4. If the opposing party does not observe the case management timetables and dates fixed by the court, or does not attend the case management conference, are there any sanctions against him?
Once the case management timetables and dates for a case that are regarded as “milestone dates” (including the case management conference, pre-trial review, and the trial date or period) are fixed by the court, they are meant to be observed strictly and cannot be varied save in exceptional circumstances. This is to prevent procrastination and ensure efficient use of judicial resources. Non-compliance with these case management directions, for example, repeated failures to follow the deadlines imposed by the rules, will generally lead to severe consequences. Various sanctions are available to the court to ensure that the timelines imposed are strictly adhered to, including
- Costs sanctions
- Payment into the court as security
- Unless orders
- Provisional striking out of a claim or counterclaim
- Wasted costs orders
Costs sanctions
This is the most commonly used sanction. The court may order the party causing delay to pay the innocent party’s legal costs incurred in relation to the relevant applications or hearing. Under serious circumstances, the costs sanction ordered may be on indemnity basis.
Payment into court as security
If a party fails to comply with the rules and court orders, without good reasons, the court can order it to pay a sum of money into court. The money paid into court is held as security for any sum payable by that party to any other party in the proceedings, including the opposing party’s claim and costs. Payment into court can also serve as a condition for any case management orders (i.e. time extensions) given by the court.
When exercising this power to order a payment into court, the court will have regard to the amount in dispute and the costs which the parties have incurred or may incur.
Nevertheless, the court usually will not order security for costs if the order stifles a claim or an appeal. Instead, it would be exercised by the court if it is of the opinion that a party is regularly flouting (i.e., disobeying) court procedures or does not demonstrate good faith. A party having a weak case would not mandate an order, unless it has no real prospect of succeeding.
Unless orders
Unless order refers to an order with the ordered consequence, should there be non-compliance, and the sanction imposed in the order will automatically take effect upon failure to comply within the time specified in the order. The court has a very wide power in making case management orders, including unless orders.
As stated in Order 1B, rule 1(3) of the Rules of the High Court (Cap. 4A) (“RHC”) or the Rules of the District Court (Cap. 336H) (“RDC”), when the court makes an order:
- It may make it subject to conditions including a condition to pay a sum of money into court (Order 1B, rule 1(3)(a)); and
- Specify the consequence of failure to comply with the order (Order 1B, rule 1(3)(b)).
Below is an example of an unless order:
“Unless by 4:00pm on 6th May 202X, the Plaintiff do exchange its witness statements with the Defendant, Plaintiff be debarred from adducing evidence in chief at the trial of these proceedings.”
Here, the plaintiff, being the defaulting party causing delay, needs to exchange its witness statements with the defendant by the stated deadlines (condition), otherwise he would be unable to adduce evidence in chief later at the trial, effectively ending his ability to prove his case (consequence of failure to comply with the order).
The defaulting party can obtain relief from the sanction brought by the unless order, within 14 days of the failure (Order 2, rule 4). In deciding whether to grant relief, the court shall consider all circumstances, including the interests of justice, whether the failure was intentional, the availability of a good explanation, and whether the trial date can still be met.
Provisional strike out
Pursuant to Order 25, rule 1C of the RHC or Order 25, rule 4 of RDC, if the plaintiff fails to attend a case management conference (“CMC”) or pre-trial review (“PTR”), the court shall provisionally strike out the plaintiff’s claim. The court has a similar power to strike out counterclaim if the defendant has a counterclaim and fails to appear at the CMC or PTR.
The affected party may apply to restore the claim or counterclaim, which application must be made within 3 months of the CMC or PTR concerned. The party will need to show good reasons for his failure to appear.
If the defaulting party does not apply for restoration within 3 months, or if his application is refused, the claim or counterclaim stands dismissed automatically, and the non-defaulting party is entitled to his costs of the dismissed claim or counterclaim.
Wasted costs orders
If a legal representative, who can be a solicitor or a barrister, either representing yourself or the other party in the proceedings, incurs any wasted costs or causes undue delay to the proceedings, you can apply for a “wasted costs order”, under section 52A of the High Court Ordinance (Cap. 4) or section 53 of the District Court Ordinance (Cap. 336), ordering the legal representative to compensate you for the whole or part of these costs.
In cases of procedural mistakes which cause delay to your proceedings, e.g., missing deadlines, forgetting to serve on the other side, forgetting to seek leave of court, a wasted costs order may be applicable.
For more information, please refer to “If my legal representative has made several procedural mistakes (such as missing deadlines) or wrongfully disclosed my document without consent, causing wasted costs consequently, can I recover my legal costs from him?”.
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