6. Can the court cure defects in service?

6. Can the court cure defects in service? 

Service of process is not just a procedural formality. It is the formal legal act by which a defendant is brought within the court’s jurisdiction and given proper notice of the proceedings. 

For that reason, although the court has power to cure some procedural defects, it will only do so within strict limits. The court is more willing to cure minor or technical errors, but it will not cure defects that go to the substance or legality of service. 

Under Order 2, rule 1(1) of the Rules of the High Court (Cap. 4A) (“RHC”) or the Rules of the District Court (Cap. 336H) (“RDC”), a failure to comply with the rules of service is treated as an irregularity rather than automatically nullifying the proceedings. 

The court may exercise its discretion under Order 2, rule 1 to cure defects that are minor, mechanical or technical. This is especially so where the proceedings have come to the defendant’s attention and no irremediable prejudice has been caused. 

The court will not cure a defect that affects the substance or legality of service. Such defects are treated as fundamental or fatal. 

(i) Service of an expired writ 

Order 6, rule 8 of the RHC or RDC provides the rules governing renewal of writs. If a writ expires before service, the plaintiff must show “good reason” under Order 6, rule 8 to obtain an extension. 

If the plaintiff cannot satisfy Order 6, rule 8, the court will not allow the plaintiff to rely on Order 2, rule 1 or Order 3, rule 5 of the RHC or RDC as a “back door” to validate service of an expired writ. 

For more information about renewal of writs, please refer to “Can I issue a writ without serving it on the defendant?”. 

(ii) Illegal service outside Hong Kong 

Under Order 11, rule 5(2) of the RHC or RDC, no order or rule authorises an act in a foreign country if that act is contrary to the law of that place. 

If service abroad is carried out by a method positively prohibited by foreign law, the service is a nullity and cannot be cured under Order, 2 rule 1. Examples include private process service in Switzerland, Japan or Mainland China. 

However, where service merely fails to follow a local administrative preference, and is not positively illegal, the defect may be treated as an irregularity capable of being cured. 

(iii) Service abroad without prior leave 

Where the defendant is physically outside Hong Kong, the plaintiff must obtain leave under Order 11, rule 1 of the RHC or RDC before serving process. 

If the plaintiff attempts service abroad without leave, the defect cannot be cured retrospectively by an order dispensing with service. 

(iv) Substituted service and dispensing with service 

The court cannot order substituted service under Order 65, rule 4 of the RHC or RDC for a writ that has already expired. The plaintiff must first apply for renewal under Order 6, rule 8. 

Unlike the English rules, the Rules of the High Court do not contain an express rule allowing the court to dispense with service at will. The Court of First Instance retains an inherent jurisdiction to dispense with service in exceptional circumstances. However, the fact that the defendant has actual knowledge of the claim is not, by itself, enough to justify dispensing with formal service.