B. Discovery
Choosing a subtopic
- What is a civil case?
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Matters to be considered before starting a civil action
- 1. Can I settle the dispute without going to court?
- 2. Do I have sufficient legal basis to start a civil action? Will it be possible for my opponent to sue me back in respect of the same case?
- 3. How and where can I get legal advice or representation (including free or subsidised legal assistance)?
- 4. Can I obtain what I want if I win the case?
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5. Can I afford the expenses?
- 1. Why may my legal fees not be fully reimbursed even though I have won the case and the court has ordered the other side to pay me the legal cost?
- 2. Does the court necessarily order the losing party to fully pay the legal cost of the winning party? What are the possible causes that make the court orders differently?
- 6. Can I afford the time?
- 7. Is there any deadline for starting a civil action?
- 8. What risks will I face if I start a civil action? Am I prepared to bear these risks?
- 9. If I do not mind affording time and money at all, can I start a civil action just to make trouble for the defendant, even though my case is weak?
- 10. What can be claimed in a general civil action? What are the examples of claims on an unliquidated sum? Apart from a sum of money (liquidated or not), are there any other possible claims that can be made in a civil action?
- 11. What information about a civil case can be disclosed to the public? Are all the evidence, documents, or witness statements available for public inspection?
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How to start a civil action
- 1. What is the authority and what types of civil cases can be handled by the Labour Tribunal?
- 2. What is the authority and what types of civil cases can be handled by the Small Claims Tribunal?
- 3. What is the authority and what types of civil cases can be handled by the District Court?
- 4. What is the authority and what types of civil cases can be handled by the Court of First Instance of the High Court?
- 5. If my claim exceeds the financial jurisdictional limit of the District Court, can I waive the excessive amount and start the action there?
- 6. Will I need a lawyer to handle my case?
- 7. What happens if a mentally incapacitated person or an infant/minor wants to start a legal action?
- 8. I understand that the usual parties to civil litigation are the plaintiff and the defendant. Who may commence or defend civil proceedings, and can they appear without a solicitor?
- 9. If I am a director of a limited company or a partner of a partnership in Hong Kong, what should I do to instruct a solicitor to represent my company or partnership in civil litigation?
- 10. How can I start a civil action against another party in the District Court or the High Court?
- 11. If I want to start a civil action against somebody through the District Court or the High Court, should I commence the action by filing a writ of summons or by filing an originating summons?
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12. How can I obtain documents or information before suing, or from a non-party?
- 1. Pre-action discovery against potential defendants: getting documents before starting a claim
- 2. Non-party discovery: getting documents from a stranger to the proceedings
- 3. Norwich Pharmacal orders: getting information from a person who facilitates the wrongdoing of others
- 4. Comparison table: Pre-action discovery, non-party discovery and Norwich Pharmacal order
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13. How do I start a civil action by issuing a writ of summons?
- 1. Can I issue a writ of summons without serving it on the defendant?
- 2. Does every copy of the writ served on the defendant need to be sealed?
- 3. I am the plaintiff. If I do not serve the defendant with the writ properly, what may happen to my case?
- 4. What is the risk if the plaintiff serves by registered post or letter box near the end of the limitation period?
- 5. What happens if defective service of a writ is discovered only after limitation has expired?
- 6. Can the court cure defects in service?
- 14. How do I start a civil action by issuing an originating summons?
- 15. Can I start a civil action against someone: (a) without a permanent address? (b) ordinarily resides outside Hong Kong? (c) who is missing? (d) whose name is unknown?
- 16. What are pleadings? What documents do the plaintiff and defendant need to serve in the pleading stage?
- 17. What are the general principles of drafting a good pleading?
- 18. What would be the consequence if the plaintiff exaggerates the amount to be claimed and expects the defendant to make offers at a cut?
- 19. When should I hand in my evidence? Should I attach them to the Statement of Claim or Originating Summons?
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How to defend myself against a civil action
- 1. How do I (as the defendant) calculate the period of 14 days allowed for filing the acknowledgment of service form?
- 2. I am the defendant. If I believe the writ was improperly served on me, what should I do?
- 3. Should I defend a claim that is started against me?
- 4. What should I do if I decide NOT to defend the case?
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5. What should I do if I decide to defend the case?
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A. Acknowledgment of service
- 1. What must the plaintiff do before the defendant can acknowledge service?
- 2. Which Acknowledgment of Service form should be used and how should it be completed?
- 3. Address for service: what must be given?
- 4. How and when must the Acknowledgment of Service be filed?
- 5. What happens if the Acknowledgment of Service is filed late?
- 6. Special rules for different types of defendants
- 7. Does acknowledging service mean the defendant accepts the court’s jurisdiction?
- 8. Can an Acknowledgment of Service be withdrawn or amended?
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A. Acknowledgment of service
- 6. What happens if the defendant does not file an acknowledgment of service form or a defence?
- 7. If a default judgment has been entered against me because I did not respond to the claim in time, what can I do?
- 8. What happens if the defendant files a defence (and counterclaim)?
- 9. If the defendant considers that he does in fact owe the plaintiff some money, what action can be taken by the defendant?
- 10. What should I do if the plaintiff owes me money, and I want to use that amount to reduce or defeat his claim against me and even seek compensation from him?
- 11. I am the defendant of a civil action but I believe another party should be responsible for the plaintiff’s claim instead. What should I do?
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Preparing a case for a court trial
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A. Case management
- 1. How will the Court give directions for the management of a case before the commencement of a trial?
- 2. If both the opposing party and I agree on the case management directions, what should we do in the next step?
- 3. The court has informed me that the date fixed for a Case Management Conference is a milestone date and asks me to attend it. What are milestone dates? Why are milestone dates important?
- 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?
- 5. If it seems impracticable for me to meet the deadlines set by the court, what should I do to request a time extension?
- 6. If I want to apply for an extension of time before the trial begins, will the court impose any order or sanctions on me?
- 7. Can the court directly strike out an action or enter into default judgment, once the defaulting party fails to observe the requirement as prescribed by the unless order? Is there any restriction as to what consequence can an unless order impose?
- 8. If I failed to observe a deadline imposed by the unless order and I believe I have proper reason for that failure, can I ask for an extension of deadline?
- 9. What is a Pre-Trial Review?
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B. Discovery
- 1. What is a discovery (disclosure) of documents?
- 2. Is a party required to disclose and produce all documents relevant to the litigation?
- 3. If a relevant document is totally or partially damaged, should this be included in the list of documents?
- 4. I have reasonable grounds to believe that the other party fails to disclose all relevant documents during the discovery stage. What can I do?
- 5. What happens if a party deliberately destroys discoverable documents?
- C. Witness statements
- D. Expert witnesses
- E. Other matters
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A. Case management
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Settlement
- A. Procedures to shorten the legal proceedings at an early stage under Order 13A – Introduction and Objectives
- B. Sanctioned offers and sanctioned payments
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C. Settling disputes out of the court
- 1. Apart from bringing the dispute to the court for trial, are there any ways for me and other parties to settle?
- 2. What are the advantages and disadvantages of early settlement through negotiation, mediation or other non-adjudicative ADR before trial?
- 3. What should I note if I would like to reach settlement through negotiations? Are there any procedural protections or safeguards?
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D. Q&A
- 1. As a defendant of a claim for a liquidated sum of money, if I partially admit the liability of a plaintiff's claim, what are the differences between (1) admitting the partial amount via Form 16 at the pleading stage (in pursuant of order 13A), and (2) offering that partial amount as a sanctioned payment to the plaintiff via Form 23 (in pursuant of order 22)?
- 2. If a defendant would like to make a sanctioned payment to the plaintiff at the pleading stage (after receiving the writ and statement of claim), does he still need to admit the offered amount by filling in Form 16 or 16C?
- 3. How can a minor or a mentally incapacitated person settle?
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What kinds of applications may be made to court before the commencement of a trial?
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1. How are interlocutory applications made?
- 1. What is an ex parte application, and why are certain interlocutory applications, such as applications for Mareva injunctions and Anton Piller orders, made without notice to the other party?
- 2. If a party believes that some of the core pieces of evidence held by the opposite party are falsified (e.g., a false lease document in a trial on land), should he raise it out by an interlocutory application?
- 3. Are there any examples of interlocutory proceedings that might be regarded by the Court as abuse of process? What are the consequences of initiating such proceedings?
- 2. How are interlocutory applications handled?
- 3. How to prepare an affidavit or affirmation?
- 4. What documents do the parties need to prepare for the hearing of the interlocutory application?
- 5. How is the hearing of an interlocutory application conducted?
- 6. Can the plaintiff or the defendant appeal against an order made on an interlocutory application?
- 7. If the defendant has filed a defence, but it does not contain any reasonable points, can the plaintiff apply for a "fast judgment" without going through a trial?
- 8. The trial has not yet commenced but the defendant’s wrongdoing has already caused some damage to the plaintiff. What can the plaintiff do to stop the defendant’s wrongdoing in the meantime?
- 9. What can the plaintiff do if the defendant is likely to dispose of his assets improperly before the case proceeds to trial?
- 10. The plaintiff has reasonable grounds to believe that the defendant is destroying or is likely to destroy documents relevant to the litigation. What can the plaintiff do to stop the defendant?
- 11. What can the plaintiff do to reduce financial hardship during the period from the commencement of legal action up to the date of trial? Is it possible for the plaintiff to obtain some compensation from the defendant before the conclusion of the case?
- 12. If the defendant wins the case, his legal costs may be recovered from the plaintiff. What can the defendant do if he is worried that, in the event of defeating the plaintiff’s claim, the plaintiff would be unable to meet any order for legal costs made at the trial?
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1. How are interlocutory applications made?
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How to fix a trial date and what may happen at a trial
- 1. How can the parties prepare the bundle of documents before going to the trial (copies of the documents that will be placed before the judge and the relevant parties at the trial)?
- 2. If I am a party to the case and have called witnesses to give evidence for me, should I meet with my witnesses before attending the trial?
- 3. If a witness is unwilling to attend the court to give evidence, can a party force him to do so?
- 4. Can the party pay his witnesses to attend the court to give evidence?
- 5. What may happen during a civil trial? What is the usual procedure that the plaintiff and the defendant need to follow at the trial?
- 6. What are opening and closing submissions (including list of authorities)?
- What can I do if I lose the case at trial (how to appeal)?
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Can I recover all my legal costs if the court orders another party to pay my legal costs?
- 1. What is taxation of legal costs?
- 2. Further to question 1, if I have appointed a lawyer to handle my lawsuit, can I apply for taxation if I am not satisfied with my own lawyer's bill?
- 3. How to commence the taxation of costs?
- 4. Is there a reasonable range of hourly legal fees and work hours charged for certain work (e.g., preparing a witness statement)? How to make sure that the fees demanded from the lawyer of the other party are reasonable?
- 5. At earlier stages, what can I do to evaluate the tentative costs I might need to pay for the other party if I lose the case? Do the parties need to tell each other about their legal costs from time to time?
- 6. Under what circumstances does a taxing master tax down the cost?
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How to enforce a court judgment after winning the case
- 1. How can I know if the judgment debtor has the financial resources to satisfy the court judgment and to pay the debt?
- 2. How can I prevent the judgment debtor from leaving Hong Kong as a way to escape liability for paying the judgment debt?
- 3. How can the Bailiff's Office assist me to recover my debt/compensation/premises from the judgment debtor/defendant?
- 4. If I (as a judgment creditor) realise that someone owes money to the judgment debtor, can I get my money directly from that third party?
- 5. If the judgment debtor does not have any cash but owns a property/flat, can I (as the judgment creditor) take legal action against the debtor's flat?
- 6. As a judgment creditor, can I enforce the judgment if the judgment debtor has lodged an application for permission to appeal?
- 7. If I am the judgment debtor and will launch an appeal to the Court of Appeal, what steps have to be taken if I want to have a stay of execution (suspend the execution) of the judgment or order against me?
- 8. If the court orders an injunction against the defendant but the defendant fails to comply with it, how can the plaintiff enforce the order?
- 9. Can I enforce my judgment in civil and commercial matters from other jurisdictions in Hong Kong?
- Remote hearing
- Judicial review
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