[LTPD: BM No. 1/2009]
Direction Issued by the President of the Lands Tribunal
Pursuant to Section 10(5)(a) of the
Lands Tribunal Ordinance (Cap. 17)
Case Management and Mediation
for Building Management Cases
Introduction
1. The Lands Tribunal (“the Tribunal”) has introduced a pilot scheme to streamline the processing of building management cases since 1 January 2008. The scheme is applicable to cases with legal representation on both sides. In appropriate cases, with suitable modifications, the Tribunal has also applied some features in the scheme to other cases by specific direction made in the course of proceedings.
2. The aim of the scheme is to facilitate the more efficient, expeditious and fair disposal of building management cases. Unnecessary hearings would be cut down and in circumstances where directions could fairly be given on paper without any oral hearing, the Tribunal will do so. Unnecessary interlocutory applications will be discouraged and in appropriate cases, costs sanctions will be imposed. The parties are also encouraged to resolve their disputes by way of mediation. These are all in line with the underlying objectives of the Civil Justice Reform implemented on 2 April 2009.
3. After evaluation and consultation, the Tribunal decides to adopt the measures in the Pilot Scheme, with some modifications, as standard practice. This Practice Direction is to set out the standard practice in the Tribunal after the Pilot Scheme ends on 30 June 2009.
The respective roles of the Tribunal and the litigants and their advisers in fair efficient and cost effective disposal of cases
4. It is important for litigants as well as those advising them to appreciate that efficient and cost effective resolution of disputes cannot be achieved without due diligence and co-operation on their part. The Tribunal will be proactive in case management and will perform its case management duty and exercise its case management power in accordance with the underlying objectives of the Civil Justice Reform and LTPD: CJR No.1/2009.
5. Parties and those advising them should be mindful of their duties under Order 1A Rule 3 of the Rules of the High Court (applicable to the Lands Tribunal, see LTPD: CJR No.1/2009 para.7) and they should explore settlement or mediation before they decide to litigate. They should understand that litigation will inevitably involve time, efforts and costs and should assess for themselves whether it is proportionate to litigate on a matter. Although the Tribunal will encourage parties to compromise their disputes, its primary function and objective should be the fair and efficient adjudication of cases.
6. Given the nature of most building management cases, especially when the parties are legally represented, there is no reason why preparation for trial could not be made before the first hearing. For instance, the applicant should be able to file some of his evidence (including witness statements, relevant documents and expert reports) even without sight of the Notice of Opposition. Given the time gap between the filing of Notice of Opposition and the first hearing, the applicant should be able to file his evidence in reply in an ordinary building management case. Likewise, the respondent should be able to prepare his evidence at the same time when he prepares his Notice of Opposition.
7. Building management cases in the Tribunal should focus on the relevant issues. Proliferation of efforts on irrelevant factual or legal disputes would be prevented.
8. In other words, with due diligence, the parties should be able to file most of the evidence before the Tribunal considers whether to list a case for hearing. If that were done, the Presiding Officer would be able to assess on the papers,
(a) Whether there are any loose ends that require further filing of evidence or documents;
(b) Whether the case is in a state of readiness to be set down for trial with an informed estimate about the length of trial;
(c) Whether the case can be disposed of summarily on a point of law.
This will save the need for unnecessary hearings in most cases.
9. In a simple building management case, with the use of appropriate checklists filed by parties with legal representatives, the review of the case could be conducted on paper without any oral hearing.
10. Even if there are loose ends, it does not mean that trial dates cannot be fixed. If the loose ends could probably be dealt with within a certain time frame, trial dates can still be fixed. Parties could be directed to inform the Tribunal of compliance within a certain date. Late filing will require leave which may not be granted, especially when there is no cogent explanation for the default, or the trial dates could be jeopardized.
11. If the case obviously requires some major overhaul, the Tribunal will not set it down for trial.
Mediation
12. Parties to building management disputes are encouraged to make attempts to resolve their differences by mediation, before or after they issue proceedings in the Tribunal. If there are means to resolve a dispute which could be less costly, more efficient and effective than by way of litigation, unreasonable failure to make a bona fide attempt in that regard on the part of either party (where this can be established by admissible evidence) will be relevant conduct to be taken into account by the Tribunal in deciding on costs. Nevertheless, where a party has engaged in mediation up to the minimum level of expected participation agreed by the parties beforehand or as determined by the Tribunal, or has a reasonable explanation for non-participation, he shall not suffer any adverse costs order. In determining whether a party has acted unreasonably in refusing to proceed with mediation, the Tribunal shall take into account all relevant circumstances, but not what happened during the actual process of the mediation, nor other materials which are protected by privilege in accordance with legal principles, including legal professional privilege and the privilege protecting without prejudice communications.
Listing of building management cases, automatic directions and checklists
13. With effect from 1 July 2009, all building management cases, whether the parties are legally represented or not, will be listed before a Presiding Officer of the Tribunal under the normal list, and the Pilot Scheme List shall cease to be operative. Applications to list cases for hearing will be dealt with in accordance with the procedures set out below. Cases that were listed in the Pilot Scheme List shall revert back to the normal list automatically.
14. Call-over hearings will be listed for cases involving litigants acting in person as in the past. Where both parties are legally represented, the case may be fixed for call-over hearing or for trial at the direction of the Presiding Officer. The Tribunal will apply the underlying objectives of the Civil Justice Reform as well as the principles in paragraphs 2, 4, 5, 7, 10 to 12 above and paragraphs 17 and 18 below to deal with the cases. The Tribunal may also give directions on papers if it is satisfied that a fair opportunity has been given to the parties to make submissions on the proposed directions.
15. The following procedure will automatically be applied to all cases where both parties are legally represented with (a) to (e) to be treated as automatic directions given by the Tribunal,
(a) An applicant shall file and serve the first batch of his evidence, including witness statements, relevant documents and expert reports (if any), at the same time as when he files and serves his Notice of Application;
(b) An applicant shall file and serve at the same time as his Notice of Application a statement on mediation setting out (i) whether he has attempted to resolve the dispute by mediation; (ii) whether he is willing to attempt mediation; and (iii) if he considers the case unsuitable for mediation, brief reasons for that conclusion;
(c) A respondent shall file and serve his evidence, including witness statements, relevant documents and expert reports (if any), by the time he files and serves his Notice of Opposition;
(d) A respondent shall file and serve at the same time as his Notice of Opposition a statement on mediation setting out (i) whether he is willing to attempt mediation; and (ii) if he considers the case unsuitable for mediation, brief reasons for that conclusion;
(e) Both the applicant and the respondent shall file and serve evidence in reply to the evidence of the opposite side, including supplemental witness statements, all further relevant documents and expert reports (if any), and a checklist as per the Annex within 14 days of the application to list for hearing;
(f) If a party fails to comply with (a), (b), (c), (d) or (e), the Tribunal shall give further directions on paper for proper preparation of the case;
(g) Unless there is a specific direction by the Tribunal to the contrary, a case where both parties are legally represented will only be listed for hearing when these directions are complied with;
(h) Defaults on the part of a litigant may be sanctioned by unless orders or orders barring him from adducing evidence at the trial without leave and/or adverse costs orders;
(i) Upon review on paper,
i. If the Tribunal is of the view that the case is ready for trial, it may list the case for trial without any call-over hearing;
ii. If the Tribunal is of the view that there are still some outstanding matters which may need to be argued, it may list the case for a call-over hearing at which directions may be given, including a direction for setting down the case for trial;
iii. If the Tribunal is of the view that there are still significant outstanding matters to be attended to or a checklist is incomplete, it may give written directions on papers and defer the listing of a case for hearing until the preparation by the parties reaches a reasonably satisfactory stage.
16. If the circumstances warrant, the Tribunal may direct further call-over hearings. Such further call-over hearings would however be exceptional.
17. Unnecessary and disproportionate interlocutory applications should not be made and would not be entertained. Insofar as possible, litigants should also deal with interlocutory matters by consent summons. Unnecessary or unreasonable interlocutory applications will normally be met with adverse costs consequences including gross sum assessments and orders for immediate payment of costs.
18. Once fixed, trial dates should not be vacated without good and cogent reasons. Late filing of evidence or late amendments that could result in adjournment of trial will not be allowed lightly.
19. Lawyers advising parties in building management cases should advise their clients of the costs implications of litigation and the Tribunal’s attitude on costs, in particular the consideration in paragraph 12, when they prepare the statements on mediation under paragraph 15(b) and (d) above.
20. The Tribunal may apply some of the above features to cases involving litigants in person and give appropriate directions as it sees fit.
21. The Tribunal may, on the application of one or more of the parties or of its own motion, stay the proceedings or any part thereof for the purpose of mediation for such period and on such terms as it thinks fit. Where the Tribunal stays the proceedings, the parties must promptly inform the Tribunal if a settlement is reached and the parties should take the necessary steps to conclude the legal proceedings formally.
22. This Practice Direction shall take effect on 1 July 2009.
Dated this 21st day of May 2009.
| (Johnson Lam) | |
| President, Lands Tribunal |
