ESTIMATE OF COSTS IN ANCILLIARY RELIEF PROCEEDINGS AND CHILDREN PROCEEDINGS (“FORM H”)
Introduction
2. The Forms H prescribed in this Practice Direction are intended for replacing the Form H referred to in PD 15.11 and PD 15.13.
3. Costs in matrimonial proceedings inevitably diminish the family assets which are available for distribution by way of ancillary relief and reduce the resources available for future maintenance of the children of the family. It is therefore in the interests of the parties that they each should be aware of their potential liability for costs. If the parties themselves are made to realize that the value of the assets after payment of costs may be so reduced as to make litigation unjustified, a sensible compromise can be effected.
4. At the same time, parties and their legal representatives have a duty to equip the court with necessary information to conduct Children Dispute Resolution (“CDR”) and/or Financial Dispute Resolution (“FDR”) and to exercise its case management powers with a sense of proportionality in these proceedings.
5. For these purposes, parties are required to provide the court with information as to the costs incurred and estimates of the costs to be incurred in the proceedings in the relevant Form H prescribed in this Practice Direction.
The Forms H
6. There are 4 Form H's, namely Forms H1, H2, H3 and H4 as annexed to this Practice Direction.
7. Form H1 should be used for defended matrimonial causes and interlocutory applications relating to the main suit, including applications under the Domestic and Cohabitation Relationships Violence Ordinance (Cap 189).
8. Form H2 should be used in the case of Children Proceedings, where PD 15.13 prescribes the exchange and delivery of Form H.
9. In the case of Ancillary Relief Proceedings, where PD 15.11 prescribes the exchange and delivery of Form H to the court,
(1) Form H3 should be used for costs up to FDR hearing; and
(2) Form H4 should be used for costs after FDR up to and including trial.
10. One Form H shall be lodged by each party on the following milestone dates:
·Case Management Hearing (“CMH”)
·CDR
·FDR
·Pre-trial Review (“PTR”)
·(in respect of proceedings transferred from the Family Court to the High Court) First Appointment Hearing
11. Where there is a second appointment for a milestone date, it is not necessary to lodge another Form H unless there has been substantial change of circumstances leading to substantial increase in costs of a party.
12. Where one milestone hearing will deal with more than one matter (e.g. children and ancillary relief together), 2 relevant Forms H should be used. A party is at liberty to estimate the global costs up to the relevant milestone event and apportion a percentage of costs in respect of each matter.
13. Additionally, the court may direct a relevant Form H to be lodged and served for other hearings.
14. The court may also direct a relevant Form H to be used in other Family Proceedings (as defined in paragraph 4 of PD 15.12 - Matrimonial Proceedings and Family Proceedings).
15. All Forms H shall be lodged and served 3 clear days (excluding Saturday, Sunday and public holiday) before the relevant milestone date, unless otherwise directed by the Court.
Duties of Parties and their Legal Representatives
16. Parties and their legal representatives should give serious care and attention when filling out the Form. The estimates provided should be as accurate and realistic as possible. Updating estimates would only be allowed if there are substantial changes in circumstances. Answers such as “to be confirmed”, “to be estimated” or “unknown” are unhelpful and unacceptable and may be treated as if there is no costs application in respect of the item concerned.
17. When assessing costs on summary assessment, if no separate statement of costs is lodged by a party 3 days before the relevant hearing, the Court shall deem such party as adopting the relevant Form H as his/her statement of costs for that summary assessment. Further, in cases where a separate statement of costs has been lodged, the Court may, in addition to the statement of costs, also have regard to the relevant Form H before deciding on costs.
18. Parties should not prepare an elaborate Form H. The court may at its discretion allow costs of no more than 30 minutes (on party-and-party basis) for preparing a Form H.[1]
19. This Practice Direction shall supersede the earlier PD 15.9 and take effect on 15 May 2023.
Dated this 4th day of May 2023.
| (Andrew Cheung) | |
| Chief Justice |
[1] Whether these 30 minutes are for the costs of handling solicitor, trainee solicitor or litigation clerk is not stated in order to provide flexibility.