Competition Tribunal Practice Direction No 1
Proceedings before the Tribunal
Introduction
1. This Practice Direction applies to proceedings in the Competition Tribunal.
2. In this Practice Direction:
“CFI” means the Court of First Instance
“Ordinance” means the Competition Ordinance (Cap 619)
“President” and “Deputy President” mean the President and Deputy President of the Tribunal respectively
“Registrar” means the Registrar of the Tribunal
“RHC” means the Rules of the High Court (Cap 4 sub leg A)
“Rules” means the Competition Tribunal Rules (Cap 619 sub leg D)
“Tribunal” means the Competition Tribunal
3. This Practice Direction is divided into general sections (paragraphs 4 to 72) which apply to all proceedings and particular sections (paragraphs 73 to 114) which apply to specific types of proceedings before the Tribunal respectively.
The Tribunal
4. The Tribunal is established under Part 10 of the Ordinance as a specialist tribunal to deal with and adjudicate upon disputes in competition law.
5. The Tribunal is part of the Judiciary and consists of all the judges of the CFI (excluding a Justice of Appeal who sits in the Court of First Instance, Recorders and Deputy Judges).
6. The Tribunal is a superior court of record with the same jurisdiction to grant remedies and reliefs, equitable or legal, and the same powers necessary for the exercise of its jurisdiction, as the CFI.
7. The Tribunal and its Registry are located in the High Court Building, 38 Queensway, Hong Kong.
Tribunal’s website
8. The Tribunal has its own website: www.comptribunal.hk/. Notices of applications or proceedings published under rule 19 of the Rules may also be found posted on the website and the notice board in the Registry.
General approach of the Tribunal
9. The underlying objectives of the RHC as set out in RHC Order 1A apply to proceedings in the Tribunal. Active and robust case management will form a central element of the procedure of the Tribunal. The Tribunal will conduct its proceedings flexibly having regard to the features of the particular matter before it, and with as much informality as is consistent with attaining justice.
10. Parties and their representatives and especially their legal representatives have a duty to assist and cooperate with the Tribunal and with one another to further the underlying objectives and in particular to ensure that cases are as efficiently, inexpensively and expeditiously disposed of as is consistent with fairness.
11. To this end, the Tribunal will indicate, as early as practicable, a target date or range of dates for the substantive hearing of a matter. Realistic timetables leading towards such date or dates will be laid down which are expected to be strictly observed.
12. Cases will be managed and directions given by the Tribunal so that the parties’ respective cases are disclosed and the real issues identified and focused upon as early as possible, unreasonable interlocutory disputes are prevented, and unnecessary evidence minimized. A high level of realism will be expected from the parties.
13. The Tribunal has power under the Rules to extend or abridge time. Despite the timetable laid down in the Rules, in especially urgent cases the Tribunal may abridge time so as to ensure the matter can be dealt with as expeditiously and justly as possible.
14. Any party who wishes the Tribunal to vary the timetable or extend the time for a particular step, whether as prescribed in the Rules or in the directions of the Tribunal, should apply as early as possible. Late applications may be refused on the ground of delay alone.
Type of proceedings before the Tribunal
15. While the Tribunal is a superior court of record, it has limited subject-matter jurisdiction as specified in s. 142 of the Ordinance.
16. Typically, the proceedings commenced in the Tribunal will fall into the following kinds. These proceedings, together with proceedings transferred from the CFI to the Tribunal pursuant to s. 113 of the Ordinance, will each be assigned a case number with the following respective prefixes for administrative classification:
Type of proceedings
Prefix for Case Number
Abbreviation
Applications for review by the Tribunal of reviewable determinations under Part 5 of the Ordinance
Competition Tribunal Application for Review
CTAR
Applications for the enforcement of commitment under Part 4 (s. 63) of the Ordinance
Competition Tribunal Enforcement Action
CTEA
Applications for the enforcement of competition rules under Part 6 of the Ordinance
Private actions brought under Part 7 of the Ordinance
Competition Tribunal Action
CTA
A related matter which arises out of the same or substantially the same facts, pursuant to s. 142(1)(g) of the Ordinance
Proceedings transferred from the CFI to the Tribunal pursuant to s. 113 of the Ordinance
Applications for the disposal of property under Part 3 (s. 57) of the Ordinance
Competition Tribunal Miscellaneous Proceedings
CTMP
Applications for financial penalty under Part 12 (s. 169) of the Ordinance
Any other proceedings commenced in the Tribunal
17. Parties should note that the forms prescribed for use in the Tribunal require them to specify the statutory provision invoked or relied upon as the source of jurisdiction for the purpose of any specific application.
18. Where there is no specific form prescribed by the Rules for an originating application, the general originating form (Form 1 of the Rules) should be adapted as appropriate.
19. Any contention by any party that any matter or part thereof before the Tribunal exceeds its jurisdiction should be raised as early as practicable. Failure to do so may attract adverse costs consequences. There is no set form in which a jurisdictional point may be raised. Where a party considers that the proceedings or part thereof should be struck out for want of jurisdiction, a summons should in general be taken out for that purpose.
Rules and Practice Directions
20. The Rules govern the practice and procedure of the Tribunal. Like this Practice Direction, the Rules are divided into general and specific parts. Parts 1 and 2 apply generally to proceedings before the Tribunal. Parts 3, 4, 5 and 6 apply in relation to particular types of proceedings before the Tribunal respectively. The Rules should be read in conjunction with the Practice Directions of the Tribunal, which include :
(a) Competition Tribunal Practice Direction (CTPD) No 1 – Proceedings before the Tribunal
(b) Competition Tribunal Practice Direction (CTPD) No 2 – Confidential Information
21. As provided in s. 144(1) of the Ordinance, the Tribunal may follow the practice and procedure of the CFI. The general principles and concepts of the civil procedure of the CFI are relevant in proceedings before the Tribunal.
22. There are provisions of the RHC that are specifically incorporated or excluded by the Rules; see rules 14, 16, 17, 18, 22, 23, 24, 25, 26, 30, 39, 41, 43, 44, 50, 51, 57 and 71 of the Rules.
23. Apart from such specific incorporation or exclusion, the general application of the RHC to proceedings in the Tribunal is set out in rule 4 of the Rules, whose effect may be illustrated in broad terms as follows.
24. A number of provisions in the RHC are inapplicable simply because they concern subject matters that have no relevance and application to proceedings before the Tribunal. For example, for proceedings commenced in the Tribunal:
(a) Orders 7, 8, 9 and 28 do not apply since they deal with originating summonses, motions and petitions as the case may be.
(b) Order 13 does not apply since there is no acknowledgment of service in proceedings in the Tribunal.
(c) Order 32A does not apply because only the CFI has power to make an order under s. 27 of the High Court Ordinance to prevent vexatious proceedings.
(d) Orders 53-55, 69-71A, 72-73, 75-79, 82-85, 87-90, 93-113 and 115-121 have no application having regard to their subject matter which has no relevance for Tribunal proceedings.
25. Where no other provision is made by the Ordinance and the Rules for a matter, the RHC apply. For example, by virtue of rule 4 of the Rules:
(a) Order 14 is applicable, there being no other provision in the Ordinance or the Rules dealing with summary judgment. In practice, however, Order 14 is expected to be relevant only in follow-on actions and actions transferred from the CFI.
(b) Order 18 is not applicable, unless there are pleadings, such as where the Tribunal has directed pleadings to be filed pursuant to rule 27 of the Rules.
(c) As there are already provisions in rules 66 and 76 of the Rules on the consequences of failure to file a response, Order 19 will not apply in such situations, though it is applicable as regards follow-on actions and transferred proceedings.
(d) Order 21 which relates to withdrawals and discontinuance has no application to the proceedings governed by Parts 3 and 4 of the Rules as specific provisions have been made in rules 69, 79 and 91 of the Rules.
(e) Order 22, concerning offers to settle and payments into court, is applicable to proceedings in the Tribunal, there being no other provision in the Ordinance or the Rules dealing with those matters.
(f) Order 23, on security for costs, is applicable to proceedings in the Tribunal, there being no other provision in the Ordinance or the Rules dealing with that matter.
(g) Order 27 on admissions is applicable, there being no other provision in the Ordinance or the Rules dealing with that matter.
(h) Order 38, insofar as it relates to witness statements, is applicable where the Tribunal directs witness statements to be filed, there being no other provision in the Ordinance or the Rules dealing with that matter.
(i) Likewise, Order 38, insofar as it relates to expert evidence, is applicable where a party wishes to adduce expert evidence, there being no other provision in the Ordinance or the Rules dealing with that matter.
(j) Order 41 on affidavits is applicable insofar as affidavit evidence is used in proceedings in the Tribunal, there being no other provision in the Ordinance or the Rules dealing with that matter.
26. Notwithstanding rule 4(1) of the Rules, the Tribunal may in its discretion dispense with the application of any provision of the RHC in order to conduct the proceedings before it expeditiously and informally or to save costs, where it is otherwise in the interests of justice to do so.
27. Subject to the Rules and the Practice Directions of the Tribunal, in addition to any Practice Directions that expressly apply in relation to proceedings in the Competition Tribunal, the following Practice Directions applicable to the High Court also apply to proceedings before the Tribunal with any necessary modification :
(a) PD 5.4 – Preparation of Interlocutory Summonses and Appeals to Judge in Chambers for Hearing
(b) PD 5.6 – Documents for use at trial
(c) PD 8.1 – Hours of Sitting
(d) PD 10.1 – Affidavit Evidence
(e) PD 10.2 – Chinese Translations
(f) PD 10.3 – Citation of Judgments Written in Chinese at Hearing Conducted in English
(g) PD 11.1 – Ex parte, Interim, and Interlocutory Applications for Relief (Including Injunctive Relief)
(h) PD 11.2 – Mareva injunctions and Anton Piller Orders
(i) PD 11.3 – High Court and District Court Restrictive Applications and Restrictive Proceedings Orders
(j) PD 12.1 – Warrants of Arrests of Judgment Debtors
(k) PD 14.1 – Right of Audience before a Master
(l) PD 14.2 – Proceedings before Masters
(m) PD 14.3 – Costs
(n) PD 14.5 – Wasted Costs Order
(o) PD 16.1 – Settling Draft Orders and Judgments
(p) PD16.2 – Judgment: Foreign Currency
(q) PD 16.3 – Interest on Judgment
(r) PD 16.4 – Execution to Enforce Judgment for Possession of Immovable Property
(s) PD 16.5 – Peremptory orders
(t) PD 19.1 – Pleadings
(u) PD 19.2 – Service of Documents By Post : Ordinary Course of Post
(v) PD 19.3 – Statement of Truth
(w) PD 21.1 – Solicitors – Appearance in Open Court
(x) PD 24.2 – Endorsements in the Chinese Language to be made on Court Documents
(y) PD 25.1 –Chamber hearings in civil proceedings in the High Court, the District Court, the Family Court and the Lands Tribunal
(z) PD 25.2 – Report on Hearings Held in Chambers Not Open to the Public
(aa) PD 32 – Use of Information Technology and Text-Based Communications in Courtrooms
General matters
Filing of document
28. Subject to RHC Order 63, rule 3A(2), every document which, under the Rules, must be filed in the Registry, should be delivered by hand to the Registry and must not be sent by post, facsimile machine or electronic mail.
29. Every document filed in the Tribunal (except interlocutory summonses) should be marked at the top right corner on the first page with an annotation specifying the parties who may inspect the document, in accordance with paragraph 27 of CTPD No 2 – Confidential Information.
30. An originating document filed in the Tribunal will be open to inspection by the public upon payment of a fee. Any party who wishes to maintain the confidentiality of any information in such a document should apply for confidential treatment before or at the time of filing the document in accordance with rule 37 of the Rules and CTPD No 2 – Confidential Information.
Service of document
31. The rules for service of documents are set out in the Rules. In addition, the Tribunal encourages the parties by agreement to adopt any other consensual mode of service of documents (except for sealed copies of judgments or orders of the Tribunal) that they may find more convenient, such as email or fax. An agreement of that kind should also specify the time at which a document is to be regarded as having been served.
Service of originating process out of jurisdiction
32. Where an originating application needs to be served out of the jurisdiction, leave to do so should be applied for ex-parte by affidavit submitted together with a draft order. Where there are more than one person to be served, the affidavit should clearly specify the grounds for service out of the jurisdiction on each person.
Newspaper Advertisements
33. Advertisements which are required by any ordinance, rules or regulations, or order of the Tribunal, to be placed in a newspaper shall (unless otherwise provided) be in the language of that newspaper.
Constitution of Tribunal
34. As soon as practicable after proceedings are begun in or transferred to the Tribunal, the President will decide the constitution of the Tribunal for the purpose of those proceedings. The Registrar will notify the parties accordingly.
35. After the Tribunal has been constituted for a matter, all interlocutory applications in that matter are to be dealt with by the Tribunal as constituted unless otherwise directed by the President or a member of the Tribunal as constituted.
36. At any stage of the proceedings, the Tribunal may, as it thinks fit, appoint one or more assessors to assist it in disposing of the proceedings. Such assessors will be persons in possession of relevant expertise such as economics and industry experts.
Conduct of hearing
37. The final hearing of proceedings in the Tribunal will take place in open court, unless the Tribunal directs otherwise.
38. Interlocutory matters will be heard by the Tribunal in chambers open to the public, unless the Tribunal directs otherwise. As with specialist lists in the CFI, unless otherwise directed it is members of the Tribunal who exercise powers in chambers and not the Registrar. Where a matter has come before the Registrar, he may adjourn it to a member of the Tribunal of his own motion or on request by a party.
39. The President, Deputy President and members of the Tribunal should be addressed in the same way as a judge of the CFI is addressed. The Registrar of the Tribunal should be addressed in the same way as the Registrar of the High Court is addressed. Senior Deputy Registrars and Deputy Registrars should be addressed as Masters.
40. The Tribunal will seek to avoid formality in the conduct of hearings.
41. Legal representatives are not required to be robed in the Tribunal.
Representation
42. Legal representatives with a right of audience before the Tribunal sitting in open court or in chambers are those who have a right of audience before the CFI in its civil jurisdiction sitting in open court or in chambers respectively.
43. A body corporate may not commence, carry on or defend any proceedings in the Tribunal otherwise than by a solicitor except (a) in circumstances permitted under RHC Order 5 rule 6 and Order 12 rule 1, including in particular where the Registrar gives leave for a corporation to be represented by its director, or (b) where the Tribunal gives leave for the body corporate to be represented by any other person under rule 30 (1)(b)(ii) of the Rules.
44. The Tribunal’s power under rule 30(1)(b)(ii) of the Rules to allow any other person to appear on a party’s behalf is a residual power which will be used sparingly. In particular, it is not intended to obviate the need for overseas lawyers to apply for ad hoc admission under the Legal Practitioners Ordinance (Cap 159) for the purpose of representing a party in proceedings in the Tribunal.
Urgent application
45. Any urgent application falling within the jurisdiction of the Tribunal should in the first instance be made to the President or, in his or her absence, to the Deputy President or, in their absence, to the Acting President appointed by the Chief Justice. Such urgent application should not be made to the Duty Judge of the CFI.
Case summary
46. The applicant or plaintiff is required to lodge a case summary (in both English and Chinese) of the proceedings with the Registrar:
(a) Upon receipt of notice of the granting of leave to apply for a review of a reviewable determination under s. 84(1) of the Ordinance;
(b) Upon filing the originating notice of application in an application for the enforcement of a commitment under s. 63 or for the enforcement of competition rules under ss. 92(1), 94(1), 97(1) and 99(1) of the Ordinance; and
(c) Upon filing the originating notice of claim in a follow-on action brought in the Tribunal under s. 110(1) of the Ordinance.
47. Likewise, as stated also in paragraph 110 below, a party who has obtained an order for the transfer of proceedings in the CFI to the Tribunal, is required to lodge a case summary with the Registrar.
48. A case summary should in general not exceed 200 words whether in the English or Chinese version.
49. As soon as practicable after relevant proceedings are commenced in or transferred to the Tribunal, pursuant to rule 19 of the Rules, the Registrar will publish a notice on the Tribunal’s webpage and in any other manner as the President may think fit indicating that proceedings have been commenced in, or transferred to, the Tribunal, as the case may be and giving a brief description of the proceedings. In the case of transferred proceedings, the action number of the CFI proceedings will also be stated. The notice will be prepared by the Registrar based on the summary provided by the relevant party in the manner above with such changes as the Registrar considers appropriate. Accordingly, although the summary will not be published as a separate document, it should not contain anything regarded to be confidential.
Intervention
50. Persons having a sufficient interest who wish to intervene in the above-mentioned types of proceedings before the Tribunal have 28 days from the date of publication of the notice on the Tribunal’s webpage, or such other period as directed by the President, in which to make a request to the Tribunal for leave to intervene: see rule 20 of the Rules.
51. Persons who wish to intervene should however do so at the earliest moment without waiting until the end of the period allowed. The earlier an application for intervention is made, the more possibility the intervener will have of participating in the development of the case and the more efficiently the Tribunal will be able to manage the proceedings in fairness to all concerned.
52. The request for leave to intervene must be in Form 3 of the Rules and contain the information required by the form and set out succinctly the reasons and grounds for intervention.
53. After receipt of the request the Tribunal will give directions for the determination of the request to intervene including whether or not an oral hearing is necessary and, if so, directions for such hearing.
54. Existing parties to the proceedings should consider whether they wish to claim confidentiality in relation to the documents already filed with the Tribunal vis-à-vis the intervener (assuming intervention is permitted), and be ready to make representations to the Tribunal accordingly.
55. Where intervention is permitted, the Tribunal will give directions for the conduct of the intervention. The extent and nature of the intervention permitted and the directions necessary will depend on the particular circumstances of the case. Intervention may range from full-blown participation in the proceedings with the filing of pleadings and evidence by the intervener, to the mere submission of a written argument for the final hearing.
56. Where the Competition Commission wishes to intervene or participate in proceedings before the Tribunal pursuant to ss. 120 and 121 of the Ordinance, it should apply also in Form 3 of the Rules to the Tribunal specifying the reasons, and the extent to which it seeks to take part. Where the Commission is invited by the Tribunal to participate, it is unnecessary to file any form.
Consolidation
57. Where more than one set of proceedings or applications are pending in the Tribunal with commonality of issues or parties, the Tribunal may give directions on application or of its own motion for the consolidation of the proceedings or applications or for the conduct of these proceedings or applications in an appropriate manner.
Discovery
58. There is no automatic general discovery in proceedings in the Tribunal. In other words, the related provisions in RHC Order 24, in particular rule 2, do not apply. Parties may instead apply for general directions on discovery or apply for discovery and production of specific documents from parties or non-parties. The Tribunal will, as part of case management, manage discovery issues proactively. Even where a document is relevant, however, the Tribunal may refuse to make an order having regard to all the circumstances of the case including in particular the matters set out in rule 24 of the Rules.
Interlocutory summons
59. Every interlocutory summons should contain a marginal note specifying the statutory provisions invoked or relied upon by the applicant for the purpose of the application.
Verification by statement of truth
60. Any originating document, pleading, witness statement, expert report filed under the Rules or pursuant to the direction of the Tribunal must be verified by a statement of truth in accordance with Order 41A of the RHC.
Evidence
61. Except in the case of proceedings for (a) a pecuniary penalty under s. 93 of the Ordinance, or (b) a financial penalty under s. 169 of the Ordinance, the Tribunal may receive any evidence whether or not it would otherwise be admissible in a court of law, and may determine the manner in which it will receive evidence.
Expert evidence
62. While it is recognised that expert evidence may often be necessary in cases brought under the Ordinance, parties should ensure that they serve no more expert evidence than is necessary. The Tribunal may refuse leave for a party to adduce or rely on unnecessary expert reports.
63. In general, parties should expect that, after expert reports have been served, the experts they have respectively engaged will be directed to communicate with each other and produce a joint report specifying matters agreed and matters not agreed and the reasons for any non-agreement.
Confidentiality
64. For the practice relating to requests for confidential treatment of information in connection with proceedings before the Tribunal, see CTPD No 2 – Confidential Information.
Hearing Bundle
65. In the preparation of hearing bundles for interlocutory application in the Tribunal, the practice in the CFI as set out in Practice Direction 5.4, paragraphs 2 to 4, should be followed.
66. In the preparation of hearing bundles for trials or final hearings in the Tribunal, the practice in the CFI as set out in Practice Direction 5.6 should be followed.
67. Unless otherwise directed by the Tribunal, papers in the hearing bundles, including skeleton submissions and bundles of authorities, should be printed on both sides. Care must be taken that writing in the margin on either side of the paper is not obliterated upon the binding of documents in the bundles.
Skeleton arguments
68. Paragraphs 5 to 12 of Practice Direction 5.4 of the High Court apply to skeleton arguments for proceedings in the Tribunal.
69. Unless otherwise directed by the Tribunal, skeleton arguments should be printed on both sides of the paper.
Transfer to the CFI
70. Any person who intends to apply for proceedings or part thereof in the Tribunal to be transferred to the CFI should make the application as soon as circumstances have arisen rendering it in the interests of justice for the proceedings or part of them to be transferred. Failure to do so may attract adverse costs consequences.
71. An application for transfer should be made by a summons (Form 2 of the Rules) taken out in the Tribunal. An affidavit may or may not be necessary depending on the basis of the application. Where appropriate, the Tribunal may deal with the application on paper and dispense with the hearing.
Orders by consent
72. One of the underlying objectives of the procedures of the Tribunal is to facilitate the settlement of disputes. In particular, in respect of proceedings under Parts 3 and 4 of the Rules, rule 39 of the Rules provides power for the Tribunal to make orders by consent, including any findings, determinations or decisions and orders that are within the power of the Tribunal. Where the Ordinance provides the Tribunal may, upon being satisfied of certain facts, exercise a power, such as the imposition of a pecuniary penalty under s. 93 or other orders under s. 94, an application for such an order by consent should be accompanied by a statement of agreed facts on the basis of which the Tribunal is asked to make the order in question. In respect of proceedings under Part 5 (follow-on actions) and Part 6 (transferred proceedings) of the Rules, RHC Order 42 including rule 5A applies.
Applications for review of reviewable determination under Part 5 of the Ordinance
Notice of application for leave
73. The applicant should succinctly set out all the facts and grounds relied upon in the notice of application for leave (Form 7 of the Rules) with particularity. As required by the form, the applicant should identify the specific sub-paragraph in s. 83 of the Ordinance that the determination is said to fall within.
74. The decision-maker of the reviewable determination of which review is sought should be named respondent to the application in the notice of application for leave. Other parties which are directly affected by the application should be named interested parties.
75. As required by the Rules, the application must be accompanied by an affidavit that verifies the facts and exhibits the relevant documents. Where there are special circumstances justifying a longer period of time for the filing of part of the evidence or requiring the evidence to be supplemented afterwards, the applicant should seek leave from the Tribunal to do so.
Procedure for determining leave
76. Applications for leave to apply for a review of a reviewable determination under Part 5 of the Ordinance will ordinarily be determined without a hearing, unless the Tribunal directs otherwise, or the applicant requests an oral hearing and the Tribunal is not prepared to grant leave on considering the papers alone, or the putative respondent requests an oral hearing and the Tribunal considers that an inter partes hearing of the application for leave is appropriate.
77. If an oral hearing is fixed for the application for leave, that hearing will take place in open court, unless the Tribunal orders otherwise, and may take place ex parte or inter partes as the Tribunal directs.
78. Irrespective of whether an oral hearing is directed, the Tribunal may, depending on the circumstances of each case, seek the written comments of the putative respondent on the application.
79. Where the putative respondent is invited or permitted to take part in the leave stage, either in writing or at a hearing, it should adhere to the directions given by the Tribunal regarding the scope of such participation.
80. If the Tribunal decides to grant leave, the applicant, respondent and interested parties, if any, will be informed of the decision and any directions or observations the Tribunal has given or made, including, as far as practicable, a date or a range of dates for the hearing of the application for review. The Tribunal may also indicate whether a case management conference will be necessary and, if so, the indicative dates or range of dates.
81. If the Tribunal decides to refuse leave, the applicant, the putative respondent and interested parties, if any, will be informed.
82. Applications to set aside the grant of leave are to be heard in open court, unless the Tribunal orders otherwise.
The Response
83. The response to be filed by the respondent should be a succinct document identifying, with particularity, the principal factual and legal matters and grounds on the basis of which the application for review is opposed. It is not intended to be a skeleton argument or written submission, and should not therefore contain lengthy exposition of legal principles, quotations, or detailed arguments. Nor is it necessary for the response to set out all the background and uncontroversial facts or the evidence by which any specific facts relied upon are to be proved.
Documents
84. Relevant documents intended to be used by any party to a review should be exhibited to the affidavits they file. Except for special reasons, the Tribunal will not allow any party to rely on any document not so exhibited.
Review of merits
85. Counsel and solicitors instructed by the applicant should give further careful consideration to the merits of the application once they have received the respondent’s response and evidence, even though leave to apply for review has been obtained.
Case stated
86. Where a person applies to the Tribunal for it to state a case to the Court of Appeal pursuant to s. 86 of the Ordinance, a draft case should be appended to the application. If the Tribunal decides to state a case, it may decide to adopt the draft case with such modification as it thinks fit.
87. Upon receipt of an application for a question of law to be referred to the Court of Appeal by way of case stated, or if the Tribunal intends of its own motion to make such a reference, the Tribunal will give directions to enable the parties to make representations on whether or not such reference should be made and, if so, the terms of the case stated.
Applications for enforcement of commitment or competition rules under Parts 4 and 6 of the Ordinance
88. The originating notice of application, initiating the proceedings in the Tribunal, should contain not only the material facts relied upon, but also a succinct presentation of the arguments of fact, economics (if applicable) or law supporting the findings and relief sought, so that from the outset the Tribunal and the respondent are apprised of the substance of the case advanced by the applicant.
89. Prolixity in an originating notice of application should be avoided. Where the originating notice of application is particularly lengthy (exceeding 50 pages) it should contain, at the beginning, a table of content and a short summary of the grounds advanced.
90. Unless otherwise directed by the Tribunal, the response to be filed within 28 days pursuant to rule 75 of the Rules is, like the originating notice of application, expected to contain not only the material facts relied upon by the respondent, but also a succinct presentation of the arguments of fact, economics (if applicable) or law in opposition to the findings and relief sought. Similarly, where the response is particularly lengthy (exceeding 50 pages) it should contain, at the beginning, a table of content and a short summary.
91. The Registrar’s letter notifying the parties of the constitution of the Tribunal (see paragraph 34 above) will usually also indicate the date of the first case management conference (“CMC”), which is likely to take place shortly after the expiry of the time for filing the respondent’s response.
92. The object of the first CMC is to identify as far as possible the necessary directions to enable the matter to proceed to a substantive hearing fairly, expeditiously and economically. The parties’ representatives attending it must be fully conversant with the case and in possession of full authority. In general, the following matters may be expected to be canvassed at the first CMC:
(1)any issues of confidentiality and confidential treatment of documents;
(2) any question in relation to intervention;
(3) any different consensual mode of service of document;
(4) identifying, as far as possible, the principal substantive issues between the parties;
(5) the timing and mode of the service of witnesses’ evidence in writing;
(6) whether discovery of documents is necessary and if so its extent;
(7) any question relating to expert evidence;
(8) to fix a date or range of dates for the final hearing of the application wherever possible; and
(9) to lay down a timetable for the proceedings down to the hearing of the application wherever possible.
93. The parties must confer with each other prior to the CMC regarding the directions each seeks. They should submit to the Tribunal at least 2 clear days before the hearing a list of all proposed directions, indicating their agreement and differences, which either or both parties invite the Tribunal to give. Where appropriate the parties should lodge skeleton arguments in advance of the CMC to set out their position on particular contested matters.
94. CMCs will be held in chambers open to the public unless the Tribunal otherwise directs.
Private actions under Part 7 of the Ordinance
95. S. 110 of the Ordinance provides for a right of action by a person who has suffered loss or damage as a result of any act that has been determined to be a contravention of a conduct rule. As provided in rule 93 of the Rules, proceedings for such a claim are commenced in the Tribunal by the filing of an originating notice of claim coupled with a statement of claim.
96. The originating notice of claim should set out the nature of the claim made and the relief or remedy sought, in a manner similar to a generally indorsed writ in the CFI.
97. The originating notice of claim must specify the estimated amount of damages (both general and special damages) claimed as well as the estimated aggregate amount claimed.
98. The statement of claim should in general follow the relevant requirements of RHC Order 18.
99. The statement of claim must set out with full particulars the loss and damage suffered under each head of loss and the respective amounts of damages claimed as well as the aggregate amount claimed.
100. In addition, as required by rule 93(4) of the Rules, the statement of claim must specify the decision or commitment and the particular part thereof relied upon as having determined that the act that has allegedly caused the plaintiff loss is a contravention of a conduct rule.
101. Where the plaintiff includes other causes of action in his claim than s. 110 of the Ordinance, this should be made clear in the statement of claim. The facts in support of each cause of action should be clearly identified so as to make it readily ascertainable whether each claim lies within the jurisdiction of the Tribunal.
102. There is no requirement for the filing of an acknowledgment of service by the defendant.
103. The defence must plead specifically with as full particulars as possible to each item of loss and damage allegedly suffered by the plaintiff under each head of loss and to the amount of damages claimed.
104. As provided in rule 97 of the Rules, after the close of pleadings, a case management summons has to be issued, at the hearing of which further directions for the conduct of the case will be given, including discovery (which may be limited to specific issues), affidavits or witness statements, expert reports where appropriate and a timetable for the steps to be taken.
105. The form of timetabling questionnaire, which should be filed by each party at least 7 days before the hearing of the case management summons, is annexed to this Practice Direction as Annex.
106. A hearing bundle should be lodged at least 7 days before the hearing. A copy of the relevant decision of the contravention of a conduct rule or the relevant commitment, as well as a copy of the timetabling questionnaires, should be included in the hearing bundle.
107. An underlying objective of the procedural rules of the Tribunal is to facilitate the settlement of disputes. Parties to follow-on actions are particularly encouraged to consider and, where appropriate, adopt alternative methods of dispute resolution, such as mediation. Parties should note that RHC Order 22 (Offers to Settle and Payments into Courts) applies with necessary modification to the Tribunal.
108. In follow-on actions, the Tribunal adopts the practice stated in Practice Direction 31 (Mediation) of the High Court so that, in particular, where all the parties are legally represented, solicitors acting respectively for the parties shall file in the Tribunal a Mediation Certificate at the same time as the timetabling questionnaire for the hearing of the case management summons.
Proceedings transferred from the CFI to the Tribunal under s. 113 of the Ordinance
109. Because of the varied nature of the proceedings that may be transferred by the CFI to the Tribunal and the different stages to which they may have progressed in the CFI before the transfer, the Tribunal will take a flexible approach to the procedure for transferred proceedings.
110. To enable the Registrar to publish a notice of the transferred proceedings pursuant to rule 19 of the Rules, the party who has obtained the order for transfer must forthwith lodge with the Registrar a case summary in accordance with paragraphs 47 and 48 above.
111. As soon as practicable after the transfer, the Registrar will notify the parties of the date of a directions hearing together with directions including the filing of timetabling questionnaire and mediation certificate.
112. The matters to be canvassed at such first directions hearing may include:
(1) the future nomenclature of the parties in the proceedings;
(2)the mode of further conduct of the proceedings; and
(3) other directions of a case management nature.
113. In accordance with s. 113(4) of the Ordinance, the practice and procedure of the Tribunal, apply to the proceedings transferred by the CFI to the Tribunal.
114. Where proceedings in the CFI are transferred in part to the Tribunal, the remaining proceedings in the CFI are not automatically stayed. How the transferred and remaining proceedings will be further conducted is a matter of case management and directions for the Tribunal and the CFI respectively.
Commencement Date
115. This Practice Direction shall come into effect on 14 December 2015.
Dated this 29th day of October 2015.
| (Geoffrey Ma) |
|
| Chief Justice |