(a)(iii) or (v).
(4)
Proceedings commenced under paragraph (2) in relation to an application, a
matter, a question or opposition proceedings are to be treated as the
continuation of the previous proceedings.
(5)
As soon as practicable after being served with a copy of the originating
summons, the Registrar of Patents must, for the purpose of the proceedings
commenced under paragraph (2), file with the Court any document or other thing
that was filed with the Registrar of Patents for the purpose of the previous
proceedings.
(6)
In this rule—
previous proceedings
(過往法律程序
) means the proceedings brought before
the Registrar of Patents for determination of an application, a matter, a
question or opposition proceedings under section 13(1),
14(5), 37H(1), 37K(7), 44(4),
46(2)(b) or (c), 48(1), 49(1) or 127E(2)(b) (as the case may
be);specified period
(指明限期
) means—(a)
(b)
such period as may be extended by the Registrar of Patents under
section 100AA of the Patents Rules.
XII. Miscellaneous
26.
Appointment of scientific adviser (O. 103, r. 26)
(1)
In any proceedings under the Ordinance, the Court may at any time, either of
its own motion or on application of any party, appoint an independent scientific
adviser—
(a)
to assist the Court; or
(b)
to inquire into and report on any question of fact, or of opinion, not
involving a question of law or construction.
27.
Service of documents on proprietors and applicants (O. 103, r. 27)
(1)
This rule applies to the service of a document on—
(a)
the proprietor of a patent in any proceedings relating to the patent
before the proprietor has provided an address for service in an
acknowledgement of service under Order 12, rule 3(2);
or
(b)
the applicant of a patent application in any proceedings relating to
the patent application before the applicant has provided an address for
service in an acknowledgement of service under that rule.
(2)
For the service of an originating process, or any other document that is
required to be or may be served in accordance with Order 10, on any of the
persons mentioned in paragraph (1)—
(a)
Order 10 has effect as if in rule 1(2) of that
Order—
(i)
the reference to service on a defendant were a reference to service
on the person; and
(ii)
the reference to the usual or last known address of the defendant
were a reference—
(A)
to the usual or last known address of the person;
(B)
to the person’s address for service as shown in the register in
relation to the patent or the patent application concerned;
or
(C)
if the person is an applicant of a patent application that has
not been published—to the person’s address for service communicated
under section 91A(3) of the Patents Rules; and
(3)
For the service of a document other than those mentioned in paragraph (2)
on any of the persons mentioned in paragraph (1), Order 65 has effect as if the
addresses specified in rule 5(2)(a), (b), (c) and (d) of that Order
included the person’s address for service as shown in the register in relation
to the patent or the patent application concerned.
(4)
A document served on any of the persons mentioned in paragraph (1) at the
person’s address for service shown in the register in relation to the patent or
the patent application concerned, or at the person’s address for service
communicated under section 91A(3) of the Patents Rules, in accordance
with this rule is to be treated as having been duly served within the
jurisdiction on the person even if the person is not within the jurisdiction on
the date of service mentioned in Order 10, rule 1(3)(a).
28.
Filing of orders etc. with Registrar of Patents (O. 103, r. 28)
Without limiting rules 7(12) and 24(9), if the Court has
made an order, a direction or a declaration, or has granted a certificate under the
Ordinance in favour of a person, the person or, if there is more than one such
person, the person directed by the Court, must file a sealed copy of the order,
direction, declaration or certificate with the Registrar of Patents within 14 days
after the date of sealing the order, direction, declaration or
certificate.
29.
Transitional (O. 103, r. 29)
For proceedings that are brought under the Ordinance but are pending before the
Court immediately before the commencement date* of the Rules of the High Court (Amendment) (No. 2) Rules
2025 (new rules), the Court may, of its own motion or on
application of a party to the proceedings, give directions that the new rules, or
any part of it, are to be applied to the further conduct of the
proceedings.
Editorial Note:
* Commencement date: 1 October
2025.
Order
106
Proceedings
relating to Solicitors: The Legal Practitioners Ordinance (Cap.
159)
1.
Definitions (O. 106, r.
1)
In this Order—
appeal
(上訴
) means an appeal against any order made
by the disciplinary tribunal on an application or complaint under the Ordinance;
disciplinary
tribunal
(紀律審裁組
) means the Solicitors Disciplinary
Tribunal constituted in accordance with section 9B of the Ordinance;
Society
(律師會
) means The Law Society of Hong
Kong;2.
Jurisdiction under Part VI of the Ordinance exercisable
by judge in chambers, etc. (O. 106, r.
2)
(1)
Any application to the Court under Part VI of the Ordinance may be disposed
of in chambers.
(2)
The jurisdiction of the Court under Part VI of the Ordinance may be
exercised by a judge in
chambers.
3.
Power to order solicitor to deliver
cash account, etc. (O. 106, r.
3)
(1)
Where the relationship of solicitor and client exists or has existed, the
Court may, on the application of the client or his personal representative, make
an order for—
(a)
the delivery by the solicitor of a cash account;
(b)
the payment or delivery up by the solicitor of money or
securities;
(c)
the delivery to the plaintiff of a list of the moneys or securities
which the solicitor has in his possession or control on behalf of the
plaintiff;
(d)
the payment into or lodging in court of any such moneys or
securities.
(2)
An application for an order under this rule must be made by originating
summons.
(3)
If the defendant alleges that he has a claim for costs, the Court may make
such order for the taxation and payment, or securing the payment, thereof and
the protection of the defendant’s lien, if any, as the Court thinks
fit.
5.
Form of originating summons (O. 106, r.
5)
An originating summons by which an application under the Ordinance, or any
application for an order under rule 3, is made shall be in Form No. 10 in
Appendix
A.
10.
Service of documents (O. 106, r.
10)
(1)
Any document required to be served on the Society in proceedings under this
Order shall be served by sending it by prepaid post to the secretary of the
Society.
(2)
Subject to paragraph (1), any document not required to be served personally
which is to be served on a defendant to proceedings under this Order shall,
unless the Court otherwise directs, be deemed to be properly served by sending
it by prepaid post to the defendant at his last known
address.
11.
Constitution of the Court of Appeal
to hear appeals (O. 106, r.
11)
Every appeal shall be heard by the Court of Appeal consisting, unless the Chief
Justice otherwise directs, of not less than 3
judges.
12.
Service
of notice of motion
(O. 106, r.
12)
(1)
(Repealed L.N. 122 of 2017)
(2)
Unless the Court otherwise orders,
the
notice of the originating motion by which an appeal is brought must be served
on every party to the proceedings before the disciplinary
tribunal and the Society.
(3)
The notice must be served within 21 days from the day on which the order
appealed against is pronounced.
(4)
(Repealed L.N. 275 of
1998)
13.
Society to produce certain documents
(O.
106, r.
13)
(1)
Within 7 days after being served with notice of the originating motion by
which an appeal is brought the Society must lodge in the Registry 3 copies of
each of the following documents—
(a)
the order appealed against, prefaced by the statement of the
disciplinary tribunal’s findings required by section 12 of the
Ordinance,
(b)
any document lodged by a party with the disciplinary tribunal which is
relevant to a matter in issue on the appeal, and
(c)
the transcript of the shorthand note, or, as the case may be, the note
taken by the chairman of the disciplinary tribunal, of the evidence in the
proceedings before the tribunal.
(2)
At the hearing of the appeal the Court shall direct by whom the costs
incurred in complying with paragraph (1) are to be borne and may order them to
be paid to the Society by one of the parties notwithstanding that the Society
does not appear at the
hearing.
14.
Restriction on requiring security
for costs (O. 106, r.
14)
No person other than an appellant who was the applicant in the proceedings
before the disciplinary tribunal or, in the case of an application to that tribunal
by a solicitor to procure his name to be removed from the roll, was an objector,
shall be ordered to give security for the costs of an appeal.
15.
Disciplinary tribunal’s opinion
may be required (O. 106, r.
15)
The Court may direct the disciplinary tribunal to furnish the Court with a
written statement of their opinion on the case which is the subject-matter of an
appeal or on any question arising therein, and where such a direction is given, the
clerk to the disciplinary tribunal must as soon as may be lodge 3 copies of such
statement in the Registry and at the same time send a copy to each of the parties to
the appeal.
16.
Persons entitled to be heard on appeal
(O. 106, r.
16)
A person who has not been served with notice of the originating motion by which
an appeal is brought but who desires to be heard in opposition to the appeal shall,
if he appears to the Court to be a proper person to be so heard, be entitled to be
so
heard.
17.
Discontinuance of appeal (O. 106, r.
17)
(1)
An appellant may at any time discontinue his appeal by serving notice of
discontinuance on the clerk to the disciplinary tribunal and every other party
to the appeal and, if the appeal has been entered, by lodging a copy of the
notice in the Registry.
(2)
Where an appeal has been discontinued in accordance with paragraph (1), it
shall be treated as having been dismissed with an order for payment by the
appellant of the costs of and incidental to the appeal, including any costs
incurred by the Society in complying with rule 13(1).
Order
113
Summary
Proceedings for Possession of Land
1.
Where a person claims possession of land which he alleges is occupied solely by
a person or persons (not being a tenant or tenants holding over after the
termination of the tenancy) who entered into or remained in occupation without his
licence or consent or that of any predecessor in title of his, the proceedings may
be brought by originating summons in accordance with the provisions of this
Order.
1A.
Jurisdiction of masters (O. 113, r.
1A)
Proceedings under this Order may be heard and determined by a master, who may
refer them to a judge if he thinks they should properly be decided by the
judge.
2.
Form of originating summons (O. 113, r.
2)
The originating summons shall be in Form No. 11A in Appendix A and no
acknowledgment of service of it shall be
required.
3.
Affidavit in support (O. 113, r.
3)
The plaintiff shall file in support of the originating summons an affidavit
stating—
(a)
his interest in the land;
(b)
the circumstances in which the land has been occupied without licence or
consent and in which his claim to possession arises; and
(c)
that he does not know the name of any person occupying the land who is not
named in the
summons.
4.
Service of originating summons (O. 113, r.
4)
(1)
Where any person in occupation of the land is named in the originating
summons, the summons together with a copy of the affidavit in support shall be
served on him—
(a)
personally, or
(aa)
by sending a copy of the summons and of the affidavit by ordinary post
to him at the premises, or
(b)
by leaving a copy of the summons and of the affidavit, or sending them
to him, at the premises, or
(c)
in such other manner as the Court may direct.
(2)
The summons shall, in addition to being served on the named defendants (if
any) in accordance with paragraph (1), be served, unless the Court otherwise
directs, by—
(a)
affixing a copy of the summons and a copy of the affidavit to the main
door or other conspicuous part of the premises, and
(b)
if practicable, inserting through the letter-box at the premises a copy
of the summons and a copy of the affidavit enclosed in a sealed envelope
addressed to “the occupiers”.
(2A)
Every copy of an originating summons for service under paragraph (1) or (2)
shall be sealed with the seal of the High Court.
(3)
Order 28, rule 3, shall not apply to proceedings under this
Order.
5.
Application by occupier to be made
a party (O. 113, r.
5)
6.
Order for possession (O. 113, r.
6)
(1)
A final order shall, except in case of urgency and by leave of the Court,
not be made less than 5 clear days after the date of service.
(2)
An order for possession in proceedings under this Order shall be in Form
No. 42A in Appendix A.
(3)
Nothing in this Order shall prevent the Court from ordering possession to
be given on a specified date, in exercise of any power which could have been
exercised if possession had been claimed in an action begun by
writ.
7.
Writ of possession (O. 113, r.
7)
(1)
Order 45, rule 3(2), shall not apply in relation to an order for
possession under this Order but no writ of possession to enforce such an order
shall be issued after the expiry of 3 months from the date of the order without
the leave of the
Court.
An application for leave may be made ex parte unless the Court otherwise
directs.
(2)
The writ of possession shall be in Form No. 66A in Appendix
A.
8.
Setting aside order (O. 113, r.
8)
The judge may, on such terms as he thinks just, set aside or vary any order
made in proceedings under this Order.
Order
114
Commissioners
for Oaths
1.
Appointment of commissioners for oaths (O. 114, r.
1)
(1)
The Chief Justice may, by a commission signed by him, appoint fit and proper persons to be commissioners to administer oaths and take declarations, affirmations, and attestations of honour, and may revoke any such appointment.
(1A)
The power of appointment under paragraph (1) may, by a notice in writing signed by the Chief Justice, be delegated to the Registrar.
(2)
Every person so appointed shall be styled a commissioner for oaths and
shall have all the powers and discharge all the duties which now belong to the
office of a commissioner to administer
oaths.
2.
Officers of the court to administer oaths (O. 114, r.
2)
Every person who, being an officer of or performing duties in relation to the Court, is for the time being so authorized by the Court or by or in pursuance of any rules or orders regulating the procedure of the Court, and every person directed to take an examination in any cause or matter in the Court, shall have authority to administer any oath or take any affidavit required for any purpose connected with his duties.
Order
115
Drug
Trafficking (Recovery of Proceeds) Ordinance (Cap.
405)
1.
Interpretation (O. 115, r.
1)
(1)
In this Order
the
Ordinance
(條例
) means the Drug Trafficking (Recovery
of Proceeds) Ordinance (Cap. 405), and a section
referred to by number means the section so numbered in the Ordinance.(2)
Expressions used in this Order which are used in the Ordinance have the
same meanings in this Order as in the
Ordinance.
2.
Assignment of proceedings (O. 115, r.
2)
2A.
Application for confiscation order where person
has died or absconded (O. 115, r.
2A)
(1)
An application for a confiscation order under section 3 where the defendant has died or absconded shall be made by the Secretary for Justice.
(2)
An application under paragraph (1) may be made by originating summons in Form No. 10 in Appendix A.
3.
Application for restraint order or charging
order (O. 115, r.
3)
(1)
An application for a restraint order under section 10 or for a charging order under section 11 (to either of which may be joined an application for the appointment of a receiver) shall be made by the Secretary for Justice ex parte.
(1A)
An application under paragraph (1) may be made by originating summons in Form No. 10 in Appendix A.
(2)
An application under paragraph (1) shall be supported by an affidavit, which
shall—
(a)
state, as the case may be, the grounds for believing that—
(i)
the defendant has benefited from drug trafficking; or
(ii)
the Court of First Instance will be satisfied as specified in section 15(1A);
(b)
state, as the case may be—
(i)
that proceedings have been instituted against the defendant for a
drug trafficking offence (giving particulars of the offence) and that
they have not been concluded;
(ii)
that, whether by the laying of an information or otherwise, a
person is to be charged with a drug trafficking offence;
(iii)
that an application for a confiscation order has been made in
respect of the defendant where section 3(1)(a)(ii) or (7) is
applicable; or
(iv)
that an application has been made under section 15(1A) in respect of a confiscation order made against the defendant;
(c)
to the best of the deponent’s ability, give full particulars of the
realisable property in respect of which the order is sought and specify the
person or persons holding such property;
(d)
where proceedings have not been instituted, verify that the Secretary for Justice is to have the conduct of the proposed proceedings;
(e)
where proceedings have not been instituted, indicate when it is
intended that they should be instituted.
(3)
An originating summons under paragraph (1A) shall be entitled in the matter of the defendant, naming him, and in the matter of the Ordinance, and all subsequent documents in the matter shall be so entitled.
(4)
Unless the Court otherwise directs, an affidavit under paragraph (2) may
contain statements of information or belief with the sources and grounds
thereof.
4.
Restraint order and charging order (O. 115, r.
4)
(1)
A restraint order may be made subject to conditions and exceptions, including but not limited to conditions relating to the indemnifying of third parties against expenses incurred in complying with the order, and exceptions relating to reasonable living expenses and reasonable legal expenses of the defendant, but the Secretary for Justice shall not be required to give an undertaking to abide by any order as to damages sustained by the defendant as a result of the restraint order.
(2)
Unless the Court otherwise directs, a restraint order made ex parte shall
have effect until a day which shall be fixed for the hearing inter partes of the
application and a charging order shall be an order to show cause, imposing the
charge until such day.
(3)
Where a restraint order is made the Secretary for Justice shall serve
copies of the order and of the affidavit in support on the defendant and on all
other named persons restrained by the order and shall notify all other persons
or bodies affected by the order of its terms.
(4)
Where a charging order is made the Secretary for Justice shall, unless the
Court otherwise directs, serve copies of the order and of the affidavit in
support on the defendant and, where the property to which the order relates is
held by another person, on that person and shall serve a copy of the order on
such of the persons or bodies specified in Order 50, rule 2(1)(b) to
(d) as shall be appropriate.
5.
Discharge or variation of order (O. 115, r.
5)
(1)
Any person or body on whom a restraint order or a charging order is served
or who is notified of such an order may apply by summons to discharge or vary
the order.
(2)
The summons and any affidavit in support shall be served on the Secretary for Justice and, where he is not the applicant, on the defendant, not less than 2 clear days before the date fixed for the hearing of the summons.
(3)
Upon the Court being notified that proceedings for the offences have been
concluded or that the amount payment of which is secured by a charging order has
been paid into court, any restraint order or charging order, as the case may be,
shall be
discharged.
6.
Further application by Secretary for Justice (O. 115, r.
6)
(1)
Where a restraint order or a charging order has been made the Secretary for
Justice may apply (and, if so, by summons) or, where the case is one of urgency,
ex parte—
(a)
to discharge or vary such order; or
(b)
for a restraint order or a charging order in respect of other
realisable property; or
(c)
for the appointment of a receiver.
(2)
An application under paragraph (1) shall be supported by an affidavit
which, where the application is for a restraint order or a charging order, shall
to the best of the deponent’s ability give full particulars of the realisable
property in respect of which the order is sought and specify the person or
persons holding such property.
(3)
The summons and affidavit in support shall be served on the defendant and, where one has been appointed in the matter, on the receiver, not less than 2 clear days before the date fixed for the hearing of the summons.
(4)
Rule 4(3) and (4) shall apply to the service of restraint orders
and charging orders respectively made under this rule on persons other than the
defendant.
7.
Realisation of property (O. 115, r.
7)
(1)
An application under section 12 must be made by the Secretary for Justice.
(1A)
The application may, where there have been proceedings against the defendant in the Court of First Instance, be made by summons and may otherwise be made by originating summons in Form No. 10 in Appendix A.
(2)
The summons or originating summons, as the case may be, shall be served with
the evidence in support not less than 7 days before the date fixed for the
hearing of the summons on—
(a)
the defendant;
(b)
any person holding any interest in the realisable property to which the
application relates; and
(c)
the receiver, where one has been appointed in the matter.
(3)
The application shall be supported by an affidavit, which shall, to the
best of the deponent’s ability, give full particulars of the realisable property
to which it relates and specify the person or persons holding such property, and
a copy of the confiscation order, of any certificate issued by the Court under
section 6(2) and of any charging order made in the matter shall
be exhibited to such affidavit.
(4)
The Court may, on an application under section 12, exercise the
power conferred by section 13(1) to direct the making of payments by
the
receiver.
8.
Receivers (O. 115, r.
8)
(1)
Subject to this rule, the provisions of Order 30, rules 2 to 8
shall apply where a receiver is appointed in pursuance of a charging order or
under section 10 or 12.
(2)
Where the receiver proposed to be appointed has been appointed receiver in
other proceedings under the Ordinance, it shall not be necessary for an
affidavit of fitness to be sworn or for the receiver to give security, unless
the Court otherwise orders.
(3)
Where a receiver has fully paid the amount payable under the confiscation order and any sums remain in his hands, he shall apply by case management summons as to the distribution of such sums.
(4)
A summons under paragraph (3) shall be served with any evidence in support
not less than 7 days before the date fixed for the hearing of the summons
on—
(a)
the defendant; and
(b)
any other person who held property realised by the
receiver.
9.
Variation of confiscation order (O. 115, r.
9)
(1)
The Secretary for Justice or defendant may apply by summons for an order
under section 15(1).
(2)
A summons under paragraph (1) shall be served, with any supporting evidence,
not less than 7 days before the date fixed for the hearing of the summons
on—
(a)
where the Secretary for Justice is making the application, the
defendant;
(b)
where the defendant is making the application, the Secretary for
Justice,
and, in either case, on the receiver, where one has been appointed in the
matter.
(3)
The Secretary for Justice may apply by summons for an order under section 15(1A).
10.
Compensation (O. 115, r.
10)
An application for an order under section 27 shall be made by
summons, which shall be served, with any supporting evidence, on the person alleged
to be in default and on the Secretary for Justice not less than 7 days before the
date fixed for the hearing of the summons.
11.
Disclosure of information (O. 115, r.
11)
(1)
An application under section 23 shall be made by the Secretary for Justice by summons, which shall state the nature of the order sought and whether material sought to be disclosed is to be disclosed to a receiver appointed under section 10 or 12 or in pursuance of a charging order or to an authorized officer.
(2)
The summons and affidavit in support shall be served on the public
body—
(a)
not less than 7 days before the date fixed for the hearing of the
summons; and
(b)
where the public body is a Government Department, in accordance with
Order 77, rule 4.
(3)
The affidavit in support of an application under paragraph (1) shall state
the grounds for believing that the conditions in section 23(4) and,
if appropriate, section 23(7) are
fulfilled.
12.
Exercise of powers under section 29 (O. 115, r.
12)
The powers conferred on the Court by section 29 may be exercised by
a judge in chambers and a
Master.
13.
Application for registration (O. 115, r.
13)
An application for registration of an external confiscation order under
section 29(1) may be ex
parte.
15.
Evidence in support of application under
section 29(1) (O. 115, r.
15)
An application for registration of an external confiscation order must be
supported by an affidavit—
(a)
exhibiting the order or a verified or certified or otherwise duly
authenticated copy thereof and, where the order is not in the English language,
a translation thereof into English certified by a notary public or authenticated
by affidavit; and
(b)
stating—
(i)
that the order is in force and is not subject to appeal;
(ii)
where the person against whom, or in relation to whose property, the order was made did not appear in the proceedings, that he received notice of the proceedings, in accordance with the law of the designated country concerned, in sufficient time to enable him to defend them;
(iii)
in the case of money, either that at the date of the application the
sum payable under the order has not been paid or the amount which remains
unpaid, as may be appropriate, or, in the case of other property, the
property which has not been recovered; and
(iv)
to the best of the deponent’s knowledge, particulars of what property
the person against whom, or in relation to whose property, the order was
made holds in Hong Kong, giving the source of the deponent’s knowledge.
16.
Register of orders (O. 115, r.
16)
(1)
The Registrar shall keep a register of the orders registered under the
Ordinance.
(2)
There shall be included in such register particulars of any variation or
setting aside of a registration, of any variation, satisfaction or discharge of
a registered order, and of any execution issued on such an
order.
17.
Notice of registration (O. 115, r.
17)
(1)
Notice of the registration of an order must be served on the person against whom, or in relation to whose property, it was obtained by delivering it to him personally or by sending it to him at his usual or last known address or place of business or in such other manner as the Court may direct.
(2)
(3)
The notice shall state the period within which an application may be made
to vary or set aside the registration and that the order will not be enforced
until after the expiration of that
period.
18.
Application to vary or set aside
registration (O. 115, r.
18)
An application by the person against whom, or in relation to whose property, an
order was made to vary or set aside the registration of an order must be made to a
judge by summons supported by affidavit.
19.
Enforcement of order (O. 115, r.
19)
(1)
An order registered under the Ordinance shall not be enforced until after
the expiration of the period specified in accordance with rule 17(3)
or, if that period has been extended by the Court, until after the expiration of
the period so extended.
(2)
If an application is made under rule 18, an order shall not be
enforced until after such application is
determined.
20.
Variation, satisfaction and discharge of
registered order (O. 115, r.
20)
Upon the Court being notified by the applicant for registration that an order
which has been registered has been varied, satisfied or discharged, particulars of
the variation, satisfaction or discharge, as the case may be, shall be entered in
the
register.
21.
Rules to have effect subject
to orders (O. 115, r.
21)
Rules 12 to 20 shall have effect subject to the provisions of any
order made under section
28.
22.
Statement relating to drug trafficking (O. 115, r.
22)
(1)
Where the Secretary for Justice or the defendant proposes to tender to the Court any statement or other document under section 5 he shall give a copy thereof as soon as practicable to the defendant or the Secretary for Justice, as the case may be, and to the appropriate officer of the Court.
(2)
Any statement tendered to the Court by the Secretary for Justice under
section 5(1) shall include the following particulars,
namely—
(a)
the name of the defendant;
(b)
the name of the person who made the statement;
(c)
such information known to the person who made the statement as is
relevant to—
(i)
where section 3(1)(a)(ii) is applicable, the
determination whether the defendant could have been convicted in respect
of the drug trafficking offence or offences concerned;
(ii)
the determination whether the defendant has benefited from drug
trafficking;
(iii)
the assessment of the value of the defendant’s proceeds of drug trafficking.
23.
Investigation into drug
trafficking—discharge and
variation of orders (O. 115, r.
23)
(1A)
An authorized officer shall make an application for an order under section 20 or a warrant under section 21 ex parte to a judge by laying an information on oath.
(1)
Where an order under section 20 has been made, the person required to comply with it may apply in writing to the appropriate officer of the Court for the order to be discharged or varied, and on hearing such an application the Court may discharge the order or make such variations to it as it thinks fit.
(2)
Subject to paragraph (3), where a person proposes to make an application
under paragraph (1) for the discharge or variation of an order, he shall give a
copy of the application, not later than 48 hours before the making of the
application, to the authorized officer by whom the application for an order was
made, or if such officer is not known or cannot be found, to another authorized
officer, together with a notice indicating the time and place at which the
application for discharge or variation is to be made.
(3)
The Court may direct that paragraph (2) need not be complied with if it is
satisfied that the person making the application has good reason to seek a
discharge or variation of the order as soon as possible and it is not
practicable to comply with that paragraph.
24.
Application for continued detention
of seized property (O. 115, r.
24)
(1)
An application under section 24C(2) for an order to authorize the continued detention of seized property may be made by originating summons in Form No. 10 in Appendix A.
(2)
An application under paragraph (1) shall be supported by an affidavit, which
shall—
(a)
state what the seized property consists of (including, in the case of
money, the amount and currency thereof) and the date on which and the place
at which it was seized;
(b)
state the grounds for suspecting that the seized property is specified
property; and
(c)
give particulars, in terms of the matters referred to in section
24C(2)(b), as to why the continued detention of the seized
property is justified.
25.
Order for continued detention of
seized property (O. 115, r.
25)
(1)
Where an order is made under section 24C(2), the applicant
shall, as soon as is practicable, serve a copy of the order on each person
affected by the order.
(2)
An order under section 24C(2) shall be in Form No. 108 in
Appendix A.
(3)
In rules 26(3) and (4), 27, 28(2) and 29(3) and (4),
affected person
(受影響的人
), in
relation to any summons or order referred to in those rules, means a person— (a)
on whom a copy of an order made under section 24C(2) has
been served pursuant to paragraph (1) where the seized property (or any part
thereof) the subject of the summons or first-mentioned order is or was the
subject of the second-mentioned order; or
(b)
in respect of whom the Court has made an order under rule 31
in connection with the summons or first-mentioned order.
26.
Application for further detention of
seized property (O. 115, r.
26)
(1)
An application under section 24C(3) for an order to authorize
the further detention of seized property shall be made by summons in the
proceedings commenced under rule 24.
(2)
An application under paragraph (1) shall be supported by an affidavit, which
shall—
(a)
state the grounds for suspecting that the seized property is specified
property; and
(b)
give particulars, in terms of the matters referred to in section
24C(2)(b), as to why the continued detention of the seized
property is justified.
(3)
The summons and the affidavit in support shall be served on each affected
person not less than 5 clear days before the date fixed for the hearing of the
summons.
(4)
Affidavit evidence in response to the summons shall be served by an affected
person on—
(a)
the Secretary for Justice on behalf of the applicant; and
(b)
each other affected person,
not less than 2 clear days before the date fixed for the hearing of the
summons.
27.
Order for further detention of
seized property (O. 115, r.
27)
Where an order is made under section 24C(3), the applicant shall, as
soon as is practicable, serve a copy of the order on each affected person.
28.
Application for release of seized
property (O. 115, r.
28)
(1)
An application under section 24C(4)(a) for the release of seized
property detained by an order under section 24C(2) or (3) shall be
made by summons which shall state the grounds on which the application is
made.
(2)
The summons and any affidavit in support shall be served on—
(a)
the Secretary for Justice on behalf of the authorized officer who obtained the order by virtue of which the seized property is detained; and
(b)
each other affected person,
not less than 5 clear days before the date fixed for the hearing of the
summons.
(3)
Any affidavit in opposition to the summons shall be served on—
(a)
the person who made the application under paragraph (1); and
(b)
each of the other persons referred to in paragraph (2)(a)
and (b),
not less than 2 clear days before the date fixed for the hearing of the
summons.
29.
Application for forfeiture of seized
property (O. 115, r.
29)
(1)
An application under section 24D(1) for the forfeiture of seized
property shall be made by summons in the proceedings under which any order under
rule 24 has been obtained.
(2)
An application under paragraph (1) shall be supported by an affidavit, which
shall state the grounds for believing that the seized property—
(a)
in whole or in part directly or indirectly represents any person’s
proceeds of drug trafficking;
(b)
has been used in drug trafficking; or
(c)
is intended for use in drug trafficking.
(3)
The summons and the affidavit in support referred to in paragraphs (1) and
(2) shall be served on each affected person not less than 14 clear days before
the date fixed for the hearing of the summons.
(4)
Any affidavit in opposition to the summons shall be served by an affected
person on—
(a)
the Secretary for Justice on behalf of the applicant; and
(b)
each other affected person,
not less than 5 clear days before the date fixed for the hearing of the
summons.
30.
Release of seized property (O. 115, r.
30)
Where in relation to any seized property—
(a)
an order under section 24C(2) expires without an order being
made under section 24C(3);
(b)
an order under section 24C(3) expires without a further order
being made thereunder; or
(c)
a direction is obtained under section 24C(4),
then, unless the Court has directed that an issue be stated and tried as
between affected persons, the property shall be forthwith released on such terms, if
any, as the Court thinks fit to the person from whom the property was seized or to
such other person as appears to be entitled to it.
31.
Joinder and payment into Court (O. 115, r.
31)
(1)
Without prejudice to its powers under Order 15, rule 6, the
Court may either of its own motion or on application order that any person who
may be affected by any order made by it be joined as a party to the
proceedings.
(2)
The Court may order that the property which is the subject of an
application or order shall be paid into or lodged in Court on such terms as it
thinks fit.
32.
Service of documents (O. 115, r.
32)
(1)
Without prejudice to Order 65, any documents required to be served on a
party under rules 25 to 29 may be served in accordance with the
provisions of this rule.
(2)
Where documents are required to be served on a party from whom property has
been seized and that party has provided an authorized officer with an address or
facsimile number at which any such document may be served, the documents may be
served by leaving them at or sending them by registered mail to that address or
by sending it by facsimile to the number provided.
(3)
If that party has refused to provide an authorized officer with any such address or facsimile number and there is no other method of serving him or if it is otherwise not possible to serve a party, the documents may be served on that party by exhibiting them on a notice board at a place to which the public have access on the ground floor of the High Court Building but where any application made under rule 25, 26, 27, 28 or 29 is so served, the applicant shall state in his affidavit of service why this method of service has been adopted and the Court shall consider whether to give directions for some other form of service (including substituted service) by the applicant.
(4)
A body corporate which is not incorporated in Hong Kong and which is not a registered non-Hong Kong company as defined by section 2(1) of the Companies Ordinance (Cap. 622) may be served by leaving the document to be served at or by sending it by registered mail to the registered office or principal place of business of that body corporate.
(28 of 2012 ss. 912 & 920)
33.
Power to extend or abridge time
(O. 115, r.
33)
Rules 26(3) and (4), 28(2) and (3), and 29(3) and (4) shall not
operate to prejudice the power of the Court under Order 3, rule 5, to
extend or abridge the period within which a person is required or authorized by any
of those rules to do any act in any proceedings.
Order 115A
Mutual
Legal Assistance in Criminal Matters Ordinance (Cap. 525)
1.
Interpretation (O. 115A, r.
1)
(1)
In this Order
the
Ordinance
(條例
)
means the Mutual Legal Assistance in Criminal Matters Ordinance (Cap. 525), and a section referred to by number in
rules 3 to 12 means the section so numbered in the Ordinance and
in rules 13 to 18 means the section so numbered in Schedule
2 to the Ordinance.
(2)
Expressions used in this Order which are used in the Ordinance (including
Schedule 2 to the Ordinance) have the same meanings in this Order
as in the
Ordinance.
2.
Assignment of proceedings (O. 115A, r.
2)
Subject to rule 3, the jurisdiction of the Court under the Ordinance
shall be exercised by a judge of the Court in
chambers.
3.
Exercise of powers under section 28 (O. 115A, r.
3)
The powers conferred on the Court by section 28 may be exercised by
a judge in chambers and a
Master.
4.
Application for registration (O. 115A, r.
4)
An application for registration of an external confiscation order under
section 28(1) may be ex
parte.
5.
Evidence in support of application under section
28(1)
(O. 115A, r.
5)
An application for registration of an external confiscation order must be supported by an affidavit—
(a)
exhibiting the order or a verified or certified or otherwise duly authenticated copy thereof and, where the order is not in the English language, a translation thereof into English certified by a notary public or authenticated by affidavit; and
(b)
stating—
(i)
that the order is in force and is not subject to appeal;
(ii)
where the person against whom, or in relation to whose property, the order was made did not appear in the proceedings, that he received notice of the proceedings, in accordance with the law of the place outside Hong Kong concerned, in sufficient time to enable him to defend them;
(iii)
in the case of money, either that at the date of the application the sum payable under the order has not been paid or the amount which remains unpaid, as may be appropriate, or, in the case of other property, the property which has not been recovered; and
(iv)
to the best of the deponent’s knowledge, particulars of what property
the person against whom, or in relation to whose property, the order was
made holds in, or controls from, Hong Kong, giving the source of the
deponent’s
knowledge.
6.
Register of orders (O. 115A, r.
6)
(1)
The Registrar shall keep a register of the orders registered under the Ordinance.
(2)
There shall be included in such register particulars of any variation or
setting aside of a registration, of any variation, satisfaction or discharge of
a registered order, and of any execution issued on such an
order.
7.
Notice of registration (O. 115A, r.
7)
(1)
Notice of the registration of an order must be served on the person against whom, or in relation to whose property, it was obtained by delivering it to him personally or by sending it to him at his usual or last known address or place of business or in such other manner as the Court may direct.
(2)
(3)
The notice shall state the period within which an application may be made
to vary or set aside the registration and that the order will not be enforced
until after the expiration of that
period.
8.
Application to vary or set aside registration
(O.
115A, r.
8)
An application by the person against whom an order was made to vary or set
aside the registration of an order must be made to a judge by summons supported by
affidavit.
9.
Enforcement of order (O. 115A, r.
9)
(1)
An order registered under the Ordinance shall not be enforced until after the expiration of the period specified in accordance with rule 7(3) or, if that period has been extended by the Court, until after the expiration of the period so extended.
(2)
If an application is made under rule 8, an order shall not be
enforced until after such application is
determined.
10.
Variation, satisfaction and discharge of
registered
order (O. 115A, r.
10)
Upon the Court being notified by the applicant for registration that an order
which has been registered has been varied, satisfied or discharged, particulars of
the variation, satisfaction or discharge, as the case may be, shall be entered in
the
register.
11.
Rules to have effect subject to orders
(O.
115A, r.
11)
Rules 3 to 10 shall have effect subject to the provisions of any
order made under section
27.
12.
Investigation or proceeding relating to
criminal
matter—discharge
and variation of orders
(O. 115A, r.
12)
(1)
An authorized officer shall make an application for an order under section 15 ex parte to a judge by laying an information on oath.
(2)
Where an order under section 15 has been made, the person required to comply with it may apply in writing to the appropriate officer of the Court for the order to be discharged or varied, and on hearing such an application the Court may discharge the order or make such variations to it as it thinks fit.
(3)
Subject to paragraph (4), where a person proposes to make an application under paragraph (2) for the discharge or variation of an order, he shall give a copy of the application, not later than 48 hours before the making of the application, to the authorized officer by whom the application for an order was made, or if such officer is not known or cannot be found, to another authorized officer, together with a notice indicating the time and place at which the application for discharge or variation is to be made.
(4)
The Court may direct that paragraph (3) need not be complied with if it is
satisfied that the person making the application has good reason to seek a
discharge or variation of the order as soon as possible and it is not
practicable to comply with that
paragraph.
13.
Application for restraint order or charging
order
(O. 115A, r.
13)
(1)
(2)
(a)
state, where applicable, the grounds for believing that an external confiscation order may be made in the proceedings instituted or to be instituted in the place outside Hong Kong concerned;
(b)
to the best of the deponent’s ability, give particulars of the realisable property in respect of which the order is sought and specify the person or persons holding such property;
(c)
in a case to which section 6(2) applies, indicate when it is intended that proceedings should be instituted in the place outside Hong Kong concerned.
(3)
An originating summons under paragraph (1) shall be entitled in the matter of the defendant, naming him, and in the matter of the Ordinance, and all subsequent documents in the matter shall be so entitled.
(4)
Unless the Court otherwise directs, an affidavit under paragraph (2) may
contain statements of information or belief with the sources and grounds
thereof.
14.
Restraint order and charging order (O. 115A, r.
14)
(1)
A restraint order may be made subject to conditions and exceptions, including but not limited to conditions relating to the indemnifying of third parties against expenses incurred in complying with the order, and exceptions relating to reasonable living expenses and reasonable legal expenses of the defendant, but the Secretary for Justice shall not be required to give an undertaking to abide by any order as to damages sustained by the defendant as a result of the restraint order.
(2)
Unless the Court otherwise directs, a restraint order made ex parte shall have effect until a day which shall be fixed for the hearing inter partes of the application and a charging order shall be an order to show cause, imposing the charge until such day.
(3)
Where a restraint order is made the Secretary for Justice shall serve copies of the order and of the affidavit in support on the defendant and on all other named persons restrained by the order and shall notify all other persons or bodies affected by the order of its terms.
(4)
Where a charging order is made the Secretary for Justice shall, unless the Court otherwise directs, serve copies of the order and of the affidavit in support on the defendant and, where the property to which the order relates is held by another person, on that person and shall serve a copy of the order on such of the persons or bodies specified in Order 50, rule 2(1)(b) to (d) as shall be appropriate.
15.
Discharge or variation of order (O. 115A, r.
15)
(1)
Any person or body on whom a restraint order or a charging order is served or who is notified of such an order may apply by summons to discharge or vary the order.
(2)
The summons and any affidavit in support shall be lodged with the Court and served on the Secretary for Justice and, where he is not the applicant, on the defendant, not less than 2 clear days before the date fixed for the hearing of the summons.
(3)
Upon the Court being notified that proceedings have been concluded any
restraint or charging order shall be
discharged.
16.
Further application by Secretary for Justice
(O. 115A, r.
16)
(1)
Where a restraint order or a charging order has been made the Secretary for Justice may apply by summons or, where the case is one of urgency, ex parte—
(a)
to discharge or vary such order;
(b)
for a restraint order or a charging order in respect of other realisable property; or
(c)
for the appointment of a receiver.
(2)
An application under paragraph (1) shall be supported by an affidavit which, where the application is for a restraint order or a charging order, shall to the best of the deponent’s ability give full particulars of the realisable property in respect of which the order is sought and specify the person or persons holding such property.
(3)
The summons and affidavit in support shall be lodged with the Court and served on the defendant and, where one has been appointed in the matter, on the receiver, not less than 2 clear days before the date fixed for the hearing of the summons.
(4)
Rule 14(3) and (4) shall apply to the service of restraint
orders and charging orders respectively made under this rule on persons other
than the
defendant.
17.
Realisation of property (O. 115A, r.
17)
(1)
An application under section 9 shall, where there have been proceedings against the defendant in the Court of First Instance, be made by the Secretary for Justice by summons and shall otherwise be made by originating summons.
(2)
The summons or originating summons, as the case may be, shall be served with the evidence in support not less than 7 days before the date fixed for the hearing of the summons on—
(a)
the defendant;
(b)
any person holding any interest in the realisable property to which the application relates; and
(c)
the receiver, where one has been appointed in the matter.
(3)
The application shall be supported by an affidavit, which shall, to the best of the deponent’s ability, give full particulars of the realisable property to which it relates and specify the person or persons holding such property.
(4)
The Court may, on an application under section 9, exercise the
power conferred by section 10(1) to direct the making of payments by
the
receiver.
18.
Receivers (O. 115A, r.
18)
(1)
Subject to this rule, the provisions of Order 30, rules 2 to 8 shall apply where a receiver is appointed in pursuance of a charging order or under section 7 or 9.
(2)
Where the receiver proposed to be appointed has been appointed receiver in other proceedings under the Ordinance, it shall not be necessary for an affidavit of fitness to be sworn or for the receiver to give security, unless the Court otherwise orders.
(3)
Where a receiver has fully paid the amount payable under the external confiscation order and any sums remain in his hands, he shall apply by case management summons as to the distribution of such sums.
(4)
A summons under paragraph (3) shall be served with any evidence in support not less than 7 days before the date fixed for the hearing of the summons on—
(a)
the defendant; and
(b)
any other person who held property realised by the receiver.
Order
116
Organized
and Serious Crimes Ordinance (Cap.
455)
Part
II—Powers
of Investigation
1.
Interpretation (O. 116, r.
1)
(1)
In this Order
the
Ordinance
(條例
) means the Organized and Serious
Crimes Ordinance (Cap. 455), and a section referred
to by number means the section so numbered in the Ordinance.(2)
Expressions used in this Order which are used in the Ordinance have the
same meanings in this Order as in the
Ordinance.
2.
Application of this Order (O. 116, r.
2)
This Order applies to applications—
(a)
by the Secretary for Justice under section 3 for an order authorizing the Secretary for Justice to require a person to furnish information or produce material;
(b)
by the Secretary for Justice or an authorized officer under section 4 for an order that a person make material available; and
(c)
by an authorized officer under section 5 for the issue of a search warrant.
3.
Assignment of proceedings (O. 116, r.
3)
For the purposes of this Order, the jurisdiction of the Court under the
Ordinance shall be exercised by a judge of the Court in
chambers.
4.
(1)
An application to which this Order applies—
(a)
shall be made by laying an information on oath;
(b)
may, where a judge so directs, be heard at a place other than within the court premises.
(2)
At the hearing of an application to which this Order applies the Court may
receive evidence from the
applicant.
5.
Application to be heard in camera (O. 116, r.
5)
(1)
An application to which this Order applies, and any other application provided for in this Order, shall be heard in camera.
(2)
The information and all other documents relating to such application shall be treated as confidential and shall, immediately on the determination of the application, be placed in a packet and sealed by order of the judge by whom the application was heard.
(3)
The packet shall be kept in the custody of the Court in a place to which the public has no access or in such other place as the judge may authorize and—
(a)
shall not be opened or its contents removed except by order of a judge;
(b)
shall not be destroyed except pursuant to an order of the
Court.
6.
(1)
An application under section 3(17) for the discharge or variation of an order made under section 3 or under section 4(7) for the discharge or variation of an order made under section 4(2) or (6) shall be made to a judge by summons supported by affidavit.
(2)
The summons and affidavit in support—
(a)
shall set out the grounds on which the applicant relies in seeking the discharge or variation of the order; and
(b)
shall be lodged with the Court and served on the Secretary for Justice not less than 3 clear days before the date fixed for the hearing of the summons.
(3)
On the hearing of the application the Court may discharge the order or make
such variation as it thinks
fit.
7.
(1)
If in the course of the exercise by an authorized officer of powers conferred by an order made under section 3 a claim of legal privilege is made in respect of any information, the person making the claim shall—
(a)
within 3 days of making the claim, apply to the Court by summons supported by affidavit for a declaration that the information is subject to legal privilege; and
(b)
not less than 3 clear days before the hearing of the application, serve a copy of the summons and affidavit on the Secretary for Justice.
(2)
If in the course of the exercise by an authorized officer of powers conferred by an order made under section 3 or 4 a claim of legal privilege is made in respect of any material, the person making the claim shall—
(a)
in the presence of the authorized officer, secure the material in a sealed container;
(b)
immediately deposit the sealed container with the Court;
(c)
within 3 days of depositing the material with the Court, apply to the Court by summons supported by affidavit for a declaration that the material is subject to legal privilege; and
(d)
not less than 3 clear days before the hearing of the application, serve a copy of the summons and affidavit on the Secretary for Justice.
8.
Claim of legal privilege in relation to search
warrant issued under section 5
(O. 116, r.
8)
If in the course of execution by an authorized officer of a warrant issued under section 5 a claim of legal privilege is made in respect of any material, the person making the claim shall—
(a)
secure the material in a sealed container in the presence of the authorized officer and hand the sealed container to the authorized officer for safe keeping pending an application by the person under this rule;
(b)
within 3 days of making the claim of legal privilege, apply to the Court by summons supported by affidavit for a declaration that the material is subject to legal privilege; and
(c)
not less than 3 clear days before the hearing of the application, serve a copy of the summons and affidavit on the authorized officer and the Secretary for Justice.
Order 117
Organized
and Serious Crimes Ordinance (Cap.
455)
Part
IV—Enforcement,
etc. of Confiscation
Orders
1.
Interpretation (O. 117, r.
1)
(1)
In this Order
the
Ordinance
(條例
) means the Organized and Serious
Crimes Ordinance (Cap. 455), and a Part or section
referred to by number means the Part or section so numbered in the
Ordinance.(2)
Expressions used in this Order which are used in the Ordinance have the
same meanings in this Order as in the
Ordinance.
2.
Application of this Order (O. 117, r.
2)
This Order applies to applications under Part
IV.
3.
Assignment of proceedings (O. 117, r.
3)
The jurisdiction of the Court under the Ordinance shall, for the purposes of
this Order, be exercised by a judge of the Court in
chambers.
3A.
Application for confiscation order where
person has died or absconded (O. 117, r.
3A)
An application for a confiscation order under section 8 where the defendant has died or absconded may be made by the Secretary for Justice by originating summons.
4.
Application for restraint order or charging
order (O. 117, r.
4)
(1)
An application for a restraint order under section 15 or for a charging order under section 16 (to either of which may be joined an application for the appointment of a receiver) may be made by the Secretary for Justice ex parte by summons.
(2)
An application under paragraph (1) shall be supported by an affidavit, which shall—
(a)
state, as the case may be, the grounds for believing that—
(i)
the defendant has benefited from a specified offence; or
(ii)
the Court of First Instance will be satisfied as specified in section 20(1A);
(b)
state, as the case may be—
(i)
that proceedings have been instituted against the defendant for a specified offence (giving particulars of the offence) and that they have not been concluded;
(ii)
that, whether by the laying of an information or otherwise, a person is to be charged with a specified offence;
(iii)
that an application for a confiscation order has been made in respect of the defendant where section 8(1)(a)(ii) or (7A) is applicable; or
(iv)
that an application has been made under section 20(1A) in respect of a confiscation order made against the defendant;
(c)
to the best of the deponent’s ability, give full particulars of the realisable property in respect of which the order is sought and specify the person or persons holding such property;
(d)
where proceedings have not been instituted, verify that the Secretary for Justice is to have the conduct of the proposed proceedings;
(e)
where proceedings have not been instituted, indicate when it is intended that they should be instituted.
(3)
A summons under paragraph (1) shall be entitled in the matter of the defendant, naming him, and in the matter of the Ordinance, and all subsequent documents in the matter shall be so entitled.
(4)
Unless the Court otherwise directs, an affidavit under paragraph (2) may
contain statements of information or belief with the sources and grounds of the
information or
belief.
5.
Restraint order and charging order (O. 117, r.
5)
(1)
A restraint order may be made subject to conditions and exceptions, including but not limited to conditions relating to the indemnifying of third parties against expenses incurred in complying with the order, and exceptions relating to reasonable living and legal expenses of the defendant, but the Secretary for Justice shall not be required to give an undertaking to abide by any order as to damages sustained by the defendant as a result of the restraint order.
(2)
Unless the Court otherwise directs, a restraint order made ex parte shall have effect until a day which shall be fixed for the hearing inter partes of the application and a charging order shall be an order to show cause, imposing the charge until such day.
(3)
Where a restraint order is made the Secretary for Justice shall serve copies of the order and of the affidavit in support on the defendant and on all other named persons restrained by the order and shall notify all other persons or bodies affected by the order of its terms.
(4)
Where a charging order is made the Secretary for Justice shall—
(a)
unless the Court otherwise directs, serve copies of the order and of the affidavit in support on the defendant and, where the property to which the order relates is held by another person, on that person; and
(b)
serve a copy of the order on such of the persons or bodies specified in Order 50, rule 2(1)(b) to (d) as shall be appropriate.
6.
Discharge or variation of order (O. 117, r.
6)
(1)
Any person or body on whom a restraint order or a charging order is served or who is notified of such an order may apply by summons to discharge or vary the order.
(2)
The summons and any affidavit in support shall be lodged with the Court and served on the Secretary for Justice and, where he is not the applicant, on the defendant, not less than 2 clear days before the date fixed for the hearing of the summons.
(3)
Upon the Court being notified that proceedings for the offences have been
concluded or that the amount payment of which is secured by a charging order has
been paid into court, any restraint order or charging order, as the case may be,
shall be
discharged.
7.
Further application by Secretary for Justice
(O.
117, r.
7)
(1)
Where a restraint order or a charging order has been made the Secretary for Justice may apply by summons or, where the case is one of urgency, ex parte—
(a)
to discharge or vary such order; or
(b)
for a restraint order or a charging order in respect of other realisable property; or
(c)
for the appointment of a receiver.
(2)
An application under paragraph (1) shall be supported by an affidavit which, where the application is for a restraint order or a charging order, shall to the best of the deponent’s ability give full particulars of the realisable property in respect of which the order is sought and specify the person or persons holding such property.
(3)
The summons and affidavit in support shall be lodged with the Court and served on the defendant and, where one has been appointed in the matter, on the receiver, not less than 2 clear days before the date fixed for the hearing of the summons.
(4)
Rule 5(3) and (4) shall apply to the service of restraint orders
and charging orders respectively made under this rule on persons other than the
defendant.
8.
Consent order for variation of restraint
order or charging order (O. 117, r.
8)
9.
Realisation of property (O. 117, r.
9)
(1)
An application under section 17 shall, where there have been proceedings against the defendant in the Court of First Instance, be made by the Secretary for Justice by summons and shall otherwise be made by originating summons.
(2)
The summons or originating summons, as the case may be, shall be served with the evidence in support not less than 7 days before the date fixed for the hearing of the summons on—
(a)
the defendant;
(b)
any person holding any interest in the realisable property to which the application relates; and
(c)
the receiver, where one has been appointed in the matter.
(3)
The application shall be supported by an affidavit, which shall, to the best of the deponent’s ability, give full particulars of the realisable property to which it relates and specify the person or persons holding such property, and a copy of the confiscation order, of any certificate issued by the Court under section 11(2) and of any charging order made in the matter shall be exhibited to such affidavit.
(4)
The Court may, on an application under section 17, exercise the
power conferred by section 18(1) to direct the making of payments by
the
receiver.
10.
Receivers (O. 117, r.
10)
(1)
Subject to this rule, the provisions of Order 30, rules 2 to 8 shall apply where a receiver is appointed in pursuance of a charging order or under section 15 or 17.
(2)
Where the receiver proposed to be appointed has been appointed receiver in other proceedings under the Ordinance, it shall not be necessary for an affidavit of fitness to be sworn or for the receiver to give security, unless the Court otherwise orders.
(3)
Where a receiver has fully paid the amount payable under the confiscation order and any sums remain in his hands, he shall apply by case management summons as to the distribution of such sums.
(4)
A summons under paragraph (3) shall be served with any evidence in support not less than 7 days before the date fixed for the hearing of the summons on—
(a)
the defendant; and
(b)
any other person who held property realised by the
receiver.
11.
Variation of confiscation order (O. 117, r.
11)
(1)
The Secretary for Justice or defendant may apply by summons for an order under section 20(1).
(2)
The summons shall be served, with any supporting evidence, not less than 7 days before the date fixed for the hearing of the summons on—
(a)
where the Secretary for Justice is making the application, the defendant;
(b)
where the defendant is making the application, the Secretary for Justice,
and, in either case, on the receiver, where one has been appointed in the matter.
(3)
The Secretary for Justice may apply by summons for an order under section 20(1A).
12.
Compensation (O. 117, r.
12)
An application for an order under section 29 shall be made by summons, which shall be served, with any supporting evidence, on the person alleged to be in default and on the Secretary for Justice not less than 7 days before the date fixed for the hearing of the summons.
13.
Disclosure of information (O. 117, r.
13)
(1)
An application under section 28 shall be made by the Secretary for Justice by summons, which shall state the nature of the order sought and whether material sought to be disclosed is to be disclosed to a receiver appointed under section 15 or 17 or in pursuance of a charging order or to an authorized officer.
(2)
The summons and affidavit in support shall be served on the public body—
(a)
not less than 7 days before the date fixed for the hearing of the summons; and
(b)
where the public body is a Government department, in accordance with Order 77, rule 4.
(3)
The affidavit in support shall state the grounds for believing that the
conditions in section 28(4) and, if appropriate, section
28(7) are
fulfilled.
14.
Statement relating to specified offence
or organized crime (O. 117, r.
14)
(1)
Where in any proceedings the Secretary for Justice or the defendant proposes to tender to the Court any statement or other document under section 10 he shall give a copy of the statement or other document as soon as practicable to the defendant or the Secretary for Justice, as the case may be, and to the appropriate officer of the Court.
(2)
A statement tendered to the Court by the Secretary for Justice under section 10(1) shall include the following particulars, namely—
(a)
the name of the defendant;
(b)
the name of the person by whom the statement is tendered;
(c)
if the statement is tendered after the defendant has been convicted, the date on which and the place where the relevant conviction occurred;
(d)
such information known to the person who made the statement as is relevant to—
(i)
where section 8(1)(a)(ii) is applicable, the determination—
(A)
whether the defendant could have been convicted in respect of the specified offence or offences concerned;
(B)
whether the specified offence or any of the specified offences concerned could have been an organized crime;
(ii)
the determination whether the defendant has benefited from a specified offence or an organized crime;
(iii)
the assessment of the value of the defendant’s proceeds of a specified offence or an organized crime.
Order 117A
United
Nations (Anti-Terrorism Measures) Ordinance (Cap.
575)
(Format changes—E.R. 2 of 2012)
1.
Interpretation (O. 117A, r.
1)
(1)
In this Order—
ex parte originating summons
(單方面原訴傳票
) means an originating summons in
Form No. 11 in Appendix A;expedited originating summons
(速辦原訴傳票
) means an originating summons in
Form No. 10 in Appendix
A;holder
(持有人
), in relation to
any subject property, means a person whom the applicant can reasonably ascertain
to be a person by, for or on behalf of whom the property is held;subject person
(標的人士
), in relation to an application under section
5(1)(a), means the person who is the subject of the application;subject property
(標的財產
), in relation to an application under
section 5(1)(b) or 13, means the property that is the
subject of the application.(2)
An expression used in this Order that is used in the Ordinance has the same
meaning in this Order as in the Ordinance.
(3)
A section referred to by number in this Order means the section so numbered
in the Ordinance.
(4)
For the purposes of the Ordinance (under which a person who has a
prescribed interest
in any property is deemed
to be a person by, for or on behalf of whom the property is or was held),
prescribed interest (訂明權益
), in relation to any property, means—(a)
a legal or equitable estate or interest in the property;
or
(b)
a right, power or privilege in connection with the
property.
2.
Judge to exercise jurisdiction (O. 117A, r.
2)
The jurisdiction of the Court under the Ordinance must, for the purposes of
this Order, be exercised by a judge of the
Court.
3.
Ex parte application to specify person as terrorist or terrorist associate (O.
117A, r.
3)
(1)
An application under section 5(1)(a) for an order to specify a
person as a terrorist or terrorist associate may be made ex parte if—
(a)
there exist circumstances of urgency; or
(b)
the whereabouts of the subject person are not known to the applicant,
and—
(i)
the applicant has taken reasonable steps to ascertain the
whereabouts of the subject person; and
(ii)
a notice of the applicant’s intention to make the application,
addressed to the subject person, has been published in a Chinese
newspaper and an English newspaper that circulate generally in Hong
Kong.
(2)
The ex parte application must be made by an ex parte originating summons
supported by an affidavit.
(3)
The affidavit in support must state the grounds for believing that—
(a)
this rule applies; and
(b)
the subject person is a terrorist or terrorist associate.
(4)
As soon as practicable after obtaining an order under section
5(2) on an ex parte application, the applicant must—
(a)
publish the order in a Chinese newspaper and an English newspaper that
circulate generally in Hong Kong; and
(b)
if the whereabouts of the subject person are known or have become known
to the applicant, serve the order, the ex parte originating summons and a
copy of the affidavit in support on the subject
person.
4.
Inter partes application to specify person as terrorist or terrorist associate
(O. 117A, r.
4)
(1)
This rule applies if an application under section 5(1)(a) is
made other than in the circumstances referred to in rule 3(1)(a) and
(b).
(2)
The application must be made by an expedited originating summons supported
by an affidavit.
(3)
The affidavit in support must state the grounds for believing that the
subject person is a terrorist or terrorist associate.
(4)
The expedited originating summons and a copy of the affidavit in support
must be served on the subject person not less than 7 clear days before the date
fixed for the hearing of the application.
(5)
If a subject person served with the expedited originating summons wishes to
adduce any affidavit evidence in opposition to it, the person must, within 28
days after the service, file an affidavit of evidence with the Court and serve a
copy of the affidavit on the Secretary for
Justice.
5.
Additional affidavit procedure for application under section 5(1)(a)
(O. 117A, r.
5)
(1)
This rule applies if, after the application referred to in rule
4 is made, the applicant cannot serve the expedited originating
summons on the subject person because the whereabouts of the subject person have
become unknown to the applicant.
(2)
The applicant may file with the Court an additional affidavit that complies
with paragraph (3) if the applicant—
(a)
has taken reasonable steps to ascertain the whereabouts of the subject
person; and
(b)
has published a notice of the applicant’s intention to proceed with the
application, addressed to the subject person, in a Chinese newspaper and an
English newspaper that circulate generally in Hong Kong.
(3)
The additional affidavit referred to in paragraph (2) must—
(a)
state that the applicant believes that this rule applies; and
(b)
state the facts showing that the applicant has done the acts referred
to in paragraph (2)(a) and (b).
(4)
The Court may direct that the application be heard in the absence of the
subject person, if the Court—
(a)
is satisfied that—
(i)
this rule applies; and
(ii)
the applicant has done the acts referred to in paragraph
(2)(a) and (b); and
(b)
having regard to the nature and circumstances of the application,
thinks it just and expedient so to do.
(5)
As soon as practicable after obtaining an order under section
5(2) on an application to which this rule applies, the applicant
must—
(a)
publish the order in a Chinese newspaper and an English newspaper that
circulate generally in Hong Kong; and
(b)
if the whereabouts of the subject person have become known to the
applicant, serve the order, the expedited originating summons, a copy of the
affidavit in support and a copy of the additional affidavit on the subject
person.
6.
Ex parte application to specify property as terrorist property (O. 117A, r.
6)
(1)
An application under section 5(1)(b) for an order to specify any
property as terrorist property may be made ex parte if—
(a)
there exist circumstances of urgency; or
(b)
the whereabouts of the holder are not known to the applicant, or if
there is more than one holder, the whereabouts of none of them are known to
the applicant, and—
(i)
the applicant has taken reasonable steps to ascertain the
whereabouts of that holder or those holders; and
(ii)
a notice of the applicant’s intention to make the application,
addressed to that holder or those holders, has been published in a
Chinese newspaper and an English newspaper that circulate generally in
Hong Kong.
(2)
The ex parte application must be made by an ex parte originating summons
supported by an affidavit.
(3)
The affidavit in support must—
(a)
state the grounds for believing that—
(i)
this rule applies; and
(ii)
the subject property is terrorist property; and
(b)
specify the holder, or if there is more than one holder, specify all
the holders.
(4)
As soon as practicable after obtaining an order under section
5(2) on an ex parte application, the applicant must—
(a)
publish the order in a Chinese newspaper and an English newspaper that
circulate generally in Hong Kong; and
(b)
if the whereabouts of the holder or holders specified in the affidavit
in support are known or have become known to the applicant, serve the order,
the ex parte originating summons and a copy of the affidavit in support on
that holder or each of those
holders.
7.
Inter partes application to specify property as terrorist property (O. 117A, r.
7)
(1)
This rule applies if an application under section 5(1)(b) is
made other than in the circumstances referred to in rule 6(1)(a) and
(b).
(2)
The application must be made by an expedited originating summons supported
by an affidavit.
(3)
The affidavit in support must—
(a)
state the grounds for believing that the subject property is terrorist
property; and
(b)
specify the holder, or if there is more than one holder, specify all
the holders, and their whereabouts (if known to the applicant).
(4)
The expedited originating summons and a copy of the affidavit in support
must be served on the holder, or each holder specified in the affidavit whose
whereabouts are known to the applicant, not less than 7 clear days before the
date fixed for the hearing of the application.
(5)
If a person served with the expedited originating summons wishes to adduce
any affidavit evidence in opposition to it, the person must, within 28 days
after the service, file an affidavit of evidence with the Court and serve a copy
of the affidavit—
(a)
on the Secretary for Justice; and
(b)
on any other holder specified in the affidavit in support whose
whereabouts are known to the applicant.
(6)
The person who files an affidavit of evidence under paragraph (5) may also
serve a copy of the affidavit on any other person whom that person believes to
be a person by, for or on behalf of whom the subject property is held.
(7)
The service under paragraph (6) must be effected within the period referred
to in paragraph
(5).
8.
Additional affidavit procedure for application under section 5(1)(b)
(O. 117A, r.
8)
(1)
This rule applies if—
(a)
in the application referred to in rule 7, there is more than
one holder and the whereabouts of one or more (but not all) of the holders
are not known to the applicant at the time the application is made;
or
(b)
after the application referred to in rule 7 is made, the
applicant cannot serve the expedited originating summons on the holder, or
if there is more than one holder, on one or more of them, because the
whereabouts of that holder or those holders have become unknown to the
applicant.
(2)
The applicant may file with the Court an additional affidavit that complies
with paragraph (3) if the applicant—
(a)
has taken reasonable steps to ascertain the whereabouts of the holder
or holders that are not known or have become unknown; and
(b)
has published a notice of the applicant’s intention to make or proceed
with the application, addressed to the holder or holders whose whereabouts
are not known or have become unknown, in a Chinese newspaper and an English
newspaper that circulate generally in Hong Kong.
(3)
The additional affidavit referred to in paragraph (2) must—
(a)
state that the applicant believes that this rule applies; and
(b)
state the facts showing that the applicant has done the acts referred
to in paragraph (2)(a) and (b).
(4)
The applicant must, within 7 days after filing the additional affidavit,
serve a copy of the additional affidavit on each holder whose whereabouts are
known to the applicant (if any).
(5)
The Court may direct that the application be heard in the absence of a
holder whose whereabouts are not known or have become unknown to the applicant,
if the Court—
(a)
is satisfied that—
(i)
this rule applies; and
(ii)
the applicant has done the acts referred to in paragraph
(2)(a) and (b); and
(b)
having regard to the nature and circumstances of the application,
thinks it just and expedient so to do.
(6)
As soon as practicable after obtaining an order under section
5(2) on an application to which this rule applies, the applicant
must—
(a)
publish the order in a Chinese newspaper and an English newspaper that
circulate generally in Hong Kong; and
(b)
if the whereabouts of the holder or holders in whose absence the
application was heard have become known to the applicant, serve the order,
the expedited originating summons, a copy of the affidavit in support and a
copy of the additional affidavit on that holder or each of those
holders.
9.
Ex parte application for forfeiture of certain terrorist property (O. 117A, r.
9)
(1)
An application under section 13 for an order to forfeit any
terrorist property may be made ex parte if—
(a)
there exist circumstances of urgency; or
(b)
the whereabouts of the holder are not known to the applicant, or if
there is more than one holder, the whereabouts of none of them are known to
the applicant, and—
(i)
the applicant has taken reasonable steps to ascertain the
whereabouts of that holder or those holders; and
(ii)
a notice of the applicant’s intention to make the application,
addressed to that holder or those holders, has been published in a
Chinese newspaper and an English newspaper that circulate generally in
Hong Kong.
(2)
The ex parte application must be made—
(a)
if in the Court there are existing proceedings conducted under the
Ordinance in respect of the subject property, by a summons supported by an
affidavit that complies with rule 11; or
(b)
if there are no such proceedings, by an ex parte originating summons
supported by an affidavit that complies with rule 11.
(3)
As soon as practicable after obtaining an order under section 13
on an ex parte application, the applicant must—
(a)
publish the order in a Chinese newspaper and an English newspaper that
circulate generally in Hong Kong; and
(b)
if the whereabouts of the holder or holders specified in the affidavit
in support are known or have become known to the applicant, serve the order,
the summons or ex parte originating summons (as the case may be) and a copy
of the affidavit in support on that holder or each of those
holders.
10.
Inter partes application for forfeiture of certain terrorist property (O. 117A,
r.
10)
(1)
This rule applies if an application under section 13 is made
other than in the circumstances referred to in rule 9(1)(a) and
(b).
(2)
The application must be made—
(a)
if in the Court there are existing proceedings conducted under the
Ordinance in respect of the subject property, by a summons supported by an
affidavit that complies with rule 11; or
(b)
if there are no such proceedings, by an expedited originating summons
supported by an affidavit that complies with rule 11.
(3)
The summons or expedited originating summons, and a copy of the affidavit
in support, must be served on the holder, or each holder specified in the
affidavit whose whereabouts are known to the applicant, not less than 14 clear
days before the date fixed for the hearing of the application.
(4)
If a person served with the summons or expedited originating summons wishes
to adduce any affidavit evidence in opposition to it, the person must, within 28
days after the service, file an affidavit of evidence with the Court and serve a
copy of the affidavit—
(a)
on the Secretary for Justice; and
(b)
on any other holder specified in the affidavit in support whose
whereabouts are known to the applicant.
(5)
The person who files an affidavit of evidence under paragraph (4) may also
serve a copy of the affidavit on any other person whom that person believes to
be a person by, for or on behalf of whom the subject property is held.
(6)
The service under paragraph (5) must be effected within the period referred
to in paragraph
(4).
11.
Contents of affidavit in support for application under section 13
(O. 117A, r.
11)
(1)
(2)
(a)
for believing that the subject property is terrorist property referred
to in paragraph (a) of the definition of
terrorist property
in section 2(1) and for believing that it
also—
(i)
in whole or in part, directly or indirectly, represents any
proceeds arising from a terrorist act;
(ii)
is intended to be used to finance or otherwise assist the
commission of a terrorist act; or
(iii)
was used to finance or otherwise assist the commission of a
terrorist act; or
(b)
for believing that the subject property is terrorist property referred
to in paragraph (b) of that definition.
(3)
The affidavit in support referred to in rules 9(2) and
10(2) must also specify the holder, or if there is more than one
holder, specify all the holders, and their whereabouts (if known to the
applicant).
12.
Additional affidavit procedure for application under section 13 (O.
117A, r.
12)
(1)
This rule applies if—
(a)
in the application referred to in rule 10, there is more
than one holder and the whereabouts of one or more (but not all) of the
holders are not known to the applicant at the time the application is made;
or
(b)
after the application referred to in rule 10 is made, the
applicant cannot serve the summons or expedited originating summons on the
holder, or if there is more than one holder, on one or more of them, because
the whereabouts of that holder or those holders have become unknown to the
applicant.
(2)
The applicant may file with the Court an additional affidavit that complies
with paragraph (3) if the applicant—
(a)
has taken reasonable steps to ascertain the whereabouts of the holder
or holders that are not known or have become unknown; and
(b)
has published a notice of the applicant’s intention to make or proceed
with the application, addressed to the holder or holders whose whereabouts
are not known or have become unknown, in a Chinese newspaper and an English
newspaper that circulate generally in Hong Kong.
(3)
The additional affidavit referred to in paragraph (2) must—
(a)
state that the applicant believes that this rule applies; and
(b)
state the facts showing that the applicant has done the acts referred
to in paragraph (2)(a) and (b).
(4)
The applicant must, within 7 days after filing the additional affidavit,
serve a copy of the additional affidavit on each holder whose whereabouts are
known to the applicant (if any).
(5)
The Court may direct that the application be heard in the absence of a
holder whose whereabouts are not known or have become unknown to the applicant,
if the Court—
(a)
is satisfied that—
(i)
this rule applies; and
(ii)
the applicant has done the acts referred to in paragraph
(2)(a) and (b); and
(b)
having regard to the nature and circumstances of the application,
thinks it just and expedient so to do.
(6)
As soon as practicable after obtaining an order under section 13
on an application to which this rule applies, the applicant must—
(a)
publish the order in a Chinese newspaper and an English newspaper that
circulate generally in Hong Kong; and
(b)
if the whereabouts of the holder or holders in whose absence the
application was heard have become known to the applicant, serve the order,
the summons or expedited originating summons (as the case may be), a copy of
the affidavit in support and a copy of the additional affidavit on that
holder or each of those
holders.
13.
Revocation of order specifying person as terrorist or terrorist associate or
specifying property as terrorist property (O. 117A, r.
13)
(1)
An application under section 5(5) to revoke, in whole or in
part, an order under section 5(2) may be made ex parte.
(2)
The ex parte application must be made by a summons supported by an
affidavit.
(3)
The affidavit in support must state the circumstances that have caused the
applicant to have reasonable grounds to believe that the person who or the
property that is the subject of the application is not, or is no longer, a
terrorist, terrorist associate or terrorist property (as the case may
be).
14.
(1)
This rule applies to an application for—
(a)
an order under section 12A(1);
(b)
an order under section 12B(1);
(c)
a warrant under section 12C(1); or
(d)
a warrant under section 12G(1).
(2)
An application to which this rule applies must be made by laying an
information on oath.
(3)
The application may, if a judge so directs, be heard at a place other than
within the court premises.
(4)
At the hearing of the application, the Court may receive evidence from the
applicant.
15.
Revocation or variation of order made under section 12A or
12B (O. 117A, r.
15)
(1)
An application under—
(a)
section 12A(13) for the revocation or variation of an order
under section 12A(2); or
(b)
section 12B(8) for the revocation or variation of an order
under section 12B(2) or (7),
must be made to a judge by a summons supported by an
affidavit.
(2)
The summons and affidavit in support must state the grounds on which the
applicant seeks the revocation or variation of the order.
(3)
The summons and a copy of the affidavit in support must be served on the
Secretary for Justice not less than 3 clear days before the date fixed for the
hearing of the application.
(4)
At the hearing of the application, the Court may revoke the order or make
such variation as it thinks
fit.
16.
Claim of legal privilege in relation to order under section 12A or
12B (O. 117A, r.
16)
(1)
If, in the course of the exercise of powers conferred by an order under
section 12A to require a person to answer questions or otherwise
furnish information, a claim of legal privilege is made in respect of any
information, the person making the claim must—
(a)
within 3 days of making the claim, apply to the Court by a summons
supported by an affidavit for a declaration that the information is an item
subject to legal privilege; and
(b)
not less than 3 clear days before the date fixed for the hearing of the
application, serve the summons and a copy of the affidavit in support on the
Secretary for Justice.
(2)
If, in the course of the exercise of powers conferred by an order under
section 12A or 12B to require a person to produce
material or to give an authorized officer access to it, a claim of legal
privilege is made in respect of any material, the person making the claim
must—
(a)
in the presence of an authorized officer, secure the material in a
sealed container;
(b)
immediately deposit the sealed container with the Court;
(c)
within 3 days of depositing the material with the Court, apply to the
Court by a summons supported by an affidavit for a declaration that the
material is an item subject to legal privilege; and
(d)
not less than 3 clear days before the date fixed for the hearing of the
application, serve the summons and a copy of the affidavit in support on the
Secretary for
Justice.
17.
Claim of legal privilege in relation to warrant under section 12C or
12G (O. 117A, r.
17)
If, in the course of the execution by an authorized officer of a warrant issued
under section 12C or 12G, a claim of legal privilege is made
in respect of any thing, the person making the claim must—
(a)
in the presence of the authorized officer, secure the thing in a sealed
container and hand the sealed container to the authorized officer for safe
keeping pending an application by the person under this rule;
(b)
within 3 days of making the claim, apply to the Court by a summons
supported by an affidavit for a declaration that the thing is an item subject to
legal privilege; and
(c)
not less than 3 clear days before the date fixed for the hearing of the
application, serve the summons and a copy of the affidavit in support on the
authorized officer and the Secretary for
Justice.
18.
Application to be heard in camera (O. 117A, r.
18)
(1)
(2)
The information and all other documents relating to the application must be
treated as confidential and must, immediately on the determination of the
application, be placed in a packet and sealed by order of the judge by whom the
application was heard.
(3)
The packet must be kept in the custody of the Court in a place to which the
public has no access or in such other place as the judge may authorize
and—
(a)
must not be opened nor must its contents be removed except by order of
a judge; and
(b)
must not be destroyed except pursuant to an order of the
Court.
19.
Application for continued detention of seized property under section
12H(2) (O. 117A, r.
19)
(1)
An application under section 12H(2) for an order to authorize
the continued detention of seized property must be made by an ex parte
originating summons supported by an affidavit.
(2)
The affidavit in support must—
(a)
state what the seized property consists of (including, for money, the
amount and currency of the money) and the date on which and the place at
which it was seized;
(b)
state the grounds for suspecting that the seized property is terrorist
property; and
(c)
give particulars, in terms of the matters referred to in section
12H(2)(b), as to why the continued detention of the seized
property is justified.
(3)
If an order is made under section 12H(2) in respect of any seized
property, the applicant for the order must, as soon as practicable, serve the
order—
(a)
on the person from whom the property was seized; and
(b)
on each person whom the applicant can reasonably ascertain to be a
person by, for or on behalf of whom the property was held immediately before
it was
seized.
20.
Application for further detention of seized property under section
12H(3) (O. 117A, r.
20)
(1)
An application under section 12H(3) for an order to authorize
the further detention of seized property must be made by a summons supported by
an affidavit in the proceedings commenced under rule 19.
(2)
The affidavit in support must—
(a)
state the grounds for suspecting that the seized property is terrorist
property; and
(b)
give particulars, in terms of the matters referred to in section
12H(2)(b), as to why the further detention of the seized property
is justified.
(3)
The summons and a copy of the affidavit in support must be served not less
than 5 clear days before the date fixed for the hearing of the application on
each affected person.
(4)
If a person served with the summons wishes to adduce any affidavit evidence
in opposition to it, the person must, not less than 2 clear days before the date
fixed for the hearing of the application, file an affidavit of evidence with the
Court and serve a copy of the affidavit—
(a)
on the Secretary for Justice; and
(b)
on every other affected person.
(5)
If an order is made under section 12H(3), the applicant for the
order must, as soon as practicable, serve the order on each affected
person.
(6)
In this rule and rules 21 and
22,
affected person
(受影響的人
), in relation to the seized property, means a person on whom
an order has been served under rule 19(3) in respect of that
property.21.
Application for release of seized property under section 12H(4) (O.
117A, r.
21)
(1)
An application under section 12H(4)(a) for the release of seized
property detained by an order under section 12H(2) or (3) must be
made by a summons supported by an affidavit stating the grounds on which the
application is made.
(2)
The summons and a copy of the affidavit in support must be served not less
than 5 clear days before the date fixed for the hearing of the
application—
(a)
on the Secretary for Justice; and
(b)
on each affected person.
(3)
An application under section 12H(4)(b) for the release of seized
property detained by an order under section 12H(2) or (3) must be
made ex parte by a summons supported by an affidavit stating the grounds on
which the application is
made.
22.
Release of seized property (O. 117A, r.
22)
If, in relation to any seized property—
(a)
an order under section 12H(2) expires without an order being
made under section 12H(3);
(b)
an order under section 12H(3) expires without a further order
being made under that section; or
(c)
a direction is obtained under section 12H(4),
then, subject to section 12H(5) and unless the Court has directed
that an issue be stated and tried as between the affected persons, the property must
be forthwith released, on such terms, if any, as the Court thinks fit, to the person
from whom the property was seized or to such other person as appears to be entitled
to
it.
23.
Application to Court to revoke order made under section 5(2) or
notice given under section 6(1 (O. 117A, r.
23)
(1)
An application under section 17(1)(a) to revoke, in whole or in
part, an order under section 5(2) that has been made ex parte must be
made by a summons.
(2)
For the purposes of paragraph (1) and section 17(1)(a), if an
order under section 5(2) has been obtained by an application heard in
the absence of the subject person or a holder under rule 5 or
8, in relation to that subject person or holder only, the
application and the order are regarded to have been made ex parte.
(3)
An application under section 17(1)(b) to revoke, in whole or in
part, a notice under section 6(1) must be made—
(a)
if in the Court there are existing proceedings conducted under the
Ordinance in respect of the property that is the subject of the application,
by a summons; or
(b)
if there are no such proceedings, by an expedited originating
summons.
24.
Application concerning direction mentioned in section 6(10) or
licence mentioned in section
6(1),
8 or
8A
(O. 117A, r.
24)
(1)
An application under section 17(4) for the revocation or
variation of a direction mentioned in section 6(10) or for the grant
or variation of a licence mentioned in section
6(1),
8 or
8A
must be made—
(a)
if in the Court there are existing proceedings conducted under the
Ordinance in respect of the property or financial (or related) services that
is or are the subject of the application, by a summons; or
(b)
if there are no such proceedings, by an expedited originating
summons.
(2)
If any affidavit in opposition to the summons or expedited originating
summons has been filed with the Court, a copy of the affidavit must be served on
the applicant not less than 3 clear days before the date fixed for the hearing
of the
application.
25.
Application for compensation (O. 117A, r.
25)
(1)
An application under section 18 for an order for compensation
must be made—
(a)
if in the Court there are existing proceedings conducted under the
Ordinance in respect of the person or property to whom or which the
application relates, by a summons; or
(b)
if there are no such proceedings, by an expedited originating
summons.
(2)
The summons or expedited originating summons, and a copy of any affidavit in
support, must be served not less than 14 clear days before the date fixed for
the hearing of the application—
(a)
on the Secretary for Justice; and
(b)
on any other person on whose part, it is alleged, there has been
default.
(3)
If any affidavit in opposition to the summons or expedited originating
summons has been filed with the Court, a copy of the affidavit must be served by
the Secretary for Justice on the applicant not less than 7 clear days before the
date fixed for the hearing of the
application.
26.
Affidavits containing statements of information or belief (O. 117A, r.
26)
If an affidavit referred to in this Order contains a statement of information
or belief, it must also contain the sources and grounds of the information or belief
unless the Court otherwise
directs.
27.
Service out of jurisdiction (O. 117A, r.
27)
The service of any document under this Order out of the jurisdiction is
permissible with the leave of the Court.
Order
118
Interpretation
and General Clauses Ordinance (Cap.
1)
Part
XII—Search
and Seizure of
Journalistic
Material
1.
Interpretation (O. 118, r.
1)
In this Order
the
Ordinance
(條例
) means the Interpretation and General
Clauses Ordinance (Cap. 1), and a section referred to by
number means the section so numbered in the Ordinance.2.
Application (O. 118, r.
2)
3.
Proceedings under section 84
(O. 118, r.
3)
(1)
An application for an order under section 84 may be made by originating summons in the expedited form supported by affidavit.
(2)
The affidavit shall contain the evidence relied on to show that the conditions set out in section 84(3) have been fulfilled.
(3)
Unless the court otherwise directs, the affidavit may contain statements of information or belief with the sources and grounds of such information or belief.
(4)
Notwithstanding Order 28, rule 1A, a copy of the originating summons and affidavit shall be served on the respondent not less than 3 clear days before the date fixed for the hearing of the application.
4.
Proceedings under section 85
(O. 118, r.
4)
(1)
An application for a warrant under section 85 shall be made ex parte by originating summons in Form No. 11 in Appendix A supported by affidavit.
(2)
The affidavit shall—
(a)
state which of the grounds set out in section 85 is relied on;
(b)
contain the evidence relied on in support of those grounds; and
(c)
specify the name, rank, title and address of the officer who has approved the making of the application.
(3)
Unless the court otherwise directs, the affidavit may contain statements of information or belief with the sources and grounds of such information or belief.
(4)
All applications under section 85 shall be heard in chambers.
5.
Proceedings under section 87 (O. 118, r.
5)
(1)
An application for an order under section 87 shall be made by summons which may be supported by affidavit.
(2)
The summons shall set out the grounds on which the applicant relies.
(3)
A copy of the summons and affidavit (if any) shall be served on the person named in the warrant pursuant to section 86(1)(a) by delivering it to him not less than 3 clear days before the date fixed for the hearing of the summons.
(4)
Unless the court otherwise directs, a party wishing to adduce evidence shall do so by affidavit, and such affidavit may contain statements of information or belief with the sources and grounds of such information or belief.
Order
119
Prevention
of Bribery Ordinance (Cap.
201)
Part
III—Powers
of
Investigation
1.
Interpretation (O.119, r.
1)
(1)
In this Order
the
Ordinance
(條例
) means the Prevention of Bribery
Ordinance (Cap. 201), and a section referred to by
number means the section so numbered in the Ordinance.(2)
Expressions used in this Order which are used in the Ordinance have the
same meanings in this Order as in the
Ordinance.
2.
Application of this Order (O. 119, r.
2)
This Order applies to an application made to the Court under Part III of the
Ordinance.
3.
Assignment of proceedings (O. 119, r.
3)
An application to which this Order applies shall be heard by a judge in
chambers.
4.
Form of application (O. 119, r.
4)
Subject to rule 6, an application to which this Order applies shall
be made ex parte by originating summons in Form No. 11 in Appendix A and, except for
an application made under section 14D of the Ordinance, be supported by
affidavit.
5.
Restriction
on access to documents, etc.
(O. 119, r.
5)
(1)
The originating summons, affidavit, if any, information and all other
documents relating to the application shall be treated as confidential and
shall, immediately on the determination of the application, be placed in a
packet and sealed by order of the judge by whom the application was heard.
(2)
The packet shall be kept in the custody of the Court in a place to which the
public has no access or in such other place as the judge may authorize and shall
not—
(a)
be opened;
(b)
have its contents removed;
(c)
be copied; or
(d)
be destroyed,
except by order of a
judge.
6.
Variation or revocation of orders (O. 119, r.
6)
(1)
An application made under section 14D of the Ordinance shall be
made by summons issued in the proceedings in which the order which it is sought
to vary or revoke was made and shall state, so far as the applicant is able, the
grounds on which the application is made.
(2)
The summons and any affidavit in support shall be served on the
Commissioner not less than 3 clear days before the hearing of the
application.
Order
120
Charitable
Trusts
1.
Appointment or removal of trustee (O. 120, r.
1)
Where
the appointment or removal of any trustee or any other relief, order or direction
relating to any charity is deemed desirable, any person mentioned in rule
3 of this Order may make application by summons (without any information,
action or petition) to the Court in chambers for such relief, order or direction as
the nature of the case may
require.
2.
Powers of Court (O. 120, r.
2)
The Court may proceed upon and dispose of such application in chambers, unless it thinks fit otherwise to direct, and shall and may have and exercise thereupon all jurisdiction, power and authority, and may make such orders and give such directions relating to the matter of such application, as might now be exercised, made or given by the Court in an action regularly instituted, or upon petition as the case may require:
Provided that the Court may, where
in the circumstances of any such application it sees fit, direct that, for obtaining
the relief, order or direction sought for by such application, an information,
action or petition, as the case may require, shall be brought or presented and
prosecuted, and abstain from further proceeding on such
application.
3.
Applications (O. 120, r.
3)
(a)
the Secretary for Justice;
(b)
all or any one or more of the trustees or persons administering the trust, or persons claiming to administer the trust, or persons otherwise interested in the trust; or
(c)
in the case of any relief, order or direction sought under section 57A of the Trustee Ordinance (Cap. 29), 2 or more persons who have the consent in writing of the Secretary for Justice to make the application.
4.
Secretary for Justice to be made party to certain
applications (O. 120, r.
4)
Order
121
Child
Abduction and Custody Ordinance (Cap.
512)
Proceedings
and
Applications
1.
Interpretation (O. 121, r.
1)
(1)
In this Order, unless the context otherwise requires—
application
(申請
) means an application under the Convention or the
Ordinance;decision
(決定
)
includes a judgment or an order of any judicial authority as well as an order of
an administrative authority;relevant authority
(有關當局
) includes the Court, a District Court and
a juvenile court. (2)
Expressions used in this Order which are used in the Ordinance have the
same meanings in this Order as in the Ordinance.
(3)
(Repealed L.N. 3 of 2016)
2.
Mode of application (O. 121, r.
2)
(1)
Except as provided in the Ordinance and in paragraphs (1A) and (2), an
originating application under the Ordinance may be made by originating summons
in—
(a)
(subject to subparagraph (b)) Form No. 10A in Appendix A; or
(b)
(if the application is made ex parte as provided in this Order) Form
No. 10B in Appendix A.
(1A)
If there are existing proceedings commenced under the Ordinance in Hong
Kong, an application may be made by summons.
(2)
Where an applicant seeks a direction under rule 9 without having
filed an originating summons, the Court may, on sufficient cause being shown,
allow such an application to be made on the applicant’s undertaking to the Court
to issue an originating summons as soon as possible and on such other terms, if
any, as the Court thinks
fit.
3.
Application for return of a child (O. 121, r.
3)
(1)
An application for the return of a
child
under the Ordinance shall be supported by an affidavit sworn
by the applicant or, if the circumstances of the case justify it, a person duly
authorized to swear it on behalf of the applicant, and the affidavit shall, so
far as it is possible to do so—
(a)
state the following—
(i)
the matters specified in Article 8(a) to (d) of the
Convention;
(ii)
if applicable, the matters stated in Article 8(e) and (f) of the
Convention;
(iii)
particulars of any pending or concluded proceedings, including
proceedings out of Hong Kong, relating to the child;
(iv)
any other information which may assist in securing the return of
the child;
(b)
exhibit all relevant documents.
(2)
The affidavit must be filed at the same time as the application.
(3)
However, for an urgent case, the affidavit may be filed—
(a)
within the time specified by the Court; or
(b)
(if no time is specified by the Court) as soon as possible after the
application.
4.
Application for a declaration under section
10 of
the Ordinance
(O. 121, r. 4)
(O. 121, r. 4)
(1)
An application for a declaration that the removal or retention of the child
was wrongful shall be supported by an affidavit sworn by the applicant or, if
the circumstances of the case justify it, by a person duly authorized to swear
it on behalf of the applicant, and the affidavit shall, so far as is
possible—
(a)
state—
(i)
full particulars of the request made by the requesting
state;
(ii)
the matters specified in Article 8(a) to (c) of the Convention and
all other facts on which the applicant relies;
(b)
exhibit all relevant documents.
(2)
The affidavit must be filed at the same time as the application.
(3)
However, for an urgent case, the affidavit may be filed—
(a)
within the time specified by the Court; or
(b)
(if no time is specified by the Court) as soon as possible after the
application.
(4)
The application may be made ex parte.
5.
Respondents
to application for return of child (O. 121, r.
5)
(1)
The following persons shall be made
respondents
to an application for the return of a child—
(a)
the person alleged in the affidavit to have brought into Hong Kong the
child in respect of whom the application under the Convention is
made;
(b)
the person with whom the child is alleged in the affidavit to
be;
(c)
any parent or guardian of the child who is not otherwise a
party;
(d)
the person in whose favour a decision, including a decision of a
relevant authority in a Contracting State other than Hong Kong, relating to
custody has been made, if he is not otherwise a party; and
(e)
any other person who has a sufficient interest in the welfare of the
child.
(2)
The persons referred to in paragraph (1)(b) to (e) shall be made
respondents
to an application under section
10
of the Ordinance.
6.
Time for acknowledging service (O. 121, r.
6)
The time limited for acknowledging service of an originating summons issued
pursuant to rule
2 is—
(a)
(subject to subparagraph (b)) 7 days after the service of the originating
summons, including the day of service; or
(b)
(if the service takes place out of the jurisdiction) 14 days after the
service of the originating summons, including the day of service.
6A.
Hearing of originating summons (O. 121, r. 6A)
(1)
A day and time for the attendance of the parties before the Court for the
hearing of an originating summons may be fixed on the application of the
applicant.
(2)
If an originating summons is required to be served, the time limited for
acknowledging service may, where appropriate, be abridged so as to expire on the
2nd day before the day so fixed.
(3)
If an originating summons is required to be served and a day is fixed under
paragraph (1) for the hearing of the originating summons, the applicant must, at
least 4 clear days before that day, serve on the respondent—
(a)
the originating summons and the affidavit required under this Order;
or
(b)
(if the respondent has been served with the originating summons and the
affidavit required under this Order) a notice of the day fixed for the
hearing.
(4)
If the hearing of an originating summons required to be served is adjourned
and any party to the proceedings desires to apply at the resumed hearing for any
order or direction not previously asked for, that party must, at least 2 clear
days before the resumed hearing of the originating summons, serve on the other
party a notice specifying those orders and directions.
7.
Further evidence (O. 121, r.
7)
(1)
Any
respondent
may within 5 days after acknowledging service of the originating summons file
and serve on the other parties any affidavit on which he intends to
rely.
(2)
The
applicant
may within 5 days thereafter file and serve on the
respondent
an affidavit in
reply.
8.
Assignment of proceedings (O. 121, r.
8)
Every application shall be heard and determined by a judge, except that
applications to extend time and to join a
respondent
may be heard by a Master, and shall be dealt with in chambers unless the Court
otherwise
directs.
9.
Interim directions (O. 121, r.
9)
An application for interim directions under section 7
of the
Ordinance may, where the case is one of urgency, be made ex
parte.
10.
Stay of custody application pending determination of proceedings under the
Convention (O. 121, r. 10)
(1)
A notice filed under section 20(2) of the Ordinance by a party
to proceedings under the Convention must be verified by an affidavit sworn by
that party or a person duly authorized to swear it on behalf of that party.
(2)
The affidavit must be filed at the same time as the notice.
11.
Authenticated copy of Court’s order
(O. 121, r.
11)
(1)
A person who wishes to make an application under the Convention in a
Contracting State other than Hong Kong and who wishes to obtain from the Court
an authenticated copy of an order of the Court relating to the child in respect
of whom the application is to be made shall apply in writing in that behalf to
the Registrar.
(2)
An application under paragraph (1) shall specify, so far as it is possible
to do so—
(a)
the name and date of birth of the child;
(b)
the date of the order and the short title of the proceedings in which
the order was made;
(c)
the nature of the application which is intended to be made, identifying
the Contracting State in which the application is intended to be
made;
(d)
the relationship of the applicant to the child;
(e)
the address of the applicant.
(3)
On receipt of an application under this rule, the Registrar shall send by
post to the applicant at the address indicated in the application an
authenticated copy of the order or, if he is unable to locate the order, shall
notify the applicant accordingly.
(4)
The authenticated copy of the order shall be an office copy sealed with the
Seal of the Court and endorsed with a certificate signed by the Registrar
certifying that the copy is a true copy of an order obtained in the Court and
that it is issued for the purposes of the Convention.
11A.
Application for a location order under section 15(2) of the
Ordinance (O. 121, r. 11A)
(1)
An application for a location order under section 15(2) of the
Ordinance must be supported by an affidavit sworn by—
(a)
the applicant; or
(b)
a person duly authorized to swear it on behalf of the
applicant.
(2)
The affidavit must, as far as possible—
(a)
state the particulars of the person who has, or may reasonably obtain,
applicable information about the child;
(b)
state the basis for believing that the person mentioned in subparagraph
(a) has, or may reasonably obtain, applicable information about the
child;
(c)
provide any other relevant information; and
(d)
exhibit all relevant documents.
(3)
The affidavit must be filed at the same time as the application.
(4)
However, for an urgent case, the affidavit may be filed—
(a)
within the time specified by the Court; or
(b)
(if no time is specified by the Court) as soon as possible after the
application.
(5)
The application may be made ex parte.
12.
Application for an order under section 16(3) of the Ordinance: for
prohibiting removal of child from Hong Kong to certain jurisdictions (O. 121, r.
12)
(1)
An application for an order under section 16(3) of the Ordinance
must be supported by an affidavit sworn by—
(a)
the applicant; or
(b)
a person duly authorized to swear it on behalf of the
applicant.
(2)
The affidavit must, as far as possible, state the following—
(a)
the particulars of the request made by the requesting Contracting
State;
(b)
the particulars of any relevant order, decision or determination of a
judicial or administrative authority of the requesting Contracting
State;
(c)
the particulars of the travel arrangements of the child and
accompanying persons, including the dates of arrival and departure, and
contact details while they are in Hong Kong; and
(d)
if the child is in, or is being taken to, Hong Kong temporarily for
enabling a person to exercise the rights of access to the child—
(i)
the basis for believing that the child may be wrongfully removed
from Hong Kong to a jurisdiction other than the one mentioned in
section 16(3)(a) or (b) of the Ordinance; or
(ii)
if that person consents to the making of the order sought—the
particulars of the consent.
(3)
In addition, the affidavit must, as far as possible, exhibit the
following—
(a)
a copy of the relevant order, decision or determination of the judicial
or administrative authority of the requesting Contracting State;
and
(b)
all other relevant documents.
(4)
The affidavit must be filed at the same time as the application.
(5)
However, for an urgent case, the affidavit may be filed—
(a)
within the time specified by the Court; or
(b)
(if no time is specified by the Court) as soon as possible after the
application.
(6)
The application may be made ex parte.
12A.
Application for an order under section 16(4) of the Ordinance: for
variation, discharge, suspension or revival (O. 121, r. 12A)
(1)
An application for an order under section 16(4) of the Ordinance
must be supported by an affidavit sworn by—
(a)
the applicant; or
(b)
a person duly authorized to swear it on behalf of the
applicant.
(2)
The affidavit must, as far as possible—
(a)
state the ground of the application;
(b)
provide any other relevant information; and
(c)
exhibit all relevant documents.
(3)
The affidavit must be filed at the same time as the application.
(4)
However, for an urgent case, the affidavit may be filed—
(a)
within the time specified by the Court; or
(b)
(if no time is specified by the Court) as soon as possible after the
application.
(5)
The application may be made ex parte.
12B.
Application for a recovery order under section 17(2) of the
Ordinance (O. 121, r. 12B)
(1)
An application for a recovery order under section 17(2) of the
Ordinance must be supported by an affidavit sworn by—
(a)
the applicant; or
(b)
a person duly authorized to swear it on behalf of the
applicant.
(2)
The affidavit must, as far as possible—
(a)
state the particulars of the person with whom the child is believed to
be;
(b)
state the circumstances warranting the making of the order;
(c)
provide any other relevant information; and
(d)
exhibit all relevant documents.
(3)
The affidavit must be filed at the same time as the application.
(4)
However, for an urgent case, the affidavit may be filed—
(a)
within the time specified by the Court; or
(b)
(if no time is specified by the Court) as soon as possible after the
application.
(5)
The application may be made ex parte.
12C.
Application for an order under section 21(3) of the Ordinance: for
prohibiting removal of child out of Hong Kong (O. 121, r. 12C)
(1)
An application for an order under section 21(3) of the Ordinance
must be supported by an affidavit sworn by—
(a)
the applicant; or
(b)
a person duly authorized to swear it on behalf of the
applicant.
(2)
The affidavit must, as far as possible—
(a)
provide the information set out in paragraph (3) about the following
persons—
(i)
the child;
(ii)
the applicant;
(iii)
the person believed to be intending to remove, or to be removing,
the child out of Hong Kong; and
(iv)
the person specified in section 21(2)(a) of the
Ordinance who has the custody of the child under a court order or who is
exercising the rights of that custody (other than the
applicant);
(b)
state the basis for believing that the person mentioned in subparagraph
(a)(iii) may remove the child out of Hong Kong;
(c)
provide any other relevant information; and
(d)
exhibit all relevant documents.
(3)
The information includes—
(a)
the following in respect of the child—
(i)
name (in both Chinese and English, if applicable);
(ii)
date of birth (if available);
(iii)
gender;
(iv)
birth certificate number (if available);
(v)
Hong Kong Identity Card number (if available);
(vi)
travel document number (if available); and
(vii)
address (if available);
(b)
the following in respect of the applicant—
(i)
name (in both Chinese and English, if applicable);
(ii)
gender;
(iii)
Hong Kong Identity Card number or travel document number;
(iv)
address;
(v)
contact telephone number; and
(vi)
relationship with the child;
(c)
the following in respect of the person mentioned in paragraph
(2)(a)(iii)—
(i)
name (in both Chinese and English, if applicable);
(ii)
gender;
(iii)
(if available) Hong Kong Identity Card number or travel document
number;
(iv)
address (if available);
(v)
contact telephone number (if available); and
(vi)
relationship with the child; and
(d)
the following in respect of the person mentioned in paragraph
(2)(a)(iv)—
(i)
name (in both Chinese and English, if applicable);
(ii)
gender;
(iii)
(if available) Hong Kong Identity Card number or travel document
number;
(iv)
address (if available);
(v)
contact telephone number (if available); and
(vi)
relationship with the child.
(4)
The affidavit must be filed at the same time as the application.
(5)
However, for an urgent case, the affidavit may be filed—
(a)
within the time specified by the Court; or
(b)
(if no time is specified by the Court) as soon as possible after the
application.
(6)
The application may be made ex parte.
12D.
Application for an order under section 21(4) of the Ordinance: for
variation, discharge, suspension or revival (O. 121, r. 12D)
(1)
An application for an order under section 21(4) of the Ordinance
must be supported by an affidavit sworn by—
(a)
the applicant; or
(b)
a person duly authorized to swear it on behalf of the
applicant.
(2)
The affidavit must, as far as possible—
(a)
state the ground of the application;
(b)
provide any other relevant information; and
(c)
exhibit all relevant documents.
(3)
The affidavit must be filed at the same time as the application.
(4)
However, for an urgent case, the affidavit may be filed—
(a)
within the time specified by the Court; or
(b)
(if no time is specified by the Court) as soon as possible after the
application.
(5)
The application may be made ex parte.
13.
Searching for, inspecting and obtaining copies of documents filed in
proceedings under the Ordinance (O. 121, r. 13)
(1)
Unless otherwise directed by the Court, a party to any proceedings under the
Ordinance or the party’s solicitor, or the Secretary for Justice, may do one or
more of the following—
(a)
have a search in the Registry made for a document filed in the Registry
in those proceedings;
(b)
inspect or obtain a copy of the document.
(2)
Except as provided in paragraph (1), if a document is filed in the Registry
in any proceedings under the Ordinance (other than an order made in open
court)—
(a)
the document is not open to inspection by any person without leave of
the Court; and
(b)
no copy of the document, or of an extract from the document, may be
taken by, or issued to, any person without leave of the Court.
Order
122
Registered Designs Ordinance (Cap. 522)
1.
Interpretation (O. 122, r. 1)
(1)
In this Order—
Court
(法院
) means
the Court of First Instance;the Registered Designs Rules
(《註冊外觀設計規則》
) means the Registered Designs
Rules (Cap. 522 sub. leg. A).(2)
In this Order, a section referred to by number means the section so
numbered in the Ordinance.
(3)
Expressions used in this Order that are used in the Ordinance have the same
meaning in this Order as in the Ordinance.
2.
Application (O. 122, r. 2)
These rules apply to proceedings brought before the Court under or for the
purposes of the Ordinance subject to the provisions of this Order.
3.
Proceedings to be begun by originating summons (O. 122, r. 3)
(1)
Proceedings under a provision of the Ordinance specified in column (A) of
the Table, which relates to a matter the general description of which is set out
in column (B) of the Table opposite to that provision, must be begun by
originating summons in Form No. 8, 10 or 11 in Appendix A.
|
Table
|
|
Column (A)
|
Column (B)
|
|
Provision of the Ordinance
|
General
description of matter to be brought before the Court
|
|
40(1)
|
Disputes as to Government
use.
|
|
41(1)
|
Question of right in a
design after it has been registered.
|
|
42(5)
|
Question of entitlement to grant of licence following a
transfer of registered design under section
41.
|
|
45
|
Application for
revocation of registration of design on the ground that the
design was not registrable.
|
|
46(1)
|
Application for
revocation of registration of design on the ground that the
person registered as owner is not entitled to be so
registered.
|
|
66(1)
|
Application for
rectification of Register.
|
|
93(3)
|
Application for
declaration regarding exclusive privileges and rights in
design.
|
(2)
Paragraph (1) does not apply to a matter to be brought before the Court in
proceedings that are pending before it.
(3)
Proceedings mentioned in rule 7(2) must be begun by originating
summons in Form No. 10 or 11 in Appendix A.
4.
Supplementary provisions relating to originating summons (O. 122, r.
4)
(1)
An originating summons by which any proceedings under or for the purposes of
the Ordinance are begun must, in addition to any other information required to
be included by other provisions of this Order, include—
(a)
a concise statement setting out the nature of the question referred to,
or of the matter brought before, the Court;
(b)
a summary of the facts, laws and nature of the evidence on which the
person who takes out the originating summons relies in support of the
proceedings; and
(c)
the order or relief sought.
(2)
Except as otherwise provided in this Order, Order 10 applies to the service
of a copy of an originating summons required to be served under this Order as
Order 10 applies to the service of an originating process.
5.
Reference under section 41(1) (determination of rights after
registration) (O. 122, r. 5)
(1)
In any proceedings in which a question is referred to the Court under
section 41(1), the plaintiff must—
(a)
serve a copy of the originating summons by which the proceedings are
begun on the Registrar of Designs within 7 days after the issue of the
originating summons; and
(b)
give a written notice of the proceedings to the following persons at the
same time when the originating summons is served under these rules on the
defendant—
(i)
every person registered as an owner of the registered design
concerned or as having a right in or under the registered
design;
(ii)
every person who is alleged in the originating summons to be
entitled to a right in or under the registered design.
(2)
A written notice required to be given to a person under paragraph
(1)(b) must be given to the person at the following
address—
(a)
for a person mentioned in paragraph (1)(b)(i)—the person’s
address for service; or
(b)
for a person mentioned in paragraph (1)(b)(ii)—the person’s
usual or last known address.
(3)
Paragraph (1)(b) does not require a written notice to be given
to a person who is a party to the proceedings.
(4)
In this rule—
address for service
(供送達地址
), in relation to a person registered as
an owner of a registered design or as having a right in or under a registered
design, means the person’s address for service as shown in the Register in
relation to the design.6.
Reference under section 42(5) (right to be granted licence etc.
after transfer under section 41) (O. 122, r. 6)
(1)
In any proceedings in which a question is referred to the Court under
section 42(5), the plaintiff must—
(a)
serve a copy of the originating summons by which the proceedings are
begun on the Registrar of Designs within 7 days after the issue of the
originating summons; and
(b)
give a written notice of the proceedings to the following persons at the
same time when the originating summons is served under these rules on the
defendant—
(i)
every new owner of the registered design concerned;
(ii)
every person who, to the plaintiff’s knowledge, claims to be
entitled to be granted a licence under section 42(3) to
continue to do the act or to do the act concerned.
(2)
A written notice required to be given to a person under paragraph
(1)(b) must be given to the person at the following
address—
(a)
for a person mentioned in paragraph (1)(b)(i)—the person’s
address for service; or
(b)
for a person mentioned in paragraph (1)(b)(ii)—the person’s
usual or last known address.
(3)
Paragraph (1)(b) does not require a written notice to be given
to a person who is a party to the proceedings.
(4)
In this rule—
address for service
(供送達地址
), in relation to a person registered as
an owner of a registered design, means the person’s address for service as shown
in the Register in relation to the design.7.
Proceedings for purposes of section 44(3) or 61(1)(b) (O.
122, r. 7)
(1)
This rule applies if—
(a)
the Registrar of Designs—
(i)
refers to the Court under section 44(3) a question of
whether a design is a registrable design; or
(ii)
refers to the Court under section 61(1)(b) an
application on a question concerning a registered design or an
application for registration of a design (original
application); and
(b)
the Registrar of Designs has given to the parties and the Court written
notice of the decision of such reference (notice of decision)
under section 46(2) or 47A(2) of the Registered
Designs Rules.
(2)
If the person who brought the previous proceedings wishes to commence
proceedings before the Court in relation to the question or the original
application, the person must—
(a)
within the specified period, take out the originating summons by which
the proceedings are to be begun; and
(b)
within 7 days after the issue of the originating summons, serve a copy
of the originating summons on the Registrar of Designs.
(3)
Proceedings commenced under paragraph (2) in relation to a question or an
original application are to be treated as the continuation of the previous
proceedings.
(4)
As soon as practicable after being served with a copy of the originating
summons, the Registrar of Designs must, for the purpose of the proceedings
commenced under paragraph (2), file with the Court any document or other thing
that was filed with the Registrar of Designs for the purpose of the previous
proceedings.
(5)
In this rule—
previous proceedings
(過往法律程序
) means the proceedings brought before
the Registrar of Designs in relation to a question under section
44(1) or an original application;specified period
(指明限期
) means—(a)
a period of 1 month after the date of the notice of decision given
under section 46(2) or 47A(2) of the Registered
Designs Rules (as the case may be); or
(b)
such period as may be extended by the Registrar of Designs under
section 73 of Registered Designs Rules.
8.
Application for revocation under section 45 (on ground of public
order (“ordre public”) or morality) (O. 122, r. 8)
(1)
This rule applies to an application to the Court under section
45 for an order to revoke the registration of a design on the ground
that the design was not registrable by reason of section 7.
(2)
A person who wishes to make the application (intending
plaintiff) must publish in the Gazette an advertisement
(specified advertisement) that sets out—
(a)
the order that the intending plaintiff intends to seek in the
application;
(b)
brief particulars of the grounds and facts on which the intending
plaintiff relies in support of the application;
(c)
the intending plaintiff’s address for service in Hong Kong;
(d)
the matters provided for in paragraph (3); and
(e)
the fact that, subject to paragraph (8), the person who sends a notice
under paragraph (3) will be named as a defendant in the
proceedings.
(3)
If a person intends to oppose the application, the person must, within 28
days after publication of the specified advertisement, send a notice by
registered post to the intending plaintiff at the intending plaintiff’s address
for service set out in the specified advertisement—
(a)
indicating an intention to oppose; and
(b)
specifying the person’s address for service in Hong Kong.
(4)
The proceedings must be commenced within 28 days (relevant
period) after the expiry of the period specified in paragraph
(3).
(5)
The relevant period is not extendable.
(6)
However, if the intending plaintiff fails to commence the proceedings within
the relevant period, the intending plaintiff—
(a)
may publish in the Gazette another advertisement (new
advertisement) in accordance with paragraph (2);
and
(b)
must, within 3 days after the publication under subparagraph (a), send
a copy of the new advertisement by registered post to the person who has
sent a notice of intention to oppose under paragraph (3) at the person’s
address for service specified in the notice,
and paragraphs (3), (4) and (5) have effect in relation to the
publication of the new advertisement under subparagraph (a) in the same manner
as they have effect in relation to the publication of the specified
advertisement under paragraph (2).
(7)
Subject to paragraph (8), the person who sent a notice under paragraph (3)
in response to the specified advertisement published under paragraph (2) or to
the new advertisement published under paragraph (6)(a) is, in
addition to the registered owner of the design, to be named as a defendant in
the originating summons by which the inter-partes proceedings are
begun.
(8)
If a person has sent a notice under paragraph (3) in response to the
specified advertisement published under paragraph (2) but fails to send a fresh
notice in accordance with paragraph (3) in response to the new advertisement
published under paragraph (6)(a), the intending plaintiff need not
name the person as a defendant in the proceedings.
(9)
The plaintiff must, within 7 days after the issue of the originating
summons, serve on the Registrar of Designs a copy of the originating
summons.
9.
Proceedings for revocation under section 45 or 46(1) (O.
122, r. 9)
(1)
The originating summons by which proceedings are begun for the purposes of
section 45 or 46(1) must include particulars of the
objections to the registration of the design on which the plaintiff relies in
support of the application concerned.
(2)
The particulars of the objections mentioned in paragraph (1) must—
(a)
state the grounds on which the registration of the design is contested;
and
(b)
include particulars that clearly define every issue that the plaintiff
intends to raise.
(3)
The plaintiff must, within 7 days after the issue of the originating
summons, serve on the Registrar of Designs a copy of the originating
summons.
10.
Application under section 53(1) or 54(1) (order for
delivery up or disposal) (O. 122, r. 10)
(1)
(a)
originating summons in Form No. 8, 10 or 11 in Appendix A;
(b)
if the application is made in a pending action—summons in that action;
or
(c)
including the application in a writ, statement of claim or
counterclaim.
(2)
If an application under section 54(1) is made in accordance with
paragraph (1) in respect of any articles or thing (infringing
item), the applicant must give a written notice of the application to
all persons who have an interest in the infringing item so far as reasonably
ascertainable at the same time when the application is served under these rules
on the party against whom the application is made.
(3)
A reference in paragraph (2) to a person who has an interest in an
infringing item includes a person in whose favour an order could be made in
respect of the item under—
(a)
(b)
(c)
section 25 of the Trade Marks Ordinance (Cap. 559).
11.
Application for purposes of section 66(1) (rectification of
Register) (O. 122, r. 11)
In any proceedings relating to an application for the purposes of section
66(1), the applicant must, within 7 days after the issue of the
originating summons by which the proceedings are begun, serve on the Registrar of
Designs a copy of the originating summons.
12.
Registration contested or rectification or revocation sought by defendant (O.
122, r. 12)
(1)
A defendant in any proceedings in respect of a registered design may do any
or all of the following—
(a)
contest the registration of the design;
(b)
seek either or both of the following orders—
(i)
an order that the Register be rectified by deleting or varying the
registration;
(ii)
an order that the registration be revoked.
(2)
If a defendant does any or all of the matters mentioned in paragraph
(1)(a) and (b), the defendant—
(a)
must include particulars of the objections to the registration of the
design on which the defendant relies in the defence, the counterclaim or the
defendant’s affidavit evidence (relevant document);
and
(b)
must, at the time of filing the relevant document, serve on the
Registrar of Designs a copy of the relevant document.
(3)
The particulars of the objections mentioned in paragraph (2)(a)
must—
(a)
state the grounds on which the registration of the design is contested;
and
(b)
include particulars that clearly define every issue that the defendant
intends to raise.
(4)
If the Registrar of Designs takes part in the proceedings, the Registrar of
Designs need not serve any pleading or affidavit evidence unless ordered to do
so by the Court.
13.
Appointment of scientific adviser (O. 122, r. 13)
(1)
In any proceedings under the Ordinance, the Court may at any time, either of
its own motion or on application of any party, appoint an independent scientific
adviser—
(a)
to assist the Court; or
(b)
to inquire into and report on any question of fact, or of opinion, not
involving a question of law or construction.
(2)
14.
Service of documents on owner of registered design (O. 122, r. 14)
(1)
This rule applies to the service of a document on the owner of a registered
design in any proceedings relating to the registered design before the owner has
provided an address for service in an acknowledgement of service under Order 12,
rule 3(2).
(2)
For the service of an originating process, or any other document that is
required to be or may be served in accordance with Order 10, on the owner of a
registered design—
(a)
Order 10 has effect as if in rule 1(2) of that
Order—
(i)
the reference to service on a defendant were a reference to service
on the owner; and
(ii)
the reference to the usual or last known address of the defendant
were a reference—
(A)
to the usual or last known address of the owner; or
(B)
to the owner’s address for service as shown in the Register in
relation to the design; and
(3)
For the service of a document other than those mentioned in paragraph (2)
on the owner of a registered design, Order 65 has effect as if the addresses
specified in rule 5(2)(a), (b), (c) and (d) of that Order included
the owner’s address for service as shown in the Register in relation to the
design.
(4)
A document served on the owner of a registered design at the owner’s
address for service as shown in the Register in relation to the design in
accordance with this rule is treated as having been duly served within the
jurisdiction on the owner even if the owner is not within the jurisdiction on
the date of service mentioned in Order 10, rule 1(3)(a).
15.
Filing of orders etc. with Registrar of Designs (O. 122, r. 15)
If the Court has made an order or a declaration, or has granted a certificate,
under the Ordinance in favour of a person, the person or, if there is more than one
such person, the person directed by the Court, must file a sealed copy of the order,
declaration or certificate with the Registrar of Designs within 14 days after the
date of sealing the order, declaration or certificate.
16.
Transitional (O. 122, r. 16)
For proceedings that are brought under the Ordinance but are pending before the
Court immediately before the commencement date* of the Rules of the High Court (Amendment) (No. 2) Rules
2025 (new rules), the Court may, of its own motion or on
application of a party to the proceedings, give directions that the new rules, or
any part of it, are to be applied to the further conduct of the
proceedings.
Editorial Note:
* Commencement date: 1 October
2025.
Appendix
A
Forms
No. 1
Writ of
Summons
(O. 6 r.
1) (Hong Kong Coat of
Arms)
In the High Court of
the Hong Kong Special Administrative
Region
Court of First Instance
|
||
|
20......., No. ...........
|
||
|
Between
|
A.B.
|
Plaintiff
|
|
|
and
|
|
|
|
C.D.
|
Defendant
|
| TO THE DEFENDANT (name) | ||
| of (address) | ||
|
THIS WRIT OF SUMMONS has been issued against you by the
above-named Plaintiff in respect of the claim set out on the
back. Within (14 days) after the service of this Writ on you,
counting the day of service, you must either satisfy the claim
or return to the Registry of the High Court the accompanying
ACKNOWLEDGMENT OF SERVICE stating therein whether you intend to
contest these proceedings or to make an admission. If you fail to satisfy the claim or to return the
Acknowledgment within the time stated, or if you return the
Acknowledgment without stating therein an intention to contest
the proceedings, the Plaintiff may proceed with the action and
judgment may be entered against you forthwith without further
notice. *[If you intend to make an admission, you may complete an
appropriate form enclosed in accordance with the accompanying
Directions for Acknowledgment of Service.] Issued from the Registry of the High Court this
.................. day of ........................ 20........
. Note:—This Writ may not be served later than 12
calendar months beginning with that date unless renewed by order
of the Court.
|
||
|
IMPORTANT
|
||
|
Directions for Acknowledgment of Service are given with the
accompanying form.
|
||
|
(Back of No.
1)
|
||
|
*[Statement of Claim]
|
||
| The Plaintiff’s claim is for | ||
|
*Where words appear between
square brackets delete if inapplicable. *(Signed if statement of claim
indorsed. A statement of claim must be verified by a
statement of truth in accordance with Order 41A of the Rules
of the High Court (Cap. 4 sub. leg.
A).) |
||
|
(Where the Plaintiff’s claim is for a debt or liquidated
demand only: If, within the time for returning the
Acknowledgment of Service, the Defendant pays the amount claimed
and $.................. for costs, further proceedings will be
stayed. The money must be paid to the Plaintiff or his
Solicitor.) |
||
| THIS WRIT was issued by | ||
| of | ||
| Solicitors for the said Plaintiff whose address is | ||
|
*(or where the Plaintiff sues in
person.
|
||
| THIS WRIT was issued by the said Plaintiff who resides at | ||
| and (if the Plaintiff does not reside within the jurisdiction) whose address for service is | ||
| .............................................................................................................). | ||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 8
|
Originating
summons—general form
(O. 7 r. 2)
In the High Court of Hong Kong
Court of First Instance
|
||
|
19......., No. ...........
|
||
|
(In the matter of
........................)
|
||
|
Between
|
A.B.
|
Plaintiff
|
|
|
and
|
|
|
|
C.D.
|
Defendant
|
|
To C.D. of |
||
|
Let the defendant, within (14 days) after service of this
summons on him, counting the day of service, return the
accompanying Acknowledgment of Service to the Registry of the
High Court. |
||
|
By this summons, which is issued on the application of the
plaintiff A.B. of ............................, the
plaintiff claims against the defendant
................................... (or seeks the determination
of the Court on the following questions, namely,
........................................................... or
as may be). |
||
|
If the defendant does not acknowledge service, such
judgment may be given or order made against or in relation to
him as the Court may think just and expedient. |
||
|
Dated the .................. day of ......................
19.......... |
||
|
Note:—This summons may not be served later than 12
calendar months beginning with the above date unless renewed by
order of the Court. |
||
|
This summons was taken out by
................................................. of
.................................................................
solicitors for the said plaintiff
...............................................................................
whose address is as stated above (or where the plaintiff sues in
person. This summons was taken out by the said plaintiff who
resides at the above-named address or as may be and (if the
plaintiff does not reside within the jurisdiction) whose address
for service is
.................................................................). |
||
|
|
||
|
IMPORTANT
|
||
|
Directions for Acknowledgment of Service are given with the
accompanying form. |
||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 10
|
Originating
summons—expedited form
(O. 7 r. 2; O. 29 r.
8A; O. 30 r. 9; O. 62 r. 11A; O. 73 rr. 2, 3 &
4;
O. 100 r. 2; O. 115 rr. 2A, 3, 7 & 24)
In the High Court of the Hong Kong Special Administrative Region
Court of First Instance
|
||
|
20......., No. ...........
|
||
|
(In the matter of
........................)
|
||
|
Between
|
A.B.
|
Plaintiff
|
|
|
and
|
|
|
|
C.D.
|
Defendant
|
| Let C.D. of | ||
| attend before the Registrar (or Judge) in Chambers, at the High Court, Hong Kong, on ........................... day, the ................... day of ........................ 20........ , at ........... o’clock, (or, if no application has yet been made for a day to be fixed, on a day to be fixed) on the hearing of an application by the plaintiff A.B. of | ||
| that | ||
|
And let the defendant within (14 days) after service of
this summons on him counting the day of service, return the
accompanying Acknowledgment of Service to the Registry of the
High Court. Dated the .................. day of ......................
20.......... |
||
|
Note:—This summons may not be served later than 12
calendar months beginning with the above date unless renewed by
order of the Court. |
||
|
This summons was taken out by
............................................ of
.......................................... solicitors for the
said plaintiff whose address is as stated above (or where the
plaintiff sues in person. |
||
| This summons was taken out by the said plaintiff who resides at ............................................. and (if the plaintiff does not reside within the jurisdiction) whose address for service is | ||
| .................................................................................................................). | ||
|
Note:—If a defendant does not attend personally or
by his counsel or solicitor at the time and place
above-mentioned such order will be made as the Court may think
just and expedient. |
||
|
IMPORTANT
Directions for Acknowledgment of Service are given with the
accompanying form. |
||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 10A
|
Originating
summons—expedited form for applications under Child Abduction
and Custody Ordinance
In the High Court of the Hong Kong Special Administrative Region
Court of First Instance
|
||
|
20......., No. ...........
|
||
| In the matter of an application under ..................................... of the Child Abduction and Custody Ordinance (Cap. 512) and Order 121 of the Rules of the High Court (Cap. 4 sub. leg. A) in respect of a child, namely | ||
|
|
||
|
Between
|
A.B.
|
Applicant
|
|
|
AND
|
|
|
|
C.D.
|
Respondent
|
| Let C.D. of .................................................. attend before the Registrar (or Judge) in Chambers, at the High Court in Hong Kong, on ....................... day, the ...................... day of .......................... 20......., at ................... o’clock (or, if no application has yet been made for a day to be fixed, on a day to be fixed), on the hearing of an application by the applicant A.B. of | ||
| that | ||
|
And let the respondent within 7 days after service of this
summons (or within 14 days after service of this summons out of
the jurisdiction) on the respondent counting the day of service,
return the accompanying Acknowledgment of Service to the
Registry of the High Court. |
||
|
Dated the .................. day of ......................
20.......... |
||
|
Note:—This summons may not be served later than 12
calendar months beginning with the above date unless renewed by
order of the Court. |
||
|
This summons was taken out by
............................................. of
................................................... solicitors
for the applicant whose address is as stated above.
|
||
|
[or where the applicant acts in person:
|
||
| This summons was taken out by the applicant who resides at ............................................ and (if the applicant does not reside within the jurisdiction) whose address for service is | ||
| ..................................................................................................................]. | ||
|
Note:—If the respondent does not attend personally
or by counsel or solicitor at the time and place
above-mentioned, such order will be made as the Court may think
just and expedient.
|
||
|
IMPORTANT
|
||
|
Directions for Acknowledgment of Service are given with the
accompanying form. |
||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 10B
|
Ex parte
originating summons for applications under Child Abduction and
Custody Ordinance
(O. 121 r. 2)
In the High Court of the Hong Kong Special Administrative Region
|
||
|
20......., No. ...........
|
||
| In the matter of an application under ........................................ of the Child Abduction and Custody Ordinance (Cap. 512) and Order 121 of the Rules of the High Court (Cap. 4 sub. leg. A) in respect of a child, namely | ||
|
|
||
| Let all parties concerned attend before the Judge in Chambers (or the master), at the High Court in Hong Kong, on ........................ day, the .................... day of .............................. 20.........., at ...................... o’clock, on the hearing of an application by the applicant A.B. that | ||
|
Dated the .................. day of ......................
20..........
|
||
| This summons was taken out by ........................................... of | ||
| ................................ solicitors for the applicant whose address is | ||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 11
|
Ex parte
originating summons
(O. 7 r. 2; O. 118 r. 4(1); O. 119 r.
4)
|
||
|
20......., No. ...........
|
||
|
In the High Court of the Hong Kong Special Administrative Region
|
||
| In the matter of | ||
|
|
||
| Let all parties concerned attend before the Judge in Chambers (or the master) at the High Court in Hong Kong, on .................. day, the .................. day of ................................ 20.........., at ...................... o’clock, on the hearing of an application by A.B. that | ||
|
Dated the .................. day of ......................
20..........
|
||
| This summons was taken out by ....................................... of | ||
| ............................. solicitor for the applicant whose address is | ||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 11A
|
Originating
summons for possession
(O. 113 r. 2)
|
||
|
19......., No. ...........
|
||
|
In the Court
of First Instance of Hong Kong
(In the matter of
........................)
|
||
|
Between
|
A.B.
|
Plaintiff
|
|
|
and
|
|
|
|
C.D.
|
Defendant (if any) whose name is known
|
| To [C.D. and] every [other] person in occupation of | ||
|
|
||
| Let all persons concerned attend before | ||
| .......................... Court of First Instance | ||
| of Hong Kong in Hong Kong on .......................... day, the ............................. day of ............................... 19......... , at .............. o’clock, on the hearing of an application by A.B. for an order that he do recover possession of ...................................... on the ground that he is entitled to possession and that the person(s) in occupation is (are) in occupation without licence or consent. | ||
|
Dated the .................. day of ......................
19.......... |
||
| This summons was taken out by ................................ of | ||
| ................................................. solicitor for the said plaintiff whose address is | ||
|
[or when the plaintiff acts in person] |
||
| This summons was taken out by the said plaintiff who resides at | ||
| .................................and is (state occupation) and (if the plaintiff does not reside within the jurisdiction) whose address for service is | ||
|
Note:—Any person occupying the premises may apply to
the Court personally or by counsel or solicitor to be joined as
a defendant. If a person occupying the premises does not attend
personally or by counsel or solicitor at the time and place
above-mentioned, such order will be made as the Court may think
just and expedient. |
||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 12
|
Notice of
appointment to hear originating summons
(O. 28 r. 2)
(Heading as in summons)
|
|
| To (name of defendant) of | |
|
Take notice that the originating summons issued herein on
the ............................ day of
................................................ 19........,
will be heard by the Judge in Chambers (or the master) at the
High Court in Hong Kong, on .......................... day, the
........................... day of
.......................................... 19.............., at
.............. o’clock. You may attend in person, or by your
solicitor or counsel. If you fail to attend, such order will be
made as the Court may think just and expedient. |
|
|
Dated the .................. day of ......................
19..........
|
|
| (Signed) | |
|
|
Solicitor for the plaintiff. |
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 13
|
Notice of
originating motion
(O. 8 r. 3)
|
||
|
19......., No. ...........
|
||
|
In the High Court of Hong Kong
|
||
|
In the matter of
................................................................
|
||
|
and
|
||
|
In the matter of
................................................................
|
||
|
Take notice that the High Court of Hong Kong in Hong Kong
will be moved (before his Lordship, Mr. Justice
...............................) at the expiration of
............... days from the service upon you of this notice
(or on .................. day, the .......... day of
.................... 19........, at the sitting of the Court) or
so soon thereafter as counsel can be heard, by counsel on behalf
of A.B. for an order that
................................ (or for the following relief,
namely
........................................................................................) |
||
|
And that the costs of and incidental to this (application)
(appeal) may be paid by
................................... |
||
|
(And further take notice that the grounds of this
(application) (appeal) are:
............................................................) |
||
|
Dated the .................. day of ......................
19.......... |
||
|
(Signed)
............................................
|
||
| C.D. of ............................ solicitor for the above named (applicant) (appellant) A.B. whose address is | ||
| or A.B. whose address for service is | ||
| (applicant) (appellant) in person | ||
|
To .................................. of
......................................................... |
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 14
|
Acknowledgment of
Service of Writ of Summons
(O. 12 r. 3)
Directions for
Acknowledgment of Service
|
|||
|
1.The accompanying form
of ACKNOWLEDGMENT OF SERVICE should be detached and completed by
a Solicitor acting on behalf of the Defendant or by the
Defendant if acting in person. After completion it must be
delivered or sent by post to the Registry of the High Court at
the following address:— [insert here the address of the Registry of the High
Court] |
|||
1A.However, a Defendant
(or a Solicitor acting on behalf of a Defendant) who is a
registered user or an Organization User account holder may send
the Acknowledgment of Service to the Registry of the High Court
by means of an e-system in accordance with the Court Proceedings
(Electronic Technology) (High Court Civil Proceedings)
Rules. Note—
For the meaning of Organization User account
holder and registered user, please
see rule 2 of the Court Proceedings (Electronic Technology)
(High Court Civil Proceedings) Rules.
|
|||
|
2.A Defendant who states
in his Acknowledgment of Service that he intends to contest the
proceedings MUST ALSO file a DEFENCE which must be written in
either the Chinese or the English language with the registry and
serve a copy thereof on the Solicitor for the Plaintiff (or on
the Plaintiff if acting in person). |
|||
|
If a Statement of Claim is indorsed on the Writ (i.e. the words
“Statement of Claim” appear at the top of the back), the Defence
must be filed and served within 28 days after the time for
acknowledging service of the Writ, unless in the meantime a
summons for judgment is served on the Defendant. |
|||
|
If a Statement of Claim is not indorsed on the Writ, the
Defence must be filed and served within 28 days after a
Statement of Claim has been served on the Defendant. |
|||
|
If the Defendant fails to file and serve his defence within the
appropriate time, the Plaintiff may enter judgment against him
without further notice. |
|||
|
The Defendant’s defence must be verified by a statement of
truth in accordance with Order 41A of the Rules of the High
Court (Cap. 4 sub. leg.
A). |
|||
|
3.If the only remedy
that the Plaintiff is seeking is the payment of a liquidated
amount of money or the payment of an unliquidated amount of
money, you may admit the Plaintiff’s claim in whole or in part
by completing Form No. 16 or 16C (as the case may require)
accompanying the Writ of Summons. A completed Form No. 16 or 16C must be filed with the Registry
of the High Court and served on the Plaintiff [or the
Plaintiff’s Solicitors] within the period for service of the
Defence. |
|||
|
4.A Defendant who wishes
to dispute the jurisdiction of the Court of First Instance in
the proceedings or to argue that the Court of First Instance
should not exercise its jurisdiction in the proceedings, and
wishes to apply to the Court of First Instance for an order
staying the proceedings, must give notice of intention to defend
the proceedings and make the application within the time limited
for service of a defence. |
|||
|
See attached
Notes for
Guidance
|
|||
|
Notes for
Guidance
|
|||
|
1.Each Defendant (if
there are more than one) is required to complete an
Acknowledgment of Service and return it to the Registry of the
High Court. |
|||
|
[2.For the purpose of
calculating the period of 14 days for acknowledging service, a
writ served on the Defendant personally is treated as having
been served on the day it was delivered to him and a writ served
by post or by insertion through the Defendant’s letter
box,
or by sending it by electronic transmission in accordance with
the Court Proceedings (Electronic Technology) (High Court Civil
Proceedings) Rules, is treated as having been served on the
seventh day after the date of posting, insertion or sending by
electronic
transmission.] |
|||
|
(Note: Not applicable if the Defendant is a company
served at its registered office.) |
|||
|
3.Where the Defendant is
sued in a name different from his own, the form must be
completed by him with the addition in paragraph 1 of
the words “sued as (the name stated on the Writ of
Summons)”. |
|||
|
4.Where the Defendant is
a FIRM and a Solicitor is not instructed, the form must be
completed by a PARTNER by name, with the addition in
paragraph 1 of the description “partner in the
firm of (....................................)” after his
name. |
|||
|
5.Where the Defendant is
sued as an individual TRADING IN A NAME OTHER THAN HIS OWN, the
form must be completed by him with the addition in
paragraph 1 of the description “trading as
(............................)” after his name. |
|||
|
6.Where the Defendant is
a LIMITED COMPANY the form must be completed by a Solicitor or
by someone authorized to act on behalf of the Company, but the
Company can take no further step in the proceedings without a
Solicitor acting on its behalf. |
|||
|
7.Where the Defendant is
a MINOR or a MENTAL Patient, the form must be completed by a
Solicitor acting for a guardian ad litem. |
|||
|
7A.A Defendant (or a
Solicitor acting on behalf of a Defendant) who has received a
printout of a Writ of Summons issued by the High Court in
electronic form may contact the Registry of the High Court to
ascertain whether the Writ of Summons had been issued by quoting
its document reference number. For details, please refer to the
administrative instructions issued by the Judiciary
Administrator. |
|||
|
8.A Defendant acting in
person may obtain help in completing the form at the Registry of
the High Court. |
|||
|
9.These notes deal only
with the more usual cases. In case of difficulty a Defendant in
person should refer to paragraph 8 above. |
|||
|
(Heading as in
No. 1 to be completed by
plaintiff)
|
|||
|
ACKNOWLEDGMENT OF SERVICE OF WRIT OF SUMMONS
|
|||
|
If you intend to instruct a Solicitor to act for you, give
him this form IMMEDIATELY. |
|||
|
Important. Read
the accompanying directions and notes for guidance carefully
before completing this form. If any information required is
omitted or given wrongly, THIS FORM MAY HAVE TO BE
RETURNED. |
|||
|
Delay may result in judgment being entered against a
Defendant whereby he or his Solicitor may have to pay the costs
of applying to set it aside. |
|||
|
See Notes 1, 3, 4 and 5.
|
1.
|
State the full name of the Defendant by whom or on whose
behalf the service of the Writ is being acknowledged. |
|
|
2.
|
State whether the Defendant intends to contest the
proceedings (tick appropriate box) |
||
|
□ yes
|
□ no
|
||
|
See Direction 3.
|
3.
|
If the only remedy that the Plaintiff is seeking is the
payment of a liquidated amount of money or the payment of an
unliquidated amount of money, state whether the Defendant
intends to make an admission (tick appropriate box). |
|
|
□ yes
|
□ no
|
||
|
|
If yes, the Defendant may make the admission by completing
Form No. 16 or 16C (as the case may require) accompanying the
Writ of Summons. |
||
|
Where words appear between square brackets,
delete if inapplicable.
|
|
Service of the Writ is acknowledged accordingly.
|
|
|
|
(Signed) [Solicitor]
|
( )
[Defendant in
person]
Address for
service
|
|
Notes
as to Address for
Service
Solicitor. Where the Defendant is represented
by a Solicitor, state the Solicitor’s place of business in Hong Kong.
Defendant in person. Where the Defendant is acting in person, he must give his
residence OR, if he does not reside in Hong Kong, he must give an address in Hong
Kong where communications for him should be sent. In the case of a limited company,
“residence” (居所) means its registered or principal office.
(Back of
page (1))
Indorsement by plaintiff’s solicitor (or by plaintiff if suing in person) of
his name, address and reference, if any.
(L.N. 251 of
1997; L.N. 313 of 1997; 25 of 1998 s. 2; L.N. 129 of
2000; L.N. 152 of
2008; L.N. 60 of
2025)
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 15
|
Acknowledgment of
Service of Originating Summons—for all cases other than
costs-only proceedings under
section
52B of the High Court Ordinance
(O. 10 r. 5; O. 12 r. 3(1))
Directions for
Acknowledgment of Service
|
|||
|
1.The accompanying form
of ACKNOWLEDGMENT OF SERVICE should be detached and completed by
a Solicitor acting on behalf of the Defendant or by the
Defendant if acting in person. After completion it must be
delivered or sent by post to the Registry of the High Court of
the following address:— [insert here the address of the Registry of the High
Court] |
|||
|
2.If the only remedy
that the Plaintiff is seeking is the payment of a liquidated
amount of money or the payment of an unliquidated amount of
money, you may admit the Plaintiff’s claim in whole or in part
by completing Form No. 16 or 16C (as the case may require)
accompanying the Originating Summons. |
|||
|
A completed Form No. 16 or 16C must be filed with the Registry
of the High Court and served on the Plaintiff [or the
Plaintiff’s Solicitors] within the period for filing of the
Defendant’s affidavit evidence. |
|||
|
3.A Defendant who wishes
to dispute the jurisdiction of the Court of First Instance in
the proceedings or to argue that the Court of First Instance
should not exercise its jurisdiction in the proceedings, and
wishes to apply to the Court of First Instance for an order
staying the proceedings, must give notice of intention to defend
the proceedings and make the application within the time limited
for service of a defence. |
|||
|
See over for
Notes for Guidance
|
|||
|
[Back of page
(1)]
|
|||
|
Notes for
Guidance
|
|||
|
[As in No. 14
substituting “originating summons” for “writ of
summons”.]
|
|||
|
(Heading as in
No. 8 or 10 to be completed by plaintiff)
|
|||
|
ACKNOWLEDGMENT OF SERVICE
OF ORIGINATING SUMMONS |
|||
|
If you intend to instruct a Solicitor to act for you, give
him this form IMMEDIATELY. |
|||
|
Important. Read
the accompanying directions and notes for guidance carefully
before completing this form. If any information required is
omitted or given wrongly, THIS FORM MAY HAVE TO BE
RETURNED. |
|||
|
See Notes 1, 3, 4 and 5.
|
1.
|
State the full name of the Defendant by whom or on whose
behalf the service of the Originating Summons is being
acknowledged. |
|
|
2.
|
State whether the Defendant intends to contest the
proceedings (tick appropriate box) |
||
|
□ yes
|
□ no
|
||
|
See Direction 2.
|
3.
|
If the only remedy that the Plaintiff is seeking is the
payment of a liquidated amount of money or the payment of an
unliquidated amount of money, state whether the Defendant
intends to make an admission (tick appropriate box). |
|
|
□ yes
|
□ no
|
||
|
|
If yes, the Defendant may make the admission by completing
Form No. 16 or 16C (as the case may require) accompanying the
Originating Summons. |
||
|
Where words appear between square brackets,
delete if inapplicable.
|
|
Service of the Originating Summons is acknowledged
accordingly. |
|
|
|
|
(Signed) [Solicitor]
|
( )
[Defendant in
person]
Address for service |
Notes as to Address for
Service
Solicitor. Where the Defendant is represented
by a Solicitor, state the Solicitor’s place of business in Hong Kong.
Defendant in person. Where the Defendant is acting in person, he must give his
residence OR, if he does not reside in Hong Kong, he must give an address in Hong
Kong where communications for him should be sent. In the case of a limited company,
“
residence
” (居所
) means its registered or principal office.(Back of
page (1))
Indorsement by plaintiff’s Solicitors (or by plaintiff if suing in person) of
his name, address and reference, if any.
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 15A
|
Acknowledgment of
Service of Originating Summons—for costs-only proceedings under
section 52B of the High Court
Ordinance
(O. 10 r. 5; O. 12 r. 3(1); O. 62 r.
11A)
Directions for
Acknowledgment of Service
|
|||
|
The accompanying form of ACKNOWLEDGMENT OF SERVICE should be
detached and completed by a solicitor acting on behalf of the
defendant or by the defendant if acting in person. After
completion it must be delivered or sent by post to the Registry
of the High Court of the following address— [insert here the address of the Registry of the High
Court] |
|||
|
See over for
Notes for Guidance
|
|||
|
[Back of page
(1)]
|
|||
|
Notes for
Guidance
|
|||
|
[As in No. 14
substituting “originating summons” for “writ of
summons”.]
|
|||
|
(Heading as in No. 8 or 10 to be completed by
plaintiff)
|
|||
|
ACKNOWLEDGMENT OF SERVICE
OF ORIGINATING SUMMONS
|
|||
|
If you intend to instruct a solicitor to act for you, give
him this form IMMEDIATELY. |
|||
|
Important. Read
the accompanying directions and notes for guidance carefully
before completing this form. If any information required is
omitted or given wrongly, THIS FORM MAY HAVE TO BE
RETURNED. |
|||
|
See Notes 1, 3, 4 and 5.
|
1.
|
State the full name of the defendant by whom or on whose
behalf the service of the originating summons is being
acknowledged. |
|
|
2.
|
State whether the defendant intends to contest the
liability for costs (tick appropriate box) |
||
|
□ yes
|
□ no
|
||
|
3.
|
State whether the defendant intends to contest the amount
of those costs (tick appropriate box) |
||
|
□ yes
|
□ no
|
||
|
Where words appear between square brackets,
delete if inapplicable.
|
|
Service of the originating summons is acknowledged
accordingly.
|
|
|
|
(Signed) [Solicitor]
|
( )
[Defendant in
person]
Address for
service
|
|
|
|
|||
Notes as to Address for
Service
Solicitor. Where the defendant is represented
by a solicitor, state the solicitor’s place of business in Hong Kong.
Defendant in person. Where the defendant is
acting in person, he must state his residence OR, if he does not reside in Hong
Kong, he must state an address in Hong Kong to which communications for him should
be sent. In the case of a limited company, “
residence
” (居所
) means its registered
or principal office.(Back of page
(1))
Indorsement by plaintiff’s solicitors (or by plaintiff if suing in person) of
his name, address and reference, if any.
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 16
|
Admission
(liquidated amount)
(O. 13A rr. 4(2), 5(2) & 13(2))
(Heading as in action)
|
|||||||||||||||||
|
|
Explanatory
Note
|
|
|||||||||||||||
|
|
1.
|
The only claim the plaintiff has made against you is for a
liquidated amount of money. You may admit the plaintiff’s claim
in whole or in part by completing this form— |
|
||||||||||||||
|
|
|
(a)
|
within the period for service of your defence if you have
been served with a writ; or |
|
|||||||||||||
|
|
|
(b)
|
the period for filing of your affidavit evidence if you
have been served with an originating summons; or |
|
|||||||||||||
|
|
|
(c)
|
within 14 days after service of the originating process in
any other case. |
|
|||||||||||||
|
|
2.
|
If you have made an admission, you may only be allowed to
amend or withdraw your admission if the Court considers it just
to do so. |
|
||||||||||||||
|
|
3.
|
If you do not ask for time to pay, the plaintiff will
decide how much and when you should pay. |
|
||||||||||||||
|
|
4.
|
If you ask for time to pay, the plaintiff will decide
whether or not to accept your proposal for payment. |
|
||||||||||||||
|
|
5.
|
If the plaintiff accepts your proposal for payment, the
plaintiff may, within 14 days after the copy of your admission
is served on him, request the Court to enter judgment against
you. |
|
||||||||||||||
|
|
6.
|
If the plaintiff does not accept your proposal for payment,
the Court will decide how the payment should be made after
considering— |
|
||||||||||||||
|
|
|
(a)
|
the information set out in this form; |
|
|||||||||||||
|
|
|
(b)
|
the reasons why the plaintiff does not accept your proposal
for payment; and |
|
|||||||||||||
|
|
|
(c)
|
all other relevant matters. |
|
|||||||||||||
|
|
7.
|
The completed form should be filed in the Registry of the
High Court. |
|
||||||||||||||
|
How to fill in this form |
|||||||||||||||||
|
‧
|
Tick the correct boxes and give as much information as you
can. Then sign and date the form. If necessary provide
details on a separate sheet, add the action number and attach it
to this form. |
||||||||||||||||
|
‧
|
If you do not ask for time to pay, you need not complete
items 2 to 9 and 11 to 14. |
||||||||||||||||
|
‧
|
If you ask for time to pay, make your offer of payment in
item 14. |
||||||||||||||||
|
‧
|
If you are not an individual, you need not complete
items 1 to 9 but you should complete items 10 to 12 and
ensure that you comply with the requirement specified in
item 13 and provide sufficient details about the assets and
liabilities of your firm, company or corporation to support
any offer of payment made in item 14. |
||||||||||||||||
|
‧
|
If you are an individual, you need not complete items 10
to 12 and need not comply with the requirement specified in
item 13. |
||||||||||||||||
|
‧
|
You can get help to complete this form at the Registry of
the High Court. |
||||||||||||||||
|
|
How much of the claim do you admit?
|
|
|||||||||||||||
|
|
|
□
|
I admit the
full amount claimed as shown on the statement of claim or
|
||||||||||||||
|
|
|
□
|
I admit the amount of
|
$
|
|
|
|||||||||||
|
1.
|
Personal details
|
||||||||||||||||
|
|
|
Surname
|
|
||||||||||||||
|
|
|
Forename
|
|
||||||||||||||
|
|
|
|
□
Mr □ Mrs □ Miss □ Ms
|
||||||||||||||
|
|
|
Address
|
|
||||||||||||||
|
2.
|
Dependants
(people you look
after financially)
|
||||||||||||||||
|
|
|
(give
details)
|
|
||||||||||||||
|
3.
|
Employment
|
||||||||||||||||
|
|
|
□
|
I am employed as
a
|
|
|||||||||||||
|
|
|
|
My employer is
|
|
|||||||||||||
|
|
|
|
Jobs other than main job
(give details) |
|
|||||||||||||
|
|
|
□
|
I am self employed
as a
|
|
|||||||||||||
|
|
|
|
Annual turnover is
|
$
|
|||||||||||||
|
|
|
□
|
I am not in
arrears with my mandatory provident fund contributions and income
tax
|
||||||||||||||
|
|
|
□
|
I am in arrears
and I owe
|
$
|
|||||||||||||
|
|
|
Give details of:
|
|
||||||||||||||
|
|
|
(a)
|
contracts and other work in hand
|
||||||||||||||
|
|
|
(b)
|
any sums due for work done
|
|
|||||||||||||
|
|
|
□
|
I have been
unemployed for
|
years months
|
|
|
|||||||||||
|
|
|
□
|
I am a
pensioner
|
||||||||||||||
4. |
Bank account and
savings (please list all)
|
||||||||||||||||
|
|
|
Bank account
|
In credit by
$ |
Overdrawn by
$ |
|||||||||||||
|
|
|
|
|
|
|||||||||||||
|
5.
|
Residence
|
||||||||||||||||
|
|
|
I live in
|
□
|
my own flat
|
|||||||||||||
|
|
|
|
□
|
my jointly owned flat
|
|||||||||||||
|
|
|
|
□
|
public housing estate
|
|||||||||||||
|
|
|
|
□
|
rented private flat
|
|||||||||||||
|
|
|
|
□
|
others (please specify)
|
|||||||||||||
|
6.
|
Income
|
||||||||||||||||
|
|
|
My usual take-home pay (including overtime, commission, bonuses,
etc.)
|
$
|
per month
|
|||||||||||||
|
|
|
My pension(s)
|
$
|
per month
|
|||||||||||||
|
|
|
Others living in my home give me
|
$
|
per month
|
|||||||||||||
|
|
|
Other income (give
details below)
|
|||||||||||||||
|
|
|
|
$
|
per month
|
|||||||||||||
|
|
|
|
$
|
per month
|
|||||||||||||
|
|
|
|
$
|
per month
|
|||||||||||||
|
|
|
Total
income
|
$
|
per month
|
|||||||||||||
|
7.
|
Other assets (please list and
indicate their location)
|
||||||||||||||||
|
|
|
||||||||||||||||
|
8.
|
Expenses
|
||||||||||||||||
|
|
|
(Do
not
include any payments made by other members of the household out
of their own income)
|
|
||||||||||||||
|
|
|
I have regular expenses as follows:
|
|
|
|||||||||||||
|
|
|
Mortgage (including
second mortgage)
|
$
|
per month
|
|||||||||||||
|
|
|
Rent
|
$
|
per month
|
|||||||||||||
|
|
|
Rates and government rent
|
$
|
per month
|
|||||||||||||
|
|
|
Management fees
|
$
|
per month
|
|||||||||||||
|
|
|
Domestic helper’s salary
|
$
|
per month
|
|||||||||||||
|
|
|
Gas
|
$
|
per month
|
|||||||||||||
|
|
|
Electricity
|
$
|
per month
|
|||||||||||||
|
|
|
Water charges
|
$
|
per month
|
|||||||||||||
|
|
|
Telephone charges
|
$
|
per month
|
|||||||||||||
|
|
|
Housekeeping, food, school meals
|
$
|
per month
|
|||||||||||||
|
|
|
Travelling expenses
|
$
|
per month
|
|||||||||||||
|
|
|
Children’s clothing
|
$
|
per month
|
|||||||||||||
|
|
|
Tuition fees
|
$
|
per month
|
|||||||||||||
|
|
|
Maintenance payments
|
$
|
per month
|
|||||||||||||
|
|
|
Court orders
|
$
|
per month
|
|||||||||||||
|
|
|
Others
|
|
||||||||||||||
|
|
|
|
$
|
per month
|
|||||||||||||
|
|
|
|
$
|
per month
|
|||||||||||||
|
|
|
|
$
|
per month
|
|||||||||||||
|
|
|
Total
expenses
|
$
|
per month
|
|||||||||||||
|
9.
|
Liabilities
|
||||||||||||||||
|
|
|
(This section is
for arrears only. Do
not include regular
expenses listed in item 8.)
|
|
||||||||||||||
|
|
|
Rent arrears
|
$
|
||||||||||||||
|
|
|
Mortgage arrears
|
$
|
||||||||||||||
|
|
|
Rates and government rent arrears
|
$
|
||||||||||||||
|
|
|
Water charges arrears
|
$
|
||||||||||||||
|
|
|
Fuel debts:
|
Gas
|
$
|
|||||||||||||
|
|
|
|
Electricity
|
$
|
|||||||||||||
|
|
|
|
Others
|
$
|
|||||||||||||
|
|
|
Maintenance arrears
|
$
|
||||||||||||||
|
|
|
Loans and credit card debts (please
list)
|
$
|
||||||||||||||
|
|
|
Others (give
details below)
|
|
||||||||||||||
|
|
|
|
$
|
||||||||||||||
|
|
|
|
$
|
||||||||||||||
|
|
|
Total
liabilities
|
$
|
||||||||||||||
|
10.
|
Firm, company or
corporation
|
||||||||||||||||
|
|
|
Name
|
|
||||||||||||||
|
|
|
Address
|
|
||||||||||||||
|
|
|
Tel. no.
|
|
||||||||||||||
|
11.
|
Assets of firm,
company or corporation (please
list)
|
||||||||||||||||
|
|
|
Property, plant and equipment
|
|
$
|
|||||||||||||
|
|
|
Inventories
|
|
$
|
|||||||||||||
|
|
|
Goodwill and other intangible assets
|
|
$
|
|||||||||||||
|
|
|
Loans and receivables
|
|
$
|
|||||||||||||
|
|
|
Bank balances and cash
|
|
$
|
|||||||||||||
|
|
|
Others
|
|
$
|
|||||||||||||
|
|
|
Total
|
$
|
||||||||||||||
|
12.
|
Liabilities of
firm, company or corporation
(please
list)
|
||||||||||||||||
|
|
|
Trade payables
|
|
$
|
|||||||||||||
|
|
|
Tax payables
|
|
$
|
|||||||||||||
|
|
|
Other payables
|
|
$
|
|||||||||||||
|
|
|
Bank loans
|
|
$
|
|||||||||||||
|
|
|
Other borrowings
|
|
$
|
|||||||||||||
|
|
|
Others
|
|
$
|
|||||||||||||
|
|
|
Total
|
$
|
||||||||||||||
|
13.
|
Attach to this
form a copy of the latest audited profit and loss account and
balance sheet of the firm, company or corporation
|
||||||||||||||||
|
14.
|
Offer of
payment
|
||||||||||||||||
|
|
|
□
|
I can pay the amount admitted on
|
|
|
||||||||||||
|
|
|
|
or
|
|
|
||||||||||||
|
|
|
□
|
I can pay by [weekly/monthly etc.] instalments
of
|
$
|
|
||||||||||||
|
|
|
Starting (date)
If you cannot pay immediately, please give brief reasons below:
|
|
||||||||||||||
15. |
Declaration
|
I _______________________ declare that the
details I have given above and in the attached sheet(s) (if any) are
true to the best of my knowledge
And I make this solemn declaration
conscientiously believing the same to be true and by virtue of the
Oaths and Declaration Ordinance (Cap. 11)
|
|||||||||||||||
|
|
Signed
|
|
Position or office
held
(If signing on behalf of a firm, company or corporation) With company
chop
(if applicable) |
|
|||||||||||||
|
|
|
|
|
|
|
|
|
|
|
||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Declared at ________________ in Hong Kong on _________ of 20
____.
|
|||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Before me,
[Signature and
designation, i.e., Justice of the Peace/Notary Public/Commissioner
for Oaths.]
|
||||||
|
Note
|
—
|
Under section 36
of the Crimes Ordinance (Cap. 200), a person who knowingly and wilfully makes a
statement false in a material particular in a declaration or other
document which he is authorized or required to make by an enactment
is guilty of an
offence.
|
|||||||||||||||
|
|
—
|
A defendant who is an individual must sign
personally. A director of a company must obtain leave to represent
the company from a Practice Master before he may sign on behalf of
the
company.
|
|||||||||||||||
|
|
—
|
If a plaintiff does not file a request for
judgment within 14 days after this form is served on him, his claim
is stayed until he files the request.
|
|||||||||||||||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 16A
Request for judgment (admission of liquidated
amount)(O. 13A rr. 4(3), 9(4) &
10(2))(Heading as in
action)
|
‧
|
Remember to sign and date the form. Your
signature certifies that the information you have given is
correct.
|
|||||
|
‧
|
Return the completed form to the Court.
|
|||||
|
‧
|
The completed form should be filed in the
Registry of the High
Court.
|
|||||
|
A
|
The defendant has
admitted the whole of my claim
Tick only one
box below and follow the instructions given.
|
|||||
|
|
□
|
I accept the
defendant’s proposal for payment
Enclose a draft judgment for approval. The
Court will enter judgment in accordance with the defendant’s
proposal.
|
||||
|
|
□
|
The defendant has
not made any proposal for payment
Enclose a draft judgment for approval. You
can ask for the judgment to be paid by instalments or in one
payment.
|
||||
|
|
□
|
I DO NOT accept
the defendant’s proposal for payment
Enclose a draft judgment for approval. You
can say how you want the defendant to pay. Give your reasons for
objecting to the defendant’s offer of payment. (Continue on the back
of this form if necessary.)
|
||||
|
Note:—The Court will notify you and the defendant of its
judgment.
|
||||||
|
I certify that
the information given is correct
|
||||||
|
|
||||||
|
Signed
|
|
Position or office
held
(If signing on behalf of a firm, company or corporation) |
|
|
||
|
|
(Plaintiff) (Plaintiff’s solicitor) (next
friend)
|
|||||
|
|
Date
|
|
With company
chop
(if applicable) |
|||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 16B
Reply to part admission of liquidated amount and
Request for judgment(O. 13A rr. 5(3) & (5), 9(4)
& 10(2))(Heading as in
action)
|
‧
|
Please tell the
Court what you wish to do by completing the lower half of this
form and filing it in the Registry of the High Court within 14
days after the copy of the defendant’s admission is served on
you.
|
|||||
|
|
At the same time you must serve a copy on the
defendant. If you do not file this form in the Registry of the High
Court within the prescribed period, your claim will be stayed. No
further action will be taken by the Court until the form is
received.
|
|||||
|
‧
|
You must tick box A or B.
|
|||||
|
‧
|
Remember to sign and date the
notice.
|
|||||
|
A
|
□
|
I DO NOT accept
the defendant’s part admission
If you tick box A the claim will proceed as a defended claim.
|
||||
|
B
|
□
|
I ACCEPT the amount
admitted by the defendant in satisfaction of my whole
claim
Tick only one box and
follow the instructions given.
|
||||
|
|
|
□
|
I accept the
defendant’s proposal for payment
Enclose a draft judgment for approval. The Court will enter judgment
in accordance with the offer.
|
|||
|
|
|
□
|
The defendant has
not made any proposal for payment
Enclose a draft judgment for approval. You
can ask for the judgment to be paid by instalments or in one
payment.
|
|||
|
|
|
□
|
I DO NOT accept
the defendant’s proposal for payment
Enclose a draft judgment for approval. You
can say how you want the defendant to pay. Give your reasons for
objecting to the defendant’s offer of payment. (Continue on the back
of this form if necessary.)
|
|||
|
Note:— The Court will notify you and the defendant of its
judgment.
|
||||||
|
I certify that
the information given is correct
|
||||||
|
|
||||||
|
Signed
|
|
Position or office
held
(If signing on behalf of a firm, company or corporation) |
|
|
||
|
|
(Plaintiff) (Plaintiff’s solicitor) (next
friend)
|
|||||
|
|
Date
|
|
With company
chop
(if applicable) |
|||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 16C
|
Admission
(unliquidated amount)
(O. 13A rr. 6(2), 7(2) & 13(2))
(Heading as in action)
|
|||||||||||||||||||||
|
|
Explanatory
Note
|
|
|||||||||||||||||||
|
|
1.
|
The only claim the plaintiff has made against you is for an
unliquidated amount of money. You may admit the plaintiff’s
claim in whole or in part by completing this form— |
|
||||||||||||||||||
|
|
|
(a)
|
within the period for service of your defence if you have
been served with a writ; or |
|
|||||||||||||||||
|
|
|
(b)
|
the period for filing of your affidavit evidence if you
have been served with an originating summons; or |
|
|||||||||||||||||
|
|
|
(c)
|
within 14 days after service of the originating process in
any other case. |
|
|||||||||||||||||
|
|
2.
|
If you have made an admission, you may only be allowed to
amend or withdraw your admission if the Court considers it just
to do so. |
|
||||||||||||||||||
|
|
3.
|
You may offer a specified amount to satisfy the claim. If
the amount you offer is accepted by the plaintiff, the plaintiff
may request the Court to enter judgment against you for that
amount. Alternatively, the plaintiff may request the Court to
enter judgment against you for an amount to be decided by the
Court and costs. |
|
||||||||||||||||||
|
|
4.
|
You may also ask for time to pay. If the plaintiff does not
accept your proposal for payment, the Court will decide how the
payment should be made after considering— |
|
||||||||||||||||||
|
|
|
(a)
|
the information set out in this form; |
|
|||||||||||||||||
|
|
|
(b)
|
the reasons why the plaintiff does not accept your proposal
for payment; and |
|
|||||||||||||||||
|
|
|
(c)
|
all other relevant matters. |
|
|||||||||||||||||
|
|
5.
|
The completed form should be filed in the Registry of the
High Court. |
|
||||||||||||||||||
|
How to fill in this form |
|||||||||||||||||||||
|
‧
|
Tick the correct boxes and give as much information as you
can. Then sign and date the form. If necessary provide
details on a separate sheet, add the action number and attach it
to this form. |
||||||||||||||||||||
|
‧
|
If you do not ask for time to pay, you need not complete
items 2 to 9 and 11 and 12. |
||||||||||||||||||||
|
‧
|
If you are not an individual, you need not complete
items 1 to 9 but you should complete items 10 to 12 and
ensure that you comply with the requirement specified in
item 13 and provide sufficient details about the assets and
liabilities of your firm, company or corporation to support
any offer of payment made. |
||||||||||||||||||||
|
‧
|
If you are an individual, you need not complete items 10
to 12 and need not comply with the requirement specified in
item 13. |
||||||||||||||||||||
|
‧
|
You can get help to complete this form at the Registry of
the High Court. |
||||||||||||||||||||
|
Part A
|
Response to claim
(tick one box
only)
|
||||||||||||||||||||
|
|
□
|
I admit liability for the whole claim but
want the Court to decide the amount I should pay (if you tick this
box, you need not complete Part B and items 2 to 9, 11 and 12 and
need not comply with the requirement specified in item 13)
|
|||||||||||||||||||
|
|
OR
|
|
|||||||||||||||||||
|
|
□
|
I admit liability for the claim and offer to pay
|
|
||||||||||||||||||
|
|
|
in satisfaction of the claim
|
|||||||||||||||||||
|
Part B
|
How are you going
to pay the amount you have admitted?
(tick one box
only)
|
||||||||||||||||||||
|
|
□
|
I offer to pay on (date)
|
|
|
|||||||||||||||||
|
|
OR
|
|
|||||||||||||||||||
|
|
□
|
I cannot pay the amount immediately because (state reason)
|
|||||||||||||||||||
|
|
|
|
|||||||||||||||||||
|
|
AND
|
|
|||||||||||||||||||
|
|
|
I offer to pay by instalments of
|
$
|
per
|
|||||||||||||||||
|
|
|
(week)(month) starting (date)
|
|
|
|||||||||||||||||
|
1.
|
Personal details
|
||||||||||||||||||||
|
|
|
Surname
|
|
||||||||||||||||||
|
|
|
Forename
|
|
||||||||||||||||||
|
|
|
|
□
Mr □ Mrs □ Miss □ Ms
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Address
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2.
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Dependants
(people you look
after financially)
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(give
details)
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||||||||||||||||||
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3.
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Employment
|
||||||||||||||||||||
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□
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I am employed as
a
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|||||||||||||||||
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My employer is
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Jobs other than main job
(give details) |
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□
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I am self employed
as a
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Annual turnover is
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$
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□
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I am not in
arrears with my mandatory provident fund contributions and income
tax
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||||||||||||||||||
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□
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I am in arrears
and I owe
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$
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Give details of:
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||||||||||||||||||
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(a)
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contracts and other work in hand
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||||||||||||||||||
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(b)
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any sums due for work done
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|||||||||||||||||
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□
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I have been
unemployed for
|
years months
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|||||||||||||||
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□
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I am a
pensioner
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4. |
Bank account and
savings (please list all)
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Bank account
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In credit by
$ |
Overdrawn by
$ |
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5.
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Residence
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||||||||||||||||||||
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I live in
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□
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my own flat
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□
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my jointly owned flat
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|||||||||||||||||
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□
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public housing estate
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□
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rented private flat
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□
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others (please specify)
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|||||||||||||||||
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6.
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Income
|
||||||||||||||||||||
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My usual take-home pay (including overtime, commission, bonuses,
etc.)
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$
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per month
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|||||||||||||||||
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My pension(s)
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$
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per month
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|||||||||||||||||
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Others living in my home give me
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$
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per month
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|||||||||||||||||
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Other income (give
details below)
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|||||||||||||||||||
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$
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per month
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|||||||||||||||||
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$
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per month
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|||||||||||||||||
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$
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per month
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|||||||||||||||||
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Total
income
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$
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per month
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|||||||||||||||||
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7.
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Other assets (please list and
indicate their location)
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||||||||||||||||||||
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||||||||||||||||||||
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8.
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Expenses
|
||||||||||||||||||||
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(Do
not
include any payments made by other members of the household out
of their own income)
|
|
||||||||||||||||||
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|
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I have regular expenses as follows:
|
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|||||||||||||||||
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Mortgage (including
second mortgage)
|
$
|
per month
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|||||||||||||||||
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Rent
|
$
|
per month
|
|||||||||||||||||
|
|
|
Rates and government rent
|
$
|
per month
|
|||||||||||||||||
|
|
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Management fees
|
$
|
per month
|
|||||||||||||||||
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|
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Domestic helper’s salary
|
$
|
per month
|
|||||||||||||||||
|
|
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Gas
|
$
|
per month
|
|||||||||||||||||
|
|
|
Electricity
|
$
|
per month
|
|||||||||||||||||
|
|
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Water charges
|
$
|
per month
|
|||||||||||||||||
|
|
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Telephone charges
|
$
|
per month
|
|||||||||||||||||
|
|
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Housekeeping, food, school meals
|
$
|
per month
|
|||||||||||||||||
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|
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Travelling expenses
|
$
|
per month
|
|||||||||||||||||
|
|
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Children’s clothing
|
$
|
per month
|
|||||||||||||||||
|
|
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Tuition fees
|
$
|
per month
|
|||||||||||||||||
|
|
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Maintenance payments
|
$
|
per month
|
|||||||||||||||||
|
|
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Court orders
|
$
|
per month
|
|||||||||||||||||
|
|
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Others
|
|
||||||||||||||||||
|
|
|
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$
|
per month
|
|||||||||||||||||
|
|
|
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$
|
per month
|
|||||||||||||||||
|
|
|
|
$
|
per month
|
|||||||||||||||||
|
|
|
Total
expenses
|
$
|
per month
|
|||||||||||||||||
|
9.
|
Liabilities
|
||||||||||||||||||||
|
|
|
(This section is
for arrears only. Do
not include regular
expenses listed in item 8.)
|
|
||||||||||||||||||
|
|
|
Rent arrears
|
$
|
||||||||||||||||||
|
|
|
Mortgage arrears
|
$
|
||||||||||||||||||
|
|
|
Rates and government rent arrears
|
$
|
||||||||||||||||||
|
|
|
Water charges arrears
|
$
|
||||||||||||||||||
|
|
|
Fuel debts:
|
Gas
|
$
|
|||||||||||||||||
|
|
|
|
Electricity
|
$
|
|||||||||||||||||
|
|
|
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Others
|
$
|
|||||||||||||||||
|
|
|
Maintenance arrears
|
$
|
||||||||||||||||||
|
|
|
Loans and credit card debts (please
list)
|
$
|
||||||||||||||||||
|
|
|
Others (give
details below)
|
|
||||||||||||||||||
|
|
|
|
$
|
||||||||||||||||||
|
|
|
|
$
|
||||||||||||||||||
|
|
|
Total
liabilities
|
$
|
||||||||||||||||||
|
10.
|
Firm, company or
corporation
|
||||||||||||||||||||
|
|
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Name
|
|
||||||||||||||||||
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|
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Address
|
|
||||||||||||||||||
|
|
|
Tel. no.
|
|
||||||||||||||||||
|
11.
|
Assets of firm,
company or corporation (please
list)
|
||||||||||||||||||||
|
|
|
Property, plant and equipment
|
|
$
|
|||||||||||||||||
|
|
|
Inventories
|
|
$
|
|||||||||||||||||
|
|
|
Goodwill and other intangible assets
|
|
$
|
|||||||||||||||||
|
|
|
Loans and receivables
|
|
$
|
|||||||||||||||||
|
|
|
Bank balances and cash
|
|
$
|
|||||||||||||||||
|
|
|
Others
|
|
$
|
|||||||||||||||||
|
|
|
Total
|
$
|
||||||||||||||||||
|
12.
|
Liabilities of
firm, company or corporation
(please
list)
|
||||||||||||||||||||
|
|
|
Trade payables
|
|
$
|
|||||||||||||||||
|
|
|
Tax payables
|
|
$
|
|||||||||||||||||
|
|
|
Other payables
|
|
$
|
|||||||||||||||||
|
|
|
Bank loans
|
|
$
|
|||||||||||||||||
|
|
|
Other borrowings
|
|
$
|
|||||||||||||||||
|
|
|
Others
|
|
$
|
|||||||||||||||||
|
|
|
Total
|
$
|
||||||||||||||||||
|
13.
|
Attach to this
form a copy of the latest audited profit and loss account and
balance sheet of the firm, company or corporation
|
||||||||||||||||||||
| 14. |
Declaration
|
I _______________________ declare that the
details I have given above and in the attached sheet(s) (if any) are
true to the best of my
knowledge
And I make this solemn declaration
conscientiously believing the same to be true and by virtue of the
Oaths and Declaration Ordinance (Cap. 11)
|
|||||||||||||||||||
|
|
Signed
|
|
Position or office
held
(If signing on behalf of a firm, company or corporation) With company
chop
(if applicable) |
|
|||||||||||||||||
|
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|
|
|
|
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|
|
|
|
||||||||||||
|
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|
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|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Declared at ________________ in Hong Kong on _________ of 20
____.
|
|||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
Before me,
[Signature and
designation, i.e., Justice of the Peace/Notary Public/Commissioner
for Oaths.]
|
|||||||||
|
Note
|
—
|
Under section 36
of the Crimes Ordinance (Cap. 200), a person who knowingly and wilfully makes a
statement false in a material particular in a declaration or other
document which he is authorized or required to make by an enactment
is guilty of an offence.
|
|||||||||||||||||||
|
|
—
|
A defendant who is an individual must sign
personally. A director of a company must obtain leave to represent
the company from a Practice Master before he may sign on behalf of
the company.
|
|||||||||||||||||||
|
|
—
|
If a plaintiff does not file a request for
judgment within 14 days after this form is served on him, his claim
is stayed until he files the request.
|
|||||||||||||||||||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
|
No. 16D
Request for
judgment (admission of unliquidated amount)
(O. 13A r. 6(3))
(Heading as in action)
|
|||||
|
The defendant has admitted liability to pay the whole of my
claim but has not made any proposal for payment. |
|||||
|
I request judgment to be entered against the defendant for
an amount to be decided by the Court and costs. [Enclose a draft judgment for approval] |
|||||
|
|
Signed
|
|
Position or office
held
(If signing on behalf of a firm, company or corporation) |
|
|
|
|
|
(Plaintiff) (Plaintiff’s solicitor) (next
friend)
|
|
||
|
|
Date
|
|
With company
chop
(if applicable) |
|
|
|
‧
|
The completed form should be filed in the Registry of the
High Court. |
||||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 16E
Reply to admission of unliquidated amount and Request
for judgment(O. 13A rr. 7(3), (5) & (9), 9(4)
& 10(2))(Heading as in
action)
|
Important notes for plaintiff
|
||||||
|
‧
|
You must tick either item A or complete
item B and file the form in the Registry of the High Court within 14
days after the copy of the defendant’s admission is sent to you.
At the same time you must send a copy to the defendant. If
you do not return the form within the prescribed period, your
claim will be stayed. No further action will be taken by the
Court until the form is received. |
|||||
|
‧
|
Remember to sign and date the notice.
|
|||||
|
A
|
□
|
I DO NOT accept
the amount offered by the defendant in satisfaction of my claim.
I wish judgment to be entered for an amount to be decided by the
Court.
The Court will give directions for management of the case.
|
||||
|
B
|
□
|
I ACCEPT the
amount admitted by the defendant in satisfaction of my
claim
Tick only one box and
follow the instructions given.
|
||||
|
|
|
□
|
I accept the
defendant’s proposal for payment
Enclose a draft judgment for approval. The Court will enter judgment
in accordance with the offer.
|
|||
|
|
|
□
|
I DO NOT accept
the defendant’s proposal for payment
Enclose a draft judgment for approval. You
can say how you want the defendant to pay. Give your reasons for
objecting to the defendant’s offer of payment. (Continue on the back
of this form if necessary.)
|
|||
|
Note:—The Court will notify you and the defendant of its
judgment.
|
||||||
|
I certify that
the information given is correct
|
||||||
|
|
||||||
|
Signed
|
|
Position or office
held
(If signing on behalf of a firm, company or corporation) |
|
|
||
|
|
(Plaintiff) (Plaintiff’s solicitor) (next
friend)
|
|||||
|
|
Date
|
|
With company
chop
(if applicable) |
|||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 17
Notice to be indorsed on copy of
counterclaim(O. 15 r.
3(6))
To
X.Y.
1.Take notice that, within [14 days] after
service of this defence and counterclaim on you, counting the day of service, you
must acknowledge service and state in your acknowledgment whether you intend to
contest the proceedings. If you fail to do so or if your acknowledgment does not
state your intention to contest the proceedings, judgment may be given against you
without further notice.
2.If the only remedy that the
counterclaiming plaintiff is seeking is the payment of a liquidated amount of money
or the payment of an unliquidated amount of money, you may admit the counterclaiming
plaintiff’s claim in whole or in part by completing Form No. 16 or 16C (as the case
may require) accompanying the counterclaim.
A completed Form No. 16 or 16C must be filed with the Registry of the High
Court and served on the counterclaiming plaintiff [or the counterclaiming
plaintiff’s solicitors] within the period for service of the defence to
counterclaim.
IMPORTANT
Directions for Acknowledgment of Service are given with the accompanying
form.
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 20
|
Third party
notice claiming contribution or indemnity or other relief or
remedy
(O. 16)
|
||
|
19 ......., No. ...........
|
||
|
In the High Court of Hong Kong
Court of First Instance
|
||
|
Between
|
A.B.
|
Plaintiff
|
|
|
and
|
|
|
|
C.D.
|
Defendant
|
|
|
and
|
|
|
|
T.P.
|
Third Party
|
|
|
Third Party Notice
|
|
|
[Issued pursuant to the order of
.................................. dated the
................................. day of
...............................]. |
||
|
To T.P. of
.................................................................................................................................................................................................................................................................................................................................................................................................................................................................. in the .................................................................................................................................................................................................................................................................................................................................................................................................................................................................. |
||
| of | ||
|
Take notice that this action has been brought by the
plaintiff against the defendant. In it the plaintiff claims
against the defendant [here state the nature of the
plaintiff’s claim] as appears from the writ of summons
[or originating summons] a copy whereof is served herewith
[together with a copy of the statement of claim]. |
||
|
The defendant claims against you [here state the nature
of the claim against the third party as for instance] to
be indemnified against the plaintiff’s claim and the costs of
this action or contribution to the extent of [one half] of the
plaintiff’s claim or the following relief or remedy namely
.................................................................
on the grounds that (state the grounds of the
claim). |
||
|
And take notice that within [14 days] after service of this
notice on you, counting the day of service, you must acknowledge
service and state in your acknowledgment whether you intend to
contest the proceedings. If you fail to do so, or if your
acknowledgment does not state your intention to contest the
proceedings, you will be deemed to admit the plaintiff’s claim
against the defendant and the defendant’s claim against you and
your liability to [indemnify the defendant or to contribute to
the extent claimed or to ..............................
stating the relief or remedy sought] and will be
bound by any judgement or decision given in the action, and the
judgement may be enforced against you in accordance with Order
16 of the Rules of the High Court Chapter 4.
|
||
|
Dated the .................. day of ......................
19 ..........
|
||
|
|
(Signed) | |
|
|
Solicitor
for the defendant.
|
|
|
IMPORTANT
Directions for Acknowledgment of Service are given with the
accompanying form. |
||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 21
|
Third party
notice where question or issue to be determined
(O. 16)
[Title etc. as in No. 20 down to end of first paragraph]
|
||
|
The defendant requires that the following question or
issue, viz. [here state the question or issue required to be
determined] should be determined not only as between the
plaintiff and the defendant but also as between either or both
of them and yourself. |
||
|
And take notice that [as in No. 20 down to the words
“intention to contest the proceedings”] you will be
bound by any judgment or decision in the action so far as it is
relevant to the said question or issue, and the judgment may be
enforced against you in accordance with Order 16 of the Rules of
the High Court Chapter 4.
|
||
|
Dated the .................. day of ......................
19 ..........
|
||
|
|
(Signed) | |
|
|
Solicitor
for the defendant.
|
|
|
IMPORTANT
Directions for Acknowledgment of Service are given with the
accompanying form. |
||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 23
|
Notice of
sanctioned payment
(O. 22 r. 8(2))
(Heading as in
action)
|
||||||
|
To the plaintiff(’s solicitor) and to the Director of Legal
Aid (if applicable)
|
||||||
|
Take notice that the defendant(s)
______________________ has/have paid $____________ (a further
amount of $ ____________________) into court in settlement
of— |
||||||
|
(tick as appropriate)
|
||||||
|
|
□
|
the whole of your claim |
||||
|
|
□
|
part of your claim (give details below) |
||||
|
|
□
|
a certain issue or certain issues arising from your claim
(give details below) |
||||
|
The (part) (issue or issues) to which it relates is (are):
(give details) |
||||||
|
|
□
|
It is in addition to the amount of $ ________________
already paid into court on _________________ and the total
amount in court now offered in settlement is $ ________________
(give total of all payments in court to
date) |
||||
|
|
□
|
It is not inclusive of interest and an additional amount of
$ ______________ is offered for interest (give details of the
rate(s) and period(s) for which the amount of interest is
offered ) |
||||
|
|
□
|
It takes into account all (part) of the following
counterclaim or set off: (give details of the party and the
part of the counterclaim to which the payment
relates) |
||||
|
|
□
|
It takes into account the interim payment(s) made in the
following amount(s) on the following date(s): (give
details) |
||||
|
|
□
|
It takes into account the following sum(s) of money that
has (have) been paid into court: (give details) |
||||
|
|
□
|
It is part of the terms of a sanctioned offer set out in
(identify the document). If you give notice of acceptance of
this sanctioned payment, you will be treated as also accepting
the sanctioned offer. |
||||
|
Note:—This notice will need to be modified where an offer
of provisional damages is made (Order 22, rule
11). |
||||||
|
|
Signed
|
|
Position or office
held
(If signing on behalf of a firm, company or corporation) |
|
|
|
|
|
|
Defendant(’s solicitor)
|
||||
|
|
Date
|
|
With company
chop
(if applicable) |
|||
|
Note: To the
plaintiff
If you wish to accept the payment made into court and the
Court’s leave for acceptance is not required, you should
complete Form No. 24, send it to the defendant and file a copy
in the Registry of the High Court. |
||||||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 24
|
Notice of
acceptance of sanctioned payment
(O. 22 r. 15(4))
(Heading as in
action)
|
||||||
|
To the defendant(’s solicitor) and to the Director of Legal
Aid (if applicable) |
||||||
|
Take notice that the plaintiff accepts the
payment(s) into court totalling $________________ in settlement
of (the whole of) (part of) (certain issue(s) arising from) *the
plaintiff’s claim as set out in the notice of sanctioned payment
received on __________________________ (and abandons the other
part(s) of or issue(s) arising from the plaintiff’s
claim).
|
||||||
|
|
Signed
|
|
Position or office
held
(If signing on behalf of a firm, company or corporation) |
|
|
|
|
|
|
Plaintiff(’s solicitor)
|
||||
|
|
Date
|
|
With company
chop
(if applicable) |
|||
|
* Delete as
appropriate
|
||||||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 25
|
Notice of request
for payment
(O. 22 r. 17)
(Heading as in
action)
|
||||||||
|
On _____________________ I accepted the payment(s) into
court totalling $ __________________ in settlement of (the whole
of) (part of) (certain issue(s) arising from) *my claim as set
out in the notice of sanctioned payment received on
__________________ (and abandoned the other part(s) of or
issue(s) arising from my claim).* |
||||||||
|
I declare that: |
||||||||
|
|
□
|
the sanctioned payment has been accepted [within 28 days]
[after 28 days but costs have been agreed] [less than 28 days
before trial but costs have been agreed]* |
||||||
|
|
□
|
the payment into court was not made with a defence of
tender |
||||||
|
|
□
|
the offeree is not a person under disability |
||||||
|
|
□
|
[at no time has the offeree been on legal aid in these
proceedings] [the offeree has been on legal aid]* |
||||||
|
|
□
|
there is no pending application to withdraw or diminish the
sanctioned payment |
||||||
|
|
□
|
[there is only 1 defendant] [the sanctioned payment is made
by all defendants] [I have discontinued my claim against those
defendants who have not made the sanctioned payment and they
have given written consent to the acceptance of the sanctioned
payment]* |
||||||
|
|
□
|
[my claim does not include a claim for provisional damages]
[my claim for provisional damages has been disposed of under
Order 37, rule 8]* |
||||||
|
|
|
(If any of the above declarations has not been made, the
money in court can only be paid out by order of the
Court) |
||||||
|
|
□
|
a copy of this notice has been served on the defendant(’s
solicitor) named below and I request payment of this money held
in court to be made to: |
||||||
|
Plaintiff or
solicitor’s full name/Director of Legal Aid*
|
||||||||
|
Address and telephone
number
|
||||||||
|
|
|
|
|
|
|
|
|
|
|
Signature
Note: Before signing this form please
read the notes for guidance overleaf. Incorrectly signed forms
may be returned unactioned. |
||||||||
|
Signed
|
Date
|
|||||||
|
DETAILS
OF PLAINTIFF’S SOLICITOR
|
||||||||
|
Name of firm
|
||||||||
|
Solicitor for
|
||||||||
|
|
|
|
|
|
|
|
|
|
|
Defendant or solicitor’s full name/Director of Legal Aid*
|
||||||||
|
|
|
|
|
|
|
|
|
|
|
Address and telephone number
|
||||||||
|
|
|
|
|
|
|
|
|
|
|
Signature
Note: The plaintiff(’s solicitor) should
obtain the signature of the defendant(’s solicitor) on the box
below before serving a copy of this notice on him |
||||||||
|
Signed
|
Date
|
|||||||
|
DETAILS
OF DEFENDANT’S SOLICITOR
|
||||||||
|
Name of firm
|
||||||||
|
Solicitor for
|
||||||||
|
* Delete as appropriate
|
||||||||
|
Notes for
guidance on completion of Form No. 25
|
||||||||
|
In order to request payment out of funds in court, file
this form, signed and completed in accordance with these notes
for guidance in the Registry of the High Court. A copy of this
form should also be sent to the defendant(’s
solicitors). |
||||||||
|
‧
|
When completing this form, please ensure that you tick all
of the boxes under the heading: ‘I declare that’. If you
do not tick all of the boxes, the Registry of the High Court
will not be able to process your request for payment and will
have to return the form to you. |
|||||||
|
‧
|
The form should be signed either by the plaintiff or his
solicitor. |
|||||||
|
‧
|
The Accounts Office of the High Court will only issue
payment upon receipt of a properly completed Form No. 25 with an
original signature. Faxed copies of the form and photocopies of
signatures will not be accepted and will be returned to
sender. |
|||||||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 25A
|
Notice of payment
into court under order or certificate
(O. 22 r. 27(1))
(Heading as in
action)
|
||||||||||||
|
Take notice that the plaintiff/defendant
__________________ has paid $________________ into court in
compliance with the order/certificate of __________________
dated __________________.
|
||||||||||||
|
|
Signed
|
|
Position or office
held
(If signing on behalf of a firm, company or corporation) |
|
|
|||||||
|
|
|
Plaintiff/Defendant(’s solicitor)
|
|
|||||||||
|
|
Date
|
|
With company
chop
(if applicable) |
|
||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Solicitors’
certificate
|
||||||||||||
|
We certify that— |
||||||||||||
|
(a)
|
the payment is made within time. |
|||||||||||
|
*(b)
|
there is no direction in the order for investment of the
money. |
|||||||||||
|
*(c)
|
the Court has directed that the money be invested in the
following manner—
|
|||||||||||
|
Signed
|
Date
|
|||||||||||
|
SOLICITOR’S DETAILS
|
||||||||||||
|
Name of firm
|
||||||||||||
|
Solicitor for
|
||||||||||||
|
* Delete as appropriate
|
||||||||||||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 26
List of Documents(O.
24 r. 5)(Heading as in cause or
matter)List of
documents
The following is a list of the documents relating to the matters in question in
this action which are or have been in the possession, custody or power of the
above-named plaintiff (or defendant) A.B. and which is served in compliance
with Order 24, rule 2 (or the order herein dated the
.......................... day of ........................................ 19
..........).
1.The plaintiff (or defendant) has in his
possession, custody or power the documents relating to the matters in question in
this action enumerated in schedule 1 hereto.
2.The plaintiff (or defendant) objects to
produce the documents enumerated in part 2 of the said schedule
1 on the ground that (stating the ground of objection).
3.The plaintiff (or defendant) has had, but
has not now, in his possession, custody or power the documents relating to the
matters in question in this action enumerated in schedule 2
hereto.
4.Of the documents in the said schedule
2, those numbered
..................................................................................................................................................................................................................................................................................................................................................................................................................................................................
in that schedule
were last in the plaintiff’s (or defendant’s) possession, custody or power on
(stating when) and the remainder on (stating when).(Here state what has become of the said documents and in whose possession
they now are.)
5.Neither the plaintiff (or defendant), nor
his solicitor nor any other person on his behalf, has now, or ever had, in his
possession, custody or power any document of any description whatever relating to
any matter in
question
in
this action, other than the documents enumerated in schedules 1 and
2 hereto.
Schedule 1Part
1
(Here enumerate in a convenient order the
documents (or bundles of documents, if of the same nature, such as invoices) in
the possession, custody or power of the party in question which he does not
object to produce, with a short description of each document or bundle
sufficient to identify it.)
Part
2
(Here enumerate as aforesaid the documents in the possession, custody or
power of the party in question which he objects to produce.)
Schedule
2
(Here enumerate as aforesaid the documents which have been, but at the date
of service of the list are not, in the possession, custody or power of the party
in question.)
Dated the .................. day of ...................... 19
..........
Notice to
inspect
Take notice that the documents in the above list, other than those listed in
part 2 of schedule 1 (and schedule 2), may be inspected at
(the office of the solicitor of the above-named (plaintiff) (defendant) (insert
address) or as may be) on the ................... day of
....................................... 19 ......, between the hours of
.................................. and ..................................
To the defendant (or plaintiff) C.D. and his solicitor.
Served the ..................... day of ....................... 19 ........ by
........................................... of
............................................................................
solicitor for the (plaintiff) (defendant).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 27
Affidavit verifying list of
documents(O. 24 r.
5)(Heading as in cause or
matter)
I, the above-named
plaintiff (or defendant) A.B., make oath and say as follows:—
1.The statements made by me in
paragraphs 1, 3 and 4 of the list of
documents now produced and shown to me marked .......................... are
true.
2.The statements of fact made by me in
paragraph 2 of the said list are true.
3.The statements made by me in
paragraph 5 of the said list are true to the best of my
knowledge, information and
belief.
Sworn, etc.
This affidavit is filed on behalf of the plaintiff (or defendant).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 27A
|
Notice of
application for leave to institute or continue proceedings in
court
|
||
|
(O. 32A r. 2)
|
||
|
No. ...........
|
||
|
In the High Court of the Hong Kong
Special Administrative Region |
||
|
Court of First Instance
|
||
|
Applicant
|
||
|
Notice of application for leave to
institute or continue proceedings in court (O. 32A r. 2) |
||
|
To the Registrar, High Court, Hong Kong.
|
||
|
Name and address of applicant
|
||
|
Title and reference number of the proceedings in which the order
under section
27(1)of the High Court Ordinance (Cap. 4) was made
|
||
|
Order sought
|
||
|
Previous applications for leave which the applicant has made under
section 27 of the High Court Ordinance (Cap. 4), and the results of those applications
|
||
|
Signed
|
Dated
|
|
Grounds on which
leave is sought
Note:—Grounds
must be supported by the affidavit evidence on which the applicant relies in support
of his application.
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 28
Writ of subpoena(O. 38
r. 14)(Heading as in cause or
matter)
|
To (names of witnesses).
|
|
You are required to attend (at the High Court in Hong Kong
at the sittings of our High Court) on the day fixed for the
trial of the above-named cause, notice of which will be given to
you, and from day to day thereafter until the end of the trial,
to give evidence on behalf of the (plaintiff) or
(defendant)*.
|
|
Witness
..............................................................................
Chief Justice of Hong Kong the ................ day of
.............................. 19 ........
|
| Issued on the ......................... day of ................................ 19 |
| by ................................. solicitor for the |
|
*If duces tecum add: And it is also required to
bring with you and produce at the place aforesaid on the day
notified to you (here describe the documents or things to be
produced). |
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 29
Writ of subpoena: proceedings in
chambers(O. 38 r.
14)(Heading as in cause or
matter)
To (names of witnesses).
You are required to attend before (Mr. Justice
...................................
......................................... ) in chambers, at the High Court in Hong Kong on .................. day, the ...................... day of ........................ 19 ........ at ........................................... and so from day to day until your evidence shall have been taken, to give evidence on behalf of the (plaintiff) or (defendant) in the above-named cause (and it is also required to bring with you and produce at the time and place aforesaid describe the documents or things to be produced.)
......................................... ) in chambers, at the High Court in Hong Kong on .................. day, the ...................... day of ........................ 19 ........ at ........................................... and so from day to day until your evidence shall have been taken, to give evidence on behalf of the (plaintiff) or (defendant) in the above-named cause (and it is also required to bring with you and produce at the time and place aforesaid describe the documents or things to be produced.)
Witness (as in No. 28).
Issued (as in No. 28).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 31
Summons for examination within jurisdiction of
witness before trial(O. 39 r.
1)(Heading as in cause or
matter)
|
Let all parties concerned attend the Judge (or Registrar)
in chambers at the High Court in Hong Kong on ..................
the ...................... day of .................. 19 ........
at ........ o’clock on the hearing of an application on the part
of .............................................. that
A.B. a witness on behalf of the
.............................. be examined forthwith before a
Judge, [the Registrar] or one of the examiners of the Court (or
an examiner to be agreed upon) upon the usual terms, and that
the costs of this application be (costs in the cause). |
|
Dated the .................. day of ......................
19 .......... |
| This summons was taken out by |
| of ....................................... solicitor for the |
| To the above-named .................................... (and |
| ........................................ his solicitor). |
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 32
Order for examination within jurisdiction of witness
before trial(O. 39 r.
1)(Heading as in cause or
matter)
On hearing (the solicitors on both sides) and on reading the affidavit of
......................................... filed herein the .................... day
of ............................... 19 ........
It is ordered that
.......................................................................... a witness
on behalf of the ............................................... be examined viva
voce on oath or affirmation before a Judge, the Registrar or one of the examiners of
the Court (or ...................................... Esq., the examiner agreed upon
or an examiner to be agreed upon), the plaintiff’s (or defendant’s) solicitor giving
to the defendant’s (or plaintiff’s) solicitor .................... days’ notice in
writing of the time and place where the examination is to take place (or state the
time and place if fixed by the order). And it is ordered that the depositions taken
at the examination be filed in the Registry of the High Court, and that office
copies thereof may be read and given in evidence on the trial of this cause, saving
all just exceptions, without any further proof of the absence of the said witness
than the affidavit of the solicitor of the party using the same, as to his belief,
and that the costs of this application (and of the examination) be (costs in the
cause).
Dated the .................. day of ...................... 19
..........
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 33
Summons for issue of letter of request to judicial
authority out of jurisdiction(O. 39 r.
2)(Heading as in cause or
matter)
Let all parties (as in No. 31) on the hearing of an application on the
part of .................................................. for an order that a
letter of request shall issue to the proper judicial authority of
...................................... for the examination of E.F. and
G.H. and other witnesses on the plaintiff’s (or the defendant’s) behalf
at ............................................................... in (name of
country), and that the action be stayed until the return of the said letter of
request and examination, and that the costs of and incidental to this application
and the said letter of request and examination be costs in the cause.
Dated, etc. (conclude as in No. 31).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 34
Order for issue of letter of request to judicial
authority out of jurisdiction(O. 39 r.
2)(Heading as in cause or
matter)
On hearing (as in No. 32).
It is ordered that a letter of request do issue directed to the proper judicial
authority for the examination of the following witnesses, namely:
E.F. of
................................................
G.H.
...................................................
And it is ordered that the depositions taken pursuant thereto when received be
filed in the Registry of the High Court and that office copies thereof may be read
and given in evidence on the trial of this action, saving all just exceptions,
without any further proof of the absence of the said witnesses than the affidavit of
the solicitor of the party using the same as to his belief.
And it is ordered that (the trial of this action be stayed until the said
depositions have been filed and that) the costs of and incidental to the application
for this order and the said letter of request and examination be (costs in the
cause).
Dated the .................. day of ...................... 19
..........
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 35
Letter of request for examination of witness out of
jurisdiction(O. 39 r.
3)
| To the Competent Judicial Authority of |
| in the ................................ of |
| Whereas an action is now pending in the High Court of Hong Kong in which .......................... is plaintiff and .......................... is defendant and in which the plaintiff claims |
|
And whereas it has been
represented to the said Court that it is necessary for the
purposes of justice and for the due determination of the matters
in dispute between the parties that the following persons should
be examined as witnesses upon oath touching such matters, namely
.................................................. of
.................................................. and
........................................ of
........................................ and it appears that
such witnesses are resident within your jurisdiction. |
|
Now I ...................................... the Registrar
of the High Court in Hong Kong hereby request that for the
reasons aforesaid and for the assistance of the said Court you
will be pleased to summon the said witnesses (and such other
witnesses as the agents of the said plaintiff and defendant
shall humbly request you in writing so to summon) to attend at
such time and place as you shall appoint before you, or such
other person as according to your procedure is competent to take
the examination of witnesses, and that you will cause such
witnesses to be examined viva voce (or upon the interrogatories
which accompany this letter of request) touching the said
matters in question in the presence of the agents of the
plaintiff and defendant or such of them as shall, on due notice
given, attend the examination. |
|
And I further request that you will permit the agents of
both the plaintiff and defendant or such of them as shall be
present to examine (upon interrogatories and viva voce upon the
subject-matter thereof or arising out of the answers thereto)
such witnesses as may, after due notice in writing, be produced
on their behalf, and the other party to cross-examine the said
witnesses (upon cross-interrogatories and viva voce) and the
party producing the witness for examination to re-examine him
viva voce. |
|
And I further request that you will be pleased to cause the
evidence of the said witnesses (or the answers of the said
witnesses and all additional viva voce questions, whether on
examination, cross-examination or re-examination) to be reduced
into writing and all books, letters, papers and documents
produced on such examination to be duly marked for
identification, and that you will be further pleased to
authenticate such examination by the seal of your tribunal or in
such other way as is in accordance with your procedure and to
return it together with (the interrogatories and
cross-interrogatories and) a note of the charges and expenses
payable in respect of the execution of this request through the
British Consul from whom the same was received (or
..................., one of Her Majesty’s Secretaries of State)
for transmission to the High Court, Hong Kong. |
|
And I further request that you will cause me, or the agents
of the parties if appointed, to be informed of the date and
place where the examination is to take place. |
|
Dated the .................. day of ......................
19 .......... |
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 36
Summons for appointment of examiner to take evidence
of witness out of jurisdiction(O. 39 r.
2)(Heading as in cause or
matter)
Let all parties (as in No. 31) on the hearing of an application on the
part of .................................................................. for an
order that (the British Consul at
.................................................................. in (name of
country) or his deputy) (........................................ Esq.) be
appointed as special examiner for the purpose of taking the examination,
cross-examination, and re-examination, viva voce, on oath or affirmation, of
................................................... and
..................................................., witnesses on behalf of the
......................................................, at
................................................................ in (name of
country) on the usual terms and that the costs of and incidental to this
application and the said examination be costs in the cause.
Dated, etc. (conclude as in No. 31).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 37
Order for appointment of examiner to take evidence of
witness out of jurisdiction(O. 39 r.
2)(Heading as in cause or
matter)
On hearing the solicitors on both sides and on reading the affidavit of
.................................................... filed the
.............................. day of .................................. 19
........
It is ordered that the British Consul or his deputy at
.................................................... (or
...................................... Esq.) be appointed as special examiner for
the purpose of taking the examination, cross-examination and re-examination viva
voce, on oath or affirmation, of ...................... witnesses on the part of
.............................. at ............................ in (name of
country). The examiner shall be at liberty to invite the attendance of the
witnesses and the production of documents, but shall not exercise any compulsory
powers. Otherwise such examination shall be conducted in accordance with the
procedure followed in the Court of First Instance of Hong Kong. The
............................ solicitors to give to the
....................................... solicitors .................... days’ notice
in writing of the date on which they propose to send out this order to
.....................................
for execution, and that .................... days after the service of such notice
the solicitors for the plaintiff and defendant respectively do exchange the names of
their agents at .............................................. to whom notice
relating to the examination of the said witnesses may be sent. And that
.......................... days (exclusive of Sunday) before the examination of any
witness hereunder notice of such examination shall be given by the agent of the
party on whose behalf such witness is to be examined to the agent of the other
party, unless such notice be dispensed with. And that the depositions when taken,
together with any documents referred to therein, or certified copies of such
documents, or of extracts therefrom, be sent by the examiner, under seal, to the
Registrar of the High Court in Hong Kong, on or before the .................... day
of .................................... next, or such further or other day as may be
ordered, there to be filed in the proper office. And that either party be at liberty
to read and give such depositions in evidence on the trial of this action, saving
all just exceptions. And that the trial of this action be stayed until the filing of
such depositions. And that the costs of and incidental to the application for this
order and such examination be costs in the cause.
Dated the .................. day of ...................... 19
..........
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 38
Notice of Motion(O. 8
r. 3)(Heading as in cause or
matter)
Take notice that (pursuant to the leave of
.......................................... given on the ..........................
day of .............................. 19 ........) the Court (or Mr. Justice
.......................................................... ) will be moved
............................ the .................. day of ...................... 19
........, at ........ o’clock, or so soon thereafter as counsel can be heard, by
(Mr. ........................... of .........................) counsel for the
above-named plaintiff (or defendant) that
...................................................................... and that the
costs of the application be
......................................................
Dated the .................. day of ...................... 19
..........
(Signed)
............................................
of
............................................
Solicitor for
............................................
To
Solicitor for ........................................
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 39
Default judgment in action for liquidated
demand(O. 13 r. 1; O. 19 r. 2; O. 42 r.
1)(Heading as in
action)
The ........................ day of ................................ 19
........
No notice of intention to defend having been given (orno defence having been served) by the defendant herein, it is this day
adjudged that the defendant do pay the plaintiff $
........................................................ and $
....................................................... costs (orcosts to be taxed).
(The above costs have been taxed and allowed at $ ........................ as
appears by a taxing officer’s certificate dated the ......................... day of
.................................. 19 ........).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 40
|
Default judgment in
action for unliquidated damages
(O. 13 r. 2; O. 19 r. 3; O. 42 r. 1)
(Heading as in
action)
|
|
The .................. day of ............................
19 ........ No notice of intention to defend having been given
(orno defence having been
served) by the defendant herein, it is this day adjudged that
the defendant do pay the plaintiff damages to be
assessed. |
|
The amount found due to the plaintiff under this judgment
having been certified at $ ....................................
as appears by the (Judge’s or Registrar’s certificate oras may be) filed the
........................ day of ..............................
19 ........ |
|
It is adjudged that the defendant do pay the plaintiff $
................. and costs to be taxed. The above costs, etc. (as in No. 39). (Note:—This form is a combined form of interlocutory and
final judgment. The plaintiff may at his option enter
interlocutory judgment by omitting the words below the line
in the form and enter a separate final judgment in Form No.
43.) |
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 41
|
Default judgment in
action relating to detention of goods
(O. 13 r. 3; O. 19 r. 4; O. 42 r. 1)
(Heading as in action)
|
|
The ...................... day of
.............................. 19 ........ |
|
No notice of intention to defend having been given (or no
defence having been served) by the defendant herein. |
|
It is this day adjudged that the defendant do deliver to
the plaintiff the goods described in the writ of summons (or
statement of claim) as (description of goods) or pay the
plaintiff the value of the said goods to be assessed (and also
damages for their detention to be assessed). |
|
or
|
|
It is this day adjudged that the defendant do pay the
plaintiff the value of the goods described in the writ of
summons (or statement of claim) to be assessed (and also damages
for their detention to be assessed). |
|
The value of the said goods having been assessed at $
.................... (and damages at $
.........................) as appears by the (Judge’s or
Registrar’s certificate or as may be) filed the
........................ day of
.................................. 19 ........ . |
|
It is adjudged that the defendant do pay the plaintiff $
.................. and costs to be taxed. |
|
The above costs, etc. (as in No. 39). |
|
(Note:—See the note to No. 40.) |
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 42
Default judgment in action for possession of
land(O. 13 r. 4; O. 19 r. 5; O. 42 r.
1)(Heading as in
action)
The ...................... day of .............................. 19
........
No notice of intention to defend having been given (or no defence having been
served) by the defendant herein, it is this day adjudged that the defendant do give
the plaintiff possession of the land described in the writ of summons (or statement
of claim) as ........................................ and pay the plaintiff $
.................................... costs (or costs to be taxed).
The above costs, etc. (as in No. 39).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 42A
Order for
possession(O. 113 r.
6)[Heading as in
summons]
Upon hearing .............................. and upon reading the affidavit of
.............................. filed the .............. day of
........................ 19 ........, it is ordered that the plaintiff A.B.
do recover possession of the land described in the originating summons as
.................................................. [and that the defendant
..................................................... do pay the plaintiff $
................................ costs [or costs to be taxed]].
The above costs have been taxed and allowed at $ ................... as appears
by a taxing master’s certificate dated the ....................... day of
.................................. 19 ........
Dated the .................. day of ...................... 19
..........
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 43
Final judgment after assessment of damages,
etc.(O. 42 r. 1)(Heading as
in action)
The ...................... day of .............................. 19
........
The plaintiff having on the ............................... day of
....................................... 19 ........ obtained interlocutory judgment
herein against the defendant for damages (or as
may be) to be assessed, and the amount found due to the plaintiff having been
certified at $ ........................ as appears by the (Judge’s or Registrar’s
certificate or as may be) filed the
..................... day of ...................................... 19
........
It is this day adjudged that the defendant do pay the plaintiff
$ ............................
and costs to be taxed.
The above costs, etc. (as in No. 39).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 44
Judgment under Order
14(O. 14 r. 3; O. 42 r.
1)(Heading as in
action)
The ...................... day of .............................. 19
........
The defendant having given notice of intention to defend herein and the Court
having under Order 14, rule 3 ordered that judgment as hereinafter
provided be entered for the plaintiff against the defendant.
It is this day adjudged that the defendant do pay the plaintiff
$ ..............................
and $ .............................. costs (or costs to be taxed)
or
pay the plaintiff damages to be assessed and costs to be taxed
or
deliver to the plaintiff the goods described in the writ of summons (or statement of claim) as
........................................ (or pay
the plaintiff the value of the said goods to be assessed) (and also damages for
their detention to be assessed) and costs to be taxed
or
give the plaintiff possession of the land described in the writ of summons
(or statement of claim) as
............................ and costs to be taxed.
The above costs, etc. (as in No. 39).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 45
Judgment after trial before judge without
jury(O. 42 r. 1)(Heading as
in action)
Dated and entered the ..................... day of ..........................
19 ......
This action having been tried before the Honourable Mr. Justice
.............................................. without a jury, at the High Court,
Hong Kong, and the said Mr. Justice .............................. having on the
........................ day of ................................... 19 ........
ordered that judgment as hereinafter provided be entered for the plaintiff
(or defendant) (and directed that execution be
stayed for the period and on the terms hereinafter provided).
It is adjudged that the defendant do pay the plaintiff $
.................................... and his costs of action to be taxed (or that the plaintiff do pay the defendant his costs of
defence to be taxed or as may be according to
the judge’s order).
(It is further adjudged that execution be stayed for
........................... days and if within that time the
...................................... gives notice of appeal and sets down the
appeal, execution be further stayed until the determination of the appeal
or as may be according to the judge’s
direction).
The above costs, etc. (as in No. 39).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 46
Judgment after trial before judge with
jury(O. 42 r. 1)(Heading as
in action)
Dated and entered the ..................... day of ..........................
19
......
This action having been tried before the Honourable Mr. Justice
.............................................. with a jury and the jury having found
(state findings) and the said Mr. Justice ..............................
having on the ........................ day of ................................... 19
........ ordered that judgment as hereinafter provided be entered for (etc. as in
No.
45).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 48
Judgment after decision of preliminary
issue(O. 33 r. 7; O. 42 r.
1)(Heading as in cause or
matter)
Dated and entered the ...................... day of
............................. 19 ......
The issue (or question) arising in this cause
(or matter) by the order dated the
.................... day of ................................ 19 ........ ordered to
be tried before
.....................................................................................
having on the ..................... day of ................................... 19
........ been tried before the said
................................................... and the said
................................................ having found
.................................... and having ordered that judgment as hereinafter
provided be entered for the
................................................................ (or having dismissed the cause or matter).
It is adjudged that (the defendant do pay the plaintiff $
............................................ and his costs of action to be taxed)
(the plaintiff do pay the defendant his costs of defence to be taxed) or as may be according to the order
made.
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 49
Judgment for liquidated sum against personal
representative(O. 42 r.
1)(Heading as in
action)
Dated and entered the
.........................
day of
.......................................
19 ........ (Recital as in No. 39, 43-48 according to the circumstances in which
judgment was obtained).
It is adjudged that the defendant as executor (or administrator) of the above named
........................................... deceased do pay the plaintiff $
................................. and costs to be taxed, the said sum and costs to
be levied of the real and personal estate of the deceased at the time of his death
come to the hands of the defendant as such executor (or administrator) to be administered, if he has or shall hereafter have so
much thereof in his hands to be administered, and if he has not so much thereof in
his hands to be administered, then, as to the costs aforesaid, to be levied of the
goods, chattels and other property of the defendant authorized by law to be seized
in execution (or as may be according to the
order made).
The above costs, etc. (as in No. 39).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 50
Judgment for defendant’s costs on
discontinuance(O. 62 r.
10(1))(Heading as in
action)
The ...................... day of .............................. 19
........
The plaintiff having by a notice in writing dated the ......................
day of ..................................... 19 ........, discontinued this action
(or withdrawn his claim in this action for
..............................................................................) and
the defendant’s costs of the action (or of the
claim withdrawn) having been taxed and allowed at $
........................................ as appears by a taxing officer’s
certificate dated the ................................. day of
...................................... 19 ........, and the plaintiff not having
paid the sum within 4 days after taxation.
It is this day adjudged that the plaintiff do pay the defendant $
............................. the said taxed costs.
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 51
(Repealed L.N. 152 of 2008)
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 52
Notice of judgment or
order(O. 44 r. 3)(Heading
as in cause or matter)
Take notice that a judgment (or order) of
this Court was given (or made) on the
...................... day of .............................. 19 ........ by which it
was (state substance of judgment or order).
And also take notice that from the time of the service of this notice you
(or the infant ...........................
or the patient
........................... as may be) will be bound by the said judgment
(or order) to the same extent as you
(or he) would have been if you (or he) had originally been made a party.
And also take notice that you (or the said
infant or patient) may within one month after the service of this notice apply to
the Court to discharge, vary or add to the said judgment (or order) and that after acknowledging service of this notice at the
Registry of the High Court in Hong Kong, you (or the said infant
or
patient) may attend the proceedings under the said judgment (or order).
Dated the .................. day of ...................... 19
..........
To
..................................................................
(Signed)
............................................
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 53
Writ of fieri
facias(O. 45 r. 12)(Heading
as in action)
|
To the bailiff
....................................................
: |
|
Whereas in the above named action it was on the
...................... day of .............................. 19
........ adjudged (or ordered)
that the defendant C.D. do pay the plaintiff A.B.
$ .................. (and $ .................. costs or costs to be taxed, which costs
have been taxed and allowed at $ .................... as appears
by the certificate of the taxing officer dated the
...................... day of .............................. 19
........): |
|
It is required that of the goods, chattels and other
property of C.D. authorized by law to be seized in
execution you cause to be made the sums of $ ..................
and $ .................. for costs of execution and also
interest on $ .................. at the rate of $4 per cent per
annum from the ...................... day of
.............................. 19 ........ until payment
(together with bailiff’s fees, costs of levying and all other
legal, incidental expenses) and that immediately after execution
of this writ you pay A.B. in pursuance of the said
judgment (or order) the amount
levied in respect of the said sums and
interest. |
|
And it is also required that you indorse on this writ
immediately after execution thereof a statement of the manner in
which you have executed it and send a copy of the statement to
A.B. |
|
And the court has fixed support and maintenance allowance
at the rate of .................. a
day. |
|
Witness ................................................
Chief Justice of Hong Kong, the ...................... day of
.............................. 19
........ |
| This writ was issued by ...................... of |
| ........................ solicitor for .............................. the |
| ......................................................... (or this writ was issued by A.B. (the plaintiff) in person who resides at ..................................). |
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 54
Writ of fieri facias on order for
costs(O. 45 r. 12)(Heading
as in cause or matter)
To the bailiff ..........................................................
:
Whereas in the above named cause (or matter)
it was on the .......................... day of ..................................
19 ........ ordered that the ...................................... C.D. do
pay the ....................................... A.B. costs to be taxed, which
costs have been taxed and allowed at $ ............... as appears by the taxing
officer’s certificate dated the ...................... day of
.............................. 19 ........ :
It is required that of the goods, chattels and other property of C.D.
authorized by law to be seized in execution you cause to be made the sum of $
.................... and $ .................... for cause of execution, and also
interest on $ ........................ at the rate of $4 per cent per annum from the
...................... day of .............................. 19 ........ until
payment together with bailiff’s fees, cost of levying and all other legal incidental
expenses and that immediately after execution of this writ you pay A.B. in
pursuance of the said order the amount levied in respect of the said sum and
interest.
And it is also required (as in No.
53).
And the court (as in No.
53).
Witness (as in No.
53).
This writ (as in No.
53).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 56
Writ of fieri facias after levy of
part(O. 45 r. 12)(Heading
as in action)
To the bailiff ..........................................................
:
Whereas (as in No.
53).
And whereas by our writ issued the ...................... day of
.............................. 19 ........ it is required that of the goods,
chattels and other property of C.D. you should cause to be made the sums of
$ ....................
and $ .................... for costs of execution and also interest on $
........................ at $4 per cent per annum from the ......................
day of .............................. 19 ........ until payment and should pay
A.B. in pursuance of the said judgment (or order) the amount levied in respect of the said sums and interest and
should indorse on the writ a statement of the manner in which you had executed it
and send a copy of the statement to
A.B.
And whereas the indorsement on the said writ states that by virtue thereof you
(or he) caused to be made of the property
aforesaid the sum of $
....................
It is required that of the goods, chattels and other property of C.D.
authorized by law to be seized in execution you cause to be made the sum of $
.........................., the residue of the said $ ..........................,
and $ ...................... for costs of execution and also interest on $
.................... at the rate of $4 per cent per annum from the
...................... day of .............................. 19 ........ until
payment (continue as in No.
53).
And it is also required (as in No.
53).
And the court (as in No.
53).
Witness (as in No.
53).
This writ (as in No.
53).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 57
Writ of fieri facias against personal
representative(O. 45 r.
12)(Heading as in
action)
To the bailiff ..........................................................
:
Whereas in the above named action it was on the ...................... day of
.............................. 19 ........ adjudged (or ordered) that the defendant C.D. as executor (or administrator) of E.F. deceased do pay the
plaintiff A.B. $ .................... and $ .................... costs
(or costs to be taxed which costs have been
taxed and allowed at $ .................... as appears by the certificate of the
taxing officer dated the ...................... day of
.............................. 19 ........), the said sums and interest to be levied
of the real and personal estate of the said E.F. at the time of his death in
the hands of the defendant C.D. as his executor (or administrator) to be administered, if he had or should thereafter have so
much thereof in his hands to be administered, (and if he had not, then the said
costs to be levied of the goods, chattels and other property of the defendant
C.D. authorized by law to be seized in execution):
It is required that of the real and personal estate of E.F. deceased, at
the time of his death, which is in the hands of C.D. as his executor (or
administrator) to be administered you cause to be made the sums of $
.................... and $ .................... for costs of execution and also
interest on $ .................... at the rate of $4 per cent per annum from the
...................... day of .............................. 19 ........ until
payment (together with bailiff’s fees, cost of levying and all other legal
incidental expenses) (and if the said C.D. has not so much thereof in his
hands to be administered that you cause to be made of the goods, chattels and other
property of C.D. authorized by law to be seized in execution the sum of $
.................... for costs) and that immediately after execution of this writ
you pay A.B. in pursuance of the said judgment (or order) the amount levied in respect of the said sums and
interest.
And it is also required (remainder as in No. 53).
Witness (as in No. 53).
This writ (as in No. 53).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 63
Writ of fieri facias to enforce foreign registered
judgment(O. 45 r. 12; O.
71)In the High Court of
Hong Kong
In the matter of the Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap. 319).
and
In the matter of a judgment of (describe the court) obtained in
(describe the cause or matter) and dated the ...................... day
of .............................. 19 ........
To the bailiff ..........................................................
:
Whereas by a judgment dated the .............................. day of
.............................. 19 ........ of (describe the court) registered
in our High Court, Hong Kong pursuant to the Foreign Judgments (Reciprocal
Enforcement) Ordinance it was adjudged that C.D. do pay A.B.
.................... dollars (or as may be) and
the amount now due and owing under the said judgment is equivalent to the sum of $
....................
It is required that of the goods, chattels and other property of C.D.
authorized by law to be seized in execution you cause to be made the sums, of $
...................... and $ ............................. for costs of execution
together with bailiff, officers’ fees (remainder as in No. 53).
And it is also required (as in No. 53).
Witness (as in No. 53).
This writ (as in No. 53).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 64
Writ of delivery: delivery of goods, damages and
costs(O. 45 r.
12)(Heading as in
action)
To the bailiff ..........................................................
:
Whereas in the above named action it was on the ...................... day of
.............................. 19 ........ adjudged (or ordered) that the defendant C.D. do deliver to the plaintiff
A.B. the following goods, namely (describe the goods delivery of which
has been adjudged or ordered) (and $ .................... damages) and $
.................... costs (or costs to be taxed,
which costs have been taxed and allowed at $ .................... as appears by the
certificate of the taxing officer dated the ...................... day of
.............................. 19 ........):
It is required that you cause the said goods to be delivered to A.B. and
that of the goods, chattels and other property of C.D. authorized by law to
be seized in execution you cause to be made the sums of $ ...................... and
$ ............................. for costs of execution and also interest on $
........................... at the rate of $4 per cent per annum from the
...................... day of .............................. 19 ........ until
payment together with bailiff’s fees, costs of levying and all other legal
incidental expenses and that immediately after execution of this writ you pay
A.B. in pursuance of the said judgment
(or order) the amount levied in respect of the said sums
and interest.
And it is also required that you indorse (remainder as in No.
53).
Witness (as in No. 53).
This writ (as in No. 53).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 65
Writ of delivery: delivery of goods or value,
damages, costs(O. 45 r.
12)(Heading as in
action)
To the bailiff ..........................................................
:
Whereas in the above named action it was on the ...................... day of
........................... 19 ...... adjudged (or ordered) that the defendant C.D. do deliver to the plaintiff
A.B. the following goods, namely (describe the goods delivery of which
has been adjudged or ordered) or do pay him $ ...........................
being the assessed value of the said goods, (and
$ .......................
damages) and
$ ....................
costs (or costs to be taxed, which costs have been
taxed and allowed at $ .................... as appears by the certificate of the
taxing officer dated the ...................... day of
..............................
19 ........).
It is required that you cause the said goods to be delivered to A.B.
And
that if possession of the said goods cannot be obtained by you you cause to be made
of the goods, chattels and other property of C.D. authorized by law to be
seized in execution $ .................... the assessed value of the said goods and
pay it to A.B.
And it is also required that of the said property of C.D. you cause to
be made the sums of $ .................... for (damages and) costs and
$ ....................
for costs of execution and also interest on
$ ....................
at the rate of $4 per cent per annum from the ...................... day of
..............................
19 ........
until payment together with bailiff’s fees, costs of levying and all other legal
incidental expenses and that immediately after execution of this writ you pay
A.B. in pursuance of the said judgment (or order) the amount levied in respect of the said sums and
interest.
And it is also required that you indorse (remainder as in No.
53).
Witness (as in No. 53).
This writ (as in No. 53).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 66
Writ of possession(O.
45 r. 12)(Heading as in
action)
To the bailiff ..........................................................
:
Whereas in the above named action it was on the ...................... day of
.............................. 19 ........ adjudged (or ordered) that the defendant C.D. do give the plaintiff A.B.
possession of (describe the land delivery of which has been adjudged or
ordered) and do pay him ($ .................... and) $ ....................
costs (orcosts to be taxed, which costs have been
taxed and allowed at $ .................... as appears by the taxing officer’s
certificate dated the ...................... day of ..............................
19 ........):
It is required that you enter the said land and cause A.B. to have
possession of it.
And it is also required that of the goods, chattels and other property
(remainder as in No. 53).
And it is also required that you indorse (as in No. 53).
Witness (as in No. 53).
This writ (as in No. 53).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 66A
Writ of possession(O.
113 r. 7)(Heading as in
summons)
To the bailiff ..........................................................
:
Whereas it was on the ........................ day of
.................................. 19 ........ ordered that the plaintiff
A.B. do recover possession of [describe the land recovery of which has
been ordered] [and that the defendant C.D. do pay him $
.................... costs [or costs to be
taxed, which costs have been taxed and allowed at $ .................... as appears
by the taxing master’s certificate dated the ...................... day of
.............................. 19 ........]]:
It is required that you enter the said land and cause A.B. to have
possession of it.
[And it is also required that of the goods, chattels and other property
[remainder as in No. 53].]
Witness (as in No. 53).
This writ (as in No. 53).
Dated this .................. day of ...................... 19
..........
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 67
Writ of
sequestration(O. 45 r.
12)(Heading as in cause or
matter)
To (names of not less than four commissioners) :
Whereas in the above named action (or matter)
in our High Court, Hong Kong it was on the .................................... day
of .................................... 19 ........ adjudged (or ordered) that C.D. should (pay into Court the
sum of $ .................... or as may
be):
You are hereby authorized and directed by this writ that you, or any two or
three of you, may enter upon and take possession of all the real and personal estate
of the said C.D. and may collect, receive and get into your hands the rents
and profits of his real estate and all his personal estate and keep the same under
sequestration in your hands until the said C.D. shall (pay into Court to the
credit of the said action or matter the sum of $ .................... or as may be) and clear his contempt and the said Court
make other order to the contrary.
Witness (as in No. 53).
This writ was issued (as in No. 53).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 68
Writ of restitution(O.
46 r. 1)(Heading as in
action)
To the bailiff ..........................................................
:
Whereas in the above named action it was on the
............................
day of
.................................
19 ........ adjudged (or ordered) that the
defendant C.D. do give the plaintiff A.B. possession of (describe
the land delivery of which was adjudged or ordered):
And whereas on the ......................... day of
................................. 19 ........ a writ of possession was issued
pursuant to the said judgment (or order) directing
you to give possession of the said land to the said A.B., but it appearing to
the High Court, Hong Kong that certain other persons have wrongfully taken
possession of the said land and the said Court having on the ......................
day of .............................. 19 ........ ordered that a writ of restitution
should issue in respect of the said land:
It is required that you enter the said land and cause A.B. to have
restitution thereof.
And it is also required that you indorse (remainder as in No.
53).
Witness (as in No. 53).
This writ (as in No. 53).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 69
Writ of assistance(O.
46 r. 1)(Heading as in
action)
To the present and any future bailiff
................................................ :
Whereas by an order dated the .......................................... day of
....................................... 19 ........ made in an action in the High
Court, Hong Kong between A.B., plaintiff, and C.D., defendant, the
said C.D. was ordered to give to the said A.B. possession of the goods
therein described, namely
(describe
the
goods),
but he the said C.D. and other persons have refused to obey the order and
keep the possession of the goods in contempt of the said Court:
And whereas by an order made in the said action dated the
...................... day of .............................. 19 ........ it was
ordered that a writ of assistance should issue to give the said A.B.
possession of the said goods:
It is required that you put the said A.B. and his assigns into full
peaceable and quiet possession of the said goods and defend and keep him and his
assigns in such peaceable and quiet possession, when and as often as any
interruption thereof is at any time effected, according to the intent of the said
orders. And herein you are not in any wise to fail.
Witness (as in No. 53).
This writ (as in No. 53).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 71
|
Notice of renewal
of writ of execution
(O. 46 r. 8)
(Heading as in
cause or matter)
|
|
|
Take notice that the writ of
........................................ issued in this cause
(or matter) directed to the bailiff and bearing date the
...................... day of .............................. 19
........ has by order dated the ...................... day of
.............................. 19 ........ been renewed for one
year beginning with the date of the said order.
To the bailiff.
|
|
|
(Signed)
|
|
|
Solicitor for
..................................
|
|
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 72
|
Garnishee order
to show cause
(O. 49 r. 1)
In the High Court of
Hong Kong
|
||
|
19 ......., No. ...........
|
||
|
(Mr. Justice .................. Judge in chambers)
|
||
|
Between
|
A.B.
|
Judgment creditor
|
|
|
and
|
|
|
|
C.D.
|
Judgment debtor
|
|
F.G.
|
Garnishee
|
|
|
Upon reading the affidavit of
...................................................... filed the
...................... day of .............................. 19
........: |
||
|
It is ordered by (Mr. Justice ............................)
that all debts due or accruing due from the above-mentioned
garnishee to the above-mentioned judgment debtor (in the sum of
$ ....................) be attached to answer a judgment
recovered against the said judgment debtor by the above-named
judgment creditor in the High Court on the
...................... day of .............................. 19
........ for the sum
(or to answer an order made in the
High Court on the
.........................
day of
.................................
19 ........;
ordering payment by the said judgment debtor to the above-named
judgment creditor of the sum) of
$ ....................
(debt and
$ ....................
costs) and interest at the judgment rate calculated from the
date on which maintenance payment is due to the date of payment
and surcharge at a rate to be decided by the High Court, as
referred to in Order 49, rule 2(ba)(i) and
(ii) (together with the costs of the garnishee proceedings) on
which judgment
(or order) the sum of
$ ....................
remains due and unpaid. |
||
|
And it is ordered that the said garnishee attend Mr.
Justice ................................. in Chambers, at the
High Court, in Hong Kong on the ........................ day of
................................ 19 ........ at ...........
o’clock, on an application by the said judgment creditor that
the garnishee do pay to the said judgment creditor the debt due
from the said garnishee to the said judgment debtor, or so much
thereof as may be sufficient to satisfy the said judgment
(or order), and interest at the
judgment rate calculated from the date on which maintenance
payment is due to the date of payment and surcharge at a rate to
be decided by the High Court, as referred to in Order 49,
rule 2(ba)(i) and (ii) together with the
costs of the garnishee proceedings. |
||
|
Dated the .................. day of ......................
19 .......... |
||
|
To the
above-named garnishee
and judgment debtor. |
||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 73
Garnishee order absolute where garnishee owes more
than judgment debt(O. 49 rr. 1,
4)(Heading as in No.
72)
Upon hearing the solicitors for the judgment creditor and the garnishee, and
upon reading the affidavit of ........................................ filed herein,
and the order to show cause made herein dated the ...................... day of
.............................. 19 ........, whereby it was ordered that all debts
due or accruing due from the above-named garnishee to the above-named judgment
debtor should be attached to answer a judgment recovered against the said judgment
debtor by the above-named judgment creditor in the High Court on the
...................... day of .............................. 19 ........ for the sum
(or to answer an order made in the High Court
dated the ...................... day of .............................. 19 ........
ordering payment by the said judgment debtor to the above-named judgment creditor of
the sum) of $ .................... (debt and $ .................... costs) and
interest at the judgment rate calculated from the date on which maintenance payment
is due to the date of payment and surcharge at a rate to be decided by the High
Court, as referred to in Order 49, rule 2(ba)(i) and (ii)
(together with the costs of the garnishee proceedings) on which judgment (or order) the sum of
$ ....................
remained due and unpaid:
It is ordered that the said garnishee do forthwith pay to the said judgment
creditor $ .................... being so much of the debt from the said garnishee to
the said judgment debt, $ ....................... interest and $
....................... surcharge, as referred to in Order 49, rule
2(ba)(i) and
(ii)
and costs, together with $ ....................... the costs of the garnishee
proceedings, and that the said garnishee be at liberty to retain
$ .......................
for his costs of this application out of the balance of the debt due from him to the
judgment debtor.
Dated the .................. day of ...................... 19
..........
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 74
Garnishee order absolute where garnishee owes less
than judgment debt(O. 49 rr. 1,
4)(Heading as in No.
72)
Upon hearing (as in No. 73).
It is ordered that the said garnishee (after deducting therefrom
$ ....................
for his costs of this application) do forthwith pay to the said judgment creditor
$ ....................
the debt due from the said garnishee to the said judgment debtor and
$ .......................
interest and
$ .......................
surcharge, as referred to in Order 49, rule 2(ba)(i) and (ii). And
that the sum of
$ ....................
the costs or the judgment creditor of this application be added to the judgment debt
and be retained out of the money recovered by the said judgment creditor under this
order and in priority to the amount of the judgment debt.
Dated the .................. day of ...................... 19
..........
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 75
Charging order: notice to show
cause(O. 50, r. 1)(Heading
as in cause or matter)
Upon hearing the ............................ and upon reading the affidavit of
................................ filed herein the ......................... day of
.............................. 19 ........ whereby it appears that by a judgment (or
order) made in the Court of First Instance on the ...................... day of
.............................. 19 ........ the defendant was ordered to pay to the
plaintiff the sum of $ .................... and $ .................... costs on
which judgment (or order) the sum of $ .................... remains due and unpaid
and that the defendant has a beneficial interest in the asset specified in the
schedule hereto:
It is ordered by (Mr. Justice/Master ................................) that
unless sufficient cause to the contrary be shown before (Mr. Justice/Master
................................at the High Court of Hong Kong, 38 Queensway, Hong
Kong) on the ...................... day of .............................. 19
........, at .......... o’clock, the defendant’s interest in the said asset shall,
and it is ordered that in the meantime it do, stand charged with the payment of $
.................... due on the said judgment (or order) and (interest thereon at
the statutory rate) (interest at the judgment rate calculated from the date on which
maintenance payment is due to the date of payment and surcharge at a rate to be
decided by the Court, as referred to in Order 50, rule 1(3)(ba)(i)
and (ii)) together with the costs of this
application.
Dated the .................. day of ...................... 19
..........
SCHEDULE
(Describe with full particulars the relevant land, securities, funds or trust,
stating, in relation to securities, their full title, the amount of them and the
name in which they stand and whether the beneficial interest charged is in the
securities only or in dividends or interest as well, and stating, in relation to
funds in court, the number of the account).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 76
Charging order
absolute(O. 50, r.
3)(Heading as in cause or
matter)
Upon hearing the ............................ and upon reading the affidavits
of ................................... and ................................... filed
herein the ...................... day of .............................. 19 ........
and the order to show cause made herein on the ...................... day of
.............................. 19 ........:
It is ordered that the interest of the defendant C.D. in the asset
specified in the schedule hereto stand charged with the payment of $
....................,
the
amount due from the defendant to the plaintiff A.B. on a judgment (or order)
of the Court of First Instance dated the ...................... day of
.............................. 19 ........, and (interest thereon at the statutory
rate) ($ .................... interest and $.................... surcharge, as
referred to in Order 50, rule 1(3)(ba)(i) and (ii)) together with
$ .................... the costs of this application, the said costs to be added to
the judgment debt.
Dated the .................. day of ...................... 19
..........
SCHEDULE
(Describe with full particulars the relevant land, securities, funds or trust,
stating, in relation to securities, their full title, the amount of them and the
name in which they stand and whether the beneficial interest charged is in the
securities only or in dividends or interest as well, and stating, in relation to
funds in court, the number of the account).
STOP
NOTICE
To the (describe the person having custody of the security)
Take notice that, in relation to the securities specified in the schedule to
this order, you may not, without notice to (name of the plaintiff) at (his address
for service) register any transfer, or make any redemption payment, or, in the case
of a unit trust, deal with the units, or, where dividends or interest are included
in the order, pay any dividend or interest.
SCHEDULE
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 77
(Repealed L.N. 356 of 1988)
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 78
(Repealed L.N. 356 of 1988)
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 79
Stop order on capital and income of funds in
court(O. 50 r.
10)(Heading as in cause or
matter)
Upon hearing .................................... for the plaintiff A.B.
and .............................. for the defendant C.D. and upon reading
the affidavit of ....................................... filed herein the
............................. day of .............................. 19
........:
It is ordered that no part of the capital of (describe funds) in court
to the credit of this action (or matter) (state title of action or matter),
the account of C.D., and of the sum of $ .................... cash (being
income) in court to the same credit, and of any interest or dividends to accrue due
on the said funds in court, to which the said C.D. is (or may become)
entitled, be transferred, sold, paid or otherwise dealt with without notice to the
said A.B.
Dated the .................. day of ...................... 19
........
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 80
|
Affidavit and
notice under O. 50 r. 11
(O. 50 r. 11)
In the High Court of Hong Kong
|
|
|
In the matter of (state the settlement or other document
under which the deponent’s interest arises giving the date
and other particulars sufficient to identify the
document). |
|
|
and
|
|
|
In the matter of Order 50, rule 11, of
the Rules of the High Court.
|
|
|
I, A.B. (or C.D. the solicitor of
A.B.) of ...................................... make oath
and say that according to the best of my knowledge, information
and belief I am (or the said
A.B. is) beneficially entitled under the
above-mentioned settlement (or as may be) to an interest in the securities
specified in the notice hereto annexed.
|
|
|
Sworn, etc. ..................
|
|
| This affidavit is filed on behalf of A.B. whose address is | |
|
Notice to be
annexed to affidavit
|
|
|
To ............................................... Co.
Ltd. |
|
|
Take notice that the securities comprised in and subject to
the trusts of the settlement (or as may be) referred to in the affidavit to
which this notice is annexed consist of the following, namely
(specify the stock, shares, etc. stating the names in
which it stands). |
|
|
This notice is intended to stop the transfer of the said
securities and not the payment of any dividend thereof or
interest thereon (or and also the payment of any dividend
thereof or interest thereon).
|
|
|
(Signed)
|
A.B.
(or C.D.
if affidavit sworn by
him.
)
|
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 81
Order on originating summons restraining transfer of
stock, etc.(O. 50 r. 15)In
the High Court of the Hong Kong Special Administrative
Region
20 ......., No.
...........
In the matter of the trusts
of........................................................................................
and
In the matter of Order 50, rule 15, of the Rules
of the High Court.
Upon the hearing of the originating summons for an injunction this day made
unto this Court by counsel for the applicant A.B.:
And the applicant by his counsel undertaking to abide by any order the Court
may hereafter make should it decide that the respondents (the
...................................................................................
Co. Ltd.) have sustained damage by reason of this order and are entitled to damages
which the applicant ought to pay:
It is ordered that (the
.................................................................... Co. Ltd.) be
restrained until the ...................... day of .............................. 20
........ or further order from permitting the transfer of (describe stock)
standing in the name of (state name of holder of stock) in their books, or
any part thereof, and from paying any dividend or interest due or to become due
thereon.
Dated the .................. day of ...................... 20
..........
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 82
Summons for appointment of
receiver(O. 51 r.
3)(Heading as in
action)
Let the defendant C.D. attend the (Judge in chambers, at the High Court
in Hong Kong) on ..................................................................
the ........................ day of .............................. 19 ........ at
.......... o’clock on the hearing of an application on the part of the plaintiff for
an order that a receiver be appointed (or that P.R. be appointed receiver) in
this action to receive the rents, profits and moneys receivable in respect of the
interest of the defendant C.D. in the following property, namely (describe
the property) in or towards satisfaction of the moneys and interest due to
the plaintiff under the judgment (or order) in
this action dated the ...................... day of ..............................
19 ........ and for an order as to the costs of this application.
Dated the .................. day of ...................... 19
..........
This summons was taken out by ................................................
of ........................................
To the above-named .................................. (and his
solicitor).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 83
Order directing summons for appointment of receiver
and granting injunction meanwhile(O. 51 r.
3)(Heading as in
action)
Upon reading the affidavit of ..............................................
filed the ...................... day of .............................. 19
........:
Let the defendant C.D. attend the (Judge in chambers, at the High Court
in Hong Kong) on the ...................... day of .............................. 19
........ at .......... o’clock on the hearing of an application on the part of the
plaintiff for the appointment of P.R. as receiver in this action, on the
usual terms, to receive the rents, profits and moneys receivable in respect of the
said defendant’s interest in the following property, namely (describe the
property) in or towards satisfaction of the sum of $ ....................
debt and
$ ....................
costs, and interest on the said sums at the rate of $4 per cent per annum from the
...................... day of ..............................
19 ........
due under the judgment
(or order) in this action dated the
...................... day of ..............................
19 ........
And the plaintiff (by his solicitor) hereby undertaking to abide by any order
the Court may hereafter make should it decide that the said defendant has sustained
damage by reason of this order and is entitled to damages which the plaintiff ought
to pay, it is ordered that the said defendant by himself, his agents or servants, or
otherwise, be restrained, and an injunction is hereby granted restraining him, until
after the hearing of the above application, from assigning, charging or otherwise
dealing with the said property.
Dated the .................. day of ...................... 19
..........
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 84
|
Order appointing
receiver by way of equitable execution
(O. 51 r. 1)
(Heading as in
action)
|
|
Upon hearing ................................ and upon
reading the affidavit of
................................
filed the
..........................
day of
..................................
19 ........: |
| (If security ordered) It is ordered that P.R. of |
| .................... on first giving security to the satisfaction of the Court, be and is hereby appointed to receive the rents, profits and moneys receivable in respect of the above-named defendant’s interest in the following property, namely (describe the property). |
|
(If no security ordered and receiver is not the
plaintiff) The plaintiff being answerable for the acts
and defaults of the receiver, it is ordered that P.R. of
................................................ be and is
hereby appointed to receive (continue as above) but he
shall not receive more than the amount of the judgment debt and
allowed costs of obtaining this order without leave of the Court
or first giving (at the plaintiff’s cost unless otherwise
ordered) the usual security to the satisfaction of the
Court. |
|
(If no security ordered and receiver is the plaintiff:
as above omitting “The plaintiff being answerable for the
acts and defaults of the receiver” and the words after “the
Court”). |
|
(In all cases continue as follows:—) |
|
That this appointment shall be without prejudice to the
rights of any prior incumbrances upon the said property who may
think proper to take possession of or receive the same by virtue
of their respective securities or, if any prior incumbrances is
in possession, then without prejudice to such
possession. |
|
And that the tenants of premises comprised in the said
property do attorn and pay their rents in arrear and growing
rents to the receiver. |
|
And that the receiver have liberty, if he shall think
proper (but not otherwise), out of the rents, profits and moneys
to be received by him to keep down the interest upon the prior
incumbrances, according to their priorities, and be allowed such
payments, if any, in passing his accounts. |
|
And that the receiver shall on the
.................................. day of
.............................. (3 months after the date of
order), and at such further and other times as may be
ordered by the Court leave and pass his accounts, and shall on
the ...................... day of ..............................
(4 months after the date of order) and at such
further and other times as may be hereafter ordered by the Court
pay the balance or balances appearing due on the accounts so
left, or such part thereof as shall be certified as proper to be
so paid, such sums to be paid in or towards satisfaction of what
shall for the time being be due in respect of the judgment
signed on the ........................... day of
................................... for the sum of $
....................... debt and $ .......................
costs, making together the sum of $
.................... |
|
And that the costs of the receiver (including his
remuneration), the costs of obtaining his appointment, of
completing his security (if any), of passing his accounts and of
obtaining his discharge shall not exceed ten per cent of the
amount due under the said judgment or the amount recovered by
the receiver, whichever is the less, provided that not less than
............................ be allowed unless otherwise
ordered. Such costs shall be taxed unless assessed by the Court
and shall be primarily payable out of the sums received by the
receiver, but if there shall be no sums received or the amount
shall be insufficient, then upon the certificate of the Court
being given stating the amount of the deficiency, such
certificate to be given after passing the final account, the
amount of the deficiency so certified shall be paid by the
defendant to the plaintiff. |
|
It is also ordered that the balance (if any) remaining in
the hands of the receiver, after making the several payments
aforesaid, shall unless otherwise directed by the Court
forthwith be paid by the receiver into Court to the credit of
this action, subject to further order. |
|
And that any of the parties be at liberty to apply to the
Judge in chambers as there may be occasion. |
|
Dated the .................. day of ......................
19 .......... |
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 85
|
Order of
committal
(O. 52 r. 1)
(Heading as in
action)
|
| Upon hearing the originating summons dated the .......................... day of ..................................... 20 ........ taken out by the solicitor for the plaintiff/plaintiff and upon reading (an affidavit of |
| ......................................................... filed the ......................... day of .............................. 20 ........ of service on the defendant C.D. of a copy of the order of the Court dated the ...................... day of .............................. 20 ........ and of notice of hearing of this originating summons): |
|
And it appearing to the satisfaction of the Court that the
defendant C.D. has been guilty of contempt of court in
(state the contempt): |
|
It is ordered that for his said contempt the defendant do
stand committed to ............................ Prison to be
there imprisoned (until further order). |
| (It is further ordered that this order shall not be executed if the defendant C.D. complies with the following terms, namely, |
| ..............................................................................................................). |
|
Dated the .................. day of ......................
20 .......... |
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 85A
|
Warrant for
committal
(O. 52 r. 1)
In the High Court of Hong Kong
Court of First Instance
|
||
|
Between
|
A.B.
|
Plaintiff
|
|
|
and
|
|
|
|
C.D.
|
Defendant
|
|
To: The Chief Bailiff and his assistants and the
Commissioner of Correctional Services. |
||
|
WHEREAS by an order of this Court pronounced this day it
was ordered that the above-named [here insert name of
defendant], do stand committed to Prison for his/her contempt in
the said order mentioned. |
||
|
You are required to apprehend the said [here insert name of
defendant], and him/her safely convey to Prison there to be
detained and kept in safe custody until such time as the said
Order granted by the Honourable Mr. Justice
.......................................................... on
the ...................... day of ..............................
19 ........ shall have been complied with and obeyed or until
such time as the said [here insert name of defendant] may be
discharged by the Court on his/her application.
|
||
|
Dated the .................. day of ......................
19 ..........
|
||
|
|
.............................................................. | |
|
|
A Judge of the Court of First Instance
|
|
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 86
| Notice of application for leave to apply for judicial review(O. 53 r. 3(2)) | ||
|
No. ...........
|
||
| In the
High Court
of the Hong Kong Special Administrative Region |
||
| Court of First Instance Applicant |
||
|
Notice of application for leave to apply
for judicial review (O. 53 r. 3(2)) |
||
|
This form must be read together with notes for guidance obtainable
from the Registry.
|
||
|
To the Registrar, High Court, Hong Kong.
|
||
|
Name, description and address of applicant
|
||
|
Name and description of proposed respondent
|
||
|
Judgment, order, decision or other proceeding in respect of which
relief is sought
|
||
| Relief sought | ||
|
Name, description and address of all interested parties (if any)
known to the applicant
|
||
|
Name and address of applicant’s solicitors, or, if no solicitors
acting, the address for service of the applicant
|
||
|
Signed
|
Dated
|
|
|
|
||
|
Grounds on which
relief is sought
(if there has been any delay, include reasons here).
Note:—Grounds must be supported by an affidavit which
verifies the facts relied on. |
||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 86A
| Originating
summons—judicial
review(O.
53 r.
5) ........... /
20........... |
||||
|
In the High Court of the Hong Kong
Special Administrative Region Court of First Instance
Constitutional and Administrative Law List
NO. ....................... OF ............
|
||||
|
Between
|
A.B.
|
Applicant
|
||
|
and
|
|
|||
|
C.D.
|
Respondent
|
|||
|
Pursuant to the leave granted by the Honourable
..................................................... on
.........................., let all parties concerned appear
before the Honourable ..................................... on
the ...................... day of ..............................
20........ at .......... o’clock, on the hearing of an
application by A.B. for an order that (or for the
following relief, namely): |
||||
| . | ||||
|
TAKE NOTICE that an order will also be sought that
the costs of and incidental to this application be paid by
............................................ . |
||||
|
THE GROUNDS FOR THE APPLICATION are those set out in
Form No. 86 used on the application for leave to apply for such
order (or the grounds for the application, for which leave had
been granted, are as follows: |
||||
| ). | ||||
|
FURTHER TAKE NOTICE that on the hearing of this
application, the applicant will use the following affidavit(s)
and the exhibits therein referred to: |
||||
| . | ||||
|
Dated the .................. day of ......................
20 ..........
|
||||
|
Solicitor for the applicant (or where the applicant acts in person,
name of the applicant)
|
||||
| This summons was taken out by | , | |||
| solicitor for the applicant whose address is at | ||||
| (or where the plaintiff acts in person: | ||||
|
This summons was taken out by the applicant whose address
for service is at .................................................................................................................................................................................................................................................................................................................................................................................................................................................................. ). |
||||
| To: .................................................................................................................................................................................................................................................................................................................................................................................................................................................................. |
||||
|
(Name and
address of the respondent or the solicitor for the respondent, and
if applicable, name and address of the interested party or other
party as directed by the Court)
|
||||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 87
|
Originating
summons—for writ of habeas corpus ad subjiciendum
(O. 54 r. 2)
........... / 20...........
In the High Court Of the Hong Kong
Special Administrative Region Court of First Instance
Constitutional and Administrative Law List
NO. ....................... OF ............
|
||||
|
Between
|
A.B.
|
Applicant
|
||
|
and
|
|
|||
|
C.D.
|
Respondent
|
|||
|
Pursuant to the direction given by the Honourable
.................................................... on
......................, let all parties concerned appear before
the Honourable ..................................... on the
...................... day of ..............................
20........ at .......... o’clock, on the hearing of an
application by A.B. for an order that a writ of habeas
corpus be issued directed to
................................................ to have
A.B. brought before the Honourable
.................................. at such time as the judge
.................................. may direct. |
||||
|
TAKE NOTICE that an order will also be sought that
the costs of and incidental to this application be paid by
............................................ . |
||||
|
THE GROUNDS FOR THE APPLICATION are those set out in
the affidavits of A.B. and
..............................................................
and the exhibits therein respectively referred to used on the
application to the
..............................................................
for such order, copies of which affidavits and exhibits are
served herewith. |
||||
|
FURTHER TAKE NOTICE that on the hearing of this
application, the applicant will use the following affidavit(s)
and the exhibits therein referred to: |
||||
| . | ||||
|
Dated the .................. day of ......................
20 ..........
|
||||
|
Solicitor for the applicant (or where the applicant acts in person,
name of the applicant)
|
||||
| This summons was taken out by | , | |||
| solicitor for the applicant whose address is at | ||||
| ........................................................... (or where the plaintiff acts in person: | ||||
|
This summons was taken out by the applicant whose address
for service is at .................................................................................................................................................................................................................................................................................................................................................................................................................................................................. ). |
||||
| To: | ||||
|
(Name and
address of the respondent or the solicitor for the respondent, and
if applicable, name and address of the other party as directed by
the Court)
|
||||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 88
Notice directed by Court
of adjourned application for writ of habeas
corpus(O. 54 r.
2)(Heading
as in No.
87)
Take notice that an application for the above writ was made to the
.......................................... in the above matter on the
........................... day of ................................ 19 ........ when
the said application was adjourned so that notice could be given to you.
Notice is hereby given to you that the said application will be made to the
........................ on ........................ the ........................
day of .............................. 19 ........ at ..........
o’clock
(Signed)
..................................................................................................................................................................................................................................................................................................................................................................................................................................................................
of ..................................................................................................................................................................................................................................................................................................................................................................................................................................................................
Solicitor for ..................................................................................................................................................................................................................................................................................................................................................................................................................................................................
To
..................................................................
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 89
Writ of habeas corpus ad
subjiciendum(O. 54 r.
10)
To ............................................... :
It is required that you have in our High Court at the High Court in Hong Kong,
on the day at the time specified in the notice served with this writ, A.B.
being taken and detained under your custody as is said, together with the day and
cause of his being taken and detained, by whatsoever name he may be called therein,
that Our Court may then and there examine and determine whether such cause is legal,
and have you there then this writ.
Witness
.....................................................................................
Chief Justice of Hong Kong the ..................... day of ......................
19 ........
Indorsement
By order of (Mr. Justice
..................................................................)
This writ was issued by ...................... of
........................................
.......................... solicitor for ..............................
.......................... solicitor for ..............................
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 90
Notice to be served with writ of habeas corpus ad
subjiciendum(O. 54 r.
6)In the High Court of Hong KongCourt of First
Instance(If in a
cause already begun, here insert the title, not
otherwise)
The Honourable Mr. Justice
..................................................................................................................................................................................................................................................................................................................................................................................................................................................................
has granted a
writ of habeas corpus directed to ..................................................................................................................................................................................................................................................................................................................................................................................................................................................................
(or other
person having the custody of ..................................................................................................................................................................................................................................................................................................................................................................................................................................................................
if so) requiring
him to have A.B. before a judge at the High Court in Hong Kong on the day and
at the time specified in the notice together with the day and cause of his being
taken and detained.Take notice that you are required by the said writ to have the said A.B.
before the Honourable Mr. Justice
..................................................................................................................................................................................................................................................................................................................................................................................................................................................................
on ..................................................................................................................................................................................................................................................................................................................................................................................................................................................................
the ..................................................................................................................................................................................................................................................................................................................................................................................................................................................................
day of
..................................................................................................................................................................................................................................................................................................................................................................................................................................................................
19 ..................................................................................................................................................................................................................................................................................................................................................................................................................................................................
at
..................................................................................................................................................................................................................................................................................................................................................................................................................................................................
o’clock and to make a return to the said
writ. In default thereof the said Court will then, or so soon thereafter as counsel
can be heard, be moved to commit you to prison for your contempt in not obeying the
said writ.Dated the .................. day of ...................... 19
..........
(Signed)
..................................................................................................................................................................................................................................................................................................................................................................................................................................................................
of ..................................................................................................................................................................................................................................................................................................................................................................................................................................................................
Solicitor for ..................................................................................................................................................................................................................................................................................................................................................................................................................................................................
To
..................................................................
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Nos. 91 and 92
(Repealed 95 of 1997 s. 7)
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 93
| Notice of sanctioned payment (Order 62A)(O. 62A r. 8(2))(Heading as in action) | |||||||
|
To the receiving party(’s solicitor)
|
|||||||
|
Take notice that the paying party
______________________ has paid $____________ (a further amount
of $ ____________________) into court in settlement
of— |
|||||||
|
(tick as
appropriate)
|
|||||||
|
|
□
|
the whole of your costs including the costs of taxation
(for the bill dated __________________________) |
|||||
|
|
□
|
part of your costs (give details below) |
|||||
|
|
□
|
It is in addition to the amount of $ ________________
already paid into court on _________________ and the total
amount in court now offered in settlement of your costs is $
________________ (give total of all payments in court to
date) |
|||||
|
|
□
|
It is not inclusive of interest and an additional amount of
$ ______________ is offered for interest (give details of the
rate(s) and period(s) for which the amount of interest is
offered) |
|||||
|
|
□
|
It takes into account the interim payment(s) of costs made
in the following amount(s) on the following date(s): (give
details) |
|||||
|
|
□
|
It takes into account the following sum(s) of money that
has (have) been paid into court as security for the costs of the
action, cause or matter: (give details) |
|||||
|
|
|
|
|
|
|
|
|
|
|
Signed
|
|
Position or office held
(If signing on behalf of a firm, company or corporation) |
|
|
||
|
|
|
Paying party(’s solicitor)
|
|
||||
|
|
Date
|
|
With company
chop
(if applicable) |
||||
|
Note: To the
receiving party
If you wish to accept the payment made into court and the
Court’s leave for acceptance is not required, you should
complete Form No. 93B and file it in the Registry of the High
Court, and send a copy to the paying party. |
|||||||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 93A
|
Notice of
acceptance of sanctioned payment (Order 62A)
(O. 62A r. 13(4))
(Heading as in
action)
|
||||||
|
To the paying party(’s solicitor)
|
||||||
|
Take notice that the receiving party accepts the
payment(s) into court totalling $________________ in settlement
of (the whole of) (part of) the receiving party’s costs as set
out in the notice of sanctioned payment received on
_________________________ (and abandons the other part(s) of the
costs).
|
||||||
|
|
Signed
|
|
Position or office
held
(If signing on behalf of a firm, company or corporation) |
|
|
|
|
|
|
Receiving party(’s solicitor)
|
||||
|
|
Date
|
|
With company
chop
(if applicable) |
|||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 93B
|
Notice of request
for payment (Order 62A)
(O. 62A r. 15)
(Heading as in
action)
|
||||||||
|
On _____________________ I accepted the payment(s) into
court totalling $ ______________________ in settlement of (the
whole of) (part of) my costs as set out in the notice of
sanctioned payment received on ______________________. |
||||||||
|
I declare that: |
||||||||
|
|
□
|
the sanctioned payment has been accepted [within 14 days]
[after
14 days but liability for and quantum of costs incurred after
the 14-day period have been agreed]* |
||||||
|
|
□
|
the offeree is not a person under disability |
||||||
|
|
□
|
[at no time has the offeree been on legal aid in these proceedings]
[the
offeree has been on legal aid]* |
||||||
|
|
□
|
there is no pending application to withdraw or diminish the
sanctioned payment |
||||||
|
|
□
|
[there is only one paying party]
[the
sanctioned payment is made by all paying parties]
[I
have discontinued the proceedings for taxation against those
paying parties who have not made the payment and they have given
written consent to the acceptance of the sanctioned
payment]* |
||||||
|
|
|
(If any of the above declarations has not been made, the
money in court can only be paid out by order of the
Court) |
||||||
|
|
□
|
a copy of this notice has been served on the paying
party(’s solicitor) named below and I request payment of this
money held in court to be made to: |
||||||
|
Receiving party or
solicitor’s full name
|
||||||||
|
Address and telephone
number
|
||||||||
|
|
|
|
|
|
|
|
|
|
|
Signature
|
||||||||
|
Note:Before signing this form please
read the notes for guidance overleaf. Incorrectly signed forms
may be returned unactioned. |
||||||||
|
Signed
|
Date
|
|||||||
|
DETAILS
OF RECEIVING PARTY’S SOLICITOR
|
||||||||
|
Name of firm
|
||||||||
|
Solicitor for
|
||||||||
|
|
|
|
|
|
|
|
|
|
|
Paying party or solicitor’s full name/Director of Legal Aid*
|
||||||||
|
Address and telephone number
|
||||||||
|
|
|
|
|
|
|
|
|
|
|
Signature
|
||||||||
|
Note: The receiving party(’s solicitor)
should obtain the signature of the paying party(’s solicitor) on
the box below before serving a copy of this notice on
him. |
||||||||
|
Signed
|
Date
|
|||||||
|
DETAILS
OF PAYING PARTY’S SOLICITOR
|
||||||||
|
Name of firm
|
||||||||
|
Solicitor for
|
||||||||
|
* Delete as appropriate
|
||||||||
|
Notes for
guidance on completion of Form No. 93B
|
||||||||
|
In order to request payment out of funds in court, file
this form, signed and completed in accordance with these notes
for guidance in the Registry of the High Court. A copy of this
form should also be sent to the paying party’s
solicitors. |
||||||||
|
‧
|
When completing this form, please ensure that you tick all
of the boxes under the heading:‘I declare that’. If you
do not tick all of the boxes, the Registry of the High Court
will not be able to process your request for payment and will
have to return the form to you. |
|||||||
|
‧
|
The form should be signed either by the receiving party or
his solicitor. |
|||||||
|
‧
|
The Accounts Office of the High Court will only issue
payment upon receipt of a properly completed Form No. 93B with
an original signature. Faxed copies of the form and photocopies
of signatures will not be accepted. |
|||||||
|
‧
|
A director of a company must obtain leave to represent the
company from a Practice Master before he may sign on behalf of
the company. |
|||||||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 94
Order for production of documents in marine insurance
action(O. 72 r.
10)(Heading as in
action)
Upon hearing ..................................... (and upon reading the
affidavit of ...................................................... filed the
......................... day of ................................. 19
........):
It is ordered that the plaintiff and all other persons interested in this
action, and in the insurance the subject of this action, do produce and show to the
defendant, his solicitors or agents on oath (or by oath of their proper officer) all
insurance slips, policies, letters of instruction or other orders for effecting such
slips or policies, or relating to the insurance or the subject-matter of the
insurance on the ship
................................................................
..............................................., or the cargo on board thereof, or the freight thereby, and also all documents relating to the sailing or alleged loss of the said ship, cargo or freight, and all correspondence with any person relating in any manner to the effecting of the insurance on the said ship, cargo or freight, or any other insurance whatsoever effected on the said ship, cargo or freight, on the voyage insured by the policy sued on in this action, or any other policy whatsoever effected on the said ship, or the cargo on board thereof, or the freight thereby on the same voyage. Also all correspondence between the captain or agent of the ship and any other person with the owner or any person before the commencement of or during the voyage on which the alleged loss happened. Also all books and documents, whatever their nature and whether originals, duplicates or copies, which in any way relate or refer to any matter in question in this action and which are now in the custody, possession or power of the plaintiff or any other person on his behalf, his or their, or any of their brokers, solicitors or agents, with liberty for the defendant, his solicitors or agents to inspect and take copies of, or extracts from, any of those books or documents. And that in the like manner the plaintiff and every other person interested as aforesaid do account for all other books and documents relating or referring to any matter in question in this action which were once but are not now in his custody, possession and power.
..............................................., or the cargo on board thereof, or the freight thereby, and also all documents relating to the sailing or alleged loss of the said ship, cargo or freight, and all correspondence with any person relating in any manner to the effecting of the insurance on the said ship, cargo or freight, or any other insurance whatsoever effected on the said ship, cargo or freight, on the voyage insured by the policy sued on in this action, or any other policy whatsoever effected on the said ship, or the cargo on board thereof, or the freight thereby on the same voyage. Also all correspondence between the captain or agent of the ship and any other person with the owner or any person before the commencement of or during the voyage on which the alleged loss happened. Also all books and documents, whatever their nature and whether originals, duplicates or copies, which in any way relate or refer to any matter in question in this action and which are now in the custody, possession or power of the plaintiff or any other person on his behalf, his or their, or any of their brokers, solicitors or agents, with liberty for the defendant, his solicitors or agents to inspect and take copies of, or extracts from, any of those books or documents. And that in the like manner the plaintiff and every other person interested as aforesaid do account for all other books and documents relating or referring to any matter in question in this action which were once but are not now in his custody, possession and power.
And that (in the meantime all further proceedings be stayed and that) the costs
of and occasioned by this application be costs in the action.
Dated the .................. day of ...................... 19
..........
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 95
Certificate of order against the
Government(O. 77 r.
15(3))(Heading as in cause or
matter)
By a judgment (or order) of this Court dated
the ...................... day of .................................. 19 ........ it
was adjudged (or ordered) that (give
particulars of the judgment or order).
I hereby certify that the amount payable to ...................................
by .................................................. in pursuance of the said
judgment
(or order) is $ .................... (together with
interest thereon at the rate of $ .................... per cent per annum until
payment and together with costs which have been taxed and certified by the taxing
officer at $ .................... Interest is payable on the said costs at the rate
of $ .................... per cent per annum from the ...................... day of
.............................. 19 ........ until payment).
(This certificate does not include the amount payable under the said judgment
or order in respect of costs).
Dated the .................. day of ...................... 19
..........
(Signed)
................................................................
(Note:—The final paragraph is to be included where a separate certificate
with respect to costs has been directed to be issued).
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 96
Certificate of order for costs against the
Government(O. 77 r.
15)(Heading as in cause or
matter)
By a judgment (or order) of this Court dated
the ........................... day of ................................ 19 ........
it was adjudged (or ordered) that (give
particulars of the judgment or order).
I hereby certify that the costs payable to .............................. by
........................................ in pursuance of the said judgment
(or order) have been taxed and certified by
the taxing officer at $ .................... (and interest is payable thereon at the
rate of $ .................... per cent per annum from the ......................
day of .............................. 19 ........ until
payment).
Dated the .................. day of ...................... 19
..........
(Signed)
.................................................
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 99
Order of Court of Appeal
to admit prisoner to
bail(O. 59 r.
20)In the Court of AppealOn appeal from the
............................................
court
Dated the .................. day of ...................... 19 ..........
.
Whereas on the .................. day of ...................... 19 ..........
A.B. was ordered by (description of court) to be imprisoned for
.......................................................... for contempt of court and
the said A.B. has appealed to this Honourable Court against the said
order:—
And whereas the said A.B. has applied to this Honourable Court to be
admitted to bail:
Upon reading the notice of motion on behalf of the said A.B. and upon
hearing Mr. ...................... of counsel for the said A.B.
It is ordered that upon the said A.B. giving security (by his own
recognizance) in the sum of $ ................................ with (two) sufficient
sureties in the sum of $ ................................ each before the Registrar
for the personal appearance of the said A.B. before the
........................................ court within ten days after the judgment of
this Honourable Court on his said appeal shall have been given unless the order of
the said court is reversed by that judgment, he, the said A.B. be discharged
out of the custody of the Commissioner for Correctional Services
................................ in respect of his commitment as
aforesaid.
By the
Court
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 100
|
Notice of payment
into court in connection with arbitration proceedings
(O. 73 r. 11)
In the matter of arbitration proceedings |
||
|
commenced
between
|
A.B. |
1st party
|
|
|
C.D. |
2nd party
|
|
|
E.F. |
3rd party
|
|
etc.
|
||
|
Take notice that— The .................... party .............................
has paid $ .................... into court. The said $
.................... is in satisfaction of (the matter in
dispute) (All the matters in dispute) in respect of which the
.................................................... party
claims (and after taking into account and satisfying the
above-named party’s claim for
............................................ in respect of which
he counterclaims). |
||
|
or
|
||
|
The said $ ........................................ is in
satisfaction of the following matters in dispute in respect of
which the ........................................ party claims
(and after taking into account as above). |
||
|
or
|
||
|
Of the said $ ................................, $
................................ is in satisfaction of the
following matter in dispute in respect of which the
................................................ party claims
(and after taking into account as above) and
$ ................................
is in satisfaction of the following matter in dispute in respect
of which the ............................... party claim (and
after taking into account as above). |
||
|
Dated the .................. day of ......................
19 .......... |
||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 101
|
Notice of
acceptance of money paid into court in connection with
arbitration proceedings
(O. 73 r. 11)
In the matter of arbitration proceedings |
||
|
commenced
between
|
A.B. |
1st party
|
|
|
C.D. |
2nd party
|
|
|
E.F. |
3rd party
|
|
Take notice that the .................... party
.................................. accepts the sum of $
.................... paid in by the
........................................ party in satisfaction
of the matter(s) in dispute in respect of which it was paid in
and in respect of which the ....................................
party claims (against that party) (and abandons his claim(s)
against that party in respect of the other matter(s) in dispute
in the arbitration proceedings). Dated the .................. day of ......................
19 .......... |
||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 102
|
Order of issue of
warrant of arrest for examination
(O. 49B r. 1)
In the High Court of Hong Kong
Court of First Instance
|
||||
|
Between
|
A.B.
|
Judgment
Creditor
|
||
|
|
|
|
and
|
|
|
|
|
|
C.D.
|
Judgment
Debtor
|
|
Upon the application of the Judgment Creditor A.B.
and upon hearing the solicitor for the said Judgment Creditor,
and upon reading the affidavit of .................... filed the
...................... day of .............................. 19
........ : |
||||
|
It is ordered that a warrant do issue to the bailiff
enjoining him to arrest the Judgment Debtor C.D. and to
bring him before the Court before the expiry of the day after
the day of arrest for examination; and it is further ordered
that the bailiff be authorized to release the Judgment
Debtor— |
||||
|
|
1.
|
upon payment to him of the sum of
$ ....................,
being the amount of the judgment debt, together with the sum of
$ ....................
for costs of this action and such costs as may be due for the
obtaining and execution of this warrant; |
||
|
|
2.
|
upon payment to him of the sum of $ .................... as
security or the provision of bail in that sum by a surety or
sureties; |
||
|
|
3.
|
upon the surrender to him of the judgment debtor’s travel
documents. |
||
|
[Delete, amend or substitute conditions in accordance
with the order of the Court.]
|
||||
|
Dated the .................. day of ......................
19 ..........
|
||||
|
NOTE:The Judgment
Debtor may apply to the Court to discharge this order. |
||||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 103
|
Order of
imprisonment pending further examination
(O. 49B r. 1A)
In the High Court of Hong Kong
Court of First Instance
|
||||
|
Between
|
A.B.
|
Judgment
Creditor
|
||
|
|
|
|
and
|
|
|
|
|
|
C.D.
|
Judgment
Debtor
|
|
Whereas the examination being conducted under Order 49B
rule 1A has been adjourned until
...................... day of ............................. 19
........ : |
||||
|
It is ordered that a warrant do issue to the bailiff
enjoining him to deliver the Judgment Debtor into the custody of
the Commissioner of Correctional Services to be kept in a prison
as a prisoner for debt until the ...................... day of
.............................. 19 ........ and then to bring the
Judgment Debtor before the Court for further examination. The
Court has fixed the support and maintenance allowance at the
rate of $ .................... a day. |
||||
|
It is further ordered that the bailiff be authorized to
release the Judgment Debtor— |
||||
|
|
1.
|
upon payment to him of the sum of $ ....................,
being the amount of the judgment debt, together with the sum of
$ ....................
for costs of this action and such costs as may be due for the
obtaining and execution of this warrant; |
||
|
|
2.
|
upon payment to him of the sum of $ .................... as
security or the provision of bail in that sum by a surety or
sureties. |
||
|
[Delete, amend or substitute conditions in accordance
with the order of the Court.]
|
||||
|
Dated the .................. day of ......................
19 ..........
|
||||
|
NOTE:The Judgment
Debtor may apply to the Court to discharge this order. |
||||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 104
|
Order for
imprisonment for debt
(O. 49B r. 1B)
|
||
|
In the High Court of Hong Kong
Court of First Instance
|
||
|
Between
|
A.B.
|
Judgment
Creditor
|
|
|
and
|
|
|
|
C.D.
|
Judgment
Debtor
|
|
[Following examination of the Judgment Debtor under Order
49B rule 1A and upon the Court being satisfied as
required by Order 49B
rule 1B:] or [Upon the Court being satisfied that the
Judgment Debtor has failed to comply with an order made under
Order 49B rule 1B(3):] It is ordered that the bailiff do take the Judgment Debtor
and deliver him into the custody of the Commissioner of
Correctional Services to be kept in prison as a prisoner for
debt for a period of ............................... unless he
shall be sooner discharged in due course of law. The Court has fixed the support and maintenance allowance
at the rate of $ .................... a day.
Dated the .................. day of ......................
19 .......... |
||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 105
|
Application for
order for imprisonment in default of payment
(O. 49B r. 1B)
In the High Court of Hong Kong
Court of First Instance
|
||
|
Between
|
A. B.
|
Judgment
Creditor
|
|
|
and
|
|
|
|
C.D.
|
Judgment
Debtor
|
|
TAKE NOTICE that the Judgment Creditor will apply to the
Court on ........................ day of
................................ 19 ........ for an order for
the imprisonment of the Judgment Debtor on the ground that the
Judgment Debtor has failed to make payment of the sum of $
......................... as ordered by the Court on
..................... day of ............................ 19
......
Dated the .................. day of ......................
19 .......... |
||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 106
|
Order prohibiting
departure from Hong Kong
(O. 44A r. 3)
In the High Court of Hong Kong
Court of First Instance
|
||||
|
Between
|
A.B.
|
Judgment
Creditor/ Plaintiff/Claimant
|
||
|
|
|
|
and
|
|
|
|
|
|
C.D.
|
Judgment
Debtor/ Defendant/Person against whom claim is made
|
|
Upon the application of A.B. and upon hearing the
solicitor for A.B., and upon reading the affidavit of
.................... filed the ...................... day of
.............................. 19 ........ : |
||||
|
It is ordered that C.D. is prohibited from leaving
Hong Kong. |
||||
|
This order shall lapse after the expiry of one month
(unless extended or renewed) and shall have no effect
if— |
||||
|
|
1.
|
C.D. makes payment of the sum of $
...................., being the amount claimed by A.B.,
[together with the sum of $ .................... for costs of
this action] and such costs as may be due for the obtaining and
execution of this order; |
||
|
|
2.
|
C.D. makes payment of the sum of $
.................... as security or provides bail in that sum by
a surety or sureties. |
||
|
[Delete, amend or substitute conditions in accordance
with the order of the
Court.] |
||||
|
Dated the .................. day of ......................
19 .......... |
||||
|
NOTE:C.D.
may apply to the Court to discharge this order. |
||||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 107
(Repealed L.N. 152 of 2008)
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 108
Order for continued detention of seized property (O.
115 r.
25)
|
|||||
|
In the High Court of Hong Kong
Court of First Instance
|
|||||
|
|
|
|
|
|
|
|
|
|
||||
|
Between
|
|
|
|
|
|
|
|
[
|
|
]
|
Applicant
|
|
|
|
and
|
|
|||
|
|
[
|
|
]
|
Respondent
|
|
|
Before the Honourable Mr. Justice
..............................
In Chambers |
|||||
|
ORDER
|
|||||
|
UPON the application of [A.B.] |
|||||
|
AND UPON HEARING [the said A.B.] |
|||||
| AND UPON READING the affidavit of [A.B.] made on | |||||
|
IT IS ORDERED THAT the sum of $ .................... seized
from [C.D.] of
................................................................
(or, from person or persons unknown) at
.............................................................................
Hong Kong on ........................... -day, the
.............................. day of
.............................. at ........... o’clock Hong Kong
time by [E.F.] of the
............................................... be further
detained for a period of ........... days from the date hereof
or until further order of this Court.
|
|||||
|
Dated this .................. day of ......................
19 ..........
|
|||||
|
|
|
|
|
Registrar.
|
|
|
Important Notice: |
|||||
|
(1)
|
A party affected by this order may apply to the Court for
its discharge. |
||||
|
(2)
|
The applicant may apply for an order for the further
detention of this money. |
||||
|
(3)
|
Persons affected by this order will be notified in
accordance with the Rules of the Court, or as directed by the
Court, of any application made for the release of this
money. |
||||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 109
(Repealed L.N. 152 of 2008)
Appendix
B
Special
Admiralty
Forms
No. 1
|
Writ of summons in
action in rem
(O. 75 r. 3)
[Hong Kong Coat of Arms]
19........, Folio No. ................
In the High Court of Hong Kong
Court of First Instance
Admiralty action in rem against:
[The ship “X” or as may be describing the property against
which the action is brought] |
||||
|
Between
|
[The owners of
the ship “A” or as may be describing the plaintiffs]
[or name]
|
Plaintiffs
|
||
|
and
|
||||
|
[The owners of the ship “X” or as may be describing the property
against which the action is brought]
|
Defendants
|
|||
|
TO THE DEFENDANTS and other persons interested in the ship
“X”
...............................................................
registered at the port of
.....................................................................
[or as may be] THE WRIT OF SUMMONS has been issued by the Plaintiffs
against the property described above in respect of the claim set
out on the back. Within [14 days] after the service of this
Writ, counting the day of service, you must either satisfy the
claim or lodge in the Registry of the High Court mentioned below
an ACKNOWLEDGMENT OF SERVICE. If you fail to satisfy the claim or to lodge an
Acknowledgment within the time stated, the Plaintiffs may
proceed with the action and judgment may be given without
further notice to you and if the property described in this Writ
is under the arrest of the Court it may be sold by order of the
Court. Issued from the Registry of the High Court this
.................. day of ...................... 19
.......... Note:—This Writ may not be served later than 12
calendar months beginning with that date unless renewed by order
of the Court.
|
||||
|
IMPORTANT
Directions for Acknowledgement of Service are given with
the accompanying form. [Back of No. 1 ]
*[STATEMENT OF CLAIM]
*Where words appear between square brackets, delete if
inapplicable The Plaintiffs’ claim is for *[Signed if statement of claim indorsed]
|
||||
|
|
||||
|
THIS WRIT was issued by |
||||
| of | ||||
| Solicitor for the said Plaintiff whose address is | ||||
|
*[or where the Plaintiff sues in person |
||||
|
THIS WRIT was issued by the said Plaintiff who resides at
..................................................................
and (if the Plaintiff does not reside within the jurisdiction)
whose address for service is
.......................................................................] |
||||
|
[Indorsement as to service
|
||||
|
(To be completed only when the Writ has been
served by the bailiff)
|
||||
|
THIS WRIT was served by me at
.............................................. on
...................... , on ...................... day, the
................... day of ..............................
19........, by (state the manner of service)
|
||||
|
Signed
Name of bailiff
|
]
|
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__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 2
|
Writ of summons in
limitation action
(O. 75 r. 3(3))
[Hong Kong Coat of Arms]
19........, Folio No. ................
In the High Court of Hong Kong
Court of First Instance
Admiralty Jurisdiction
|
||
|
Between
|
and
|
Plaintiff
Defendant
|
|
TO THE DEFENDANT [name] |
||
| of [address] | ||
|
THIS WRIT OF SUMMONS has been issued against you by the
abovenamed Plaintiff in respect of the claim set out on the
back. Unless you admit the claim you must within [14 days] after
service of this writ on you, counting the day of service, return
to the Registry of the High Court mentioned below the
accompanying ACKNOWLEDGMENT OF SERVICE. If you fail to return the Acknowledgment within the time
stated, the Plaintiff may proceed with the action without
further notice to you. Issued from the Registry of the High Court this
.......................... day of
.................................. 19........ Note:—This Writ may not be served later than 12
calendar months beginning with that date unless renewed by order
of the Court.
IMPORTANT
Directions for Acknowledgment of Service are given with the
accompanying form.
[Back of No. 2]
The Plaintiff claims |
||
|
THIS WRIT was issued by |
||
|
of
|
||
|
Solicitor for the said Plaintiff whose address is
|
||
|
*[or where the Plaintiff sues in person |
||
|
THIS WRIT was issued by the said Plaintiff who resides
at |
||
|
................................................... and (if the
Plaintiff does not reside within the jurisdiction) whose address for
service is
..................................................................................]
|
||
|
*Where words appear between square brackets, delete if
inapplicable |
||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 2A
|
Notice of writ of
summons in limitation action
to be served out of jurisdiction
(O. 75 r. 3(3))
[Heading as in action]
|
|
|
To C.D. of
Take notice that A.B. of
..........................................................has
begun an action against you, C.D., in the Court of First
Instance in Hong Kong by writ of summons dated the
..........................day
of..................................19........, which writ is
indorsed as follows [copy the indorsement of claim] and unless
you admit the Plaintiff’s claim you are required within
.............................. days after receipt of this
notice, counting the day of receipt, to return to the Registry
of the High Court the accompanying Acknowledgment of
Service. |
|
|
And take notice that if you do not return the
Acknowledgment within the time stated, the Plaintiff may proceed
with the action without further notice to you.
|
|
|
|
(Signed) A.B. |
|
or X. Y. of
|
|
| Solicitors for A.B. | |
|
IMPORTANT
Directions for Acknowledgment of Service are given with the
accompanying form. |
|
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 2B
|
Acknowledgment of
Service of Writ of Summons in
Action in rem or Limitation Action
(O. 75 r. 3(5))
Directions for Acknowledgment of Service
1.The accompanying form
of ACKNOWLEDGMENT OF SERVICE should be detached and completed by
a Solicitor acting on behalf of the Defendant or by the
Defendant if acting in person. After completion it must be
delivered or sent by post to the Registry of the High Court at
the following address:— 2.If in an action in rem
a Statement of Claim is indorsed on the Writ (i.e. the words
“Statement of Claim” appear at the top of the back), a Defence
must be served within 14 days after the time for acknowledging
service of the Writ. If a Statement of Claim is not indorsed on the Writ, a
Defence need not be served until 14 days after a Statement of
Claim has been served on the Defendant. If a Defendant fails to serve a defence within the
appropriate time, the Plaintiff may apply to the Court for
judgment against him and, if the property described in the Writ
is under the arrest of the Court, for an order for the sale of
that property. |
|||
|
(1)
[Back of page (1)]
Notes for
Guidance
1.Each Defendant (if
there is more than one) is required to complete an
Acknowledgment of Service and return it to the Registry of the
High Court. 2.For the purpose of
calculating the period of 14 days for acknowledging service, a
writ served on the Defendant personally is treated as having
been served on the day it was delivered to him and a writ served
by post or by insertion through the Defendant’s letter box is
treated as having been served on the seventh day after the date
of posting or insertion. 3.Where the Defendant is
a FIRM and a Solicitor is not instructed, the form must be
completed by a PARTNER by name, with the addition of the
description “partner in the firm of
(............................)” after his name. 4.Where the Defendant is
sued as an individual TRADING IN A NAME OTHER THAN HIS OWN, the
form must be completed by him with the addition of the
description “trading as (............................)” after
his name. 5.Where the Defendant is
a LIMITED COMPANY the form must be completed by a Solicitor or
by someone authorised to act on behalf of the Company, but the
Company can take no further step in the proceedings without a
Solicitor acting on its behalf. 6.Where the Defendant is
a MINOR or a MENTAL PATIENT, the form must be completed by a
Solicitor acting for a guardian ad litem. 7.A Defendant acting in
person may obtain help in completing the form at the Registry of
the High Court. 8.These notes deal only
with the more usual cases. In case of difficulty a Defendant in
person should refer to paragraph 7 above. |
|||
|
(2)
[Heading as in No. 1 or 2 to be completed by plaintiff]
ACKNOWLEDGMENT OF
SERVICE
OR WRIT OF SUMMONS IN ACTION IN REM OR LIMITATION ACTION
If you intend to instruct a Solicitor to act for
you, give him this form
IMMEDIATELY
|
|||
|
Important.Read
the accompanying directions and notes for guidance carefully
before completing this form. If any information required is
omitted or given wrongly, THIS FORM MAY HAVE TO BE
RETURNED. |
Delay may result in judgment being given against a
defendant whereby he or his Solicitor may have to pay the costs
of applying to set it aside. Furthermore, the property described
in the Writ of Summons, if under arrest of the Court, may be
sold by order of the Court. |
||
|
*Where words appear between
square brackets, delete if inapplicable |
1.
|
*[In an action in rem State the description of the Defendant, as stated in the Writ
of Summons, by whom or on whose behalf the service of the Writ
is being acknowledged.] *[In a limitation action (a)If the
Defendant by whom or on whose behalf service of the Writ is
being acknowledged is named in the Writ, state his full
name. If he is sued in a name different from his own, add
“sued as (the name stated on the Writ of
Summons)”. (b)If the
Defendant by whom or on whose behalf service of the Writ is
being acknowledged is one of a class of persons described in
the Writ, state his full name. The Defendant should complete (a) or (b),
whichever is appropriate, and delete the other.] |
|
|
|
Service of the
Writ is acknowledged accordingly
*(Signed) [Solicitor]
|
||
|
|
|
[Defendant in
person]
Address for
Service
|
|
|
(3)
Notes as to Address
for Service
Solicitor. Where the Defendant is represented by a
Solicitor, state the Solicitor’s place of business in Hong
Kong. Defendant in person. Where the Defendant is acting in
person, he must give his residence OR, if he does not reside in
Hong Kong, he must give an address in Hong Kong where
communications for him should be sent. In the case of a limited
company “residence” (居所) means its registered or principal
office.
[Back of Page (3)]
Indorsement by plaintiff’s solicitor (or by plaintiff if
suing in person) of his name, address and reference, if
any. |
|||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 3
Warrant of
arrest(O. 75 r.
5(1))(Heading as in
action)
To the Bailiff
:
You are hereby required to arrest the ship
.....................................
of the port of
...................................................(and
the cargo now or lately laden therein, together with the freight due for the
transportation thereof,) or (and the freight due for the transportation of the cargo
now or lately laden therein,) and to keep the same under safe arrest until you shall
receive further orders from the High Court.
The plaintiff’s claim is for
(copy from the
writ)
Taken out by ........................... (solicitors for) the
..................................
Bailiff’s indorsement as
to
service
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 4
Praecipe for warrant of
arrest(O. 75 r.
5(4))(Heading as in
action)
We
................................. of
...................................................(solicitors
for) the plaintiffs request a warrant to arrest (description of property giving
name, if a ship).
Dated the .................. day of ......................
19..........
(Signed)
...........................................
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 5
Praecipe for caveat
against arrest(O. 75 r.
6)(Description of property
giving name, if a
ship)
We
.............................. of
........................................
(solicitors for
........................... of
.................................................)
request a caveat against the arrest of
(description
of property giving name, if a
ship)
and hereby undertake to enter an acknowledgment of issue or service (as may be
appropriate) in any action that may be begun in the High Court against the
said............................................and,
within 3 days after receiving notice that such an action has been begun, to give
bail in the action in a sum not
exceeding......................................dollars
or to pay that sum into court. We consent that the writ of summons and any other
document in the action may be left for us at
...........................................
Dated the .................. day of ...................... 19
..........
(Signed)
...........................................
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 6
Praecipe for service of
writ in rem by Bailiff(O.
75 r. 8(3))(Heading as in
action)
We
................................. of .............................................
(solicitors
for)
the plaintiffs request that the writ of summons left herewith be duly served on
....................................
Dated the .................. day of ......................
19..........
(Signed)
...........................................
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 7
|
Release
(O. 75 r. 13(1))
(Heading as in action)
|
|
|
To the Bailiff : Whereas in this action you were required to arrest the
..........................................
and
to keep the same under safe arrest until you should receive
further orders from the High Court. You are hereby required to
release the said
....................................................from
the arrest effected by virtue of the warrant in this
action. Taken out by ........................... (solicitors for)
................................. Bailiff’s indorsement
On .................. the ...................... day of
..................
19......., the
.........................................................
was
released from arrest pursuant to this Instrument.
|
|
|
(Signed)
|
|
|
|
Bailiff.
|
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 8
Praecipe for issue of
release(O.
75 r.
13(6))(Heading
as in
action)
We
.................................
of
.............................................
(solicitors for) the plaintiffs (or defendants) in
this action against (description of property giving name, if a ship), now
under arrest, request the issue of a release with respect to the said
....................................
Dated the .................. day of ...................... 19
..........
(Signed)
...........................................
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 9
Praecipe for caveat
against release and
payment(O.
75 r.
14(1))(Description
of property giving name, if a
ship)
We
................................
of
...............................................
(solicitors for) .................................. of
.................................................
request
a caveat against the issue of a release with respect to (description of property
giving name, if a ship) now under arrest and, should the said property be
sold by order of the Court, a caveat against payment out of court of the proceeds of
sale.
The intending caveator claims to have an interest [to the extent of
approximately
$..................
if known] in the above-mentioned property in respect of [state nature
of claim, e.g. salvage, collision damage, etc.].
Dated the .................. day of ......................
19..........
(Signed)
...........................................
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 10
Praecipe for withdrawal of
caveat(O. 75 r.
15(1))
(Description of properly giving name, if a ship)
We
..............................
of
..............................................(solicitors
for) .................................. of
.................................................
request that the caveat
(state
nature of
caveat)
entered on
the
............................ day of ..............................
19.........
on behalf of
........................................................................ be
withdrawn.
Dated the .................. day of ......................
19..........
(Signed) ...........................................
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 11
|
Bail bond
(O. 75 r. 16(1))
|
||
|
(Heading as in action)
Whereas this Admiralty
action in rem against the above-mentioned property is pending in
the Supreme Court and the parties to the said action are the
above-mentioned plaintiffs and defendants: Now, therefore,
We, A.B. of
.............................................. and C.D.
of
................................................................,
hereby jointly and severally submit ourselves to the
jurisdiction of the said Court and consent that if they, the
above-mentioned defendants, (or plaintiffs, in the case of a counterclaim) do
not pay what may be adjudged against them in this action, with
costs, or do not pay any sum due to be paid by them in
consequence of any admission of liability therein or under any
agreement by which this action is settled before judgment and
which is filed in the said Court, execution may issue against
us, our executors or administrators, goods and chattels, for the
amount unpaid or an amount of ......................... dollars
whichever is the less.
|
||
|
|
A.B.
|
|
|
(Signed)
|
||
|
|
C.D.
|
|
|
(Signed)
|
||
|
This bail bond was signed by the said A.B. and
C.D., the sureties, the
.......................day of
..................................19........ Before me
a Commissioner for Oaths.
|
||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 12
Praecipe for commission
for appraisement and
sale(O. 75 r.
23(1))(Heading as in
action)
We ...................................... of
....................................................... (solicitors for) the
plaintiffs (or defendants) request a commission
for the appraisement and sale of (description of property giving
name,
if a
ship)
which was ordered by the Court
on
the
......................................day
of ..................................
19........
Dated the .................. day of ......................
19..........
(Signed)
...........................................
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 13
Commission for
Appraisement and Sale(O.
75 r. 23(2))(Heading as in
action)
To the Bailiff :
Whereas
in this action the Court has ordered (description of property giving name, if a
ship) to be appraised and sold.
You are hereby authorized and required to choose one or more experienced
persons and to swear him or them to appraise the
said........................................................................
according to the true value thereof, and such value having been certified in writing
by him or them to cause the
said..........................................................................
to be sold by (private treaty) (public auction) for the highest price that can be
obtained for it, but not for less than the appraised value unless the Court on your
application allows it to be sold for less.
And you are further required, immediately upon the sale being completed, to pay
the proceeds thereof into court and to file the certificate of appraisement signed
by you and the appraiser or appraisers, and an account of the sale signed by you,
together with this commission.
Taken out by ........................... (solicitors for) the
................................
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 14
|
Release and Warrant
of Possession
(O. 75)
(Heading as in action)
|
||
|
To the Bailiff : Whereas
in this action the Court has ordered possession of the ship
(name to be stated), her tackle, apparel and
furniture to be delivered up to
.......................................................or
to his solicitor for his use,
........................................................................................................................... You are hereby required to release the said ship, her
tackle, apparel and furniture from the arrest made by virtue of
the warrant in that behalf and to deliver possession thereof to
the said ............................................ or to his
solicitor for his use. Taken out by ........................... (solicitors for)
the
.............................. Bailiff’s Indorsement
On the .............. day of
...............................
19........,
the ship
................................................
was released from arrest pursuant to this warrant.
|
||
|
(Signed)
|
||
|
Bailiff.
|
||
|
Receipt
Received from the Bailiff on
the..............
day of
.............................
19........,
the ship
................................................................
and everything on board belonging to her.
|
||
|
(Signed)
|
||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
No. 15
|
Notice to Consular
Officer of Intention to Apply for Warrant of Arrest
(O. 75 r. 5(7))
(Heading as in action)
|
||
|
To the Consular Officer of (name of State) The (state nationality) ship (name) TAKE NOTICE that as solicitors for (name or description
of
plaintiff
as in writ) we did on the .............. day of
........................
19........
(or we intend to) institute proceedings in the High
Court of Hong Kong against the
........................above-mentioned
ship in respect of a claim by (name or description of
plaintiff) for (state nature of claim as indorsed on
writ) and that we intend to apply to the Court to arrest
the said ship. Dated the .................. day of ......................
19..........
|
||
|
(Signed)
|
||
|
|
Solicitors for the Plaintiff. | |
Appendix
C
No. 5
|
Warrant for bailiff
to call upon defendant to give security to produce
property
(O. 44A r. 8)
Action No. .................. of
19..........
In the High Court of Hong
Kong,
Court of First
Instance
|
|||
|
Between
|
A.B.
and
C.D.
|
Plaintiff
Defendant
|
|
|
To the Bailiff of the said Court: You are required forthwith to call upon the defendant
C.D. either
by................................day,
the ....................... day
of..........................…,
19..........,
to furnish security in the sum of
$....................
to produce and place at the disposal of the said Court, when
required, his property or the value of the same, or such portion
thereof as may be sufficient to answer any judgment that may be
given against him in this action, or by the said day to appear
before the said Court and show cause why he should not furnish
such security; and you are further required, in default of such
security being given, to attach all the movable and immovable
property of the said defendant within Hong Kong until the
further order of the said Court. Witness The
Honourable......................................................,
Chief Justice of the said Court, the ....................... day
of ..............................
19..........
|
|||
| (Signed) | |||
|
|
|
Registrar.
|
|
|
Note:—This warrant is to be returned into the Registry
immediately after the execution thereof, with a memorandum
indorsed thereon of the date and mode of
execution. |
|||
__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Nos. 6 and 7
(Repealed L.N. 343 of 1989)
Appendix
D
Code of conduct for expert
witnesses
(O. 38 rr. 35, 37B and
37C)
Application
of
code
1.This code of conduct applies to an expert who has been instructed to give or
prepare evidence for the purpose of proceedings in the
Court.
General duty to
Court
2.An expert witness has an overriding duty to help the Court impartially and
independently on matters relevant to the expert’s area of
expertise.
3.An expert witness’s paramount duty is to the Court and not to the person from
whom the expert has received instructions or by whom he is
paid.
4.An expert witness is not an advocate for a
party.
Declaration of duty to
Court
5.A report by an expert witness is not admissible in evidence unless the report
contains a declaration by the expert witness that—
(a)
he has read this code of conduct and agrees to be bound by it;
(b)
he understands his duty to the Court; and
(c)
he has complied with and will continue to comply with that duty.
6.Oral expert evidence is not admissible unless an expert witness has declared
in writing, whether in a report or otherwise in relation to the proceedings,
that—
(a)
he has read this code of conduct and agrees to be bound by it;
(b)
he understands his duty to the Court; and
(c)
he has complied with and will continue to comply with that duty.
Expert report to be
verified
7.A report by an expert witness must be verified by a statement of truth in
accordance with Order 41A of the Rules of the High Court (Cap. 4
sub. leg.
A).
Form of expert
reports
8.A report by an expert witness must (in the body of the report or in an
annexure) specify—
(a)
the person’s qualifications as an expert;
(b)
the facts, matters and assumptions on which the opinions in the report are
based (a letter of instructions may be annexed);
(c)
the reasons for each opinion expressed;
(d)
if applicable, that a particular question or issue falls outside his field of
expertise;
(e)
any literature or other materials utilized in support of the opinions;
and
(f)
any examinations, tests or other investigations on which he has relied, and the
identity and details of the qualifications of the person who carried them
out.
9.If an expert witness who prepares a report believes that it may be incomplete
or inaccurate without some qualification, that qualification must be stated in the
report.
10.If an expert witness considers that his opinion is not a concluded opinion
because of insufficient research or insufficient data or for any other reason, this must
be stated when the opinion is
expressed.
11.An expert witness who, after communicating an opinion to the party
instructing him (or that party’s legal representative), changes his opinion on a
material matter shall forthwith provide the party (or that party’s legal representative)
with a supplementary report to that effect which must contain such of the information
referred to in section 8(b), (c), (d), (e) and
(f) as is
appropriate.
Experts’
conference
12.An expert witness shall abide by any direction of the Court
to—
(a)
confer with any other expert witness;
(b)
endeavour to reach agreement on material matters for expert opinion;
and
(c)
provide the Court with a joint report specifying matters agreed and matters not
agreed and the reasons for any non-agreement.
13.An expert witness shall exercise his independent, professional judgment in
relation to such a conference and joint report, and shall not act on any instruction or
request to withhold or avoid
agreement.
Note:—Proceedings for contempt of court may be brought against a person if he
makes, or causes to be made, a false declaration or a false statement in a document
verified by a statement of truth without an honest belief in its truth.