Title
RULES OF THE SUPREME COURT
Description
THE RULES OF THE SUPREME COURT
ARRANGEMENT OF ORDERS
PRELIMINARY
Order No...Page
1. Citation, application, interpretation and forms ... A 5
2. Effect of non-compliance... A 8
3. Time... A9
COMMENCEMENT AND PROGRESS OF
PROCEEDINGS
4. Assignment, transfer and consolidation of proceedings ... A 10
5. Mode of beginning civil proceedings in the High Court ... All
6. Writs of summons: general provisions... A 13
7. Originating summons: general provisions 1 ... A 16
8. Originating and other motions: general provisions ... A 17
9. Petitions: general provisions... A 18
10. Service of originating process: general provisions ... A 19
11. Service of process, etc., out of the jurisdiction ... A 22
12. Acknowledgment of service of writ or originating summons... A 28
13. Failure to give notice of intention to defend ... A33
14. Summary judgment... A 37
15. Causes of action, counterclaims and parties ... A 41
16. Third party and similar proceedings ... A 52
17. Interpleader... 1 ...A 57
18. Pleadings ... A 61
19. Default of pleadings... A 69
20. Amendment... A 71
21. Withdrawal and discontinuance ... A 75
22. Payment into and out of court ... A 78
23. Security for costs... A 83
24. Discovery and inspection of documents ... A 84
25. Summons for directions A 92
26. Interrogatories................................... A 98
27. Admissions.....................................A 100
28. Originating summons procedure A 101
29. Interlocutory injunctions, interim preservation of property, interim payments,etc ......................................... A 106
30. Receivers............... ... .................... A 113
31. Sales, etc. of land by order of Court ..... ................ A115
32. Applications and proceedings in chambers .................... A 117
TRIAL
33. Place and mode of trial..............................A 121
34. Setting down for trial action begun by writ....................A 122
35. Procedure at trial.................... ........... A 124
36. Trials before, and inquiries by, Master A 128
37. Damages: assessment after judgment and orders for provisional damages .. A 129
Order No....................................
Page
38.........Evidence.. .. ................ A 132
39...........................Evidence by deposition: Examiners of the Court ............ A 147
40...........Court expert.. ................ A 151
41.........Affidavits.. .. .................. A 153
JUDGMENTS, ORDERS, ACCOUNTS AND
INQUIRIES
42...............Judgments and orders.... .................. A 156
43...............Accounts and inquiries.. .................. A 161
44........................Proceedings under judgments and orders ............ A 163
PROVISIONAL
REMEDIES
(HK)44A. Prohibition order before or after judgment and attachment of property before
judgment.. ............ A 167
ENFORCEMENT OF JUDGMENTS AND
ORDERS
45...........................Enforcement of judgments and orders: general ............ A 171
46..................Writs of execution: general .................... A 178
47.............Writs of fieri facias.. .. .................... A 181
48......................Examination of judgment debtor, etc . ................ A 185
49................Garnishee proceedings.. .................. A 186
49A...............No order
(HK)49B. Execution and enforcement of judgment for money by imprisonment .. A 189
50....................Charging orders, stop orders, etc . .................. A 192
51..................Receivers: equitable execution .................... A 198
52.........Committal.. .. ................ A 199
53....................Applications for judicial review .................. A 202
54....................Applications for writ of habeas corpus ................ A 206
55...................................Appeals to the High Court from court, tribunal or person: general .... A 209
56. No order
57. No order
58................Appeals from Masters.... .................. A 212
59................Appeals to the Court of Appeal .................. A
213
60. No order
(HK)60A. Appeals from tribunals to Court of Appeal on a question of law other than by
way
of case stated................................... A 223
61. Appeals from tribunals to Court of Appeal by way of case stated .... A 224
COSTS
62. Costs........................................ A 225
GENERAL AND ADMINISTRATIVE
PROVISIONS
63. The Registry................................... A 250
64. Sittings, vacations and office hours......................... A 252
65. Service of documents................................A 253
66. Paper, printing, notices and copies......................... A 256
Order No.
Page
67. Change of solicitor A 257
68. Official shorthand note.. 1..... .. 1 . .... A 260
PROVISIONS As To FOREIGN PROCEEDINGS
69...............Service of foreign process...................... A 263
70........................Obtaining evidence for foreign courts, etc . .............. A 264
71......................Reciprocal enforcement of judgments ................ A 266
SPECIAL PROVISIONS AS TO PARTICULAR PROCEEDINGS
(HK)72. Particular proceedings.. 1 ... .. 1 ........ A 271
73. Arbitration proceedings....... ........ A 274
74. Proceedings under Merchant Shipping Aet, 1894 to 1984 *** .. 2-
(HK)75. Admiralty proceedings.............................. A 282
76....................Contentious probate proceedings .................. A 308
77....................Proceedings by and against the Crown ................ A 314
78...................................District court proceedings transferred or removed to High Court .... A 319
79.................................Tribunal proceedings transfer or removal to the High Court ...... A 320
80.........Disability..... .............. .. A 321
81.........Partners.. .. ................ A 327
82.............Defamation actions.. .. .................. A 332
83. No order
(HK)83A. Money lenders' actions.. .. .............. A 334
84. No order
(HK)84A. Actions arising out of hire-purchase or conditional sale agreements .... A 336
85....................Administration and similar actions .................. A 338
86...............................Actions for specific performance, etc.: summary judgment ........ A 341
87..........................Debenture holders' actions: receiver's register ............ A 343
88.............Mortgage actions..... ................ A 346
89......................Proceedings between husband and wife ................ A 349
90....................Proceedings concerning minors .................. A 350
91. No order
92........................Lodgment, investment, etc. of funds in court .............. A 353
93.............................Applications and appeals under various enactments .. .... A 355
94.............................No order
95.............................The Bills of Sale Ordinance and Bankruptcy Ordinance . ...... A 355
96.............................No order
97.............................No order
98.............................No order
99.............................No order
100. The Trade Marks Ordinance .. .................. A 357
101. No order
102. The Companies Ordinance....... .............. A 358
103. The Registration of Patents Ordinance: The Patents Acts 1949 to 1961 and 1977 A 364
104. No order
105. No order
Order No....................................
Page
106...................................Proceedings relating to solicitors: The Legal Practitioners Ordinance .... A 368
107. No order
108. No order
109. No order
110. No order
Ill. No order
112. No order
113........................Summary proceedings for possession of land .............. A 371
(HK) l 14. Commissioners for Oaths.............................. A 373
(HK)120.Charitable trusts................................... A 373
APPENDICES:
Appendix A. Forms.............................. A 379
Appendix B. Special Admiralty Forms..................... A 514
Appendix C............................. .. .............. A 527
THE RULES OF THE SUPREME COURT
(Cap. 4, section 54)
[These rules, other than Order 75: 1 May 1988]
L.N. 117/88-L.N.356/88
PRELIMINARY
ORDER 1
CITATION, APPLICATION, INTERPRETATION AND
FORMS
Citation (0. 1, r. 1)
1. These rules may be cited as the Rules of the Supreme
Court.
Application (0. 1, r. 2)
2. (1) Subject to the following provisions of this rule, these
rules shall have effect in relation to all proceedings in the Supreme
Court.
(2) These rules shall not have effect in relation to proceedings
of the kinds specified in the first column of the following Table
(being proceedings in respect of which rules may be made under the
enactments specified in the second column of that Table)-
TABLE
Proceedings Enactments
1. Bankruptcy proceedings.Bankruptcy Ordinance, section 113.
2. Proceedings relating to theCompanies Ordinance, section 296.
winding-up of companies.
3. Non-contentious or commonProbate and Administration Ordinance,
form probate proceedings. section 72.
4. Proceedings in the Court whenPrize Courts Act 1894, section 3.
acting as a Prize Court.
5. Proceedings before the JudgeMental Health Act 1983, section 106.
within the meaning of Part VII
of the Mental Health Act 1983,
section 106.
6. Matrimonial proceedings.Matrimonial Causes Ordinance,
sections 10 and 54.
(HK)7. Adoption proceedings.Adoption Ordinance, section 12.
(HK)8. Proceedings in respect ofDomestic Violence Ordinance,
domestic violence. section 8.
(3) These rules shall not have effect in relation to any criminal
proceedings other than any criminal proceedings to which Order 59
- or Order 62 applies.
(4) In the case of the proceedings mentioned in paragraphs (2) and
(3), nothing in those paragraphs shall be taken as affecting any
provision of any rules (whether made under the Ordinance or any other
Ordinance) by virtue of which the Rules of the Supreme Court or any
provisions thereof are applied in relation to any of those proceedings.
Application of Interpretation and General Clauses Ordinance (0. 1, r. 3)
3. The Interpretation and General Clauses Ordinance shall apply for
the interpretation of these rules as it applies to subsidiary legislation
made after the commencement of that Ordinance.
Definitions (0. 1, r. 4)
4. (1) In these rules, unless the context otherwise requires, the
following expressions have the meanings hereby respectively assigned
to them, namely
,,an action for personal injuries' means an action in which there is a
claim for damages in respect of personal injuries to the plaintiff or
any other person or in respect of a person's death, and 'personal
injuries' includes any disease and any impairment of a person's
physical or mental condition;
(HK) 'bailiff means a bailiff of the Court and any person lawfully
authorized to execute the process of the Court;
'cause book' means the book kept in the Registry in which the letter
and number of, and other details relating to, a cause or matter are
entered;
(HK) 'Full Bench' means a Bench consisting of 2 or more Judges of the
High Court;
'master' means a master of the Supreme Court;
(HK) 'money lender's action' has the meaning assigned to it by Order
83A;
'notice of intention to defend' means an acknowledgment of service
containing a statement to the effect that the person by whom or on
whose behalf it is signed intends to contest the proceedings to
which the acknowledgment relates;
'officer' means an officer of the Supreme Court;
'originating summons' means every summons other than a summons in
a pending cause or matter;
'pleading' does not include a petition, summons or preliminary act;
'probate action' has the meaning assigned to it by Order 76;
'receiver' includes a manager or consignee;
(HK) 'Registrar' means the Registrar of the Supreme Court; and
includes a Deputy Registrar or an Assistant Registrar;
(HK) 'Registry' means the Registry of the Supreme Court;
(HK) 'the Ordinance' means the Supreme Court Ordinance;
'vacation' means the interval between sittings of the Supreme Court as
prescribed by Order 64;
'writ' means a writ of summons;
(HK) 'written law' includes 'imperial enactment' and 'Ordinance' and
'enactment' as defined in section 3 of the Interpretation and
General Clauses Ordinance.
(2) In these rules, unless the context otherwise requires, 'the Court
means the High Court or any one or more of the judges thereof whether
sitting in court or in chambers or the Registrar or any master but the
foregoing provision shall not be taken as affecting any provision of
these rules and, in particular, Order 32, rule 11 by virtue of which the
authority and jurisdiction of the Registrar is defined and regulated.
(3) In these rules unless the context otherwise requires, any
reference to acknowledging service of a document or giving notice of
intention to defend any proceedings is a reference to lodging in the
Registry an acknowledgment of service of that document or, as the case
may be, a notice of intention to defend those proceedings.
Construction of references to Orders, rules, etc. (0. 1, r. 5)
5. (1) Unless the context otherwise requires, any reference in these
rules to a specified Order, rule or Appendix is a reference to that Order
or rule of, or that Appendix to, these rules and any reference to a
specified rule, paragraph or sub-paragraph is a reference to that rule of
the Order, that paragraph of the rule, or that sub-paragraph of the
paragraph, in which the reference occurs.
(2) Any reference in these rules to anything done under a rule of
these rules includes a reference to the same thing done before the
commencement of that rule under any corresponding rule of court
ceasing to have effect on the commencement of that rule.
(3) Except where the context otherwise requires, any reference in
these rules to any written law shall be construed as a reference to that
written law as amended, extended or applied by or under any other
written law.
Construction of references to action, etc. for possession of land (0. 1,
r. 6)
6. Except where the context otherwise requires, references in these
rules to an action or claim for the possession of land shall be construed
as including references to proceedings against the Crown for an order
declaring that the plaintiff is entitled as against the Crown to the land or
to the possession thereof.
(HK) Construction of references to Registrar (0. 1, r. 7A)
(HK)7A. Wherever the word 'Registrar' appears in these rules and
forms there may be substituted the word 'Master' when and where
appropriate.
Forms (0. 1, r. 9)
9. (1) The forms in the Appendices shall be used where applicable
with such variations as the circumstances of the particular case require.
Rules not to exclude conduct of business by post (0. 1, r. 10)
10. Nothing in these rules shall prejudice any power to regulate the
practice of the Court by giving directions enabling any business or
class of business to be conducted by post.
ORDER 2
EFFECT OF NON-COMPLIANCE
Non-compliance with Rules (0. 2, r. 1)
1. (1) Where, in beginning or purporting to begin any proceedings
or at any stage in the course of or in connection with any proceedings,
there has, by reason of any thing done or left undone, been a failure to
comply with the requirements of these rules, whether in respect of time,
place, manner, form or content or in any other respect, the failure shall
be treated as an irregularity and shall not nullify the proceedings, any
step taken in the proceedings, or any document, judgment or order
therein.
(2) Subject to paragraph (3), the Court may, on the ground that
there has been such failure as is mentioned in paragraph (1), and on
such terms as to costs or otherwise as it thinks just, set aside either
wholly or in part the proceedings in which the failure occurred, any step
taken in those proceedings or any document, judgment or order therein
or exercise its powers under these rules to allow such amendments (if
any) to be made and to make such order (if any) dealing with the
proceedings generally as it thinks fit.
(3) The Court shall not wholly set aside any proceedings or the
writ or other originating process by which they were begun on the
ground that the proceedings were required by any of these rules to be
begun by an originating process other than the one employed.
Application to set aside for irregularity (0. 2, r. 2)
2. (1) An application to set aside for irregularity any proceedings,
any step taken in any proceedings or any document, judgment or order
therein shall not be allowed unless it is made within a reasonable time
and before the party applying has taken any fresh step after becoming
aware of the irregularity.
(2) An application under this rule may be made by summons or
motion and the grounds of objection must be stated in the summons or
notice of motion.
ORDER 3
TIME
'Month' means calendar month (0. 3, r. 1)
1. Without prejudice to section 3 of the Interpretation and General
Clauses Ordinance in its application to these rules, the word 'month',
where it occurs in any judgment, order, direction or other document
forming part of any proceedings in the Supreme Court, means a calendar
month unless the context otherwise requires.
Reckoning periods of time (0. 3, r. 2)
2. (1) Any period of time fixed by these rules or by any judgment,
order or direction for doing any act shall be reckoned in accordance
with the following provisions of this rule.
(2) Where the act is required to be done within a specified period
after or from a specified date, the period begins immediately after that
date.
(3) Where the act is required to be done within or not less than a
specified period before a specified date, the period ends immediately
before that date.
(4) Where the act is required to be done a specified number of clear
days before or after a specified date, at least that number of days must
intervene between the day on which the act is done and that date.
(5) Where, apart from this paragraph, the period in question, being
a period of 7 days or less, would include a Sunday or a general holiday,
that day shall be excluded.
In this paragraph 'general holiday' means a day which is, or is to
be observed as, a general holiday under the Holidays Ordinance.
Summer Vacation excluded from time for service, etc., of pleadings (0.
3, r. 3)
3. Unless the Court otherwise directs, the period of the Summer
Vacation shall be excluded in reckoning any period prescribed by these
rules or by any order or direction for serving, filing or amending any
pleading.
Time expires on Sunday, etc. (0. 3, r. 4)
4. Where the time prescribed by these rules, or by any judgment,
order or direction, for doing any act at an office of the Court expires on a
Sunday or other day on which that office is
closed, and by reason thereof that act cannot be done on that day, the
act shall be in time if done on the next day on which that office is open.
Extensions, etc., of time (0. 3, r. 5)
5. (1) The Court may, on such terms as it thinks just, by order
extend or abridge the period within which a person is required or
authorized by these rules, or by any judgment, order or direction, to do
any act in any proceedings.
(2) The Court may extend any such period as is referred to in
paragraph (1) although the application for extension is not made until
after the expiration of that period.
(3) The period within which a person is required by these rules, or
by any order or direction, to serve, file or amend any pleading or other
document may be extended by consent (given in writing) without an
order of the Court being made for that purpose.
(4) In this rule references to the Court shall be construed as
including references to the Court of Appeal and a single judge of that
Court.
Notice of intention to proceed after year's delay (0. 3, r. 6)
6. Where a year or more has elapsed since the last proceeding in a
cause or matter, the party who desires to proceed must give to every
other party not less than one month's notice of his intention to proceed.
A summons on which no order was made is not a proceeding for
the purposes of this rule.
COMMENCEMENT AND PROGRESS OF PROCEEDINGS
ORDER 4
ASSIGNMENT, TRANSFER AND CONSOLIDATION OF
PROCEEDINGS
Companies (0. 4, r. 2)
2. Where an order has been made by the Court for the winding-up
of a company, all proceedings in chambers in any action against that
company at the instance or on behalf of debenture holders shall be
dealt with by an officer of the High Court who is a registrar within the
meaning of any rules for the time being in force relating to the winding-
up of companies.
Consolidation, etc., of causes or matters (0. 4, r. 9)
9. (1) Where two or more causes or matters are pending, then, if it
appears to the Court
(a)that some common question of law or fact arises in both or all
of them, or
(b)that the rights to relief claimed therein are in respect of or
arise out of the same transaction or series of transactions,
or
(e)that for some other reason it is desirable to make an order
under this rule,
the Court may order those causes or matters to be consolidated on
such terms as it thinks just or may order them to be tried at the same
time, or one immediately after another, or may order any of them to
be stayed until after the determination of any other of them.
(2) Where the Court makes an order under paragraph (1) that
two or more causes or matters are to be tried at the same time but no
order is made for those causes or matters to be consolidated, then, a
party to one of those causes or matters may be treated as if it were a
party to any of those other causes or matters for the purpose of
making an order for costs against him or in his favour.
ORDER 5
MODE OF BEGINNING CIVIL PROCEEDINGS IN THE HIGH COURT
Mode of beginning civil proceedings (0. 5, r. 1)
1. Subject to the provisions of any written law and of these
rules, civil proceedings in the High Court may be begun by writ,
originating summons, originating motion or petition.
Proceedings which must he begun by writ (0. 5, r. 2)
2. Subject to any provision of any written law, or of these
rules, by virtue of which any proceedings are expressly required to be
begun otherwise than by writ, the following proceedings must,
notwithstanding anything in rule 4, be begun by writ, that is to say,
proceedings---
(a)in which a claim is made by the plaintiff for any relief or
remedy for any tort, other than trespass to land;
(b)in which a claim made by the plaintiff is based on an
allegation of fraud;
(c)in which a claim is made by the plaintiff for damages for
breach of duty (whether the duty exists by virtue of a
contract or of a provision made by or under any written
law, or independently of any contract or any such provi-
sion), where the damages claimed consist of or include
damages in respect of the death of any person or in respect
of personal injuries to any person or in respect of damage
to any property;
(d)in which a claim is made by the plaintiff in respect of the
infringement of a patent.
Proceedings which must be begun by originating summons (0. 5,
r. 3)
3. Proceedings by which an application is to be made to the
High Court or a judge thereof under any written law must be begun
by originating summons except where by these rules or by or under
any written law the application in question is expressly required or
authorized to be made by some other means.
This rule does not apply to an application made in pending
proceedings.
Proceedings which may be begun by writ or originating summons
(0. 5, r. 4)
4. (1) Except in the case of proceedings which by these rules
or by or under any written law are required to be begun by writ or
originating summons or are required or authorized to be begun by
originating motion or petition, proceedings may be begun either
by writ or by originating summons as the plaintiff considers
appropriate.
(2) Proceedings-
(a)in which the sole or principal question at issue is, or is
likely to be, one of the construction of any written law or
of any instrument made under any written law or of any
deed, will, contract or other document, or some other
question of law, or
(b)in which there is unlikely to be any substantial dispute of
fact,
are appropriate to be begun by originating summons unless the
plaintiff intends in those proceedings to apply for judgment under
Order 14 or Order 86 or for any other reason considers the
proceedings more appropriate to be begun by writ.
Proceedings to he begun by motion or petition (0. 5, r. 5)
5. Proceedings may be begun by originating motion or peti-
tion if, but only if, by these rules or by or under any written law the
proceedings in question are required or authorized to be so begun.
Right to sue in person (0. 5, r. 6)
6. (1) Subject to paragraph (2) and to Order 80, rule 2, any
person (whether or not he sues as a trustee or personal representa-
tive, or in any other representative capacity) may begin and carry on
proceedings in the Supreme Court by a solicitor or in person.
(2) A body corporate may not begin or carry on any such pro-
ceedings in the Court otherwise than by a solicitor except-
(a) as expressly provided by or under any enactment; or
(b)where leave is given under paragraph (3) for it to be rep-
resented by one of its directors.
(3)(a) An application by a body corporate for leave to be
represented by one of its directors shall be made ex parte to a
Registrar and supported by an affidavit, made by the director
and filed with the application, stating and verifying the
reasons why leave should be given for the body corporate to
be represented by the director, and in particular setting out
such facts and matters as demonstrate that the body
corporate could not otherwise be heard in the proceedings.
(b)The relevant resolution of the board of the body corporate
authorizing the director to appear on its behalf if leave is
granted shall be exhibited to the affidavit.
(4) No appeal shall lie from an order of the Registrar under
paragraph (3) giving or refusing leave.
(5) Leave given by a Registrar under paragraph (3) may be revoked
by the Court at any time.
(6) No appeal shall lie from an order of the Court revoking leave
given by a Registrar.
ORDER 6
WRITS OF SUMMONS: GENERAL PROVISIONS
Form of Writ, etc. (0. 6, r. 1)
1. Every writ must be in Form No. 1 in Appendix A.
Indorsement of claim (0. 6, r. 2)
2. (1) Before a writ is issued it must be indorsed-
(a)with a statement of claim or, if the statement of claim is not
indorsed on the writ, with a concise statement of the nature of
the claim made or the relief or remedy required in the action
begun thereby;
(b)where the claim made by the plaintiff is for a debt or liquidated
demand only, with a statement of the amount claimed in
respect of the debt or demand and for costs and also with a
statement that further proceedings will be stayed if, within the
time limited for acknowledging service, the defendant pays
the amount so claimed to the plaintiff, his solicitor or agent.
Indorsement as to capacity (0. 6, r. 3)
3. Before a writ is issued it must be indorsed---
(a)where the plaintiff sues in a representative capacity, with a
statement of the capacity in which he sues;
(b)where a defendant is sued in a representative capacity, with
a statement of the capacity in which he is sued.
Indorsement as to solicitor and address (0. 6, r. 5)
5. (1) Before a writ is issued it must be indorsed-
(a)where the plaintiff sues by a solicitor, with the plaintiff's
address and the solicitor's name or firm and a business
address of his within the jurisdiction and also (if the
solicitor is the agent of another) the name or firm and
business address of his principal;
(b)where the plaintiff sues in person, with the address of his
place of residence and, if his place of residence is not within
the jurisdiction or if he has no place of residence, the
address of a place within the jurisdiction at or to which
documents for him may be delivered or sent.
(2) The address for service of a plaintiff shall be-
(a)where he sues by a solicitor, the business address to which
may be added a numbered box at a document exchange of
the solicitor indorsed on the writ;
(b)where he sues in person, the address within the jurisdiction
indorsed on the writ.
(3) Where a solicitor's name is indorsed on a writ, he must, if
any defendant who has been served with or who has acknowledged
service of the writ requests him in writing so to do, declare in
writing whether the writ was issued by him or with his authority
or privity.
(4) If a solicitor whose name is indorsed on a writ declares in
writing that the writ was not issued by him or with his authority or
privity, the Court may on the application of any defendant who has
been served with or who has acknowledged service of the writ, stay
all proceedings in the action begun by the writ.
Concurrent writ (0. 6, r. 6)
6. (1) One or more concurrent writs may, at the request of
the plaintiff, be issued at the time when the original writ is issued or
at any time thereafter before the original writ ceases to be valid.
(2) Without prejudice to the generality of paragraph (1), a writ
for service within the jurisdiction may be issued as a concurrent writ
with one which is to be served out of the jurisdiction and a writ
which is to be served out of the jurisdiction may be issued as a
concurrent writ with one for service within the jurisdiction.
(3) A concurrent writ is a true copy of the original writ with
such differences only (if any) as are necessary having regard to the
purpose for which the writ is issued.
Issue of writ (0. 6, r. 7)
7. (1) No writ which is to be served out of the jurisdiction
shall be issued without the leave of the Court:
Provided that if every claim made by a writ is one which by
virtue of any written law the High Court has power to hear and
determine notwithstanding that the person against whom the claim
is made is not within the jurisdiction of the Court or that the
wrongful act, neglect or default giving rise to the claim did not take
place within its jurisdiction, the foregoing provision shall not apply
to the writ.
(3) Issue of a writ takes place upon its being scaled by an
officer of the Registry.
(4) The officer by whom a concurrent writ is sealed must mark
it as a concurrent writ with an official stamp.
(5) No Writ shall be sealed unless at the time of the tender
thereof for sealing the person tendering it leaves at the office at
which it is tendered a copy thereof signed, where the plaintiff sues in
person, by him or, where he does not so sue, by or on behalf of his
solicitor.
Duration and renewal of writ (0. 6, r. 8)
8. (1) For the purpose of service, a writ (other than a
concurrent writ) is valid in the first instance for twelve months
beginning with the date of its issue and -a concurrent writ is valid in
the first instance for the period of validity of the original writ which
is unexpired at the date of issue of the concurrent writ.
(2) Where a writ has not been served on a defendant, the
Court may by order extend the validity of the writ from time to time
for such period, not exceeding twelve months at any one time,
beginning with the day next following that on which it would
otherwise expire, as may be specified in the order, if an application
for extension is made to the Court before that day or such later day
(if any) as the Court may allow.
(3) Before a writ, the validity of which has been extended
under this rule, is served, it must be marked with an official stamp
showing the period for which the validity of the writ has been so
extended.
(4) Where the validity of a writ is extended by order made
under this rule, the order shall operate in relation to any other writ
(whether original or concurrent) issued in the same action which has
not been served so as to extend the validity of that other writ until
the expiration of the period specified in the order.
ORDER 7
ORIGINATING SUMMONS: GENERAL PROVISIONS
Application (0. 7, r. 1)
1. The provisions of this Order apply to all originating summonses
subject, in the case of originating summonses of any particular class, to
any special provisions relating to originating summonses of that class
made by these rules or by or under any written law.
Form of summons, etc. (0. 7, r. 2)
2. (1) Every originating summons (other than an ex parte summons)
shall be in Form No. 8 or, if so authorized or required, in Form No. 10 in
Appendix A, and every ex parte originating summons shall be in Form
No. 11 in Appendix A.
(2) The party taking out an originating summons (other than an ex
parte summons) shall be described as a plaintiff, and the other parties
shall be described as defendants.
Contents of summons (0. 7, r. 3)
3. (1) Every originating summons must include a statement of the
questions on which the plaintiff seeks the determination or direction of
the High Court or, as the case may be, a concise statement of the relief
or remedy claimed in the proceedings begun by the originating
summons with sufficient particulars to identify the cause or causes of
action in respect of which the plaintiff claims that relief or remedy.
(2) Order 6, rules 3 and 5, shall apply in relation to an originating
summons as they apply in relation to a writ.
Concurrent summons (0. 7, r. 4)
4. Order 6, rule 6, shall apply in relation to an originating summons
as it applies in relation to a writ.
Issue of summons (0. 7, r. 5)
5. (1) An originating summons shall be issued out of the Registry.
(3) Order 6, rule 7 (except paragraph (2)), shall apply in relation to
an originating summons as it applies in relation to a writ.
Duration and renewal of summons (0. 7, r. 6)
6. Order 6, rule 8, shall apply in relation to an originating summons
as it applies in relation to a writ.
Ex parte originating summonses (0. 7, r. 7)
7. (1) Rules 2(1), 3(1), and 5(1) shall, so far as applicable,
apply to ex parte originating summonses; but, save as aforesaid, the
foregoing rules of this Order shall not apply to ex parte originating
summonses.
(2) Order 6, rule 7(3) and (5), shall, with the necessary modifi-
cations, apply in relation to an ex parte originating summons as they
apply in relation to a writ.
ORDER 8
ORIGINATING AND OTHER MOTIONS: GENERAL PROVISIONS
Application (0. 8, r. 1)
1. The provisions of this Order apply to all motions subject,
in the case of originating motions of any particular class, to any
special provisions relating to motions of that class made by these
rules or by or under any written law.
Notice of motion (0. 8, r. 2)
2. (1) Except where an application by motion may properly
be made ex parte, no motion shall be made without previous notice
to the parties affected thereby, but the Court, if satisfied that the
delay caused by proceeding in the ordinary way would or might
entail irreparable or serious mischief, may make an order ex parte on
such terms as to costs or otherwise, and subject to such undertaking,
if any, as it thinks just; and any party affected by such order may
apply to the Court to set it aside.
(2) Unless the Court gives leave to the contrary, there must be
at least 2 clear days between the service of notice of a motion and the
day named in the notice for hearing the motion.
Form and issue of notice of motion (0. 8, r. 3)
3. (1) The notice of an originating motion must be in Form
No. 13 in Appendix A and the notice of any other motion in Form
No. 38 in that Appendix.
Where leave has been given under rule 2(2) to serve short notice
of motion, that fact must be stated in the notice.
(2) The notice of a motion must include a concise statement of
the nature of the claim made or the relief or remedy required.
(3) Order 6, rule 5, shall, with the necessary modifications,
apply in relation to notice of an originating motion as it applies in
relation to a writ.
(4) The notice of an originating motion by which proceedings
are begun must be issued out of the Registry.
(6) Issue of the notice of an originating motion takes place upon its
being sealed by an officer of the Registry.
Service of notice of motion with writ, etc. (0. 8, r. 4)
4. Notice of a motion to be made in an action may be served by the
plaintiff on the defendant with the writ of summons or originating
summons or at any time after service of such writ or summons, whether
or not the defendant has acknowledged service in the action.
Adjournment of hearing (0. 8, r. 5)
5. The hearing of any motion may be adjourned from time to time
on such terms, if any, as the Court thinks fit.
ORDER 9
PETITIONS: GENERAL PROVISIONS
Application (0. 9, r. 1)
1. Rules 2 to 4 apply to petitions by which civil proceedings in the
High Court are begun, subject, in the case of petitions of any particular
class, to any special provisions relating to petitions of that class made
by these rules or by or under any written law.
Contents of petition (0. 9, r. 2)
2. (1) Every petition must include a concise statement of the nature
of the claim made or the relief or remedy required in the proceedings
begun thereby.
(2) Every petition must include at the end thereof a statement of
the names of the persons, if any, required to be served therewith or, if
no person is required to be served, a statement to that effect.
(3) Order 6, rule 5, shall, with the necessary modifications, apply in
relation to a petition as it applies in relation to a writ.
Presentation of petition (0. 9, r. 3)
3. A petition may be presented by leaving it at the Registry.
Fixing time for bearing petition (0. 9, r. 4)
4. (1) A day and time for the hearing of a petition which is required
to be heard shall be fixed by the Registrar.
(2) Unless the Court otherwise directs, a petition which is required
to be served on any person must be served on him not less than seven
days before the day fixed for the hearing of the petition.
1988 Ed.] The Rules of the Supreme Court-Order 10 ICAP. 4
Certain applications not to be made by petition (0. 9, r. 5)
5. No application in any cause or matter may be made by petition.
ORDER 10
SERVICE OF ORIGINATING PROCESS: GENERAL PROVISIONS
General provisions (0. 10, r. 1)
1. (1) A writ must be served personally on each defendant by the plaintiff or his agent.
(2) A writ for service on a defendant within the jurisdiction may, instead of being served personally on him, be served
(a) by sending a copy of the writ by ordinary post to the defendant at his usual or last known address, or
(b) if there is a letter box for that address, by inserting through the letter box a copy of the writ enclosed in a sealed envelope addressed to the defendant.
In sub-paragraph (a) 'ordinary post' means post which has been pre-paid or in respect of which prepayment is not required.
(3) Where a writ is served in accordance with paragraph (2)
(a) the date of service shall, unless the contrary is shown, be deemed to be the seventh day (ignoring Order 3, rule 2(5)) after the date on which the copy was sent to, or as the case may be, inserted through the letter box for, the address in question;
(b) any affidavit proving due service of the writ must contain a statement to the effect that
(i) in the opinion of the deponent (or, if the deponent is the plaintiff's solicitor or an employee of that solicitor, in the opinion of the plaintiff) the copy of the writ, if sent to, or as the case may be, inserted through the letter box for, the address in question, will have come to the knowledge of the defendant within 7 days thereafter; and
(ii) in the case of service by post, the copy of the writ has not been returned to the plaintiff through the post undelivered to the addressee.
(4) Where a defendant's solicitor indorses on the writ a statement that he accepts service of the writ on behalf of that defendant, the writ shall be deemed to have been duly served on that defendant and to have been so served on the date on which the indorsement was made.
(5) Subject to Order 12, rule 7, where a writ is not duly served on a defendant but he acknowledges service of it, the writ shall be
deemed, unless the contrary is shown, to have been duly served on
him and to have been so served on the date on which he acknowl-
edges service.
(6) Every copy of a writ for service on a defendant shall be
sealed with the seal of the Supreme Court and shall be accompanied
by a form of acknowledgment of service in Form No. 14 in
Appendix A in which the title of the action and its number have been
entered.
(7) This rule shall have effect subject to the provisions of any
Ordinance and these rules and in particular to any enactment which
provides for the manner in which documents may be served on
bodies corporate.
Service of writ on agent of overseas principal (0. 10, r. 2)
2. (1) Where the Court is satisfied on an ex parte application
that-
(a)a contract has been entered into within the jurisdiction
with or through an agent who is either an individual
residing or carrying on business within the jurisdiction or a
body corporate having a registered office or a place of
business within the jurisdiction, and
(b)the principal for whom the agent was acting was at the time
the contract was entered into and is at the time of the
application neither such an individual nor such a body
corporate, and
(c)at the time of the application either the agent's authority
has not been determined or he is still in business relations
with his principal,
the Court may authorize service of a writ beginning an action
relating to the contract to be effected on the agent instead of the
principal.
(2) An order under this rule authorizing service of a writ on
a defendant's agent must limit a time within which the defendant
must acknowledge service.
(3) Where an order is made under this rule authorizing service
of a writ on a defendant's agent, a copy of the order and of the writ
must be sent by post to the defendant at his address out of the
jurisdiction.
Service of writ in pursuance of contract (0. 10, r. 3)
3. (1) Where-
(a)a contract contains a term to the effect that the High Court
shall have jurisdiction to hear and determine any action in
respect of a contract or, apart from any such term, the
High Court has jurisdiction to hear and determine any
such action, and
(b)the contract provides that, in the event of any action in
respect of the contract being begun, the process by which it is
begun may be served on the defendant, or on such other
person on his behalf as may be specified in the contract, in
such manner, or at such place (whether within or out of the
jurisdiction), as may be so specified,
then, if an action in respect of the contract is begun in the Court and the
writ by which it is begun is served in accordance with the contract, the
writ shall, subject to paragraph (2), be deemed to have been duly served
on the defendant.
(2) A writ which is served out of the jurisdiction in accordance with
a contract shall not be deemed to have been duly served on the
defendant by virtue of paragraph (1) unless leave to serve the writ out
of the jurisdiction has been granted under Order 11, rule 1 (1) or service
of the writ is permitted without leave under Order 11, rule 1(2).
Service of writ in certain actions for possession of premises or land
(0. 10, r. 4)
4. (1) Where a writ is indorsed with a claim for the recovery, or
delivery of possession, of premises or land, the Court may
(a)if satisfied on an ex parte application that no person appears
to be in possession of the premises or land and that service
cannot be otherwise effected on any defendant, authorize
service on that defendant to be effected by affixing a copy of
the writ to some conspicuous part of the premises or land;
(b)if satisfied on such an application that no person appears to
be in possession of the premises or land and that service
could not otherwise have been effected on any defendant,
order that service already effected by affixing a copy of the
writ to some conspicuous part of the premises or land shall be
treated as good service on that defendant.
(HK)(2) Where a writ is indorsed with a claim for the recovery, or
delivery of possession, of premises or land, in addition to, and not in
substitution for any other mode of service, a copy of the writ shall be
posted in a conspicuous place on or at the entrance to the premises or
land recovery or possession of which is claimed.
Service of originating summons, notice of motion, or petition (0. 10, r.
5)
5. (1) The foregoing rules of this Order shall apply, with any
necessary modifications, in relation to an originating summons (other
than ex parte originating summons or an originating summons under
Order 113) as they apply in relation to a writ, except that an
acknowledgment of service of an originating summons shall be in Form
No. 15 in Appendix A.
(2) Rule 1(1), (2), (3) and (4) shall apply, with any necessary
modifications, in relation to a notice of an originating motion and a
petition as they apply in relation to a writ.
ORDER 11
SERVICE OF PROCESS, ETC., OUT OF THE JURISDICTION
Principal cases in which service of jurisdiction is
permissible
(0. 11, r. 1)
1. (1) Provided that the writ does not any claim as is mentioned in Order 75, rule 2(1)
and is not a writ to which paragraph (2)
of this rule applies, service of a writ out of the jurisdiction is permissible
with the leave of the Court if in the action begun by the writ
(a)relief is sought against a person domiciled or ordinarily
resident within the jurisdiction;
(b)an injunction is sought ordering the defendant to do or refrain
from doing anything within the jurisdiction (whether or not
damages are also claimed in respect of a failure to do or the
doing of that thing);
(c)the claim is brought against a person duly served within or
out of the jurisdiction and a person out of the jurisdiction is a
necessary or proper party thereto;
(d) the claim is brought to enforce, rescind, dissolve, annul or
otherwise affect a contract, or to recover damages or obtain
other relief in respect of the breach of a contract, being (in
either case) a contract which
(i) was made within the jurisdiction, or
(ii) was made by or through an agent trading or residing
within the jurisdiction on behalf of a principal trading or
residing out of the jurisdiction, or
(iii) is by its terms, or by implication, governed by Hong
Kong law, or
(iv) contains a term to the effect that the High Court shall
have jurisdiction to hear and determine any action in respect
of the contract;
(e)the claim is brought in respect of a breach committed within
the jurisdiction of a contract made within or out of the
jurisdiction, and irrespective of the fact, if such be the case,
that the breach was preceded or accompanied by a breach
committed out of the jurisdiction that rendered impossible the
performance of so much of the contract as ought to have been
performed within the jurisdiction;
the claim is founded on a tort and the damage was sustained,
or resulted from an act committed, within the jurisdiction;
(g)the whole subject-matter of the action is land situate within
the jurisdiction (with or without rents or profits) or the
perpetuation of testimony relating to land so situate;
(h)the claim is brought to construe, rectify, set aside or enforce
an act, deed, will, contract, obligation or liability affecting land
situate within the jurisdiction;
(i)the claim is made for a debt secured on immovable property or
is made to assert, declare or determine proprietary or
possessory rights, or rights of security, in or over movable
property, or to obtain authority to dispose of movable
property, situate within the jurisdiction;
(j)the claim is brought to execute the trusts of a written
instrument being trusts that ought to be executed according
to Hong Kong law and of which the person to be served with
the writ is a trustee, or for any relief or remedy which might be
obtained in any such action;
(k)the claim is made for the administration of the estate of a
person who died domiciled within the jurisdiction or for any
relief or remedy which might be obtained in any such action;
(1)the claim is brought in a probate action within the meaning of
Order 76;
(m)the claim is brought to enforce any judgment or arbitral
award;
(n) the claim is brought under the Carriage by Air Act 1961.
(2) Service of a writ out of the jurisdiction is permissible without
the leave of the Court provided that each claim made by the writ is
(b)a claim which by virture of any written law the High Court has
power to hear and determine notwithstanding that the person
against whom the claim is made is not within the jurisdiction
of the Court or that the wrongful act, neglect or default giving
rise to the claim did not take place within its jurisdiction.
(3) Where a writ is to be served out of the jurisdiction under
paragraph (2), the time to be inserted in the writ within which the
defendant served therewith must acknowledge service shall
(c) be limited in accordance with the practice adopted under l> rule
4(4).
Application for, and grant of, leave to serve writ out of jurisdiction
(0. 11, r. 4)
4. (1) An application for the grant of leave under rule 1(1) must be
supported by an affidavit stating
(a) the grounds on which the application is made;
(b)that in the deponent's belief the plaintiff has a good cause of
action;
(c)in what place the defendant is, or probably may be found; and
(d)where the application is made under rule 1(1)(c), the grounds
for the deponent's belief that there is between the plaintiff and
the person on whom a writ has been served a real issue which
the plaintiff may reasonably ask the Court to try.
(2) No such leave shall be granted unless it shall be made
sufficiently to appear to the Court that the case is a proper one for
service out of the jurisdiction under this Order.
(4) An order granting under rule 1 leave to serve a writ out of the
jurisdiction must limit a time within which the defendant to be served
must acknowledge service.
Service of writ abroad: general (0. 11, r. 5)
5. (1) Subject to the following provisions of this rule, Order 10, rule
1(1), (4) and (5) and (6) and Order 65, rule 4, shall apply in relation to the
service of a writ notwithstanding that the writ is to be served out of the
jurisdiction, save that the accompanying form of acknowledgment of
service shall be modified in such manner as may be appropriate.
(2) Nothing in this rule or in any order or direction of the Court
made by virtue of it shall authorize or require the doing of anything in a
country in which service is to be effected which is contrary to the law of
that country.
(3) A writ which is to be served out of the jurisdiction-
(a)need not be served personally on the person required to be
served so long as it is served on him in accordance with the
law of the country in which service is effected; and
(b)need not be served by the plaintiff or his agent if it is served
by a method provided for by rule 6 or rule 7.
(5) An official certificate stating that a writ as regards which rule 6
has been complied with, has been served on a person personally, or in
accordance with the law of the country in which service was effected,
on a specified date, being a certificate
(q) by a British consular authority in that country, or
(b)by the government or judicial authorities of that country, or
(c)by any other authority designated in respect of that country
under the Hague Convention,
shall be evidence of the facts so stated.
(6) An official certificate by the Chief Secretary stating that a writ
has been duly served on a specified date in accordance with a request
made under rule 7 shall be evidence of that fact.
(7) A document purporting to be such a certificate as is mentioned
in paragraph (5) or (6) shall, until the contrary is proved, be deemed to
be such a certificate.
(8) In this rule and rule 6 'the Hague Convention' means the
Convention on the service abroad of judicial or extra-judicial documents
in civil or commercial matters signed at The Hague on 15 November
1965.
Service of writ abroad through foreign governments, judicial
authorities and British consuls (0. 11, r. 6)
6. (1) Save where a writ is to be served pursuant to paragraph (2A)
this rule does not apply to service in
(HK)(a) The United Kingdom of Great Britain, Northern Ireland, the
Channel Islands and the Isle of Man;
(b) any independent Commonwealth country;
(HK)(c) any British protectorate;
(HK)(d) any British colony;
(e) the Republic of Ireland.
(2) Where in accordance with these rules a writ is to be served on a
defendant in any country with respect to which there subsists a Civil
Procedure Convention (other than the Hague Convention) providing for
service in that country of process of the Court, the writ may be served
(a) through the judicial authorities of that country; or
(b)through a British consular authority in that country (subject
to any provision of the convention as to the nationality of
persons who may be so served).
(2A) Where in accordance with these rules, a writ is to be served
on a defendant in any country which is a party to the Hague
Convention, the writ may be served
(a)through the authority designated under the Convention in
respect of that country; or
(b) if the law of that country permits-
(i) through the judicial authorities of that country, or
(ii) through a British consular authority in that country.
(3) Where in accordance with these rules a writ is to be served on a
defendant in any country with respect to which there does not subsist a
Civil Procedure Convention providing for service in that country of
process of the High Court, the writ may be served
(a)through the government of that country, where that
government is willing to effect service; or
(b)through a British consular authority in that country, except
where service through such an authority is contrary to the law
of that country.
(4) A person who wishes to serve a writ by a method specified in
paragraph (2), (2A) or (3) must lodge in the Registry a request for
service of the writ by that method, together with a copy of the writ and
an additional copy thereof for each person to be served.
(5) Every copy of a writ lodged under paragraph (4) must be
accompanied by a translation of the writ in the official language of the
country in which service is to be effected or, if there is more than one
official language of that country, in any one of those languages which is
appropriate to the place in that country where service is to be effected:
Provided that this paragraph shall not apply in relation to a copy of
a writ which is to be served in a country the official language of which
is, or the official languages of which include, English, or is to be served
in any country by a British consular authority on a British subject,
unless the service is to be effected under paragraph (2) and the Civil
Procedure Convention with respect to that country expressly requires
the copy to be accompanied by a translation.
(6) Every translation lodged under paragraph (5) must be certified
by the person making it to be a correct translation; and the certificate
must contain a statement of that person's full name, of his address and
of his qualification for making the translation.
(7) Documents duly lodged under paragraph (4) shall be sent by
the Registrar to the Chief Secretary with a request that he arrange for
the writ to be served by the method indicated in the request lodged
under paragraph (4) or, where alternative methods are so indicated, by
such one of those methods as is most convenient.
Service of process on a foreign State (0. 11, r. 7)
7. (1) Subject to paragraph (4) where a person to whom leave has
been granted under rule 1 to serve a writ on a State, as defined in
section 14 of the State Immunity Act 1978, wishes to have the writ
served on that State, he must lodge in the Registry
(a)a request for service to be arranged by the Chief Secretary;
and
(b) a copy of the writ; and
(e)except where the official language of the State is, or the
official languages of that party include, English, a translation
of the writ in the official language or one of the official
languages of the State.
(2) Rule 6(6) shall apply in relation to a translation lodged under
paragraph (1) of this rule as it applies in relation to a translation lodged
under paragraph (5) of that rule.
(3) Documents duly lodged under this rule shall be sent by the
Registrar to the Chief Secretary with a request that the Chief Secretary
arrange for the writ to be served on the State or the government in
question, as the case may be.
(4) Where section 12(6) of the State Immunity Act 1978 applies and
the State has agreed to a method of service other than that provided by
the preceding paragraphs, the writ may be served either by the method
agreed or in accordance with the preceding paragraphs of this rule.
Service of writ in certain actions under Carriage by Air Act, 1961
(0. 11, r. 7A)
(HK)7A. (1) Where a person to whom leave has been granted under rule
1 to serve a writ, on a High Contracting Party to the convention set out
in the First Schedule to the Carriage by Air Act, 1961, being a writ
beginning an action to enforce a claim in respect of carriage undertaken
by that Party, wishes to have the writ served on that Party, he must
lodge in the Registry
(a)a request for service to be arranged by the Chief Secretary;
and
(b) a copy of the writ; and
(e)except where the official language of the High Contracting
Party is, or the official languages of that Party include,
English, a translation of the writ in the official language or one
of the official languages of the High Contracting Party.
(2) Rule 6(6) shall apply in relation to a translation lodged under
paragraph (1) of this rule as it applies in relation to a translation lodged
under paragraph (5) of that rule.
(3) Documents duly lodged under this rule shall be sent by the
Registrar to the Chief Secretary with a request that the Chief Secretary
arrange for the writ to be served on the High Contracting Party.
Undertaking to pay expenses of service by the Chief Secretary
(0. 11, r. 8)
8. Every request lodged under rule 6(4), rule 7 or rule 7A must
contain an undertaking by the person making the request to be
responsible personally for all expenses incurred by the Chief Secretary
in respect of the service requested and, on receiving due notification of
the amount of those expenses, to pay that amount to the Treasury and
to produce a receipt for the payment to the Registrar.
Service of originating summons, petition, notice of motion, etc.
(0. 11, r. 9)
9. (1) Subject to Order 73, rule 7, rule 1 of this Order shall apply to
the service out of the jurisdiction of an originating summons, notice of
motion or petition as it applies to service of a writ.
(4) Subject to Order 73, rule 7, service out of the jurisdiction of any
summons, notice or order issued, given or made in any proceedings is
permissible with the leave of the Court, but leave shall not be required
for such service in any proceedings in which the writ, originating
summons, motion or petition may by these rules or under any written
law be served out of the jurisdiction without leave.
(5) Rule 4(1), (2) and (3) shall, so far as applicable, apply in relation
to an application for the grant of leave under this rule as they apply in
relation to an application for the grant of leave under rule 1.
(6) An order granting under this rule leave to serve out of the
jurisdiction an originating summons must limit a time within which the
defendant to be served with the summons must acknowledge service.
(7) Rules 5, 6 and 8 shall apply in relation to any document for the
service of which out of the jurisdiction leave has been granted under
this rule as they apply in relation to a writ.
ORDER 12
ACKNOWLEDGMENT OF SERVICE OF WRIT OR ORIGINATING
SUMMONS
Mode of acknowledging service (0. 12, r. 1)
1. (1) Subject to paragraph (2) and to Order 80, rule 2, a defendant
to an action begun by writ may (whether or not he is sued as a trustee
or personal representative or in any other representative capacity)
acknowledge service of the writ and defend the action by a solicitor or
in person.
(2) The defendant to such an action who is a body corporate may
acknowledge service of the writ and give notice of intention to defend
the action either by a solicitor or by a person duly authorized to act on
the defendant's behalf but, except as expressly provided by or under
any enactment or where leave is given under paragraph (2A) for such
defendant to be represented by one of its directors, such defendant may
not take any further step in the action otherwise than by a solicitor.
(2A) (a) An application by a body corporate for leave to be
represented by one of its directors shall be made ex parte to a
Registrar and supported by an affidavit, made by the director
and filed with the application, stating and verifying the
reasons why leave should be given for the body corporate to
be represented by the director, and in particular setting out
such facts and matters as demonstrate that the body
corporate could not otherwise be heard in the proceeding.
(b)The relevant resolution of the board of the body corporate
authorizing the director to appear on its behalf if leave is
granted shall be exhibited to the affidavit.
(2B) No appeal shall lie from an order of the Registrar under
paragraph (M) giving or refusing leave.
(2C) Leave given by a Registrar under paragraph (M) may be
revoked by the Court at any time.
(M) No appeal shall lie from an order of the Court revoking leave
given by a Registrar.
(3) Service of a writ may be acknowledged by properly completing
an acknowledgment of service as defined by rule 3 and handing it in at,
or sending it by post to, the Registry.
(4) If two or more defendants to an action acknowledge service by
the same solicitor and at the same time, only one acknowledgment of
service need be completed and delivered for those defendants.
(5) The date on which service is acknowledged is the date on
which the acknowledgment of service is received at the Registry.
Acknowledgment of service (0. 12, r. 3)
3. (1) An acknowledgment of service must be in Form No. 14 or 15
in Appendix A, whichever is appropriate, and except as provided in rule
1(2), must be signed by the solicitor acting for the defendant specified in
the acknowledgment or, if the defendant is acting in person, by that
defendant.
(2) An acknowledgment of service must specify-
(a)in the case of a defendant acknowledging service in person,
the address of his place of residence and, if his place of
residence is not within the jurisdiction or if he has no place of
residence, the address of a place within the jurisdiction at or to
which documents for him may be delivered or sent, and
(b)in the case of a defendant acknowledging service by a
solicitor, a business address to which may be added a
numbered box at a document exchange of his solicitor within
the jurisdiction;
and where the defendant acknowledges service in person the address
within the jurisdiction specified under sub-paragraph (a) shall be his
address for service, but otherwise his solicitor's business address shall
be his address for service.
In relation to a body corporate the references in sub-paragraph (a)
to the defendant's place of residence shall be construed as references to
the defendant's registered or principal office.
(3) Where the defendant acknowledges service by a. solicitor who
is acting as agent for another solicitor having a place of business within
the jurisdiction, the acknowledgment of serivce must state that the first-
named solicitor so acts and must also state the name and address of that
other solicitor.
(4) If an acknowledgment of service does not specify the
defendant's address for service or the Court is satisfied that any address
specified in the acknowledgment for service is not genuine, the Court
may on application by the plaintiff set aside the acknowledgment or
order the defendant to give an address or, as the case may be, a genuine
address for service and may in any case direct that the acknowledgment
shall nevertheless have effect for the purpose of Order 10, rule 1 (5), and
Order 65, rule 9.
Procedure on receipt of acknowledgment of service (0. 12, r. 4)
4. On receiving an acknowledgment of service an officer of the
Registry must
(a)affix to the acknowledgment an official stamp showing the
date on which he received it;
(b)enter the acknowledgment in the cause book with a note
showing, if it be the case, that the defendant has indicated in
the acknowledgment an intention to contest the proceedings
or to apply for a stay of execution in respect of any judgment
obtained against him in the proceedings;
(c)make a copy of the acknowledgment, having affixed to it an
official stamp showing the date on which he received the
acknowledgment, and send by post to the plaintiff or, as the
case may be, his solicitor at the plaintiffs address for service.
Time limited for acknowledging service (0. 12, r, 5)
5. References in these rules to the time limited for acknowledging
service are references
(a)in the case of a writ served within the jurisdiction, to fourteen
days after service of the writ (including the day of service) or,
where that time has been extended by or by virtue of these
rules, to that time as so extended; and
(b)in the case of a writ served out of the jurisdiction, to the time
limited under Order 10, rule 2(2), Order 11, rule 1(3), or Order
11, rule 4(4), or,. where that time has been extended as
aforesaid, to that time as so extended.
Late acknowledgment of service (0. 12, r. 6)
6. (1) Except with the leave of the Court, a defendant may not give
notice of intention to defend in an action after judgment has been
obtained therein.
(2) Except as provided by paragraph (1) nothing in these rules or
any writ or order thereunder shall be construed as precluding a
defendant from acknowledging service in an action after the time limited
for so doing, but if a defendant acknowledges service after that time, he
shall not, unless the Court otherwise orders, be entitled to serve a
defence or do any other act later than if he had acknowledged service
within that time.
Acknowledgment not to constitute waiver (0. 12, r. 7)
7. The acknowledgment by a defendant of service of a writ shall
not be treated as a waiver by him of any irregularity in the writ or
service thereof or in any order giving leave to serve the writ or
extending the validity of the writ for the purpose of service.
Dispute as to jurisdiction (0. 12, r. 8)
8. (1) A defendant who wishes to dispute the jurisdiction of the
court in the proceedings by reason of any such irregularity as is
mentioned in rule 7 or on any other ground shall give notice of intention
to defend the proceedings and shall, within the time limited for service
of a defence, apply to the Court for
(a)an order setting aside the writ or service of the writ on him, or
(b)an order declaring that the writ has not been duly served on
him, or
(e)the discharge of any order giving leave to serve the writ on
him out of the jurisdiction, or
(d)the discharge of any order extending the validity of the writ
for the purpose of service, or
(e)the protection or release of any property of the defendant
seized or threatened with seizure in the proceedings, or
(f)the discharge of any order made to prevent any dealing with
any property of the defendant, or
(g)a declaration that in the circumstances of the case the court
has no jurisdiction over the defendant in respect of the
subject-matter of the claim or the relief or remedy sought in
the action, or
(h) such other relief as may be appropriate.
(3) An application under paragraph (1) must be made-
(a) in an Admiralty action in rem, by motion;
(c) in any other action, by summons or motion,
and the notice of motion or summons must state the grounds of the
application.
(4) An application under paragraph (1) must be supported by an
affidavit verifying the facts on which the application is based and a
copy of the affidavit must be served with the notice of motion or
summons by which the application is made.
(5) Upon bearing an application under paragraph (1), the Court, if it
does not dispose of the matter in dispute, may give such directions for
its disposal as may be appropriate, including directions for the trial
thereof as a preliminary issue.
(6) A defendant who makes an application under paragraph (1)
shall not be treated as having submitted to the jurisdiction of the court
by reason of his having given notice of intention to defend the action;
and if the Court makes no order on the application or dismisses it, the
notice shall cease to have effect, but the defendant may, subject to rule
6(1), lodge a further acknowledgment of service and in that case
paragraph (7) shall apply as if the defendant had not made any such
application.
(7) Except where the defendant makes an application in accordance
with paragraph (1), the acknowledgment by a defendant of service of a
writ shall, unless the acknowledgment is withdrawn by leave of the
Court under Order 21, rule 1, be treated as a submission by the
defendant to the jurisdiction of the Court in the proceedings.
Application by defendant where writ not served (0. 12, r. 8A)
8A. (1) Any person named as a defendant in a writ which has not
been served on him may serve on the plaintiff a notice requiring him
within a specified period not less than 14 days after service of the notice
either to serve the writ on the defendant or to discontinue the action as
against him.
(2) Where the plaintiff fails to comply with a notice under
paragraph (1) within the time specified the Court may, on the application
of the defendant by summons, order the action to be dismissed or make
such other order as it thinks fit.
(3) A summons under paragraph (2) shall be supported by an
affidavit verifying the facts on which the application is based and
stating that the defendant intends to contest the proceedings and a
copy of the affidavit must be served with the summons.
(4) Where the plaintiff serves the writ in compliance with a notice
under paragraph (1) or with an order under paragraph (2) the defendant
must acknowledge service within the time limited for so doing.
Acknowledgment of service of originating summons (0. 12, r. 9)
9. (1) Each defendant named in and served with an originating
summons (other than an ex parte originating summons or an originating
summons under Order 113) must acknowledge service of the summons
as if it were a writ.
(3) The foregoing rules of this Order shall apply in relation to an
originating summons (other than an ex parte originating summons or an
originating summons under Order 113) as they apply to a writ except
that after the word 'extended' wherever it occurs in rule 5(a), there
shall be inserted the words 'or abridged- and for the reference in rule
5(b) to Order 11, rules 1(3) and 4(4), there shall be substituted a
reference to Order 11, rule 9(6).
Acknowledgment of service to be treated as entry of appearance
(0, 12, r. 10)
10. For the purpose of any enactment referring expressly or
impliedly to the entry of appearance as a procedure provided by rules of
court for responding to a writ or other process issuing out of the High
Court, or of any rule of law, the acknowledgment of service of the writ or
other process in accordance with these rules shall be treated as the
entry of an appearance to it, and related expressions shall be construed
accordingly,
ORDER 13
FAILURE To GIVE NOTICE OF INTENTION To 13FiEND
Claim for liquidated demand (0. 13, r. 1)
1. (1) Where a writ is indorsed with a claim against a defendant for
a liquidated demand only, then, if that defendant fails to give notice of
intention to defend, the plaintiff may, after the prescribed time, enter
final judgment against that defendant for a sum not exceeding that
claimed by the writ in respect of the demand and for costs, and proceed
with the action against the other defendants, if any.
(2) A claim shall not be prevented from being treated for the
purposes of this rule as a claim for a liquidated demand by reason only
that part of the claim is for interest under section 48 of the Ordinance at
a rate which is not higher than that payable on judgment debts at the
date of the writ.
Claim for unliquidated damages (0. 13, r.
2. Where a writ is indorsed with a claim against a defendant for
unliquidated damages only, then, if that defendant fails to give notice of
intention to defend, the plaintiff may, after the prescribed time, enter
interlocutory judgment against that defendant for damages to be
assessed and costs, and proceed with the action against the other
defendants, if any.
Claim for detention of goods (0. 13, r. 3)
3. (1) Where a writ is indorsed with a claim against a defendant
relating to the detention of goods only, then, if that defendant fails to
give notice of intention to defend the plaintiff may, after the prescribed
time and subject to Order 42, rule 1A
(a) at his option enter either
(i) interlocutory judgment against that defendant for
delivery of the goods or their value to be assessed and costs;
or
(ii) interlocutory judgment for the value of the goods to be
assessed and costs; or
(b)apply by summons for judgment against that defendant for
delivery of the goods without giving him the alternative of
paying their assessed value,
and in any case proceed with the action against the other defendants, if
any.
(2) A summons under paragraph (1)(b) must be supported by
affidavit and notwithstanding Order 65, rule 9, the summons and a copy
of the affidavit must be served on the defendant against whom
judgment is sought.
Claim for possession of land (0. 13, r. 4)
4. (1) Where a writ is indorsed with a claim against a defendant for
possession of land only, then, if that defendant fails to give notice of
intention to defend the plaintiff may, after the prescribed time, and on
producing a certificate by his solicitor, or (if he sues in person) an
affidavit, stating that he is not claiming any relief in the action of the
nature specified in Order 88, rule 1, enter judgment for possession of the
land as against that defendant and costs, and proceed with the action
against the other defendants, if any.
(5) Where there is more than one defendant, judgment entered
under this rule shall not be enforced against any defendant unless and
until judgment for possession of the land has been entered against all
the defendants.
Mixed claims (0. 13, r. 5)
5. Where a writ issued against any defendant is indorsed with two
or more of the claims mentioned in the foregoing rules, and no other
claim, then, if that defendant fails to give notice of intention to defend,
the plaintiff may, after the prescribed time, enter against that defendant
such judgment in respect of any such claim as he would be entitled to
enter under those rules if that were the only claim indorsed on the writ
and proceed with the action against the other defendants, if any.
Other claims (0. 13, r. 6)
6. (1) Where a writ is indorsed with a claim of a description not
mentioned in rules 1 to 4, then, if any defendant fails to give notice of
intention to defend, the plaintiff may, after the prescribed time and, if
that defendant has not acknowledged service, upon filing an affidavit
proving due service of the writ on him and, where the statement of claim
was not indorsed on or served with the writ, upon serving a statement
of claim on him, proceed with the action as if that defendant had given
notice of intention to defend.
(2) Where a writ issued against a defendant is indorsed as
aforesaid, but by reason of the defendant's satisfying the claim or
complying with the demands thereof or any other like reason it has
become unnecessary for the plaintiff to proceed with the action,
then, if the defendant fails to give notice of intention to defend, the
plaintiff may, after the prescribed time, enter judgment against that
defendant for costs.
(3) An application for leave to enter judgment under paragraph (2)
shall be by summons which must, unless the Court otherwise orders,
and notwithstanding anything in Order 65, rule 9, be served on the
defendant against whom it is sought to enter judgment.
Prescribed time (0. 13, r. 6A)
6A. In the foregoing rules of this Order 'the prescribed time' in
relation to a writ issued against a defendant means the time limited for
the defendant to acknowledge service of the writ or, if within that time
the defendant has returned to the Registry an acknowledgment of
service containing a statement to the effect that he does not intend to
contest the proceedings, the date on which the acknowledgment was
received at the Registry.
Proof of service of writ (0. 13, r. 7)
7. (1) Judgment shall not be entered against a defendant under this
Order unless
(a)the defendant has acknowledged service on him of the writ; or
(b)an affidavit is filed by or on behalf of the plaintiff proving due
service of the writ on the defendant; or
(c)the plaintiff produces the writ indorsed by the defendant's
solicitor with a statement that he accepts service of the writ on
the defendant's behalf.
(2) Where, in an action begun by writ, an application is made to the
Court for an order affecting a party who has failed to give notice of
intention to defend, the Court hearing the application may require to be
satisfied in such manner as it thinks fit that the party failed to give such
notice.
(3) Where, after judgment has been entered under this Order
against a defendant purporting to have been served by post under
Order 10, rule 1(2)(a), the copy of the writ sent to the defendant is
returned to the plaintiff through the post undelivered to the addressee,
the plaintiff shall, before taking any step or further step in the action or
the enforcement of the judgment, either
(a)make a request for the judgment to be set aside on the ground
that the writ has not been duly served, or
(b) apply to the Court for directions.
(4) A request under paragraph (3)(a) shall be made by producing to
an officer of the Registry and leaving with him for filing, an affidavit
stating the relevant facts, and thereupon the judgment shall
be set aside and the entry of the judgment and of any proceedings
for its enforcement made in the book kept in the Registry for that
purpose shall be marked accordingly.
(5) An application under paragraph (3)(b) shall be made ex
parte by affidavit stating the facts on which the application is
founded and any order or direction sought, and on the application
the Court may-
(a) set aside the judgment; or
(b)direct that, notwithstanding the return of the copy of the
writ, it shall be treated as having been duly served; or
(c)make such other order and give such other direction as the
circumstances may require.
Judgment against a State (0. 13, r. 7A)
7A. (1) Where the defendant is a State, as defined in section
14 of the State Immunity Act 1978 ('the Act'), the plaintiff shall not
be entitled to enter judgment under this Order except with the leave
of the Court.
(2) An application for leave to enter judgment shall be sup-
ported by an affidavit-
(a) stating the grounds of the application,
(b)verifying the facts relied on as excepting the State from the
immunity conferred by section 1 of the Act, and
(c)verifying that the writ has been served by being transmitted
to the Chief Secretary and by him to the Foreign and
Commonwealth Office for onward transmission to the
State concemed, or in such other manner as may have been
agreed to by the State, and that the time for acknowledging
service, as extended by section 12(2) of the Act (by two
months) where applicable, has expired.
(3) The application may be made ex parte but the Court
hearing the application may direct a summons to be issued and
served on that State, for which purpose such a direction shall include
leave to serve the summons and a copy of the affidavit out of the
jurisdiction.
(4) Unless the Court otherwise directs, an affidavit for the
purposes of this rule may contain statements of information or belief
with the sources and grounds thereof, and the grant of leave to enter
judgment under this Order shall include leave to serve out of the
jurisdiction-
(a) a copy of the judgment, and
(b) a copy of the affidavit, where not already served.
(5) The procedure for effecting service out of the jurisdiction
pursuant to leave granted in accordance with the rule shall be the same
as for the service of the writ under Order 11, rule 7(1), except where
section 12(6) of the Act applies and an alternative method of service has
been agreed.
Stay of execution on default judgment (0. 13, r. 8)
8. Where judgment fora debtor liquidated demand is entered under
this Order against a defendant who has returned to the Registry an
acknowledgment of service containing a statement to the effect that,
although he does not intend to contest the proceedings, he intends to
apply for a stay of execution of the judgment by writ of fieri facias,
execution of the judgment by such a writ shall be stayed for a period of
14 days from the acknowledgment of service and, if within that time the
defendant issues and serves on the plaintiff a summons for such a stay
supported by an affidavit in accordance with Order 47, rule 1, the stay
imposed by this rule shall continue until the summons is heard or
otherwise disposed of, unless the Court after giving the parties an
opportunity of being heard otherwise directs.
Setting aside judgment (0. 13, r. 9)
9. Without prejudice to rule 7(3) and (4), the Court may, on such
terms as it thinks just, set aside or vary any judgment entered in
pursuance of this Order.
ORDER 14
SUMMARY JUDGMENT
Application by plaintiff for summary judgment (0. 14, r. 1)
1. (1) Where in an action to which this rule applies a statement of
claim has been served on a defendant and that defendant has given
notice of intention to defend the action, the plaintiff may, on the ground
that that defendant has no defence to a claim included in the writ, or to a
particular part of such a claim, or has no defence to such a claim or part
except as to the amount of any damages claimed, apply to the Court for
judgment against that defendant.
(2) Subject to paragraph (3) this rule applies to every action begun
by writ other than
(a)an action which includes a claim by the plaintiff for libel,
slander, malicious prosecution, false imprisonment or
seduction,
(b)an action which includes a claim by the plaintiff based on an
allegation of fraud, or
(c) an Admiralty action in rem.
(3) This Order shall not apply to an action to which Order 86 or
Order 88 applies.
Manner in which application under rule 1 must be made (0. 14, r. 2)
2. (1) An application under rule 1 must be made by summons
supported by an affidavit verifying the facts on which the claim, or the
part of a claim, to which the application relates is based and stating that
in the deponent's belief there is no defence to that claim or part, as the
case may be, or no defence except as to the amount of any damages
claimed.
(2) Unless the Court otherwise directs, an affidavit for the purposes
of this rule may contain statements of information or belief with the
sources and grounds thereof.
(3) The summons, a copy of the affidavit in support and of any
exhibits referred to therein must be served on the defendant not less
than 10 clear days before the return day.
Judgment for plaintiff (0. 14, r. 3)
3. (1) Unless on the hearing of an application under rule 1 either the
Court dismisses the application or the defendant satisfies the Court with
respect to the claim, or the part of a claim, to which the application
relates that there is an issue or question in dispute which ought to be
tried or that there ought for some other reason to be a trial of that claim
or part, the Court may give such judgment for the plaintiff against that
defendant on that claim or part as may be just having regard to the
nature of the remedy or relief claimed.
(2) The Court may by order, and subject to such conditions, if any,
as may be just, stay execution of any judgment given against a
defendant under this rule until after the trial of any counterclaim made or
raised by the defendant in the action.
Leave to defend (0. 14, r, 4)
4. (1) A defendant may show cause against an application under
rule 1 by affidavit or otherwise to the satisfaction of the Court.
(2) Rule 2(2) applies for the purposes of this rule as it applies for
the purposes of that rule.
(3) The Court may give a defendant against whom such an
application is made leave to defend the action with respect to the claim,
or the part of a claim, to which the application relates either
unconditionally or on such terms as to giving security or time or mode
of trial or otherwise as it thinks fit.
(4) On the hearing of such an application the Court may order a
defendant showing cause or, where that defendant is a body corporate,
any director, manager, secretary or other similar officer thereof, or any
person purporting to act in any such capacity
(a) to produce any document;
(b)if it appears to the Court that there are special
circumstances which make it desirable that he should do
so, to attend and be examined on oath.
Application for summary judgment on counterclaim (0. 14, r. 5)
5. (1) Where a defendant to an action begun by writ has
served a counterclaim on the plaintiff, then, subject to paragraph (3),
the defendant may, on the ground that the plaintiff has no defence to
a claim made in the counterclaim, or to a particular part of such a
claim, apply to the Court for judgment against the plaintiff on that
claim or part.
(2) Rules 2, 3 and 4 shall apply in relation to an application
under this rule as they apply in relation to an application under
rule 1 but with the following modifications, that is to say-
(a)references to the plaintiff and defendant shall be construed
as references to the defendant and plaintiff respectively;
(b)the words in rule 3(2) 'any counterclaim made or raised by
the defendant in' shall be omitted; and
(c)the reference in rule 4(3) to the action shall be construed as
a reference to the counterclaim to which the application
under this rule relates.
(3) This rule shall not apply to a counterclaim which includes
any such claim as is referred to in rule 1(2).
Directions (0. 14, r. 6)
6. (1) Where the Court-
(a)orders that a defendant or a plaintiff have leave (whether
conditional or unconditional) to defend an action or
counterclaim, as the case may be, with respect to a claim or
a part of a claim, or
(b)gives judgment for a plaintiff or a defendant on a claim or
part of a claim but also orders that execution of the
judgment be stayed pending the trial of a counterclaim or
of the action, as the case may be,
the Court shall give directions as to the further conduct of the
action, and Order 25, rules 2 to 7, shall, with the omission of so
much of rule 7(1) as requires parties to serve a notice specifying the
orders and directions which they require and with any other neces-
sary modifications, apply as if the application under rule 1 of this
Order or rule 5 thereof, as the case may be, on which the order was
made were a summons for directions.
(2) In particular, and if the parties consent, the Court may
direct that the claim in question and any other claim in the action be
tried by a master under the provisions of these rules relating to the
trial of causes or matters or questions or issues by masters.
Costs (0. 14, r. 7)
7. (1) If the plaintiff makes an application under rule 1
where the case is not within this Order or if it appears to the Court
that the plaintiff knew that the defendant relied on a contention
which would entitle him to unconditional leave to defend, then,
without prejudice to Order 62 and in particular to rule 4(1) thereof,
the Court may dismiss the application with costs and may require
the costs to be paid by him forthwith.
(2) The Court shall have the same power to dismiss an
application under rule 5 as it has under paragraph (1) to dismiss an
application under rule 1, and that paragraph shall apply accordingly
with the necessary modifications.
Right to proceed with residue of action or counterclaim (0. 14, r. 8)
8. (1) Where on an application under rule 1 the plaintiff
obtains judgment on a claim or a part of a claim against any
defendant, he may proceed with the action as respects any other
claim or as respects the remainder of the claim or against any other
defendant.
(2) Where on an application under rule 5 a defendant obtains
judgment on a claim or part of a claim made in a counterclaim
against the plaintiff, he may proceed with the counterclaim as
respects any other claim or as respects the remainder of the claim or
against any other defendant to the counterclaim.
Judgment for delivery up of chattel (0. 14, r. 9)
9. Where the claim to which an application under rule 1 or
rule 5 relates is for the delivery up of a specific chattel and the Court
gives judgment under this Order for the applicant, it shall have the
same power to order the party against whom judgment is given to
deliver up the chattel without giving him an option to retain it on
paying the assessed value thereof as if the judgment had been given
after trial.
Relief against forfeiture (0. 14, r. 10)
10. A tenant shall have the same right to apply for relief after
judgment for possession of land on the ground of forfeiture for
non-payment of rent has been given under this Order as if the
judgment had been given after trial.
Setting aside judgment (0. 14, r. 11)
11. Any judgment given against a party who does not appear
at the hearing of an application under rule 1 or rule 5 may be set
aside or varied by the Court on such terms as it thinks just.
ORDER 15
CAUSES OF ACTION, COUNTERCLAIMS AND
PARTIES
Joinder of causes of action (0. 15, r. 1)
1. (1) Subject to rule 5(1), a plaintiff may in one action claim relief
against the same defendant in respect of more than one cause of action
(a)if the plaintiff claims, and the defendant is alleged to be liable,
in the same capacity in respect of all the causes of action, or
(b)if the plaintiff claims or the defendant is alleged to be liable in
the capacity of executor or administrator of an estate in
respect of one or more of the causes of action and in his
personal capacity but with reference to the same estate in
respect of all the others, or
(c) with the leave of the Court.
(2) An application for leave under this rule must be made ex parte
by affidavit before the issue of the writ or originating summons, as the
case may be, and the affidavit must state the grounds of the application.
Counterclaim against plaintiff (0. 15, r. 2)
2. (1) Subject to rule 5(2), a defendant in any action who alleges
that he has any claim or is entitled to any relief or remedy against a
plaintiff in the action in respect of any matter (whenever and however
arising) may, instead of bringing a separate action, make a counterclaim
in respect of that matter; and where he does so he must add the
counterclaim to his defence.
(2) Rule 1 shall apply in relation to a counterclaim as if the
counterclaim were a separate action and as if the person making the
counterclaim were the plaintiff and the person against whom it is made a
defendant.
(3) A counterclaim may be proceeded with notwithstanding that
judgment is given for the plaintiff in the action or that the action is
stayed, discontinued or dismissed.
(4) Where a defendant establishes a counterclaim against the claim
of the plaintiff and there is a balance in favour of one of the parties, the
Court may give judgment for the balance, so, however, that this
provision shall not be taken as affecting the Court's discretion with
respect to costs.
Counterclaim against additional parties (0. 15, r. 3)
3. (1) Where a defendant to an action who makes a counterclaim
against the plaintiff alleges that any other person (whether or not a
party to the action) is liable to him along with the plaintiff in
respect of the subject-matter of the counterclaim, or claims against
such other person any relief relating to or connected with the
original subject-matter of the action, then, subject to rule 5(2), he
may join that other person as a party against whom the counter-
claim is made.
(2) Where a defendant joins a personas a party against whom
he makes a counterclaim, he must add that person's name to the title
of the action and serve on him a copy of the counterclaim and, in the
case of a person who is not already a party to the action, a form of
acknowledgment of service in Form No. 14 in Appendix A with such
modifications as the circumstances may require; and a person on
whom a copy of a counterclaim is served under this paragraph shall,
if he is not already a party to the action, become a party to it as from
the time of service with the same rights in respect of his defence to
the counterclaim and otherwise as if he had been duly sued in the
ordinary way by the party making the counterclaim.
(3) A defendant who is required by paragraph (2) to serve a
copy of the counterclaim made by him on any person who before
service is already a party to the action must do so within the period
within which, by virtue of Order 18, rule 2, he must serve on the
plaintiff the defence to which the counterclaim is added.
(4) The appropriate office for acknowledging service of a
counterclaim by a person who is not already a party to the action is
the Registry.
(5) Where by virtue of paragraph (2) a copy of a counterclaim
is required to be served on a person who is not already a party to the
action, the following provisions of these rules, namely, Order 10,
Order 11, Orders 12 and 13 and Order 75, rule 4, shall, subject to the
last foregoing paragraph, apply in relation to the counterclaim and
the proceedings arising from it as if-
(a)the counterclaim were a writ and the proceedings arising
from it in an action; and
(b)the party making the counterclaim were a plaintiff and the
party against whom it is made a defendant in that action.
(6) A copy of a counterclaim required to be served on a person
who is not already a party to the action must be indorsed with a
notice, in Form No. 17 in Appendix A, addressed to that person.
Joinder of parties (0. 15, r. 4)
4. (1) Subject to rule 5(1), two or more persons may be
joined together in one action as plaintiffs or as defendants with the
leave of the Court or where-
(a)if separate actions were brought by or against each of
them, as the case may be, some common question of law or
fact would arise in all the actions, and
(b)all rights to relief claimed in the action (whether they are joint,
several or alternative) are in respect of or arise out of the same
transaction or series of transactions.
(2) Where the plaintiff in any action claims any relief to which any
other person is entitled jointly with him, all persons so entitled must,
subject to the provisions of any written law and unless the Court gives
leave to the contrary, be parties to the action and any of them who does
not consent to being joined as a plaintiff must, subject to any order
made by the Court on an application for leave under this paragraph, be
made a defendant.
This paragraph shall not apply to a probate action.
(HK)(3) Where relief is claimed in an action against a defendant who is
jointly liable with some other person and also severally liable, that other
person need not be made a defendant to the action; but where persons
are jointly, but not severally, liable under a contract and relief is claimed
against some but not all of those persons in an action in respect of that
contract, the Court may, on the application of any defendant to the
action, by order stay proceedings in the action until the other persons
so liable are added as defendants.
Court may order separate trials, etc. (0. 15, r. 5)
5. (1) If claims in respect of two or more causes of action are
included by a plaintiff in the same action or by a defendant in a
counterclaim, or if two or more plaintiffs or defendants are parties to the
same action, and it appears to the Court that the joinder of causes of
action or of parties, as the case may be, may embarrass or delay the trial
or is otherwise inconvenient, the Court may order separate trials or make
such other order as may be expedient.
(2) If it appears on the application of any party against whom a
counterclaim is made that the subject-matter of the counterclaim ought
for any reason to be disposed of by a separate action, the Court may
order the counterclaim to be struck out or may order it to be tried
separately or make such other order as may be expedient.
Misjoinder and nonjoinder of parties (0. 15, r. 6)
6. (1) No cause or matter shall be defeated by reason of the
misjoinder of any party; and the Court may in any cause or matter
determine the issues or questions in dispute so far as they affect the
rights and interests of the persons who are parties to the cause or
matter.
(2) Subject to the provision of this rule, at any stage of the
proceedings in any cause or matter the Court may on such terms as it
thinks just and either of its own motion or on application
(a)order any person who has been improperly or unnecessarily
made a party or who has for any reason ceased to be a proper
or necessary party, to cease to be a party;
(b)order any of the following persons to be added as a party,
namely
(i) any person who ought to have been joined as a party or
whose presence before the Court is necessary to ensure that
all matters in dispute in the cause or matter may be effectually
and completely determined and adjudicated upon, or
(ii) any person between whom and any party to the cause
or matter there may exist a question or issue arising out of or
relating to or connected with any relief or remedy claimed in
the cause or matter which in the opinion of the Court it would
be just and convenient to determine as between him and that
party as well as between the parties to the cause or matter.
(3) An application by any person for an order under paragraph (2)
adding him as a party must, except with the leave of the Court, be
supported by an affidavit showing his interest in the matters in dispute
in the cause or matter or, as the case may be, the question or issue to be
determined as between him and any party to the cause or matter.
(4) No person shall be added as a plaintiff without his consent
signified in writing or in such other manner as may be authorized.
(5) No person shall be added or substituted as a party after the
expiry of any relevant period of limitation unless either
(a)the relevant period was current at the date when proceedings
were commenced and it is necessary for the determination of
the action that the new party should be added, or substituted,
or
(b)the relevant period arises under the provisions of section 27
or 28 of the Limitation Ordinance and the Court directs that
those provisions should not apply to the action by or against
the new party.
In this paragraph 'any relevant period of limitation' means a time
limit under the Limitation Ordinance.
(6) The addition or substitution of a new party shall be treated as
necessary for the purposes of paragraph (5)(a) if, and only if, the Court
is satisfied that
(a)the new party is a necessary party to the action in that
property is vested in him at law or in equity and the plaintiff's
claim in respect of an equitable interest in that property is
liable to be defeated unless the new party is joined, or
(b)the relevant cause of action is vested in the new party and the
plaintiff jointly but not severally, or
(c)the new party is the Attorney General and the proceedings
should have been brought by relator proceedings in his name,
or
(d)the new party is a company in which the plaintiff is a
shareholder and on whose behalf the plaintiff is suing to
enforce a right vested in the company, or
(e)the new party is sued jointly with the defendant and is not also
liable severally with him and failure to join the new party might
render the claim unenforceable.
Proceedings by and against estates (0. 15, r. 6A)
6A. (1) Where any person against whom an action would have lain
has died but the cause of action survives, the action may, if no grant of
probate or administration has been made, be brought against the estate
of the deceased.
(2) Without prejudice to the generality of paragraph (1), an action
brought against 'the personal representatives of A.B. deceased' shall
be treated, for the purposes of that paragraph, as having been brought
against his estate.
(3) An action purporting to have been commenced by or against a
person shall be treated, if he was dead at its commencementxas having
been commenced by his estate or against it in accordance with
paragraph (1) as the case may be, whether or not a grant of probate or
administration was made before its commencement.
(4) In any such action as is referred to in paragraph (1) or
(3)-
(a) the plaintiff shall, during the period of validity for service
of the writ or originating summons, apply to the Court for
an order a pointing a person to represent the
deceased's estate for he purpose of the proceedings or, if a
grant of probate r administration has been made, for an order
that the personal representative of the deceased be made a the
proceedings, and in either case for an order that proceedings
be carried on against the person so appointed or, as the case may be,
against the personal representative, as if he had been
substituted for the estate;
(b)the Court may, at any stage of the proceedings and on such
terms as it thinks just and either of its own motion or on
application, make any such order as is mentioned in sub-
paragraph (a) and allow such amendments (if any) to be made
and make such other order as the Court thinks necessary in
order to ensure that all matters in dispute in the proceedings may be effectually and completely
determined and adjudicated upon.
(5) Before making an order under paragraph (4) the Court may
require notice to be given to any insurer of the deceased who has an
interest in the proceedings and to such (if any) of the persons having
an interest in the estate as it thinks fit.
(5A) Where an order is made under paragraph (4)
,,appointing
the Registrar General to represent the deceased's estate, the
appointment shall be limited to his accepting service of the writ or
originating summons by which the action was begun unless, either on
making such an order or on a subsequent application, the Court, with
the consent of the Registrar General, directs that the appointment shall
extend to taking further steps in the proceedings.
(6) Where an order is made under paragraph (4), rules 7(4) and 8(3)
and (4) shall apply as if the order had been made under rule 7 on the
application of the plaintiff.
(7) Where no grant of probate or administration had been made,
any judgment or order given or made in the proceedings shall bind the
estate to the same extent as it would have been bound if a grant had
been made and a personal representative of the deceased had been a
party to the proceedings.
Change of parties by reason of death, etc. (0. 15, r. 7)
7. (1) Where a party to an action dies or becomes bankrupt but the
cause of action survives, the action shall not abate by reason of the
death or bankruptcy.
(2) Where at any stage of the proceedings in any cause or matter
the interest or liability of any party is assigned or transmitted to or
devolves upon some other person, the Court may, if it thinks it
necessary in order to ensure that all matters in dispute in the cause or
matter may be effectually and completely determined and adjudicated
upon, order that other person to be made a party to the cause or matter
and the proceedings to be carried on as if he had been substituted for
the first mentioned party.
An application for an order under this paragraph may be made
ex parte.
(3) An order may be made under this rule for a person to be made a
party to a cause or matter notwithstanding that he is already a party to it
on the other side of the record, or on the same side but in a different
capacity; but
(a)if he is already a party on the other side, the order shall be
treated as containing a direction that he shall cease to be a
party on that other side, and
(b)if he is already a party on the same side but in another
capacity, the order may contain a direction that he shall cease
to be a party in that other capacity.
(4) The person on whose application an order is made under this
rule must procure the order to be noted in the cause book, and after the
order has been so noted that person must, unless the Court otherwise
directs, serve the order on every other person who is a party to the
cause or matter or who becomes or ceases to be a party by virtue of the
order and serve with the order on any person who
becomes a defendant a copy of the writ or originating summons by
which the cause or matter was begun and a form of acknowledgment of
service in Form No. 14 or 15 in Appendix A, whichever is appropriate.
(5) Any application to the Court by a person served with an order
made ex parte under this rule for the discharge or variation of the order
must be made within 14 days after the service of the order on that
person.
Provisions consequential on making of order under rule 6 or 7
(0. 15, r. 8)
8. (1) Where an order is made under rule 6 the writ by which the
action in question was begun must be amended accordingly and must
be indorsed with
(a)a reference to the order in pursuance of which the amendment
is made, and
(b) the date on which the amendment is made;
and the amendment must be made within such period as may be
specified in the order or, if no period is so specified, within 14 days after
the making of the order.
(2) Where by an order under rule 6 a person is to be made a
defendant, the rules as to service of a writ of summons shall apply
accordingly to service of the amended writ on him, but before serving
the writ on him the person on whose application the order was made
must procure the order to be noted in the cause book.
(3) Where by an order under rule 6 or 7 a person is to be made a
defendant, the rules as to acknowledgment of service shall apply
accordingly to acknowledgment of service by him subject, in the case of
a person to be made a defendant by an order under rule 7, to the
modification that the time limited for acknowledging service shall begin
with the date on which the order is served on him under rule 7(4) or, if
the order is not required to be served on him, with the date on which the
order is noted in the cause book.
(4) Where by an order under rule 6 or 7 a person is to be added as a
party or is to be made a party in substitution for some other party, that
person shall not become a party until
(a)where the order is made under rule 6, the writ has been
amended in relation to him under this rule and (if he is a
defendant) has been served on him, or
(b)where the order is made under rule 7, the order has been
served on him under rule 7(4) or, if the order is not required to
be served on him, the order has been noted in the cause book;
and where by virtue of the foregoing provision a person becomes a
party in substitution for some other party, all things done in the
course of the proceedings before the making of the order shall have
effect in relation to the new party as they had in relation to the old
except that acknowledgment of service by the old party shall not
dispense with acknowledgment of service by the new.
(5) The foregoing provisions of this rule shall apply in relation
to an action begun by originating summons as they apply in relation
to an action begun by writ.
Failure to proceed after death of party (0. 15, r. 9)
9. (1) If after the death of a plaintiff or defendant in any
action the cause of action survives, but no order under rule 7 is made
substituting as plaintiff any person in whom the cause of action vests
or, as the case may be, the personal representatives of the deceased
defendant, the defendant or, as the case may be, those representa-
tives may apply to the Court for an order that unless the action is
proceeded with within such time as may be specified in the order the
action shall be struck out as against the plaintiff or defendant, as the
case may be, who has died; but where it is the plaintiff who has died,
the Court shall not make an order under this rule unless satisfied
that due notice of the application has been given to the personal
representatives (if any) of the deceased plaintiff and to any other
interested persons who, in the opinion of the Court, should be
notified.
(2) Where in any action a counterclaim is made by a defend-
ant, this rule shall apply in relation to the counterclaim as if the
counterclaim were a separate action and as if the defendant making
the counterclaim were the plaintiff and the person against whom it is
made a defendant.
Actions for possession of land (0. 15, r. 10)
10. (1) Without prejudice to rule 6, the Court may at any
stage of the proceedings in an action for possession of land order
any person not a party to the action who is in possession of the land
(whether in actual possession or by a tenant) to be added as a
defendant.
(2) An application by any person for an order under this
rule may be made ex parte, supported by an affidavit showing that
he is in possession of the land in question and if by a tenant,
naming him.
The affidavit shall specify the applicant's address for service and
Order 12, rule 3(2), (3) and (4), shall apply as if the affidavit were an
acknowledgment of service.
(3) A person added as a defendant by an order under this rule
must serve on the plaintiff a copy of the order giving the added
defendant's address for service specified in accordance with para-
graph (2)-
Actions for wrongful interference with goods (0. 15, r. I 10A)
10A. (1) Where the plaintiff in an action for detinue, conversion or
trespass to goods is one of two or more persons having or claiming any
interest in the goods, then, unless he has the written authority of every
other such person to sue on the latter's behalf, the writ or originating
summons by which the action was begun shall be indorsed with a
statement giving particulars of the plaintiff's title and identifying every
other person who, to his knowledge, has or claims any interest in the
goods.
This paragraph shall not apply to an action arising out of an
accident on land due to a collision or apprehended collision involving a
vehicle.
(2) A defendant to an action for detinue, conversion or trespass to
goods who desires to show that a third party has a better right than the
plaintiff as respects all or any part of the interest claimed by the plaintiff
may, at any time after giving notice of intention to defend, and before
any judgment or order is given or made on the plaintiff's claim, apply for
directions as to whether any person named in the application (not being
a person whose written authority the plaintiff has to sue on his behalf)
should be joined with a view to establishing whether he has a better
right than the plaintiff, or has a claim as a result of which the defendant
might be doubly liable.
(3) An application under paragraph (2) shall be made by summons,
which shall be served personally on every person named in it as well as
being served on the plaintiff.
(4) Where a person named in an application under paragraph (2)
fails to appear on the hearing of the summons or to comply with any
direction given by the Court on the application, the Court may by order
deprive him of any right of action against the defendant for the wrong,
either unconditionally or subject to such terms and conditions as the
Court thinks fit.
Relator actions (0. 15, r. 11)
11. Before the name of any person is used in any action as relator,
that person must give a written authorization so to use his name to his
solicitor and the authorization must be filed in the Registry.
Representative proceedings (0. 15, r. 12)
12. (1) Where numerous persons have the same interest in any
proceedings, not being such proceedings as are mentioned in rule 13,
the proceedings may be begun, and, unless the Court otherwise orders,
continued, by or against any one or more of them as representing all or
as representing all except one or more of them.
(2) At any stage of proceedings under this rule the Court may, on
the application of the plaintiff, and on such terms, if any, as it thinks fit,
appoint any one or more of the defendants or other persons as
representing whom the defendants are sued to represent all, or all
except one or more, of those persons in the proceedings; and where, in
exercise of the power conferred by this paragraph, the Court appoints a
person not named as a defendant, it shall make an order under rule 6
adding that person as a defendant.
(3) A judgment or order given in proceedings under this rule shall
be binding on all the persons as representing whom the plaintiffs sue
or, as the case may be, the defendants are sued, but shall not be
enforced against any person not a party to the proceedings except with
the leave of the Court.
(4) An application for the grant of leave under paragraph (3) must
be made by summons which must be served personally on the person
against whom it is sought to enforce the judgment or order.
(5) Notwithstanding that a judgment or order to which any such
application relates is binding on the person against whom the
application is made, that person may dispute liability to have the
judgment or order enforced against him on the ground that by reason of
facts and matters particular to his case he is entitled to be exempted from
such liability.
(6) The Court hearing an application for the grant of leave under
paragraph (3) may order the question whether the judgment or order is
enforceable against the person against whom the application is made to
be tried and determined in any manner in which any issue or question in
an action may be tried and determined.
Representation of interested persons who cannot he ascertained, etc.
(0. 15, r. 13)
13. (1) In any proceedings concerning-
(a) the estate of a deceased person, or
(b) property subject to a trust, or
(c)the construction of a written instrument, including an
Ordinance or any other written law,
the Court, if satisfied that it is expedient so to do, and that one or more
of the conditions specified in paragraph (2) are satisfied, may appoint
one or more persons to represent any person (including an unborn
person) or class who is or may be interested (whether presently or for
any future, contingent or unascertained interest) in or affected by the
proceedings.
(2) The conditions for the exercise of the power conferred by
paragraph (1) are as follows
(a) that the person, the class or some member of the class,
cannot be ascertained or cannot readily be ascertained;
(b)that the person, class or some member of the class, though
ascertained, cannot be found;
(c)that, though the person or the class and the members thereof
can be ascertained and found, it appears to the Court
expedient (regard being had to all the circumstances, including
the amount at stake and the degree of difficulty of the point to
be determined) to exercise the power for the purpose of saving
expense.
(3) Where in any proceedings to which paragraph (1) applies, the
Court exercises the power conferred by that paragraph, a judgment or
order of the Court given or made when the person or persons appointed
in exercise of that power are before the Court shall be binding on the
person or class represented by the person or persons so appointed.
(4) Where, in any such proceedings, a compromise is proposed
and some of the persons who are interested in, or who may be affected
by, the compromise are not parties to the proceedings (including
unborn or unascertained persons) but
(a)there is some other person in the same interest before the
Court who assents to the compromise or on whose behalf the
Court sanctions the compromise, or
(b)the absent persons are represented by a person appointed
under paragraph (1) who so assents,
the Court, if satisfied that the compromise will be for the benefit of the
absent persons and that it is expedient to exercise this power, may
approve the compromise and order that it shall be binding on the absent
persons, and they shall be bound accordingly except where the order
has been obtained by fraud or non-disclosure of material facts.
Representation of beneficiaries by trustees, etc. (0. 15, r. 14)
14. (1) Any proceedings, including proceedings to enforce a
security by foreclosure or otherwise, may be brought by or against
trustees, executors or administrators in their capacity as such without
joining any of the persons having a beneficial interest in the trust or
estate, as the case may be; and any judgment or order given or made in
those proceedings shall be binding on those persons unless the Court
in the same or other proceedings otherwise orders on the ground that
the trustees, executors or administrators, as the case may be, could not
or did not in fact represent the interests of those persons in the first-
mentioned proceedings.
(2) Paragraph (1) is without prejudice to the power of the Court to
order any person having such an interest as aforesaid to be made a
party to the proceedings or to make an order under rule 13.
Representation of deceased person interested in proceedings (0. 15, r.
15)
15. (1) Where in any proceedings it appears to the Court that a
deceased person was interested in the matter in question in the
proceedings and that he has no personal representative, the Court may,
on the application of any party to the proceedings, proceed in the
absence of a person representing the estate of the deceased person or
may by order appoint a person to represent that estate for the purposes
of the proceedings; and any such order, and any judgment or order
subsequently given or made in the proceedings, shall bind the estate of
the deceased person to the same extent as it would have been bound
had a personal representative of that person been a party to the
proceedings.
(2) Before making an order under this rule, the Court may require
notice of the application for the order to be given to such (if any) of the
persons having an interest in the estate as it thinks fit.
Declaratory judgment (0. 15, r. 16)
16. No action or other proceeding shall be open to objection on the
ground that a merely declaratory judgment or order is sought thereby,
and the Court may make binding declarations of right whether or not
any consequential relief is or could be claimed.
Conduct of proceedings (0. 15, r. 17)
17. The Court may give the conduct of any action, inquiry or other
proceedings to such person as it thinks fit.
ORDER 16
THIRD PARTY AND SIMILAR
PROCEEDINGS
Third party notice (0. 16, r. 1)
1. (1) Where in any action a defendant who has given notice of
intention to defend
(a)claims against a person not already a party to the action any
contribution or indemnity; or
(b)claims--- against such a person any relief or remedy relating to
or connected with the original subject-matter of the action and
substantially the same as some relief or remedy claimed by the
plaintiff., or
(c)requires that any question or issue relating to or connected
with the original subject-matter of the action should be
determined not only as between the plaintiff and the
defendant but also as between either or both of them and a
person not already a party to the action;
then, subject to paragraph (2), the defendant may issue a notice in
Form No. 20 or 21 in Appendix A, whichever is appropriate (in this
Order referred to as a third party notice), containing a statement of
the nature of the claim made against him and, as the case may be,
either of the nature and grounds of the claim made by him or of the
question or issue required to be determined.
(2) A defendant to an action may not issue a third party notice
without the leave of the Court unless the action was begun by writ
and he issues the notice before serving his defence on the plaintiff.
(3) Where a third party notice is served on the person against
whom it is issued, he shall as from the time of service be a party to
the action (in this Order referred to as a third party) with the same
rights in respect of his defence against any claim made against him in
the notice and otherwise as if he had been duly sued in the ordinary
way by the defendant by whom the notice is issued.
Application for leave to issue third party notice (0. 16, r. 2)
2. (1) Application for leave to issue a third party notice may
be made ex parte but the Court may direct a summons for leave to be
issued.
(2) An application for leave to issue a third party notice must
be supported by an affidavit stating-
(a) the nature of the claim made by the plaintiff in the action;
(b) the stage which proceedings in the action have reached;
(c)the nature of the claim made by the applicant or partic-
ulars of the question or issue required to be determined, as
the case may be, and the facts on which the proposed third
party notice is based; and
(d)the name and address of the person against whom the third
party notice is to be issued.
Issue, service and acknowledgment of service, of third party notice
(0. 16, r. 3)
3. (1) The order granting leave to issue a third party notice
may contain directions as to the period within which the notice is to
be issued.
(2) There must be served with every third party notice a copy
of the writ or originating summons by which the action was begun
and of the pleadings (if any) served in the action and a form of
acknowledgment of service in Form No. 14 in Appendix A with such
modifications as may be appropriate.
(3) The appropriate office for acknowledging service of a third
party notice is the Registry.
(4) Subject to the foregoing provisions of this rule, the follow-
ing provisions of these rules, namely, Order 6, rule 7(3) and (5),
Order 10, Order 11, Order 12 and Order 75, rule 4, shall apply in
relation to a third party notice and to the proceedings begun thereby
as if-
(a)the third party notice were a writ and the proceedings
begun thereby an action; and
(b)the defendant issuing the third party notice were a plaintiff
and the person against whom it is issued a defendant in
that action:
Provided that in the application of Order 11, rule 1 (1)(c) leave
may be granted to serve a third party notice outside the jurisdiction
on any necessary or proper party to the proceedings brought against
the defendant.
Third party directions (0. 16, r. 4)
4. (1) If the third party gives notice of intention to defend,
the defendant who issued the third party notice must, by summons
to be served on all the other parties to the action, apply to the Court
for directions.
(2) If no summons is served on the third party under para-
graph (1), the third party may, not earlier than 7 days after giving
notice of intention to defend, by summons to be served on all the
other parties to the action, apply to the Court for directions or for an
order to set aside the third party notice.
(3) On an application for directions under this rule the Court
may-
(a)if the liability of the third party to the defendant who
issued the third party notice is established on the hearing,
order such judgment as the nature of the case may require
to be entered against the third party in favour of the
defendant; or
(b)order any claim, question or issue stated in the third party
notice to be tried in such manner as the Court may direct;
or
(c)dismiss the application and terminate the proceedings on
the third party notice;
and may do so either before or after any judgment in the action has
been signed by the plaintiff against the defendant.
(4) On an application for directions under this rule the Court
may give the third party leave to defend the action, either alone or
jointly with any defendant, upon such terms as may be just, or to
appear at the trial and to take such part therein as may be just, and
generally may make such orders and give such directions as appear
to the Court proper for having the rights and liabilities of the parties
most conveniently determined and enforced and as to the extent to
which the third party is to be bound by any judgment or decision in
the action.
(5) Any order made or direction given under this rule may be
varied or rescinded by the Court at any time.
Default of third party, etc. (0. 16, r. 5)
5. (1) If a third party does not give notice of intention to
defend or, having been ordered to serve a defence, fails to do so-
(a)he shall be deemed to admit any claim stated in the third
party notice and shall be bound by any judgment (includ-
ing judgment by consent) or decision in the action in so
far as it is relevant to any claim, question or issue stated in
that notice; and
(b)the defendant by whom the third party notice was issued
may, if judgment in default is given against him in the
action, at any time after satisfaction of that judgment and,
with the leave of the Court, before satisfaction thereof,
enter judgment against the third party in respect of any
contribution, and, with the leave of the Court, in respect of
any other relief or remedy claimed therein.
(2) If a third party or the defendant by whom a third party
notice was issued makes default in serving any pleading which he is
ordered to serve, the Court may, on the application by summons of
that defendant or the third party, as the case may be, order such
judgment to be entered for the applicant as he is entitled to on the
pleadings or may make such other order as may appear to the Court
necessary to do justice between the parties.
(3) The Court may at any time set aside or vary a judgment
entered under paragraph (1)(b) or paragraph (2) on such terms
(if any) as it thinks just.
Setting aside third party proceedings (0. 16, r. 6)
6. Proceedings on a third party notice may, at any stage of
the proceedings, be set aside by the Court.
Judgment between defendant and third party (0. 16, r. 7)
7. (1) Where in any action a defendant has served a third
party notice, the Court may at or after the trial of the action or, if the
action is decided otherwise than by trial, on an application by
summons or motion, order such judgment as the nature of the case
may require to be entered for the defendant against the third party
or for the third party against the defendant.
(2) Where judgment is given for the payment of any contribu-
tion or indemnity to a person who is under a liability to make a
payment in respect of the same debt or damage, execution shall not
issue on the judgment without the leave of the Court until that
liability has been discharged.
(3) For the purpose of paragraph (2)
'liability' includes liability under a judgment in the same or other
proceedings and liability under an agreement to which section 3(4)
of the Civil Liability (Contribution) Ordinance applies.
Claims and issues between a defendant and some other party (0. 16, r. 8)
8. (1) Where in any action a defendant who has given notice of
intention to defend
(a)claims against a person who is already a party to the action
any contribution or indemnity; or
(b)claims against such a person any relief or remedy relating to
or connected with the original subject-matter of the action and
substantially the same as some relief or remedy claimed by the
plaintiff; or
(c)requires that any question or issue relating to or connected
with the original subject-matter of the action should be
determined not only as between the plaintiff and himself but
also as between either or both of them and some other person
who is already a party to the action;
then, subject to paragraph (2), the defendant may, without leave, issue
and serve on that person a notice containing a statement of the nature
and grounds of his claim or, as the case may be, of the question or issue
required to be determined.
(2) Where a defendant makes such a claim as is mentioned in
paragraph (1) and that claim could be made by him by counterclaim in
the action, paragraph (1) shall not apply in relation to the claim.
(3) No acknowledgment of service of such a notice shall be
necessary if the person on whom it is served has acknowledged service
of the writ or originating summons in the action or is a plaintiff therein,
and the same procedure shall be adopted for the determination between
the defendant by whom, and the person on whom, such a notice is
served of the claim, question or issue stated in the notice as would be
appropriate under this Order if the person served with the notice were a
third party and (where he has given notice of intention to defend the
action or is a plaintiff) had given notice of intention to defend the claim,
question or issue.
(4) Rule 4(2) shall have effect in relation to proceedings on a notice
issued under this rule as if for the words '7 days after giving notice of
intention to defend' there were substituted the words 94 days after
service of the notice on him'.
Claims by third and subsequent parties (0. 16, r. 9)
9. (1) Where a defendant has served a third party notice and the
third party makes such a claim or requirement as is mentioned in rule 1
or rule 8, this Order shall, with the modification mentioned in
paragraph (2) and any other necessary modifications, apply as if the
third party were a defendant; and similarly where any further person to
whom by virtue of this rule this Order applies as if he were a third party
makes such a claim or requirement.
(2) The modification referred to in paragraph (1) is that paragraph
(3) shall have effect in relation to the issue of a notice under rule 1 by a
third party in substitution for rule 1(2).
(3) A third party may not issue a notice under rule 1 without the
leave of the Court unless the action in question was begun by writ and
he issues the notice before the expiration of 14 days after the time
limited for acknowledging service of the notice issued against him.
Offer of contribution (0. 16, r. 10)
10. (1) If, at any time after he has acknowledged service, a party to
an action who stands to be held liable in the action to another party to
contribute towards any debt or damages which may be recovered
against that other party in the action, makes (without prejudice to his
defence) a written offer to that other party to contribute to a specified
extent to the debt or damages, then subject to paragraph (2) and,
notwithstanding that he reserves the right to bring the offer to the
action of the judge at the trial, the offer shall not be brought to the
attention of the judge until after all questions of liability and amount of
debt or damages have been decided.
(2) Where the question of the costs of the issue of liability falls to
be decided, that issue having been tried and an issue or question
concerning the amount of the debt or damages remaining to be tried
separately, any party may bring to the attention of the judge the fact
that a written offer under paragraph (1) has or has not been made and
the date (but not the amount) of such offer or of the first such offer if
more than one.
Counterclaim by defendant (0. 16, r. 11)
11. Where in any action a counterclaim is made by a defendant, the
foregoing provisions of this Order shall apply in relation to the
counterclaim as if the subject-matter of the counterclaim were the
original subject-matter of the action, and as if the person making the
counterclaim were the plaintiff` and the person against whom it is made
a defendant.
ORDER 17
INTERPLEADER
Entitlement to relief by way of interpleader (0. 17, r. 1)
1. (1) Where-
(a)a person is under a liability in respect of a debt or in respect
of any money, goods or chattels and he is, or expects to be,
sued for or in respect of that debt or money or those goods or
chattels by two or more persons making adverse claims
thereto, or
(b)claim is made to any money, goods or chattels taken or
intended to be taken by a bailiff in execution under any
process, or to the proceeds or value of any such goods or
chattels, by a person other than the person against whom the
process is issued,
the person under liability as mentioned in sub-paragraph (a), or (subject
to rule 2) the bailiff, may apply to the Court for relief by way of
interpleader.
(2) References in this Order to a bailiff shall be construed as
including references to any other officer charged with the execution of
process by or under the authority of the High Court.
Claim to goods, etc., taken in execution (0. 17, r. 2)
2. (1) Any person making a claim to or in respect of any money,
goods or chattels taken or intended to be taken in execution under
process of the Court, or to the proceeds or value of any such goods or
chattels, must give notice of his claim to the bailiff charged with the
execution of the process and must include in his notice a statement of
his address, and that address shall be his address for service.
(2) On receipt of a claim made under this rule the bailiff must
forthwith give notice thereof to the execution creditor and the execution
creditor must, within 7 days after receiving the notice, give notice to the
bailiff informing him whether he admits or disputes the claim.
An execution creditor who gives notice in accordance with this
paragraph admitting a claim shall only be liable to the bailiff for any fees
and expenses incurred by the bailiff before receipt of that notice.
(3) where
(a)the bailiff receives a notice from an execution creditor under
paragraph (2) disputing a claim, or the execution creditor fails,
within the period mentioned in that paragraph, to give the
required notice, and
(b) the claim made under this rule is not withdrawn,
the bailiff may apply to the Court for relief under this Order.
(4) A bailiff who receives a notice from an execution creditor under
paragraph (2) admitting a claim made under this rule shall withdraw from
possession of the money, goods or chattels claimed and may apply to
the Court for relief under this Order of the following kind, that is to say,
an order restraining the bringing of an action against him for or in
respect of his having taken possession of that money or those goods or
chattels.
Mode of application (0. 17, r. 3)
3. (1) An application for relief under this Order must be
made by originating summons unless made in a pending action, in
which case it must be made by summons in the action.
(2) Where the applicant is a bailiff who has withdrawn from
possession of money, goods or chattels taken in execution and who
is applying for relief under rule 2(4), the summons must be served on
any person who made a claim under that rule to or in respect of that
money or those goods or chattels, and that person may attend the
hearing of the application.
(3) An originating summons under this rule shall be in Form
No. 10 in Appendix A.
(4) Subject to paragraph (5), a summons under this rule must
be supported by evidence that the applicant-
(a)claims no interest in the subject-matter in dispute other
than for charges or costs,
(b)does not collude with any of the claimants to that subject-
matter, and
(c)is willing to pay or transfer that subject-matter into court
or to dispose of it as the Court may direct.
(5) Where the applicant is a bailiff, he shall not provide such
evidence as is referred to in paragraph (4) unless directed by the
Court to do so.
(6) Any person who makes a claim under rule 2 and who is
served with a summons under this rule shall within 14 days serve on
the execution creditor and the bailiff an affidavit specifying any
money and describing any goods and chattels claimed and setting
out the grounds upon which such claim is based.
(7) Where the applicant is a bailiff a summons under this rule
must give notice of the requirement in paragraph (6).
Powers of Court bearing summons (0. 17, r. 5)
5. (1) Where on the hearing of a summons under this Order
all the persons by whom adverse claims to the subject-matter in
dispute (hereafter in this Order referred to as 'the claimants')
appear, the Court may order-
(a)that any claimant be made a defendant in any action
pending with respect to the subject-matter in dispute in
substitution for or in addition to the applicant for relief
under this Order, or
(b)that an issue between the claimants be stated and tried and
may direct which of the claimants is to be plaintiff and
which defendant.
(2) Where-
(a) the applicant on a summons under this Order is a bailiff, or
(b) all the claimants consent or any of them so requests, or
(c)the question at issue between the claimants is a question of
law and the facts are not in dispute,
the Court may summarily determine the question at issue between the
claimants and make an order accordingly on such terms as may be just.
(3) Where a claimant, having been duly served with a summons for
relief under this Order, does not appear on the hearing of the summons
or, having appeared, fails or refuses to comply with an order made in the
proceedings, the Court may make an order declaring the claimant, and all
persons claiming under him, for ever barred from prosecuting his claim
against the applicant for such relief and all persons claiming under him,
but such an order shall not affect the rights of the claimants as between
themselves.
Power to order sale of goods taken in execution (0. 17, r. 6)
6. Where an application for relief under this Order is made by a
bailiff who has taken possession of any goods or chattels in execution
under any process, and a claimant alleges that he is entitled, under a bill
of sale or otherwise, to the goods or chattels by way of security for
debt, the Court may order those goods or chattels or any part thereof to
be sold and may direct that the proceeds of sale be applied in such
manner and on such terms as may be just and as may be specified in the
order.
Power to stay proceedings (0. 17, r. 7)
7. Where a defendant to an action applies for relief under this Order
in the action, the Court may by order stay all further proceedings in the
action.
Other powers (0. 17, r. 8)
8. Subject to the foregoing rules of this Order, the Court may in or
for the purposes of any interpleader proceedings make such order as to
costs or any other matter as it thinks just.
One order in several causes or matters (0. 17, r. 9)
9. Where the Court considers it necessary or expedient to make an
order in any interpleader proceedings in several causes or matters
pending before the Court, the Court may make such an order; and the
order shall be entitled in all those causes or matters and shall be binding
on all the parties to them.
Discovery (0. 17, r. 10)
10. Orders 24 and 26 shall, with the necessary modifications, apply
in relation to an interpleader issue as they apply in relation to any other
cause or matter.
Trial of interpleader issue (0. 17, r. 11)
11. (1) Order 35 shall, with the necessary modifications, apply to the
trial of an interpleader issue as it applies to the trial of an action.
(2) The Court by whom an interpleader issue is tried may give such
judgment or make such order as finally to dispose of all questions
arising in the interpleader proceedings.
ORDER 18
PLEADINGS
Service of statement of claim (0. 18, r. 1)
1. Unless the Court gives leave to the contrary or a statement of
claim is indorsed on the writ, the plaintiff must serve a statement of claim
on the defendant or, if there are two or more defendants, on each
defendant, and must do so either when the writ is served on that
defendant or at any time after service of the writ but before the
expiration of 14 days after that defendant gives notice of intention to
defend.
Service of defence (0. 18, r. 2)
2. (1) Subject to paragraph (2), a defendant who gives notice of
intention to defend an action must, unless the Court gives leave to the
contrary, serve a defence on the plaintiff before the expiration of 14 days
after the time limited for acknowledging service of the writ or after the
statement of claim is served on him, whichever is the later.
(2) If a summons under Order 14, rule 1, or under Order 86, rule 1, is
served on a defendant before he serves his defence, paragraph (1) shall
not have effect in relation to him unless by the order made on the
summons he is given leave to defend the action and, in that case, shall
have effect as if it required him to serve his defence within 14 days after
the making of the order or within such other period as may be specified
therein.
Service of reply and defence to counterclaim (0. 18, r. 3)
3. (1) A plaintiff on whom a defendant serves a defence must serve
a reply on that defendant if it is needed for compliance with rule 8; and if
no reply is served, rule 14(1) will apply.
(2) A plaintiff on whom a defendant serves a counterclaim must, if
he intends to defend it, serve on that defendant a defence to
counterclaim.
(3) Where a plaintiff serves both a reply and a defence to
counterclaim on any defendant, he must include them in the same
document.
(4) A reply to any defence must be served by the plaintiff before
the expiration of 14 days after the service on him of that defence, and a
defence to counterclaim must be served by the plaintiff before the
expiration of 14 days after the service on him of the counterclaim to
which it relates.
Pleadings subsequent to reply (0. 18, r. 4)
4. No pleading subsequent to a reply or a defence to counterclaim
shall be served except with the leave of the Court.
Service of pleadings in Summer Vacation (0. 18, r. 5)
5. Pleadings or amended pleadings shall not be served during the
Summer Vacation, except with the leave of the Court or with the consent
of all the parties to the action.
(HK) Filing of pleadings and originating process (0. 18, r. 5A)
5A. (1) Subject to Order 3, rule 5(3) and subject to the provisions of
this rule, every pleading and originating process shall be filed in the
Registry within the time during which that pleading or originating
process may be served by him on any other party.
(2) A party may apply to the court for further time to file a pleading
or originating process on a summons stating the further time required.
(3) If a party fails to file a pleading or originating process within the
time allowed under paragraph (1) or further time allowed under
paragraph (2), he shall not be at liberty to file that pleading or
originating process without the leave of the Court.
Pleadings: formal requirements (0. 18, r. 6)
6. (1) Every pleading in an action must bear on its face
(a)the year in which the writ in the action was issued and the
number of the action,
(b) the title of the action,
(d) the description of the pleading, and
(e) the date on which it was served.
(2) Every pleading must, if necessary, be divided into paragraphs
numbered consecutively, each allegation being so far as convenient
contained in a separate paragraph.
(3) Dates, sums and other numbers must be expressed in a
pleading in figures and not in words.
(4) Every pleading must be indorsed-
(a)where the party sues or defends in person, with his name
and address;
(b)in any other case, with the name or firm and business
address of the solicitor by whom it was served, and also (if
the solicitor is the agent of another) the name or firm and
business address of his principal.
(5) Every pleading must be signed by counsel, if settled by
him, and, if not, by the party's solicitor or by the party, if he sues or
defends in person.
Facts, not evidence, to he pleaded (0. 18, r. 7)
7. (1) Subject to the provisions of this rule and rules 7A, 10,
11 and 12, every pleading must contain, and contain only, a
statement in a summary form of the material facts on which the
party pleading relies for his claim or defence, as the case may be, but
not the evidence by which those facts are to be proved, and the
statement must be as brief as the nature of the case admits.
(2) Without prejudice to paragraph (1), the effect of any
document or the purport of any conversation referred to in the
pleading must, if material, be briefly stated, and the precise words of
the document or conversation must not be stated, except in so far as
those words are themselves material.
(3) A party need not plead any fact if it is presumed by law to
be true or the burden of disproving it lies on the other party, unless
the other party has specifically denied it in his pleading.
(4) A statement that a thing has been done or that an event has
occurred, being a thing or event the doing or occurrence of which, as
the case may be, constitutes a condition precedent necessary for the
case of a party is to be implied in his pleading.
Conviction, etc. to be adduced in evidence: matter to he pleaded
(0. 18, r. 7A)
7A. (1) If in any action which is to be tried with pleadings any
party intends, in reliance on section 62 of the Evidence Ordinance
(convictions as evidence in civil proceedings) to adduce evidence that
a person was convicted of an offence by or before a court in Hong
Kong, he must include in his pleading a statement of his intention
with particulars of-
(a) the conviction and the date thereof,
(b) the court which made the conviction, and
(e)the issue in the proceedings to which the conviction is
relevant.
(2) If in any action which is to be tried with pleadings any
party intends, in reliance on section 63 of the Evidence Ordinance
(findings of adultery as evidence in civil proceedings) to adduce
evidence that a person was found guilty of adultery in matrimonial
proceedings, he must include in his pleading a statement of his
intention with particulars of-
(a) the finding and the date thereof,
(b)the court which made the finding and the proceedings in
which it was made, and
(c) the issue in the proceedings to which the finding is relevant.
(3) Where a party's pleading includes such a statement as is
mentioned in paragraph (1) or (2), then if the opposite party-
(a)denies the conviction or finding of adultery to which the
statement relates, or
(b) alleges that the conviction or finding was erroneous, or
(c)denies that the conviction or finding is relevant to any issue
in the proceedings,
he must make the denial or allegation in his pleading.
Matters which must be specifically pleaded (0. 18, r. 8)
8. (1) A party must in any pleading subsequent to a state-
ment of claim plead specifically any matter, for example, perform-
ance, release, any relevant statute of limitation, fraud or any fact
showing illegality-
(a)which he alleges makes any claim or defence of the
opposite party not maintainable; or
(b)which, if not specifically pleaded, might take the opposite
party by surprise; or
(c)which raises issues of fact not arising out of the preceding
pleading.
(2) Without prejudice to paragraph (1), a defendant to an
action for recovery of land must plead specifically every ground of
defence on which he relies, and a plea that he is in possession of the
land by himself or his tenant is not sufficient.
(3) A claim for exemplary damages or for provisional dam-
ages must be specifically pleaded together with the facts on which the
party pleading relies.
(4) A party must plead specifically any claim for interest under
section 48 of the Ordinance or otherwise.
Matter may he pleaded whenever arising (0. 18, r. 9)
9. Subject to rules 7(1), 10 and 15(2), a party may in any
pleading plead any matter which has arisen at any time, whether
before or since the issue of the writ.
Departure (0. 18, r. 10)
10. (1) A party shall not in any pleading make any allegation
of fact, or raise any new ground of claim, inconsistent with a
previous pleading of his.
(2) Paragraph (1) shall not be taken as prejudicing the right of
a party to amend, or apply for leave to amend, his previous pleading
so as to plead the allegations or claims in the alternative.
Points of law may he pleaded (0. 18, r. 11)
11. A party may by his pleading raise any point of law.
Particulars of pleading (0. 18, r. 12)
12. (1) Subject to paragraph (2), every pleading must contain
the necessary particulars of any claim, defence or other matter
pleaded including, without prejudice to the generality of the fore-
going words-
(a)particulars of any misrepresentation, fraud, breach of
trust, wilful default or undue influence on which the party
pleading relies; and
(b)where a party pleading alleges any condition of the mind of
any person, whether any disorder or disability of mind or
any malice, fraudulent intention or other condition of
mind except knowledge, particulars of the facts on which
the party relies.
(2) Where it is necessary to give particulars of debt, expenses
or damages and those particulars exceed 3 folios, they must be set
out in a separate document referred to in the pleading and the
pleading must state whether the document has already been served,
and, if so, when, or is to be served with the pleading.
(3) The Court may order a party to serve on any other party
particulars of any claim, defence or other matter stated in his
pleading, or in any affidavit of his ordered to stand as a pleading, or
a statement of the nature of the case on which he relies, and the
order may be made on such terms as the Court thinks just.
(4) Where a party alleges as a fact that a person had knowl-
edge or notice of some fact, matter or thing, then, without prejudice
to the generality of paragraph (3), the Court may, on such terms as it
thinks just, order that party to serve on any other party-
(a)where he alleges knowledge, particulars of the facts on
which he relies, and
(b) where he alleges notice, particulars of the notice.
(5) An order under this rule shall not be made before service of
the defence unless, in the opinion of the Court, the order is necessary
or desirable to enable the defendant to plead or for some other
special reason.
(6) Where the applicant for an order under this rule did not apply
by letter for the particulars he requires, the Court may refuse to make
the order unless of opinion that there were sufficient reasons for an
application by letter not having been made.
(7) Where particulars are given pursuant to a request, or order of
the Court, the request or order shall be incorporated with the
particulars, each item of the particulars following immediately after the
corresponding item of the request or order.
Admissions and denials (0. 18, r. 13)
13. (1) Subject to paragraph (4), any allegation of fact made by a
party in his pleading is deemed to be admitted by the opposite party
unless it is traversed by that party in his pleading or a joinder of issue
under rule 14 operates as a denial of it.
(2) A traverse may be made either by a denial or by a statement of
non-admission and either expressly or by necessary implication.
(3) Subject to paragraph (4), every allegation of fact made in a
statement of claim or counterclaim which the party on whom it is served
does not intend to admit must be specifically traversed by him in his
defence or defence to counterclaim, as the case may be; and a general
denial of such allegations, or a general statement of nonadmission of
them, is not a sufficient traverse of them.
(4) Any allegation that a party has suffered damage and any
allegation as to the amount of damages is deemed to be traversed
unless specifically admitted.
Denial by joinder of issue (0. 18, r. 14)
14. (1) If there is no reply to a defence, there is an implied joinder
of issue on that defence.
(2) Subject to paragraph (3)---
(a)there is at the close of pleadings an implied joinder of issue on
the pleading last served, and
(b)a party may in his pleading expressly join issue on the next
preceding pleading.
(3) There can be no joinder of issue, implied or expressed, on a
statement of claim or counterclaim.
(4) A joinder of issue operates as a denial of every material
allegation of fact made in the pleading on which there is an implied or
expressed joinder of issue unless, in the case of an expressed joinder of
issue, any such allegation is excepted from the joinder and is stated to
be admitted, in which case the expressed joinder of issue operates as a
denial of every other such allegation.
Statement of claim (0. 18, r. 15)
15. (1) A statement of claim must state specifically the relief or
remedy which the plaintiff claims; but costs need not be specifically
claimed.
(2) A statement of claim must not contain any allegation or
claim in respect of a cause of action unless that cause of action is
mentioned in the writ or arises from facts which are the same as, or
include or form part of, facts giving rise to a cause of action so
mentioned; but subject to that, a plaintiff may in his statement of
claim alter, modify or extend any claim made by him in the
endorsement of the writ without amending the endorsement.
(3) Every statement of claim must bear on its face a statement
of the date on which the writ in the action was issued.
Defence of tender (0. 18, r. 16)
16. Where in any action a defence of tender before action is
pleaded, the defendant must pay into court in accordance with
Order 22 the amount alleged to have been tendered, and the tender
shall not be available as a defence unless and until payment into
court has been made.
Defence of set-off (0. 18, r. 17)
17. Where a claim by a defendant to a sum of money (whether
of an ascertained amount or not) is relied on as a defence to the
whole or part of a claim made by the plaintiff, it may be included in
the defence and set-off against the plaintiff's claim, whether or not
it is also added as a counterclaim.
Counterclaim and defence to counterclaim (0. 18, r. 18)
18. Without prejudice to the general application of this Order
to a counterclaim and a defence to counterclaim, or to any provision
thereof which applies to either of those pleadings specifically---
(a)rule 15(1) shall apply to a counterclaim as if the counter-
claim were a statement of claim and the defendant making
it a plaintiff,
(b)rules 8(2), 16 and 17 shall, with the necessary modifica-
tions, apply to a defence to counterclaim as they apply to a
defence.
Striking out pleadings and indorsements (0. 18, r. 19)
19. (1) The Court may at any stage of the proceedings order
to be struck out or amended any pleading or the indorsement of any
writ in the action, or anything in any pleading or in the indorsement,
on the ground that-
(a)it discloses no reasonable cause of action or defence, as the
case may be; or
(b) it is scandalous, frivolous or vexatious; or
(c)it may prejudice, embarrass or delay the fair trial of the
action; or
(d) it is otherwise an abuse of the process of the court;
and may order the action to be stayed or dismissed or judgment to be
entered accordingly, as the case may be.
(2) No evidence shall be admissible on an application under
paragraph (1)(a).
(3) This rule shall, so far as applicable, apply to an originating
summons and a petition as if the summons or petition, as the case may
be, were a pleading.
Close of pleadings (0. 18, r. 20)
20. (1) The pleadings in an action are deemed to be closed-
(a)at the expiration of 14 days after service of the reply or, if
there is no reply but only a defence to counterclaim, after
service of the defence to counterclaim, or
(b)if neither a reply nor a defence to counterclaim is served, at
the expiration of 14 days after service of the defence.
(2) The pleadings in an action are deemed to be closed at the time
provided by paragraph (1) notwithstanding that any request or order for
particulars has been made but has not been complied with at that time.
Trial without pleadings (0. 18, r. 21)
21. (1) Where in an action to which this rule applies any defendant
has given notice of intention to defend in the action, the plaintiff or that
defendant may apply to the Court by summons for an order that the
action shall be tried without pleadings or further pleadings, as the case
may be.
(2) If, on the hearing of an application under this rule, the Court is
satisfied that the issues in dispute between the parties can be defined
without pleadings or further pleadings, or that for any other reason the
action can properly be tried without pleadings or further pleadings, as
the case may be, the Court shall order the action to be so tried, and may
direct the parties to prepare a statement of the issues in dispute or, if the
parties are unable to agree such a statement, may settle the statement
itself.
(3) Where the Court makes an order under paragraph (2), it shall,
and where it dismisses an application for such an order, it may, give
such directions as to the further conduct of the action as may be
appropriate, and Order 25, rules 2 to 7 shall, with the omission of so
much of rule 7(1) as requires parties to serve a notice specifying the
orders and directions which they desire and with any other necessary
modifications, apply as if the application under this rule were a
summons for directions.
(4) This rule applies to every action begun by writ other than one
which includes
the plaintiff for libel, slander, malicious
prosecution, false prisonment or seduction or
(b) a claim by the plaintiff based on an allegation of fraud.
Saving for defence under Merchant Shipping Acts etc. (0. 18, r. 22)
22. Nothing in Order 75, rules 37 to 40, shall be taken as limiting
the right of any shipowner or other person to rely by way of defence on
any provision of the Merchant Shipping Acts 1894 to 1979 in their
application to Hong Kong or the Merchant Shipping Ordinance or the
Merchant Shipping (Safety) Ordinance, which limits the amount of his
liability in connection with a ship or other property.
(L.N.
356188)
ORDER 19
DEFAULT OF PLEADINGS
Default in service of statement of claim (0. 19, r. 1)
1. Where the plaintiff is required by these rules to serve a
statement of claim on a defendant and he fails to serve it on him, the
defendant may, after the expiration of the period fixed by or under these
rules for service of the statement of claim, apply to the Court for an
order to dismiss the action, and the Court may by order dismiss the
action or make such other order on such terms as it thinks just.
Default of defence: claim for liquidated demand (0. 19, r. 2)
2. (1) Where the plaintiff's claim against a defendant is for a
liquidated demand only, then, if that defendant fails to serve a defence
on the plaintiff, the plaintiff may, after the expiration of the period fixed
by or under these rules for service of the defence, enter final judgment
against that defendant for a sum not exceeding that claimed by the writ
in respect of the demand and for costs, and proceed with the action
against the other defendants, if any.
(2) Order 13, rule 1(2) shall apply for the purpose of this rule as it
applies for the purposes of that rule.
Default of defence: claim for unliquidated damages (0. 19, r. 3)
3. Where the plaintiff's claim against a defendant is for unliquidated
damages only, then, if that defendant fails to serve a defence on the
plaintiff, the plaintiff may, after the expiration of the period fixed by or
under these rules for service of the defence, enter interlocutory
judgment against that defendant for damages to be assessed and costs,
and proceed with the action against the other defendants, if any.
Default of defence: claim in detinue (0. 19, r. 4)
4. (1) Where the plaintiff's claim against a defendant relates to the
detention of goods only, then, if that defendant fails to serve a defence
on the plaintiff, the plaintiff may, after the expiration of the period fixed
by or under these rules for the service of the defence and subject to
Order 42, rule 1A,
(a) at his option enter either---
(i) interlocutory judgment against that defendant for
delivery of the goods or their value to be assessed and
costs, or
(ii) interlocutory judgment for the value of the goods to
be assessed and costs, or
(b)apply by summons for judgment against that defendant for
delivery of the goods without giving him the alternative of
paying their assessed value,
and in any case proceed with the action against the other defendants,
if any.
(2) A summons under paragraph (1)(b) must be supported by
affidavit and, notwithstanding Order 65, rule 9, the summons and a
copy of the affidavit must be served on the defendant against whom
judgment is sought.
Default of defence: claim for possession of land (0. 19, r. 5)
5. (1) Where the plaintiff's claim against a defendant is for
possession of land only, then, if that defendant fails to serve a
defence on the plaintiff, the plaintiff may, after the expiration of the
period fixed by or under these rules for service of the defence, and on
producing a certificate by his solicitor, or (if he sues in person) an
affidavit, stating that he is not claiming any relief in the action of the
nature specified in Order 8 8, rule 1, enter judgment for possession of
the land as against that defendant and for costs, and proceed with
the action against the other defendants, if any.
(5) Where there is more than one defendant, judgment entered
under this rule shall not be enforced against any defendant unless
and until judgment for possession of the land has been entered
against all the defendants.
Default of defence: mixed claims (0. 19, r. 6)
6. Where the plaintiff makes against a defendant two or more
of the claims mentioned in rules 2 to 5, and no other claim, then, if
that defendant fails to serve a defence on the plaintiff, the plaintiff
may, after the expiration of the period fixed by or under these rules
for service of the defence, enter against that defendant such judg-
ment in respect of any such claim as he would be entitled to enter
under those rules if that were the only claim made, and proceed with
the action against the other defendants, if any.
Default of defence: other claims (0. 19, r. 7)
7. (1) Where the plaintiff makes against a defendant or
defendants a claim of a description not mentioned in rules 2 to 5,
then, if the defendant or all the defendants (where there is more than
one) fails or fail to serve a defence on the plaintiff, the plaintiff may,
after the expiration of the period fixed by or under these rules for
service of the defence, apply to the Court for judgment, and on the
hearing of the application the Court shall give such judgment as the
plaintiff appears entitled to on his statement of claim.
(2) Where the plaintiff makes such a claim as is mentioned in
paragraph (1) against more than one defendant, then, if one of the
defendants makes default as mentioned in that paragraph, the plaintiff
may
(a)if his claim against the defendant in default is severable from
his claim against the other defendants, apply under that
paragraph for judgment against that defendant, and proceed
with the action against the other defendants; or
(b)set down the action on motion for judgment against the
defendant at the time when the action is set down for trial, or
is set down on motion for judgment, against the other
defendants.
(3) An application under paragraph (1) must be by summons or
motion.
Default of defence to counterclaim (0. 19, r. 8)
8. A defendant who counterclaims against a plaintiff shall be
treated for the purposes of rules 2 to 7 as if he were a plaintiff who had
made against a defendant the claim made in the counterclaim and,
accordingly, where the plaintiff or any other party against whom the
counterclaim is made fails to serve a defence to counterclaim, those
rules shall apply as if the counterclaim were a statement of claim, the
defence to counterclaim a defence and the parties making the
counterclaim and against whom it is made were plaintiffs and defendants
respectively, and as if references to the period fixed by or under these
rules for service of the defence were references to the period so fixed for
service of the defence to counterclaim.
Setting aside judgment (0. 19, r. 9)
9. The Court may, on such terms as it thinks just, set aside or vary
any judgment entered in pursuance of this Order.
ORDER 20
AMENDMENT
Amendment of writ without leave (0. 20, r. 1)
1. (1) Subject to paragraph (3), the plaintiff may, without the leave
of the Court, amend the writ once at any time before the pleadings in the
action begun by the writ are deemed to be closed.
(2) Where a writ is amended under this rule after service thereof,
then, unless the Court otherwise directs on an application made ex
parte, the amended writ must be served on each defendant to the action.
(3) This rule shall not apply in relation to an amendment
which consists of-
(a)the addition, omission or substitution of a party to the
action or an alteration of the capacity in which a party to
the action sues or is sued, or
(b) the addition or substitution of a new cause of action, or
(c)(without prejudice to rule 3(1)) an amendment of the
statement of claim (if any) indorsed on the writ,
unless the amendment is made before service of the writ on any party
to the action.
Amendment of acknowledgment of service (0. 20, r. 2)
2. (1) Subject to paragraph (2), a party may not amend his
acknowledgment of service without leave of the Court.
(2) A party whose acknowledgment of service contains a
statement to the effect that-
(a) he does, or
(b) he does not
intend to contest the proceedings to which the acknowledgment
relates may, without the leave of the Court, amend the acknowledg-
ment by substituting for that statement a statement to the opposite
effect, provided that in a case falling under sub-paragraph (b) the
amendment is made before judgment has been obtained in the
proceedings.
(3) Where an acknowledgment of service is authorized to be
amended under this rule, a fresh acknowledgment, amended as so
authorized, must be handed in at or sent by post to the Registry, and
Order 12, rule 4, shall apply.
Amendment of pleadings without leave (0. 20, r. 3)
3. (1) A party may, without the leave of the Court, amend
any pleading of his once at any time before the pleadings are deemed
to be closed and, where he does so, he must serve the amended
pleading on the opposite party.
(2) Where an amended statement of claim is served on a
defendant---
(a)the defendant, if he has already served a defence on the
plaintiff, may amend his defence, and
(b)the period for service of his defence or amended defence, as
the case may be, shall be either the period fixed by or under
these rules for service of his defence or a period of 14 days
after the amended statement of claim is served on him,
whichever expires later.
(3) Where an amended defence is served on the plaintiff by a
defendant-
(a)the plaintiff, if he has already served a reply on that
defendant, may amend his reply, and
(b)the period for service of his reply or amended reply, as the
case may be, shall be 14 days after the amended defence is
served on him.
(4) In paragraphs (2) and (3) references to a defence and a
reply include references to a counterclaim and a defence to counter-
claim respectively.
(5) Where an amended counterclaim is served by a defendant
on a party (other than the plaintiff) against whom the counterclaim
is made, paragraph (2) shall apply as if the counterclaim were a
statement of claim and as if the party by whom the counterclaim is
made were the plaintiff and the party against whom it is made a
defendant.
(6) Where a party has pleaded to a pleading which is subse-
quently amended and served on him under paragraph (1), then, if
that party does not amend his pleading under the foregoing provi-
sions of this rule, he shall be taken to reply on it in answer to the
amended pleading, and Order 18, rule 14(2), shall have effect in such
a case as if the amended pleading had been served at the time when
that pleading, before its amendment under paragraph (1), was
served.
Application for disallowance of amendment made without leave (0. 20,
r. 4)
4. (1) Within 14 days after the service on a party of a writ
amended under rule 1(1) or of a pleading amended under rule 3(1),
that party may apply to the Court to disallow the amendment.
(2) Where the Court hearing an application under this rule is
satisfied that if an application for leave to make the amendment in
question had been made under rule 5 at the date when the amend-
ment was made under rule 1(1) or rule 3(1) leave to make the
amendment or part of the amendment would have been refused, it
shall order the amendment or that part to be struck out.
(3) Any order made on an application under this rule may
be made on such terms as to costs or otherwise as the Court thinks
just.
Amendment of writ or pleading with leave (0. 20, r. 5)
5. (1) Subject to Order 15, rules 6, 7 and 8 and the following
provisions of this rule, the Court may at any stage of the proceedings
allow the plaintiff to amend his writ, or any party to amend his
pleadings, on such terms as to costs or otherwise as may be just and
in such manner (if any) as it may direct.
(2) Where an application to the Court for leave to make the
amendment mentioned in paragraph (3), (4) or (5) is made after any
relevant period of limitation current at the date of issue of the writ
has expired, the Court may nevertheless grant such leave in the
circumstances mentioned in that paragraph if it thinks it just to
do so.
(3) An amendment to correct the name of a party may be
allowed under paragraph (2) notwithstanding that it is alleged that
the effect of the amendment will be to substitute a new party if the
Court is satisfied that the mistake sought to be corrected was a
genuine mistake and was not misleading or such as to cause any
reasonable doubt as to the identity of the person intending to sue or,
as the case may be, intended to be sued.
(4) An amendment to alter the capacity in which a party sues
may be allowed under paragraph (2) if the new capacity is one which
that party had at the date of the commencement of the proceedings
or has since acquired.
(5) An amendment may be allowed under paragraph (2)
notwithstanding that the effect of the amendment will be to add or
substitute a new cause of action if the new cause of action arises out
of the same facts or substantially the same facts as a cause of action
in respect of which relief has already been claimed in the action by
the party applying for leave to make the amendment.
Amendment of other originating process (0. 20, r. 7)
7. Rule 5 shall have effect in relation to an originating
summons, a petition and an originating notice or motion as it has
effect in relation to a writ.
Amendment of certain other documents (0. 20, r. 8)
8. (1) For the purpose of determining the real question in
controversy between the parties to any proceedings, or of correcting
any defect or error in any proceedings, the Court may at any stage of
the proceedings and either of its own motion or on the application of
any party to the proceedings order any document in the proceedings
to be amended on such terms as to costs or otherwise as may be just
and in such manner (if any) as it may direct.
(2) This rule shall not have effect in relation to a judgment or
order.
Failure to amend after order (0. 20, r. 9)
9. Where the Court makes an order under this Order giving
any party leave to amend a writ, pleading or other document,
then, if that party does not amend the document in accordance
with the order before the expiration of the period specified for that
purpose in the order or, if no period is so specified, of a period of
14 days after the order was made, the order shall cease to have effect,
without prejudice, however, to the power of the Court to extend the
period.
Mode of amendment of writ, etc. (0. 20, r. 10)
10. (1) Where the amendments authorized under any rule of this
Order to be made in a writ, pleading or other document are so numerous
or of such nature or length that to make written alterations of the
document so as to give effect to them would make it difficult or
inconvenient to read, a fresh document, amended as so authorized, must
be prepared and, in the case of a writ or originating summons, reissued,
but, except as aforesaid and subject to any direction given under rule 5,
or 8, the amendments so authorized may be effected by making in
writing the necessary alterations of the document and in the case of a
writ or originating summons, causing it to be resealed and filing a copy.
(2) A writ, pleading or other document which has been amended
under this Order must be indorsed with a statement that it has been
amended, specifying the date on which it was amended, the name of the
Judge, master or Registrar by whom the order (if any) authorizing the
amendment was made and the date thereof, or, if no such order was
made, the number of the rule of this Order in pursuance of which the
amendment was made.
Amendment of judgment and orders (0. 20, r. 11)
11. Clerical mistakes in judgments or orders, or errors arising
therein from any accidental slip or omission, may at any time be
corrected by the Court on motion or summons without an appeal.
Amendment of pleadings by agreement (0. 20, r. 12)
12. (1) Notwithstanding the foregoing provisions of this Order any
pleading in any cause or matter may, by written agreement between the
parties, be amended at any stage of the proceedings.
(2) This rule shall not have effect in relation to an amendment
which consists of the addition, omission or substitution of a party.
ORDER 21
WITHDRAWAL AND DISCONTINUANCE
Withdrawal of acknowledgment of service (0. 21, r. 1)
1. A party who has acknowledged service in an action may
withdraw the acknowledgment at any time with the leave of the Court.
Discontinuance of action, etc., without leave (0. 21, r. 2)
2. (1) Subject to paragraph (2A) the plaintiff in an action begun by
writ may, without the leave of the Court, discontinue the action, or
withdraw any particular claim made by him therein, as against any or all
of the defendants at any time not later than 14 days after service of the
defence on him or, if there are two or more defendants, of the defence
last served, by serving a notice to that effect on the defendant
concerned.
(2) Subject to paragraph (2A) a defendant to an action begun by
writ may, without the leave of the Court
(a) withdraw his defence or any part of it at any time,
(b)discontinue a counterclaim, or withdraw any particular claim
made by him therein, as against any or all of the parties
against whom it is made, at any time not later than 14 days
after service on him of a defence to counterclaim or, if the
counterclaim is made against two or more parties, of the
defence to counterclaim last served,
by serving a notice to that effect on the plaintiff or other party
concerned.
(2A) A party in whose favour an interim payment has been ordered,
in accordance with Order 29, may not discontinue any action or
counterclaim, or withdraw any particular claim therein, except with the
leave of the Court or the consent of all the other parties.
(3) Where there are two or more defendants to an action begun by
writ not all of whom serve a defence on the plaintiff, and the period fixed
by or under these rules for service by any of those defendants of his
defence expires after the latest date on which any other defendant
serves his defence, paragraph (1) shall have effect as if the reference
therein to the service of the defence last served were a reference to the
expiration of that period.
This paragraph shall apply in relation to a counterclaim as it applies
in relation to an action begun by writ with the substitution for
references to a defence, to the plaintiff and to paragraph (1), of
references to a defence to counterclaim, to the defendant and to
paragraph (2) respectively.
(3A) The plaintiff in an action begun by originating summons may,
without the leave of the Court, discontinue the action or withdraw any
particular question or claim in the originating summons, as against any
or all of the defendants at any time not later than 14 days after service
on him of the defendant's affidavit evidence filed pursuant to Order 28,
rule 1A(2) or, if there are two or more defendants, of such evidence last
served, by serving a notice to that effect on the defendant concerned.
(3B) When there are two or more defendants to an action begun by
originating summons not all of whom serve affidavit
evidence on the plaintiff, and the period fixed by or under these rules for
service by any of those defendants of his affidavit evidence expires
after the latest date on which any other defendant serves his affidavit
evidence, paragraph (3A) shall have effect as if the reference therein to
the service of the affidavit evidence last served were a reference to the
expiration of that period.
(4) If all the parties to an action consent, the action may be
withdrawn without the leave of the Court at any time before trial by
producing to the Registrar a written consent to the action being
withdrawn signed by all the parties.
Discontinuance of action, etc., with leave (0. 21, r. 3)
3. (1) Except as provided by rule 2, a party may not discontinue an
action (whether begun by writ or otherwise) or counterclaim, or
withdraw any particular claim made by him therein, without the leave of
the Court, and the Court hearing an application for the grant of such
leave may order the action or counterclaim to be discontinued, or any
particular claim made therein to be struck out, as against any or all of the
parties against whom it is brought or made on such terms as to costs,
the bringing of a subsequent action or otherwise as it thinks just.
(2) An application for the grant of leave under this rule may be
made by summons or motion or by notice under Order 25, rule 7.
Effect of discontinuance (0. 21, r. 4)
4. Subject to any terms imposed by the Court in granting leave
under rule 3, the fact that a party has discontinued an action or
counterclaim or withdrawn a particular claim made by him therein shall
not be a defence to a subsequent action for the same, or substantially
the same, cause of action.
Stay of subsequent action until costs paid (0. 21, r. 5)
5. (1) Where a party has discontinued an action or counterclaim or
withdrawn any particular claim made by him therein and he is liable to
pay any other party's costs of the action or counterclaim or the costs
occasioned to any other party by the claim withdrawn, then, if, before
payment of those costs, he subsequently brings an action for the same,
or substantially the same, cause of action, the Court may order the
proceedings in that action to be stayed until those costs are paid.
(2) An application for an order under this rule may be made by
summons or motion or by notice under Order 25, rule 7.
Withdrawal of summons (0. 2 1, r. 6)
6. A party who has taken out a summons in a cause or matter may
not withdraw it without the leave of the Court.
ORDER 22
PAYMENT INTO AND OUT OF COURT
Payment into court (0. 22, r. 1)
1. (1) In any action for a debt or damages any defendant
may at any time pay into court a sum or sums of money in
satisfaction of the cause of action in respect of which the plaintiff
claims or, where two or more causes of action are joined in the
action, a sum or sums of money in satisfaction of any or all of those
causes of action.
(2) On making any payment into court under this rule, and on
increasing any such payment already made, the defendant must give
notice thereof in Form No. 23 in Appendix A to the plaintiff and
every other defendant (if any); and within 3 days after receiving the
notice the plaintiff must send the defendant a written acknowledg-
ment of its receipt.
(3) A defendant may, without leave, give notice of an increase
in a payment made under this rule but, subject to that and without
prejudice to paragraph (5), a notice of payment may not be
withdrawn or amended without the leave of the Court which may be
granted on such terms as may be just.
(4) Where two or more causes of action are joined in the
action and money is paid into court under this rule in respect of all,
or some only of, those causes of action, the notice of payment-
(a)must state that the money is paid in respect of all those
causes of action or, as the case may be, must specify the
cause or causes of action in respect of which payment is
made, and
(b)where the defendant makes separate payments in respect of
each, or any two or more, of those causes of action, must
specify the sum paid in respect of that cause or, as the case
may be, those causes of action.
(5) Where a single sum of money is paid into court under this
rule in respect of two or more causes of action, then, if it appears to
the Court that the plaintiff is embarrassed by the payment, the Court
may, subject to paragraph (6), order the defendant to amend the
notice of payment so as to specify the sum paid in respect of each
cause of action.
(6) Where a cause of action under the Fatal Accidents Or-
dinance and a cause of action under sections 20 to 25 of the Law
Amendment and Reform (Consolidation) Ordinance are joined in
an action, with or without any other cause of action, the causes
of action under the said Ordinances shall, for the purpose of para-
graph (5), be treated as one cause of action.
(8) For the purposes of this rule, the plaintiff's cause of action
in respect of a debt or damages shall be construed as a cause of
action in respect, also, of such interest as might be included in the
judgment, whether under section 48 of the Ordinance or otherwise, if
judgment were given at the date of the payment into court.
Payment in by defendant who has counterclaimed (0. 22, r. 2)
2. Where a defendant, who makes by counterclaim a claim against
the plaintiff for a debt or damages, pays a sum or sums of money into
court under rule 1, the notice of payment must state if it be the case, that
in making the payment the defendant has taken into account and
intends to satisfy
(a) the cause of action in respect of which he claims, or
(b)where two or more causes of action are joined in the
counterclaim, all those causes of action or, if not all, which of
them.
Acceptance of money paid into court (0. 22, r. 3)
3. (1) Where money is paid into court under rule 1, then, subject to
paragraph (2), within 14 days after receipt of the notice of payment or,
where more than one payment has been made or the notice has been
amended, within 14 days after receipt of the notice of the last payment
or the amended notice but, in any case, before the trial or hearing of the
action begins, the plaintiff may
(a)where the money was paid in respect of the cause of action or
all the causes of action in respect of which he claims, accept
the money in satisfaction of that cause of action or those
causes of action, as the case may be, or
(b)where the money was paid in respect of some only of the
causes of action in respect of which he claims, accept in
satisfaction of any such cause or causes of action the sum
specified in respect of that cause or those causes of action in
the notice of payment,
by giving notice in Form No. 24 in Appendix A to every defendant to
the action.
(2) Where after the trial or hearing of an action has begun-
(a) money is paid into court under rule 1, or
(b)money in court is increased by a further payment into court
under that rule,
the plaintiff may accept the money in accordance with paragraph (1)
within 2 days after receipt of the notice of payment or notice of the
further payment, as the case may be, but, in any case, before the judge
begins to deliver judgment or, if the trial is with a jury, before the judge
begins his summing up.
(3) Rule 1(5) shall not apply in relation to money paid into court in
an action after the trial or hearing of the action has begun.
(4) On the plaintiff accepting any money paid into court all
further proceedings in the action or in respect of the specified cause
or causes of action, as the case may be, to which the acceptance
relates, both against the defendant making the payment and against
any other defendant sued jointly with or in the alternative to him,
shall be stayed.
(5) Where money is paid into court by a defendant who made
a counterclaim and the notice of payment stated, in relation to any
sum so paid, that in making the payment the defendant had taken
into account and satisfied the cause or causes of action, or the
specified cause or specified causes of action, in respect of which he
claimed, then, on the plaintiff accepting that sum, all further
proceedings on the counterclaim or in respect of the specified cause
or causes of action, as the case may be, against the plaintiff shall be
stayed.
(6) A plaintiff who has accepted any sum paid into court shall,
subject to rules 4 and 10 and Order 80, rule 12, be entitled to receive
payment of that sum in satisfaction of the cause or causes of action
to which the acceptance relates.
Order for payment out of money accepted required in certain cases
(0. 22, r. 4)
4. (1) Where a plaintiff accepts any sum paid into court and
that sum was paid into court-
(a)by some but not all of the defendants sued jointly or in the
alternative by him, or
(b) with a defence of tender before action, or
(c) in an action to which Order 80, rule 12, applies, or
(d)in satisfaction either of causes of action arising under the
Fatal Accidents Ordinance and sections 20 to 25 of the
Law Amendment and Reform (Consolidation) Ordinance
or of a cause of action arising under the first mentioned
Ordinance where more than one person is entitled to the
money,
the money in court shall not be paid out except under paragraph (2)
or in pursuance of an order of the Court, and the order shall deal
with the whole costs of the action or of the cause of action to which
the payment relates, as the case may be.
(2) Where an order of the Court is required under paragraph
(1) by reason only of paragraph (1)(a) then if, either before or after
accepting the money paid into court by some only of the defendants
sued jointly or in the alternative by him, the plaintiff discontinues
the action against all the other defendants and those defendants
consent in writing to the payment out of that sum, it may be paid out
without an order of the Court.
(3) Where after the trial or hearing of an action has begun a plaintiff
accepts any money paid into court and all further proceedings in the
action or in respect of the specified cause or causes of action, as the
case may be, to which the acceptance relates are stayed by virtue of rule
3(4), then, notwithstanding anything in paragraph (2), the money shall
not be paid out except in pursuance of an order of the Court, and the
order shall deal with the whole costs of the action.
Money remaining in court (0. 22, r. 5)
5. If any money paid into court in an action is not accepted in
accordance with rule 3, the money remaining in court shall not be paid
out except in pursuance of an order of the Court which may be made at
any time before, at or after the trial or hearing of the action; and where
such an order is made before the trial or hearing the money shall not be
paid out except in satisfaction of the cause or causes of action in
respect of which it was paid in.
Counterclaim (0. 22, r. 6)
6. A plaintiff against whom a counterclaim is made and any other
defendant to the counterclaim may pay money into court in accordance
with rule 1, and that rule and rules 3 (except paragraph (5)), 4 and 5 shall
apply accordingly with the necessary modifications.
Non-disclosure of payment into court (0. 22, r. 7)
7. (1) Except in an- action to which a defence of tender before
action is pleaded, and except in an action all further proceedings in
which are stayed by virtue of rule 3(4) after the trial or hearing has
begun and subject to paragraph (2), the fact that money has been paid
into court under the foregoing provisions of this Order shall not be
pleaded and no communication of that fact shall be made to the Court at
the trial or hearing of the action or counterclaim or of any question or
issue as to the debt or damages until all questions of liability and of the
amount of the debt or damages have been decided.
(2) Where the question of the costs of the issue of liability falls to
be decided, that issue having been tried and an issue or question
concerning the amount of the debt or damages remaining to be tried
separately, any party may bring to the attention of the Court the fact
that a payment into court has or has not been made and the date (but
not the amount) of such payment or of the first payment if more than
one.
Money paid into court under order (0. 22, r. 8)
8. (1) Subject to paragraph (2
money paid into court under
an order of the Court or a certificate of the Registrar shall not be
paid out except in pursuance of an order of the Court.
Unless the Court otherwise orders, a party who has paid money
into court in pursuance of an order made under Order 14
(a)may by notice to the other party appropriate the whole or any
part of the money and any additional payment, if necessary, to
any particular claim made in the writ or counterclaim, as the
case may be, and specified in the notice, or
(b)if he pleads a tender, may by his pleading appropriate the
whole or any part of the money as payment into court of the
money alleged to have been tendered;
and money appropriate in accordance with this rule shall be deemed to
be money paid into court in accordance with rule 1 or money paid into
court with a plea of tender, as the case may be, and this Order shall
apply accordingly.
Person to whom payment to be made (0. 22, r. 10)
10. (1) Where the party entitled to money in court is a person in
respect of whom a certificate is or has been in force entitling him to legal
aid under the Legal Aid Ordinance, payment shall be made only to the
Director of Legal Aid without the need for any authority from the party.
(2) Subject to paragraph (1), payment shall be made to the party
entitled or to his solicitor.
(3) This rule applies whether the money in court has been paid into
court under rule 1 or under an order of the Court or a certificate of the
Registrar.
Payment out: small intestate estates (0. 22, r. 11)
11. Where a person entitled to a fund in court, or a share of such
fund, dies intestate and the Court is satisfied that no grant of
administration of his estate has been made and that the assets of his
estate, including the fund or share, do not exceed $20,000 in value, it
may order that the fund or share shall be paid, transferred or delivered to
the person who, being a widower, widow, child, father, mother, brother
or sister of the deceased, would have the prior right to a grant of
administration of the estate of the deceased.
Payment of hospital expenses (0. 22, r. 12)
12. (1) This rule applies in relation to an action or counterclaim for
bodily injury arising out of the use of a motor vehicle on a road or in a
place to which the public have a right of access in which the claim for
damages includes a sum for hospital expenses.
(2) Where the party against whom the claim is made, or an
authorized insurer within the meaning of section 2 of the Motor
Vehicles Insurance (Third Party Risks) Ordinance pays the amount
for which that party or insurer, as the case may be, is or may be
liable under section 8 of that Ordinance in respect of whom the claim
is made, the party against whom the claim is made must, within 7
days after the payment is made, give notice of the payment to all the
other parties to the action.
Investment of money in court (0. 22, r. 13)
13. Cash under the control of or subject to the order of the
Court may be invested in any manner specified in the Supreme Court
Suitors' Funds Rules and the Trustee Ordinance.
Written offers 'without prejudice save as to costs' (0. 22, r. 14)
14. (1) A party to proceedings may at any time make a
written offer to any other party to those proceedings which is
expressed to be 'without prejudice save as to costs' and which
relates to any issue in the proceedings.
(2) Where an offer is made under paragraph (1), the fact that
such an offer has been made shall not be communicated to the Court
until the question of costs falls to be decided and the Court shall
take into account any offer which has been brought to its attention:
Provided that the Court shall not take such offer into account
if, at the time it is made, the party making it could have protected his
position as to costs by means of a payment into court under 0. 22.
ORDER 23
SECURITY FOR COSTS
Security for costs of action, etc. (0. 23, r. 1)
1. (1) Where, on the application of a defendant to an action
or other proceeding in the High Court, it appears to the Court-
(a)that the plaintiff is ordinarily resident out of the jurisdic-
tion, or
(b)that the plaintiff (not being a plaintiff who is suing in a
representative capacity) is a nominal plaintiff who is suing
for the benefit of some other person and that there is
reason to believe that he will be unable to pay the costs of
the defendant if ordered to do so, or
(c)subject to paragraph (2), that the plaintiff's address is not
stated in the writ or other originating process or is incor-
rectly stated therein, or
(d)that the plaintiff has changed his address during the course
of the proceedings with a view to evading the consequences
of the litigation,
then if, having regard to all the circumstances of the case, the Court
thinks it just to do so, it may order the plaintiff to give such security for
the defendant's costs of the action or other proceeding as it thinks just.
(2) The Court shall not require a plaintiff to give security by reason
only of paragraph (1)(c) if he satisfies the Court that the failure to state
his address or the mis-statement thereof was made innocently and
without intention to deceive.
(3) The references in the foregoing paragraphs to a plaintiff and a
defendant shall be construed as references to the person (howsoever
described on the record) who is in the position of plaintiff or defendant,
as the case may be, in the proceeding in question, including a
proceeding on a counterclaim.
Manner of giving security (0. 23, r. 2)
2. Where an order is made requiring any party to give security for
costs, the security shall be given in such manner, at such time, and on
such terms (if any) as the Court may direct.
Saving for enactments (0. 23, r. 3)
3. This Order is without prejudice to the provisions of any written
law which empowers the Court to require security to be given for the
costs of any proceedings.
ORDER 24
DISCOVERY AND INSPECTION OF DOCUMENTS
Mutual discovery of documents (0. 24, r. 1)
1. (1) After the close of pleadings in an action begun by writ there
shall, subject to and in accordance with the provisions of this Order, be
discovery by the parties to the action of the documents which are or
have been in their possession, custody or power relating to matters in
question in the action.
(2) Nothing in this Order shall be taken as preventing the parties to
an action agreeing to dispense with or limit the discovery of documents
which they would otherwise be required to make to each other.
Discovery by parties without order (0. 24, r. 2)
2. (1) Subject to the provisions of this rule and of rule 4, the parties
to an action between whom pleadings are closed must make discovery
by exchanging lists of documents and, accordingly, each party must,
within 14 days after the pleadings in the action are deemed to be closed
as between him and any other party, make and serve on that other party
a list of the documents which are or have been in his possession,
custody or power relating to any matter in question between them in the
action.
Without prejudice to any directions given by the Court under
Order 16, rule 4, this paragraph shall not apply in third party
proceedings, including proceedings under that Order involving
fourth or subsequent parties.
(2) Unless the Court otherwise orders, a defendant to an
action arising out of an accident on land due to a collision or
apprehended collision involving a vehicle shall not make discovery
of any documents to the plaintiff under paragraph (1).
(3) Paragraph (1) shall not be taken as requiring a defendant
to an action for the recovery of any penalty recoverable by virtue of
any written law to make discovery of any documents.
(4) Paragraphs (2) and (3) shall apply in relation to a counter-
claim as they apply in relation to an action but with the substitution,
for the reference in paragraph (2) to the plaintiff, of a reference to
the party making the counterclaim.
(5) On the application of any party required by this rule to
make discovery of documents, the Court may-
(a)order that the parties to the action or any of them shall
make discovery under paragraph (1) of such documents or
classes of documents only, or as to such only of the matters
in question, as may be specified in the order, or
(b)if satisfied that discovery by all or any of the parties is not
necessary, or not necessary at that stage of the action,
order that there shall be no discovery of documents by any
or all of the parties either at all or at that stage;
and the Court shall make such an order if and so far as it is of
opinion that discovery is not necessary either for disposing fairly of
the action or for saving costs.
(6) An application for an order under paragraph (5) must be
by summons, and the summons must be taken out before the
expiration of the period within which by virtue of this rule discovery
of documents in the action is required to be made.
(7) Any party to whom discovery of documents is required to
be made under this rule may, at any time before the summons for
directions in the action is taken out, serve on the party required to
make such discovery a notice requiring him to make an affidavit
verifying the list he is required to make under paragraph (1), and the
party on whom such a notice is served must, within 14 days after
service of the notice, make and file an affidavit in compliance with
the notice and serve a copy of the affidavit on the party by whom the
notice was served.
Order for discovery (0. 24, r. 3)
3. (1) Subject to the provisions of this rule and of rules 4
and 8, the Court may order any party to a cause or matter (whether
begun by writ, originating summons or otherwise) to make and serve
on any other party a list of the documents which are or have been in
his possession, custody or power relating to any matter in question
in the cause or matter, and may at the same time or subsequently
also order him to make and file an affidavit verifying such a list and
to serve a copy thereof on the other party.
(2) Where a party who is required by rule 2 to make discovery
of documents fails to comply with any provision of that rule, the
Court, on the application of any party to whom the discovery was
required to be made, may make an order against the first-mentioned
party under paragraph (1) of this rule or, as the case may be, may
order him to make and file an affidavit verifying the list of docu-
ments he is required to make under rule 2 and to serve a copy thereof
on the applicant.
(3) An order under this rule may be limited to such documents
or classes of document only, or to such only of the matters in
question in the cause or matter, as may be specified in the order.
Order for determination of issue, etc., before discovery (0. 24, r. 4)
4. (1) Where on an application for an order under rule 2 or 3
it appears to the Court that any issue or question in the cause or
matter should be determined before any discovery of documents is
made by the parties, the Court may order that that issue or question
be determined first.
(2) Where in an action begun by writ an order is made under
this rule for the determination of an issue or question, Order 25,
rules 2 to 7, shall, with the omission of so much of rule 7(1) as
requires parties to serve a notice specifying the orders and directions
which they desire and with any other necessary modifications, apply
as if the application on which the order was made were a summons
for directions.
Form of list and affidavit (0. 24, r. 5)
5. (1) A list of documents made in compliance with rule 2 or
with an order under rule 3 must be in Form No. 26 in Appendix A,
and must enumerate the documents in a convenient order and as
shortly as possible but describing each of them or, in the case of
bundles of documents of the same nature, each bundle, sufficiently
to enable it to be identified.
(2) If it is desired to claim that any documents are privileged
from production, the claim must be made in the list of documents
with a sufficient statement of the grounds of the privilege.
(3) An affidavit made as aforesaid verifying a list of docu-
ments must be in Form No. 27 in Appendix A.
Defendant entitled to copy of co-defendant's fist (0. 24, r. 6)
6. (1) A defendant who has pleaded in an action shall be
entitled to have a copy of any list of documents served under any of
the foregoing rules of this Order on the plaintiff by any other
defendant to the action; and a plaintiff against whom a counterclaim is
made in an action begun by writ shall be entitled to have a copy of any
list of documents served under any of those rules on the party making
the counterclaim by any other defendant to the counterclaim.
(2) A party required by virtue of paragraph (1) to supply a copy of
a list of documents must supply it free of charge on a request made by
the party entitled to it.
(3) Where in an action begun by originating summons the Court
makes an order under rule 3 requiring a defendant to the action to serve
a list of documents on the plaintiff, it may also order him to supply any
other defendant to the action with a copy of that list.
(4) In this rule list of documents' includes an affidavit verifying a
list of documents.
Order for discovery of particular documents (0. 24, r. 7)
7. (1) Subject to rule 8, the Court may at any time, on the
application of any party to a cause or matter, make an order requiring
any other party to make an affidavit stating whether any document
specified or described in the application or any class of document so
specified or described is, or has at any time been, in his possession,
custody or power, and if not then in his possession, custody or power
when he parted with it and what has become of it.
(2) An order may be made against a party under this rule
notwithstanding that he may already have made or been required to
make a list of documents or affidavit under rule 2 or rule 3.
(3) An application for an order under this rule must be supported
by an affidavit stating the belief of the deponent that the party from
whom discovery is sought under this rule has, or at some time had, in
his possession, custody or power the document, or class of document,
specified or described in the application and that it relates to one or
more of the matters in question in the cause or matter.
Application under section 41 or 42(1) of the Ordinance (0. 24, r. 7A)
7A. (1) An application for an order under section' 41 of the
Ordinance for the disclosure of documents before the commencement of
proceedings shall be made by originating summons and the person
against whom the order is sought shall be made defendant to the
summons.
(2) An application after the commencement of proceedings for an
order under section 42(1) of the Ordinance for the disclosure of
documents by a person who is not a party to the proceedings shall be
made by summons, which must be served on that person personally and
on every party to the proceedings other than the applicant.
(3) A summons under paragraph (1) or (2) shall be supported by an
affidavit which must
(a)in the case of a summons under paragraph (1), state the
grounds on which it is alleged that the applicant and the
person against whom the order is sought are likely to be
parties to subsequent proceedings in the High Court in which
a claim for personal injuries is likely to be made;
(b)in any case, specify or describe the documents in respect of
which the order is sought and show, if practicable by
reference to any pleading served or intended to be served in
the proceedings, that the documents are relevant to an issue
arising or likely to arise out of a claim for personal injuries
made or likely to be made in the proceedings and that the
person against whom the order is sought is likely to have or
have had them in his possession, custody or power.
(4) A copy of the supporting affidavit shall be served with the
summons on every person on whom the summons is required to be
served.
(5) An order under section 41 or 42(1) for the disclosure of
documents may be made conditional on the applicant's giving security
for the costs of the person against whom it is made or on such other
terms, if any, as the Court thinks just, and shall require the person
against whom the order is made to make an affidavit stating whether any
documents specified or described in the order are, or at any time have
been, in his possession, custody or power and, if not then in his
possession, custody or power, when he parted with them and what has
become of them.
(6) No person shall be compelled by virtue of such an order to
produce any documents which he could not be compelled to produce
(a)in the case of a summons under paragraph (1), if the
subsequent proceedings had already been begun; or
(b)in the case of a summons under paragraph (2), if he had been
served with a writ of subpoena duces iecum to produce the
documents at the trial.
(7) In this rule 'a claim for personal injuries' means a claim in
respect of personal injuries to a person or in respect of a person's death.
(8) For the purposes of rules 10 and 11 an application for an order
under section 41 or 42(1) shall be treated as a cause or matter between
the applicant and the person against whom the order is sought.
Discovery to be ordered only if necessary (0. 24, r. 8)
8. On the hearing of an application for an order under rule 3, 7 or
7A the Court, if satisfied that discovery is not necessary, or not
necessary at that stage of the cause or matter, may dismiss or, as the
case may be, adjourn the application and shall in any case refuse to
make such an order if and so far as it is of opinion that discovery is not
necessary either for disposing fairly of the cause or matter or for saving
costs.
Inspection of documents referred to in list (0. 24, r. 9)
9. A party who has served a list of documents on any other party,
whether in compliance with rule 2 or with an order under rule 3, must
allow the other party to inspect the documents referred to in the list
(other than any which he objects to produce) and to take copies thereof
and, accordingly, he must when he serves the list on the other party
also serve on him a notice stating a time within 7 days after the service
thereof at which the said documents may be inspected at a place
specified in the notice.
Inspection of documents referred to in pleadings and affidavits (0. 24,
10)
10. (1) Any party to a cause or matter shall be entitled at any time
to serve a notice on any other party in whose pleadings or affidavits
reference is made to any document requiring him to produce that
document for the inspection of the party giving the notice and to permit
him to take copies thereof.
(2) The party on whom a notice is served under paragraph (1) must,
within 4 days after service of the notice, serve on the party giving the
notice a notice stating a time within 7 days after the service thereof at
which the documents, or such of them as he does not object to produce,
may be inspected at a place specified in the notice, and stating which (if
any) of the documents he objects to produce and on what grounds.
Order for production for inspection (0. 24, r. 11)
11. (1) If a party who is required by rule 9 to serve such a notice as
is therein mentioned or who is served with a notice under rule 10(1)
(a)fails to serve a notice under rule 9 or, as the case may be, rule
10(2), or
(b) objects to produce any document for inspection, or
(e)offers inspection at a time or place such that, in the opinion of
the Court, it is unreasonable to offer inspection then or, as the
case may be, there,
then, subject to rule 13(1), the Court may, on the application of the party
entitled to inspection, make an order for production of the documents in
question for inspection at such time and place, and in such manner, as it
thinks fit.
(2) Without prejudice to paragraph (1), but subject to rule
13(1), the Court may, on the application of any party to a cause or
matter, order any other party to permit the party applying to inspect
any documents in the possession, custody or power of that other
party relating to any matter in question in the cause or matter.
(3) An application for an order under paragraph (2) must be
supported by an affidavit specifying or describing the documents of
which inspection is sought and stating the belief of the deponent that
they are in the possession, custody or power of the other party and
that they relate to a matter in question in the cause or matter.
Provision of copies of documents (0. 24, r. 11 A)
11A. (1) Any party who is entitled to inspect any documents
under any provision of this Order or any order made thereunder
may at or before the time when inspection takes place serve on the
party who is required to produce such documents for inspection a
notice (which shall contain an undertaking to pay the reasonable
charges) requiring him to supply a true copy of any such document
as is capable of being copied by photographic or similar process.
(2) The party on whom such a notice is served must within 7
days after receipt thereof supply the copy requested together with an
account of the reasonable charges.
(3) Where a party fails to supply to another party a copy of
any document under paragraph (2), the Court may, on the applica-
tion of either party, make such order as to the supply of that
document as it thinks fit.
Order for production to Court (0. 24, r. 12)
12. At any stage of the proceedings in any cause or matter the
Court may, subject to rule 13(1), order any party to produce to the
Court any document in his possession, custody or power relating to
any matter in question in the cause or matter and the Court may deal
with the document when produced in such manner as it thinks fit.
Production to be ordered only if necessary, etc. (0. 24, r. 13)
13. (1) No order for the production of any documents for
inspection or to the Court or for the supply of a copy of any
document shall be made under any of the foregoing rules unless the
Court is of opinion that the order is necessary either for disposing
fairly of the cause or matter or for saying costs.
(2) Where on an application under this Order for production
of any document for inspection or to the Court or for the supply of a
copy of any document privilege from such production or supply is
claimed or objection is made to such production or supply on any
other ground, the Court may inspect the document for the purpose
of deciding whether the claim or objection is valid.
Production of business books (0. 24, r. 14)
14. (1) Where production of any business books for inspection is
applied for under any of the foregoing rules, the Court may, instead of
ordering production of the original books for inspection, order a copy or
any entries therein to be supplied and verified by an affidavit of some
person who has examined the copy with the original books.
(2) Any such affidavit shall state whether or not there are in the
original book any and what erasures, interlineations or alterations.
(3) Notwithstanding that a copy of any entries in any book has
been supplied under this rule, the Court may order production of the
book from which the copy was made.
Use of documents (0. 24, r. 14A)
14A. Any undertaking, whether express or implied, not to use a
document for any purposes other than those of the proceedings in
which it is disclosed shall cease to apply to such document after it has
been read to or by the Court, or referred to, in open court, unless the
Court for special reasons has otherwise ordered on the application of a
party or of the person to whom the document belongs.
Document disclosure of which would he injurious to public interest:
saving (0. 24, r. 15)
15. The foregoing provisions of this Order shall be without
prejudice to any rule of law which authorizes or requires the withholding
of any document on the ground that the disclosure of it would be
injurious to the public interest.
Failure to comply with requirement for discovery, etc. (0. 24, r. 16)
16. (1) If any party who is required by any of the foregoing rules, or
by any order made thereunder, to make discovery of documents or to
produce any documents for the purpose of inspection or any other
purpose or to supply copies thereof fails to comply with any provision
of that rule or with that order, as the case may be, then, without
prejudice, in the case of a failure to comply with any such provision, to
rules 3(2) and 11 (1), the Court may make such order as it thinks just
including, in particular, an order that the action be dismissed or, as the
case may be, an order that the defence be struck out and judgment be
entered accordingly.
(2) If any party against whom an order for discovery or production
of documents is made fails to comply with it, then, without prejudice to
paragraph (1), he shall be liable to committal.
(3) Service on a party's solicitor of an order for discovery or
production of documents made against that party shall be sufficient
service to found an application for committal of the party disobeying the
order, but the party may show in answer to the application that he had
no notice or knowledge of the order.
(4) A solicitor on whom such an order made against his client is
served and who fails without reasonable excuse to give notice thereof
to his client shall be liable to committal.
Revocation and variation of orders (0. 24, r. 17)
17. Any order made under this Order (including an order made on
appeal) may, on sufficient cause being shown, be revoked or varied by a
subsequent order or direction of the Court made or given at or before
the trial of the cause or matter in connection with which the original
order was made.
ORDER 25
SUMMONS FOR DIRECTIONS
Summons for directions (0. 25, r. 1)
1. (1) With a view to providing, in every action to which this rule
applies, an occasion for the consideration by the Court of the
preparation for the trial of the action, so that
(a)all matters which must or can be dealt with on interlocutory
applications and have not already been dealt with may so far
as possible be dealt with, and
(b)such directions may be given as to the future course of the
action as appear best adapted to secure the just, expeditious
and economical disposal thereof,
the plaintiff must, within one month after the pleadings in the action are
deemed to be closed, take out a summons (in these rules referred to as a
summons for directions) returnable in not less than 14 days.
(2) This rule applies to all actions begun by writ except-
(a)actions in which the plaintiff or defendant has applied for
judgment under Order 14, or in which the plaintiff has applied
for judgment under Order 86, and directions have been given
under the relevant Order;
(b)actions in which the plaintiff or defendant has applied under
Order 18, rule 21, for trial without pleadings or further
pleadings and directions have been given under that rule;
(c)actions in which an order has been made under Order 24, rule
4, for the trial of an issue or question before discovery;
(d)actions in which directions have been given under Order 29,
rule 7;
(e)actions in which an order for the taking of an account has
been made under Order 43, rule 1;
actions in which an application for transfer to the commercial
list is pending;
(h) actions for the infringement of a patent;
(j)actions for personal injuries for which automatic directions are
provided by rule 8; and
(k)actions in which the parties agree under rule 9 that the only
matters to be determined are the mode of trial and time for
setting down.
(3) Where, in the case of any action in which discovery of
documents is required to be made by any party under Order 24, rule 2,
the period of 14 days referred to in paragraph (1) of that rule is extended,
whether by consent or by order of the Court or both by consent and by
order, paragraph (1) of this rule shall have effect in relation to that action
as if for the reference therein to one month after the pleadings in the
action are deemed to be closed there were substituted a reference to 14
days after the expiration of the period referred to in paragraph (1) of the
said rule 2 as so extended.
(4) If the plaintiff does not take out a summons for directions in
accordance with the foregoing provisions of this rule, the defendant or
any defendant may do so or apply for an order to dismiss the action.
(5) On an application by a defendant to dismiss the action under
paragraph (4) the Court may either dismiss the action on such terms as
may be just or deal with the application as if it were a summons for
directions.
(6) In the case of an action which is proceeding only as respects a
counterclaim, references in this rule to the plaintiff and defendant shall
be construed respectively as references to the party making the
counterclaim and the defendant to the counterclaim.
(7) Notwithstanding anything in paragraph (1), any party to an
action to which this rule applies may take out a summons for directions
at any time after the defendant has given notice of intention to defend,
or, if there are two or more defendants, at least one of them has given
such notice.
Duty to consider all matters (0. 25, r. 2)
2. (1) When the summons for directions first comes to be heard, the
Court shall consider whether--
(a)it is possible to deal then with all the matters which, by the
subsequent rules of this Order, are required to be considered
on the hearing of the summons for directions, or
(b)it is expedient to adjourn the consideration of all or any of
those matters until a later stage.
(2) If when the summons for directions first comes to be heard
the Court considers that it is possible to deal then with all the said
matters, it shall deal with them forthwith and shall endeavour to
secure that all other matters which must or can be dealt with on
interlocutory applications and have not already been dealt with are
also then dealt with.
(3) If, when the summons for directions first comes to be
heard, the Court considers that it is expedient to adjourn the
consideration of all or any of the matters which, by the subsequent
rules of this Order, are required to be considered on the hearing of
the summons, the Court shall deal forthwith with such of those
matters as it considers can conveniently be dealt with forthwith and
adjourn the consideration of the remaining matters and shall
endeavour to secure that all other matters which must or can be
dealt with on interlocutory applications and have not already been
dealt with are dealt with either then or at a resumed hearing of the
summons for directions.
(4) Subject to paragraph (5), and except where the parties
agree to the making of an order under Order 33 as to the place or
mode of trial before all the matters which, by the subsequent rules of
this Order, are required to be considered on the hearing of the
summons for directions have been dealt with, no such order shall be
made until all those matters have been dealt with.
(5) If, on the summons for directions, an action is ordered to
be transferred to the District Court or some other court, paragraph
(4) shall not apply and nothing in this Order shall be construed as
requiring the Court to make any further order on the summons.
(7) If the hearing of the summons for directions is adjourned
without a day being fixed for the resumed hearing thereof, any party
may restore it to the list on 2 days' notice to the other parties.
Particular matters for consideration (0. 25, r. 3)
3. On the hearing of the summons for directions the Court
shall in particular consider, if necessary of its own motion, whether
any order should be made or direction given in the exercise of the
powers conferred by any of the following provisions, that is to say-
(a)any provision of Part IV and Part V of the Evidence
Ordinance (hearsay evidence of fact or opinion in civil
proceedings) or of Part 111 and Part IV of Order 38;
(b) Order 20, rule 5 and Order 38, rules 2 to 7;
(c) section 40 of the District Court Ordinance.
Admissions and agreements to he made (0. 25, r. 4)
4. At the hearing of the summons for directions, the Court
shall endeavour to secure that the parties make all admissions and
all agreements as to the conduct of the proceedings which ought
reasonably to be made by them and may cause the order on the
summons to record any admissions or agreements so made, and
(with a view to such special order, if any, as to costs as may be just
being made at the trial) any refusal to make any admission or
agreement.
Limitation of right of appeal (0. 25, r. 5)
5. Nothing in rule 4 shall be construed as requiring the Court
to endeavour to secure that the parties shall agree to exclude or limit
any right of appeal, but the order made on the summons for
directions may record any such agreement.
Duty to give all information at hearing (0. 25, r. 6)
6. (1) Subject to paragraph (2), no affidavit shall be used on
the hearing of the summons for directions except by the leave or
directions of the Court, but, subject to paragraph (4), it shall be the
duty of the parties to the action and their advisers to give all such
information and produce all such documents on any hearing of the
summons as the Court may reasonably require for the purposes of
enabling it properly to deal with the summons.
The Court may, if it appears proper so to do in the circum-
stances, authorize any such information or documents to be given or
produced to the Court without being disclosed to the other parties
but, in the absence of such authority, any information or document
given or produced under this paragraph shall be given or produced
to all the parties present or represented on the hearing of the
summons as well as to the Court.
(2) No leave shall be required by virtue of paragraph (1) for
the use of an affidavit by any party on the hearing of the summons
for directions in connection with any application thereat for any
order if, under any of these rules, an application for such an order is
required to be supported by an affidavit.
(3) If the Court on any hearing of the summons for directions
requires a party to the action or his solicitor or counsel to give any
information or produce any document and that information or
document is not given or produced, then, subject to paragraph (4),
the Court may-
(a)cause the facts to be recorded in the order with a view to
such special order, if any, as to costs as may be just being
made at the trial, or
(b)if it appears to the Court to be just so to do, order the
whole or any part of the pleadings of the party concerned
to be struck out, or if the party is plaintiff or the claimant
under a counterclaim, order the action or counterclaim to
be dismissed on such terms as may be just.
(4) Notwithstanding anything in the foregoing provisions of
this rule, no information or documents which are privileged from
disclosure shall be required to be given or produced under this rule
by or by the advisers of any party otherwise than with the consent of
that party.
Duty to make all interlocutory applications on summons for direc-
tions (0. 25, r. 7)
7. (1) Any party to whom the summons for directions is
addressed must so far as practicable apply at the hearing of the
summons for any order or directions which he may desire as to any
matter capable of being dealt with on an interlocutory application in
the action and must, not less than 7 days before the hearing of the
summons, serve on the other parties a notice specifying those orders
and directions in so far as they differ from the orders and directions
asked for by the summons.
(2) If the hearing of the summons for directions is adjourned
and any party to the proceedings desires to apply at the resumed
hearing for any order or directions not asked for by the summons or
in any notice given under paragraph (1), he must, not less than 7
days before the resumed hearing of the summons, serve on the other
parties a notice specifying those orders and directions in so far as
they differ from the orders and directions asked for by the summons
or in any such notice as aforesaid.
(3) Any application subsequent to the summons for directions
and before judgment as to any matter capable of being dealt with on
an interlocutory application in the action must be made under the
summons by 2 clear days' notice to the other party stating the
grounds of the application.
Automatic directions in personal injury actions (0. 25, r. 8)
8. (1) When the pleadings in any action to which this rule
applies are deemed to be closed the following directions shall take
effect automatically-
(a)there shall be discovery of documents within 14 days in
accordance with Order 24, rule 2, and inspection within 7
days thereafter, save that where liability is admitted, or
where the action arises out of a road accident, discovery
shall be limited to disclosure by the plaintiff of any
documents relating to special damages;
(b)subject to paragraph (2), where any party intends to place
reliance at the trial on expert evidence, he shall, within 6
weeks, disclose the substance of that evidence to the other
parties in the form of a written report, which shall be
agreed if possible;
(c)unless such reports are agreed, the parties shall be at liberty
to call as expert witnesses those witnesses the substance of
whose evidence has been disclosed in accordance with the
preceding sub-paragraph, except that the number of expert
witnesses shall be limited in any case to two medical
experts and one expert of any other kind;
(d)photographs, a sketch plan and the contents of any police
accident report shall be receivable in evidence at the trial and
shall be agreed if possible;
(HK)(dd) the record of any proceedings in any court or tribunal shall be
receivable in evidence upon production of a copy thereof
certified as a true copy by the clerk or other appropriate
officer of the court or tribunal;
(f) the action shall be tried by a judge alone, and shall be set down
within 3 months;
(g)the Court shall be notified, on setting down, of the estimated
length of the trial.
(2) Where paragraph (1)(b) applies to more than one party the
reports shall be disclosed by mutual exchange, medical for medical and
non-medical for non-medical, within the time provided or as soon
thereafter as the reports on each side are available.
(3) Nothing in paragraph (1) shall prevent any party to an action to
which this rule applies from applying to the Court for such further or
different directions or orders as may, in the circumstances, be
appropriate or prevent the making of an order for the transfer of the
proceedings to a district court.
(4) For the purpose of this rule-
,la road accident' means an accident on land due to a collision or
apprehended collision involving a vehicle; and
'documents relating to special damages- include
(a)documents relating to any industrial injury, industrial
disablement or sickness benefit rights, and
(b)where the claim is made under the Fatal Accidents Ordinance,
documents relating to any claim for dependency on the
deceased.
(5) This rule applies to any action for personal injuries except
(a) any Admiralty action; and
(b)any action where the pleadings contain an allegation of a
negligent act or omission in the course of medical treatment.
Standard direction by consent (0. 25, r. 9)
9. (1) Subject to paragraph (3), where in any action the parties
agree, not more than one month after the pleadings are deemed to be
closed, that the only directions required are to the mode of trial and the
time for setting down, the provisions of rule 8(1)(f) and (g) shall apply
and the action shall be tried by a judge alone and shall be set down
within 3 months.
(3) The Court may give such further directions or orders,
whether on application by a party or its own motion, as may, in the
circumstances, be appropriate.
ORDER 26
INTERROGATORIES
Discovery by interrogatories (0. 26, r. 1)
1. (1) A party to any cause or matter may apply to the Court
for an order-
(a)giving him leave to serve on any other party interrogatories
relating to any matter in question between the applicant
and that other party in the cause or matter, and
(b)requiring that other party to answer the interrogatories on
affidavit within such period as may be specified in the
order.
(2) A copy of the proposed interrogatories must be served
with the summons, or the notice under Order 25, rule 7, by which the
application for such leave is made.
(3) On the hearing of an application under this rule, the Court
shall give leave as to such only of the interrogatories as it considers
necessary either for disposing fairly of the cause or matter or for
saving costs; and in deciding whether to give leave the Court shall
take into account any offer made by the party to be interrogated to
give particulars or to make admissions or to produce documents
relating to any matter in question.
(4) A proposed interrogatory which does not relate to such a
matter as is mentioned in paragraph (1) shall be disallowed notwith-
standing that it might be admissible in oral cross-examination of a
witness.
Interrogatories where party is a body of persons (0. 26, r. 2)
2. Where a party to a cause or matter is a body of persons,
whether corporate or unincorporate, being a body which is empow-
ered by law to sue or be sued whether in its own name or in the name
of an officer or other person, the Court may, on the application of
any other party, make an order allowing him to serve interrogatories
on such officer or member of the body as may be specified in the
order.
Statement as to party, etc., required to answer (0. 26, r. 3)
3. Where interrogatories are to be served on two or more
parties or are required to be answered by an agent or servant of a
party, a note at the end of the interrogatories shall state which of the
interrogatories each party or, as the case may be, an agent or servant
is required to answer, and which agent or servant.
Objection to answer on ground of privilege (0. 26, r. 4)
4. Where a person objects to answering any interrogatory on
the ground of privilege he may take the objection in his affidavit in
answer.
Insufficient answer (0. 26, r. 5)
5. If any person on whom interrogatories have been served
answers any of them insufficiently, the Court may make an order
requiring him to make a further answer, and either by affidavit or on
oral examination as the Court may direct.
Failure to comply with order (0. 26, r. 6)
6. (1) If a party against whom an order is made under rule 1
or 5 fails to comply with it, the Court may make such order as it
thinks just including, in particular, an order that the action be
dismissed or, as the case may be, an order that the defence be struck
out and judgment be entered accordingly.
(2) If a party against whom an order is made under rule 1 or 5
fails to comply with it, then, without prejudice to paragraph (1), he
shall be liable to committal.
(3) Service on a party's solicitor of an order to answer
interrogatories made against the party shall be sufficient service to
found an application for committal of the party disobeying the
order, but the party may show in answer to the application that he
had no notice or knowledge of the order.
(4) A solicitor on whom an order to answer interrogatories
made against his client is served and who fails without reasonable
excuse to give notice thereof to his client shall be liable to committal.
Use of answers to interrogatories at trial (0. 26, r. 7)
7. A party may put in evidence at the trial of a cause or
matter, or of any issue therein, some only of the answers to
interrogatories, or part only of such an answer, without putting in
evidence the other answers or, as the case may be, the whole of that
answer, but the Court may look at the whole of the answers and if of
opinion that any other answer or other part of an answer is so
connected with an answer or part thereof used in evidence that the
one ought not to be so used without the other, the Court may direct
that that other answer or part shall be put in evidence.
Revocation and variation of orders (0. 26, r. 8)
8. Any order made under this Order (including an order
made on appeal) may, on sufficient cause being shown, be revoked
or varied by a subsequent order or direction of the Court made or
given at or before the trial of the cause or matter in connection with
which the original order was made.
ORDER 27
ADMISSIONS
Admission of case of other party (0. 27, r. 1)
1. Without prejudice to Order 18, rule 13, a party to a cause or
matter may give notice, by his pleading or otherwise in writing, that he
admits the truth of the whole or any part of the case of any other party.
Notice to admit (0. 27, r. 2)
2. (1) A party to a cause or matter may not later than 21 days after
the cause or matter is set down for trial serve on any other party a
notice requiring him to admit, for the purpose of that cause or matter
only, such facts or such part of his case as may be specified in the
notice.
(2) An admission made in compliance with a notice under this rule
shall not be used against the party by whom it was made in any cause or
matter other than the cause or matter for the purpose of which it was
made or in favour of any person other than the person by whom the
notice was given, and the Court may at any time allow a party to amend
or withdraw an admission so made by him on such terms as may be just.
Judgment on admissions (0. 27, r. 3)
3. Where admissions of fact or of part of a case are made by a party
to a cause or matter either by his pleadings or otherwise, any other party
to the cause or matter may apply to the Court for such judgment or order
as upon those admissions he may be entitled to, without waiting for the
determination of any other question between the parties, and the Court
may give such judgment, or make such order, on the application as it
thinks just.
An application for an order under this rule may be made by motion
or summons.
Admission and production of documents specified in list of documents
(0. 27, r. 4)
4. (1) Subject to paragraph (2) and without prejudice to the right of
a party to object to the admission in evidence of any document, a party
on whom a list of documents is served in pursuance of any provision of
Order 24 shall, unless the Court otherwise orders, be deemed to admit
(a)that any document described in the list as an original
document is such a document and was printed, written,
signed or executed as it purports respectively to have been,
and
(b)that any document described therein as a copy is a true copy.
This paragraph does not apply to a document the authenticity
of which the party has denied in his pleading.
(2) If before the. expiration of 21 days after inspection of the
documents specified in a list of documents or after the time limited
for inspection of those documents expires, whichever is the later, the
party on whom the list is served serves on the party whose list it is a
notice stating, in relation to any document specified therein, that he
does not admit the authenticity of that document and requires it to
be proved at the trial, he shall not be deemed to make any admission
in relation to that document under paragraph (1).
(3) A party to a cause or matter by whom a list of documents
is served on any other party in pursuance of any provision of Order
24 shall be deemed to have been served by that other party with a
notice requiring him to produce at the trial of the cause or matter
such of the documents specified in the list as are in his possession,
custody or power.
(4) The foregoing provisions of this rule apply in relation to an
affidavit made in compliance with an order under Order 24, rule 7, as
they apply in relation to a list of documents served in pursuance of
any provision of that Order.
Notices to admit or produce documents (0. 27, r. 5)
5. (1) Except where rule 4(1) applies, a party to a cause or
matter may within 21 days after the cause or matter is set down for
trial serve on any other party a notice requiring him to admit the
authenticity of the documents specified in the notice.
(2) If a party on whom a notice under paragraph (1) is served
desires to challenge the authenticity of any document therein spec-
ified he must, within 21 days after service of the notice, serve on the
party by whom it was given a notice stating that he does not admit
the authenticity of the document and requires it to be proved at the
trial.
(3) A party who fails to give a notice of non-admission in
accordance with paragraph (2) in relation to any document shall be
deemed to have admitted the authenticity of that document unless
the Court otherwise orders.
(4) Except where rule 4(3) applies, a party to a cause or matter
may serve on any other party a notice requiring him to produce the
documents specified in the notice at the trial of the cause or matter.
ORDER 28
ORIGINATING SUMMONS PROCEDURE
Application (0. 28, r. 1)
1. The provisions of this Order apply to all originating
summonses subject, in the case of originating summonses of any
particular class, to any special provisions relating to originating
summonses of that class made by these rules or by or under any
written law; and subject as aforesaid, Order 32, rule 5, shall apply in
relation to originating summonses as they apply in relation to other
summonses.
Affidavit evidence (0. 28, r. IA)
1A. (1) In any cause or matter begun by originating summons
(not being an ex parte summons) the plaintiff must, before the
expiration of 14 days after the defendant has acknowledged service,
or, if there are two or more defendants, at least one of them has
acknowledged service, file with the Court the affidavit evidence on
which he intends to rely.
(2) In the case of an ex parte summons the applicant must file
his affidavit evidence not less than 4 clear days before the day fixed
for the hearing.
(3) Copies of the affidavit evidence filed in the Court under
paragraph (1) must be served by the plaintiff on the defendant, or, if
there are two or more defendants, on each defendant, before the
expiration of 14 days after service has been acknowledged by that
defendant.
(4) Where a defendant who has acknowledged service wishes
to adduce affidavit evidence he must within 28 days after service on
him of copies of the plaintiff's affidavit evidence under paragraph
(3) file his own affidavit evidence in the Court and serve copies
thereof on the plaintiff and on any other defendant who is affected
thereby.
(5) A plaintiff on whom a copy of a defendant's affidavit.
evidence has been served under paragraph (4) may within 14 days of
such service file in the Court further affidavit evidence in reply and
shall in that event serve copies thereof on that defendant.
(6) No other affidavit shall be received in evidence without the
leave of the Court.
(7) Where an affidavit is required to be served by one party on
another party it shall be served without prior charge.
(8) The provisions of this rule apply subject to any direction
by the Court to the contrary.
(9) In this rule references to affidavits and copies of affidavits
include references to exhibits to affidavits and copies of such exhibits.
Fixing time for attendance of parties before Court (0. 28, r. 2)
2. (1) In the case of an originating summons which is in
Form No. 8 in Appendix A the plaintiff must, within one month of
the expiry of the time within which copies of affidavit evidence may
be served under rule I A, obtain an appointment for the attendance
of the parties before the Court for the hearing of the summons, and a
day and time for their attendance shall be fixed by a notice (in Form
No. 12 in Appendix A) sealed with the seal of the Court.
(2) A day and time for the attendance of the parties before the
Court for the hearing of an originating summons which is in Form No. 10
in Appendix A, or for the hearing of an ex parte originating summons,
may be fixed on the application of the plaintiff or applicant, as the case
may be and in the case of a summons which is required to be served, the
time limited for acknowledging service shall, where appropriate, be
abridged so as to expire on the next day but one before the day so fixed,
and the time limits for lodging affidavits under rule 1A(2) and (3) shall,
where appropriate, be abridged so as to expire, respectively, on the fifth
day before, and the next day but one before, the day so fixed.
(3) Where a plaintiff fails to apply for an appointment under
paragraph (1), any defendant may, with the leave of the Court, obtain an
appointment in accordance with that paragraph provided that he has
acknowledged service of the originating summons.
Notice of hearing (0. 28, r. 3)
3. (1) Not less than 4 clear days before the day fixed under rule 2 for
the attendance of the parties before the Court for the hearing of an
originating summons which is in Form No. 8 in Appendix A, the party on
whose application the day was fixed must serve a copy of the notice
fixing it on every other party who has acknowledged service of the
summons and, if the first-mentioned party is a defendant, on the
plaintiff.
(2) Not less than 4 clear days before the day fixed under rule 2 for
the hearing of an originating summons which is in Form No. 10 in
Appendix A, the plaintiff must serve the summons on every defendant
or, if any defendant has already been served with the summons, must
serve on that defendant notice of the day fixed for the hearing.
Directions, etc., by Court (0. 28, r. 4)
4. (1) The Court by whom an originating summons is heard may, if
the liability of the defendant to the plaintiff in respect of any claim made
by the plaintiff is established, make such order in favour of the plaintiff
as the nature of the case may require, but where the Court makes an
order under this paragraph against a defendant who does not appear at
the hearing, the order may be varied or revoked by a subsequent order
of the Court on such terms as it thinks just.
(2) In any case where the Court does not dispose of any
originating summons altogether at a hearing or order the cause or matter
begun by it to be transferred to a District Court or some other court or
makes an order under rule 8, the Court shall give such directions as to
the further conduct of the proceedings as it thinks best adapted to
secure the just, expeditious and economical disposal thereof.
(3) Without prejudice to the generality of paragraph (2), the Court
shall, at as early a stage of the proceedings on the summons as appears
to it to be practicable, consider whether there is or may be a dispute as
to fact and whether the just, expeditious and economical disposal of the
proceedings can accordingly best be secured by hearing the summons
on oral evidence or mainly on oral evidence and, if it thinks fit, may
order that no further evidence shall be filed and that the summons shall
be heard on oral evidence or partly on oral evidence and partly on
affidavit evidence, with or without cross-examination of any of the
deponents, as it may direct.
(4) Without prejudice to the generality of paragraph (2), and subject
to paragraph (3), the Court may give directions as to the filing of
evidence and as to the attendance of deponents for crossexamination
and any directions which it could give under Order 25 if the cause or
matter had been begun by writ and the summons were a summons for
directions under that Order.
Adjournment of summons (0. 28, r. 5)
5. (1) The hearing of the summons by the Court may (if necessary)
be adjourned from time to time, either generally or to a particular date, as
may be appropriate, and the powers of the Court under rule 4 may be
exercised at any resumed hearing.
(2) If the hearing of the summons is adjourned generally, the party
on whose application the day for its hearing was fixed under rule 2 may
restore it to the list on 2 days' notice to all the other parties (except,
unless the Court otherwise directs, a defendant who, in the case of a
summons in Form No. 8 in Appendix A, has failed to acknowledge
service of the summons or, in the case of a summons in Form No. 10 in
Appendix A, has not been served with the summons), and any of those
parties may restore it with the leave of the Court.
Applications affecting party who has failed to acknowledge service (0.
28, r. 6)
6. Where in a cause or matter begun by originating summons an
application is made to the Court for an order affecting a party who has
failed to acknowledge service of the summons, the Court hearing the
application may require to be satisfied in such manner as it thinks fit that
the party has so failed.
Counterclaim by defendant (0. 28, r. 7)
7. (1) A defendant to an action begun by originating summons who
has acknowledged service of the summons and who alleges that he has
any claim or is entitled to any relief or remedy against the plaintiff in
respect of any matter (whenever and however arising) may make a
counterclaim in the action in respect of that matter instead of bringing a
separate action.
(2) A defendant who wishes to make a counterclaim under this
rule must at the first or any resumed hearing of the originating
summons by the Court but, in any case, at as early a stage in the
proceedings as is practicable, inform the Court of the nature of his
claim and, without prejudice to the powers of the Court under
paragraph (3), the claim shall be made in such manner as the Court
may direct under rule 4 or rule 8.
(3) If it appears on the application of a plaintiff against whom
a counterclaim is made under this rule that the subject-matter of the
counterclaim ought for any reason to be disposed of by a separate
action, the Court may order the counterclaim to be struck out or
may order it to be tried separately or make such other order as may
be expedient.
Continuation of proceedings as if cause or matter begun by writ (0. 28,
r. 8)
8. (1) Where, in the case of a cause or matter begun by
originating summons, it appears to the Court at any stage of the
proceedings that the proceedings should for any reason be continued
as if the cause or matter had been begun by writ, it may order the
proceedings to continue as if the cause or matter had been so begun
and may, in particular, order that any affidavits shall stand as
pleadings, with or without liberty to any of the parties to add thereto
or to apply for particulars thereof.
(2) Where the Court decides to make such an order, Order 25,
rules 2 to 7, shall, with the omission of so much of rule 7(1) as
requires parties to serve a notice specifying the orders and directions
which they require and with any other necessary modifications,
apply as if there had been a summons for directions in the proceed-
ings and that order were one of the orders to be made thereon.
(3) This rule applies notwithstanding that the cause or matter
in question could not have been begun by writ.
(4) Any reference in these rules to an action begun by writ
shall, unless the context otherwise requires, be construed as includ-
ing a reference to a cause or matter proceedings in which are
ordered under this rule to continue as if the cause or matter had been
so begun.
Order for hearing or trial (0. 28, r. 9)
9. (1) Except where the Court disposes of a cause or matter
begun by originating summons in chambers or orders it to be
transferred to a District Court or some other court or makes an
order in relation to it under rule 8 or some other provision of these
rules, the Court shall, on being satisfied that the cause or matter is
ready for determination, make such order as to the hearing of the
cause or matter as may be appropriate.
(3) The Court shall by order determine the place and mode of
the trial, but any such order may be varied by a subsequent order of
the Court made at or before the trial.
(4) Order 33, rule 4(2) and Order 34, rules 1 to 8, shall apply in
relation to a cause or matter begun by originating summons and to
an order made therein under this rule as they apply in relation to an
action begun by writ and to an order made therein under the said
rule 4 and shall have effect accordingly with any necessary modifica-
tions and with the further modification that for references therein to
the summons for directions there shall be substituted references to
the first or any resumed hearing of the originating summons by the
Court.
Failure to prosecute proceedings with despatch (0. 28, r. 10)
10. (1) If the plaintiff in a cause or matter begun by originat-
ing summons makes default in complying with any order or direc-
tion of the Court as to the conduct of the proceedings, or if the
Court is satisfied that the plaintiff in a cause or matter so begun is
not prosecuting the proceedings with due despatch, the Court may
order the cause or matter to be dismissed or may make such other
order as may be just.
(2) Paragraph (1) shall, with any necessary modifications,
apply in relation to a defendant by whom a counterclaim is made
under rule 7 as it applies in relation to a plaintiff.
(3) Where, by virtue of an order made under rule 8, proceed-
ings in a cause or matter begun by originating summons are to
continue as if the cause or matter had been begun by writ, the
foregoing provisions of this rule shall not apply in relation to the
cause or matter after the making of the order.
Abatement, etc., of action (0. 28, r. 11)
11. Order 34, rule 9, shall apply in relation to an action begun
by originating summons as it applies in relation to an action begun
by writ.
ORDER 29
INTERLOCUTORY INJUNCTIONS, INTERIM PRESERVATION OF
PROPERTY, INTERIM PAYMENTS, ETC.
1. INTERLOCUTORY INJUNCTIONS, INTERIM
PRESERVATION OF PROPERTY, ETC,
Application for injunction (0. 29, r. 1)
1. (1) An application for the grant of an injunction may be
made by any party to a cause or matter before or after the trial of the
cause or matter, whether or not a claim for the injunction was
included in that party's writ, originating summons, counterclaim or
third party notice, as the case may be.
(2) Where the applicant is the plaintiff and the case is one of
urgency such application may be made ex parte on affidavit but,
except as aforesaid, such application must be made by motion or
summons.
(3) The plaintiff may not make such an application before the
issue of the writ or originating summons by which the cause or
matter is to be begun except where the case is one of urgency, and in
that case the injunction applied for may be granted on terms
providing for the issue of the writ or summons and such other terms,
if any, as the Court thinks fit.
Detention, preservation etc., of subject-matter of cause or matter
(0. 29, r. 2)
2. (1) On the application of any party to a cause or matter
the Court may make an order for the detention, custody or preserva-
tion of any property which is the subject-matter of the cause or
matter, or as to which any question may arise therein, or for the
inspection of any such property in the possession of a party to the
cause or matter.
(2) For the purpose of enabling any order under paragraph (1)
to be carried out the Court may by the order authorize any person to
enter upon any land or building in the possession of any party to the
cause or matter.
(3) Where the right of any party to a specific fund is in dispute
in a cause or matter, the Court may, on the application of a party to
the cause or matter, order the fund to be paid into court or otherwise
secured.
(4) An order under this rule may be made on such terms, if
any, as the Court thinks just.
(5) An application for an order under this rule must be made
by summons or by notice under Order 25, rule 7.
(6) Unless the Court otherwise directs, an application by a
defendant for such an order may not be made before he acknow-
ledges service of the writ or originating summons by which the cause
or matter was begun.
Power to order samples to he taken, etc. (0. 29, r. 3)
3. (1) Where it considers it necessary or expedient for the
purpose of obtaining full information or evidence in any cause or
matter, the Court may, on the application of a party to the cause or
matter, and on such terms, if any, as it thinks just, by order
authorize or require any sample to be taken of any property which is
the subject-matter of the cause or matter or as to which any question
may arise therein, any observation to be made on such property or
any experiment to be tried on or with such property.
(2) For the purpose of enabling any order under paragraph (1)
to be carried out the Court may by the order authorize any person to
enter upon any land or building in the possession of any party to the
cause or matter.
(3) Rule 2(5) and (6) shall apply in relation to an application
for an order under this rule as they apply in relation to an appli-
cation for an order under that rule.
Sale of perishable property, etc. (0. 29, r. 4)
4. (1) The Court may, on the application of any party to a
cause or matter, make an order for the sale by such person, in such
manner and on such terms (if any) as may be specified in the order of
any property (other than land) which is the subject-matter of the
cause or matter or as to which any question arises therein and which
is of a perishable nature or likely to deteriorate if kept or which for
any other good reason it is desirable to sell forthwith.
In this paragraph 'land' includes any interest in, or right over,
land.
(2) Rule 2(5) and (6) shall apply in relation to an application
for an order under this rule as they apply in relation to an appli-
cation for an order under that rule.
Order for early trial (0. 29, r. 5)
5. Where on the hearing of an application, made before the
trial of a cause or matter, for an injunction or the appointment of a
receiver or an order under rule 2, 3 or 4 it appears to the Court that
the matter in dispute can be better dealt with by an early trial than
by considering the whole merits thereof for the purposes of the
application, the Court may make an order accordingly and may also
make such order as respects the period before trial as the justice of
the case requires.
Where the Court makes an order for early trial it shall by the
order determine the mode of the trial.
Recovery of personal property subject to lien, etc. (0. 29, r. 6)
6. Where the plaintiff, or the defendant by way of counter-
claim, claims the recovery of specific property (other than land) and
the party from whom recovery is sought does not dispute the title of
the party making the claim but claims to be entitled to retain the
property by virtue of a lien or otherwise as security for any sum of
money, the Court, at any time after the claim to be so entitled
appears from the pleadings (if any) or by affidavit or otherwise to its
satisfaction, may order that the party seeking to recover the prop-
erty be at liberty to pay into court, to abide the event of the action,
the amount of money in respect of which the security is claimed and
such further sum (if any) for interest and costs as the Court may
direct and that, upon such payment being made, the property
claimed be given up to the party claiming it.
Directions (0. 29, r. 7)
7. (1) Where an application is made under any of the fore-
going provisions of this Order, the Court may give directions as to
the further proceedings in the cause or matter.
(2) If, in an action begun by writ, not being any such action as
is mentioned in sub-paragraphs (a) to (c) and (e) to (h) of Order 25,
rule 1(2), the Court thinks fit to give directions under this rule before
the summons for directions, rules 2 to 7 of that Order shall, with the
omission of so much of rule 7(1) as requires parties to serve a notice
specifying the orders and directions which they desire and with any
other necessary modifications, apply as if the application were a
summons for directions.
Inspection, etc. of property under sections 42 and 44(1) of the
Ordinance (0. 29, r. 7A)
7A. (1) An application for an order under section 44(1) of
the Ordinance in respect of property which may become the subject-
matter of subsequent proceedings in the Court or as to which any
question may arise in any such proceedings shall be made by
originating summons and the person against whom the order is
sought shall be made defendant to the summons.
(2) An application after the commencement of proceedings for
an order under section 42(2) of the Ordinance in respect of property
which is not the property of or in the possession of any party to the
proceedings shall be made by summons, which must be served on the
person against whom the order is sought personally and on every
party to the proceedings other than the applicant.
(3) A summons under paragraph (1) or (2) shall be supported
by affidavit which must specify or describe the property in respect of
which the order is sought and show, if practicable by reference to
any pleading served or intended to be served in the proceedings or
subsequent proceedings, that it is property which is or may become
the subject-matter of the proceedings or as to which any question
arises or may arise in the proceedings.
(4) A copy of the supporting affidavit shall be served with the
summons on every person on whom the summons is required to be
served.
(5) An order made under section 42(2) or 44(1) may be made
conditional on the applicant's giving security for the costs of the
person against whom it is made or on such other terms, if any, as the
Court thinks just.
(6) No such order shall be made if it appears to the Court-
(a)that compliance with the order, if made, would result in the
disclosure of information relating to a secret process,
discovery or invention not in issue in the proceedings;
and
(b)that the application would have been refused on that ground
if
(i) in the case of a summons under paragraph (1), the
subsequent proceedings had already been begun; or
(ii) in the case of a summons under paragraph (2), the
person against whom the order is sought were a party to the
proceedings.
Allowance of income of property pendente lite (0. 29, r. 8)
8. Where any real or personal property forms the subjectmatter of
any proceedings, and the Court is satisfied that it will be more than
sufficient to answer all the claims thereon for which provision ought to
be made in the proceedings, the Court may at any time allow the whole
or part of the income of the property to be paid, during such period as it
may direct, to any or all of the parties who have an interest therein or
may direct that any part of the personal property be transferred or
delivered to any or all of such parties.
11. INTERIM PAYMENTS
Interpretation of Part 11 (0. 29, r. 9)
9. In this Part of this Order-
'interim payment', in relation to a defendant, means a payment on
account of any damages, debt or other sum (excluding costs)
which he may be held liable to pay to or for the benefit of the
plaintiff, and any person who, for the purpose of the proceedings,
acts as next friend of the plaintiff or guardian of the defendant.
Application for interim payment (0. 29, r. 10)
10. (1) The plaintiff may, at any time after the writ has been served
on a defendant and the time limited for him to acknowledge service has
expired, apply to the Court for an order requiring that defendant to make
an interim payment.
(2) An application under this rule shall be made by summons but
may be included in a summons for summary judgment under Order 14 or
Order 86.
(3) An application under this rule shall be supported by an
affidavit which shall
(a)verify the amount of the damages, debt or other sum to which
the application relates and the grounds of the application;
(b)exhibit any documentary evidence relied on by the plaintiff in
support of the application; and
(c)if the plaintiff's claim is made under the Fatal Accidents
Ordinance, contain the particulars mentioned in section 5(4)
of that Ordinance.
(4) The summons and a copy of the affidavit in support and
any documents exhibited thereto shall be served on the defendant
against whom the order is sought not less than 10 clear days before
the return day.
(5) Notwithstanding the making or refusal of an order for an
interim payment, a second or subsequent application may be made
upon cause shown.
Order for interim payment in respect of damages (0. 29, r. 11)
11. (1) If, on the hearing of an application under rule 10 in an
action for damages, the Court is satisfied-
(a)that the defendant against whom the order is sought (in
this paragraph referred to as 'the respondent') has admit-
ted liability for the plaintiff's damages; or
(b)that the plaintiff has obtained judgment against the
respondent for damages to he assessed; or
(c)that, if the action proceeded to trial, the plaintiff would
obtain judgment for substantial damages against the
respondent or, where there are two or more defendants,
against any of them,
the Court may, if it thinks fit and subject to paragraph (2), order the
respondent to make an interim payment of such amount as it thinks
just, not exceeding a reasonable proportion of the damages which in
the opinion of the Court are likely to be recovered by the plaintiff
after taking into account any relevant contributory negligence and
any set-off, cross-claim or counterclaim on which the respondent
may be entitled to rely.
(2) No order shall be made under paragraph (1) in an action
for personal injuries if it appears to the Court that the defendant is
not a person falling within one of the following categories, namely---
(a) a person who is insured in respect of the plaintiff's claim;
(b) a public authority; or
(c)a person whose means and resources are such as to enable
him to make the interim payment.
Order for interim payment in respect of sums other than damages
(0. 29, r. 12)
12. If, on the hearing of an application under rule 10, the
Court is satisfied-
(a)that the plaintiff has obtained an order for an account to be
taken as between himself and the defendant and for any
amount certified due on taking the account to be paid; or
(b)that the plaintiffs action includes a claim for possession of
land and, if the action proceeded to trial, the defendant would
be held liable to pay to the plaintiff a sum of money in respect
of the defendant's use and occupation of the land during the
pendency of the action, even if a final judgment or order were
given or made in favour of the defendant; or
(c)that, if the action proceeded to trial, the plaintiff would obtain
judgment against the defendant for a substantial sum of
money apart from any damages or costs,
the Court may, if it thinks fit, and without prejudice to any contentions
of the parties as to the nature or character of the sum to be paid by the
defendant, order the defendant to make an interim payment of such
amount as it thinks just, after taking into account any set-off, cross-
claim or counterclaim on which the defendant may be entitled to rely.
Manner of payment (0. 29, r. 13)
13. (1) Subject to Order 80, rule 12, the amount of any interim
payment ordered to be made shall be paid to the plaintiff unless the
order provides for it to be paid into court, and where the amount is paid
into court, the Court may, on the application of the plaintiff, order the
whole or any part of it to be paid out to him at such time or times as the
Court thinks fit.
(2) An application under paragraph (1) for money in court to be
paid out may be made ex parte, but the Court hearing the application
may direct a summons to be issued.
(3) An interim payment may be ordered to be made in one sum or
by such instalments as the Court thinks fit.
(4) Where a payment is ordered in respect of the defendant's use
and occupation of land the order may provide for periodical payments
to be made during the pendency of the action.
Directions on application under rule 10 (0. 29, r. 14)
14. Where an application is made under rule 10, the Court may give
directions as to the further conduct of the action, and, so far as may be
applicable, Order 25, rules 2 to 7, shall, with the omission of so much of
rule 7(1) as requires the parties to serve a notice specifying the orders
and directions which they require and with any other necessary
modifications, apply as if the application were a summons for directions,
and, in particular, the Court may order an early trial of the action.
Non-disclosure of interim payment (0. 29, r. 15)
15. The fact that an order has been made under rule 11 or 12 shall
not be pleaded and, unless the defendant consents or the Court so
directs, no communication of that fact or of the fact that an interim
payment has been made, whether voluntarily or pursuant to
an order, shall be made to the Court at the trial, or hearing, of any
question or issue as to liability or damages until all questions of
liability and amount have been determined.
Payment into court in satisfaction (0. 29, r. 16)
16. Where, after making an interim payment, whether volun-
tarily or pursuant to an order, a defendant pays a sum of money into
court under Order 22, rule 1, the notice of payment must state that
the defendant has taken into account the interim payment.
Adjustment on final judgment or order or on discontinuance (0. 29,
r. 17)
17. Where a defendant has been ordered to make an interim
payment or has in fact made an interim payment, whether volun-
tarily or pursuant to an order, the Court may, in giving or making a
final judgment or order, or granting the plaintiff leave to discontinue
his action or to withdraw the claim in respect of which the interim
payment has been made, or at any other stage of the proceedings on
the application of any party, make such order with respect to the
interim payment as may be just, and in particular-
(a)an order for the repayment by the plaintiff of all or part of
the interim payment; or
(b) an order for the payment to be varied or discharged; or
(c)an order for the payment by any other defendant of any
part of the interim payment which the defendant who
made it is entitled to recover from him by way of contribu-
tion or indemnity or in respect of any remedy or relief
relating to or connected with the plaintiff's claim.
Counterclaims and other proceedings (0. 29, r. 18)
18. The preceding rules in this Part of this Order shall apply,
with the necessary modifications, to any counterclaim or proceeding
commenced otherwise than by writ, where one party seeks an order
for an interim payment to be made by another.
ORDER 30
RECEIVERS
Application for receiver and injunction (0. 30, r. 1)
1. (1) An application for the appointment of a receiver may
be made by summons or motion.
(2) An application for an injunction ancillary or incidental to
an order appointing a receiver may be joined with the application for
such order.
(3) Where the applicant wishes to apply for the immediate
grant of such an injunction, he may do so ex parte on affidavit.
(4) The Court hearing an application under paragraph (3)
may grant an injunction restraining the party beneficially entitled to
any interest in the property of which a receiver is sought from
assigning, charging or otherwise dealing with that property until
after the hearing of a summons for the appointment of the receiver
and may require such a summons, returnable on such date as the
Court may direct, to be issued.
Giving of security by receiver (0. 30, r. 2)
2. (1) A judgment or order directing the appointment of a
receiver may include such directions as the Court thinks fit for the
giving of security by the person appointed.
(2) Where by virtue of any judgment or order appointing a
person named therein to be a receiver, a person is required to give
security in accordance with this rule he must give security approved
by the Court duly to account for what he receives as receiver and to
deal with it as the Court directs.
(3) Unless the Court otherwise directs, the security shall be by
guarantee.
(4) The guarantee must be filed in the Registry, and it shall be
kept as of record until duly vacated.
Remuneration of receiver (0. 30, r. 3)
3. A person appointed receiver shall be allowed such proper
remuneration, if any, as may be authorized by the Court and the
Court may direct that such remuneration shall be fixed by reference
to such scales or rates of professional charges as it thinks fit.
Service of order and notice (0. 30, r. 4)
4. A copy of the judgment or order appointing a receiver shall
be served by the party having conduct of the proceedings on the
receiver and all other parties to the cause or matter in which the
receiver has been appointed.
Receiver's accounts (0. 30, r. 5)
5. (1) A receiver shall submit such accounts to such parties
at such intervals or on such dates as the Court may direct.
(2) Any party to whom a receiver is required to submit
accounts may, on giving reasonable notice to the receiver, inspect,
either personally or by an agent, the books and other papers relating
to the accounts.
(3) Any party who is dissatisfied with the accounts of the
receiver may give notice specifying the item or items to which
objection is taken and requiring the receiver within not less than 14
days to lodge his accounts with the Court and a copy of such notice
shall be lodged in the Registry.
(4) Following an examination by or on behalf of the Court of
an item or items in an account to which objection is taken the result
of such examination must be certified by the Registrar and an order
may thereupon be made as to the incidence of any costs or expenses
incurred.
Payment into court by receiver (0. 30, r. 6)
6. The Court may fix the amounts and frequency of payments
into court to be made by a receiver.
Default by receiver (0. 30, r. 7)
7. (1) Where a receiver fails to attend for the examination of
any account of his, or fails to submit any account, provide access to
any books or papers or do any other thing which he is required to
submit, provide or do, he and any or all of the parties to the cause or
matter in which he was appointed may be required to attend in
chambers to show cause for the failure, and the Court may, either in
chambers or after adjournment into court, give such directions as
it thinks proper including, if necessary, directions for the discharge
of the receiver and the appointment of another and the payment of
costs.
(2) Without prejudice to paragraph (1), where a receiver fails
to attend for the examination of any account of his or fails to submit
any account or fails to pay into court on the date fixed by the Court
any sum required to be so paid, the Court may disallow any
remuneration claimed by the receiver and may, where he has failed
to pay any such sum into court, charge him with interest at the rate
currently payable in respect of judgment debts in the High Court on
that sum while in his possession as receiver.
Directions to receivers (0, 30, r. 8)
8. A receiver may at any time request the Court to give him
directions and such a request shall state in writing the matters with
regard to which directions are required.
ORDER 31
SALES, ETC. OF LAND BY ORDER OF COURT
Power to order sale of land (0. 3 1, r. 1)
1. Where in any cause or matter relating to any land it
appears necessary or expedient for the purposes of the cause or
matter that the land or any part thereof should be sold, the Court
may order that land or part to be sold, and any party bound by the
order and in possession of that land or part, or in receipt of the rents
and profits thereof, may be compelled to deliver up such possession
or receipt to the purchaser or to such other person as the Court may
direct.
In this Order 'land' includes any interest in, or right over, land.
Manner of carrying out sale (0. 3 1, r. 2)
2. (1) Where an order is made, whether in court or in
chambers, directing any land to be sold, the Court may permit the
party or person having the conduct of the sale to sell the land in such
manner as he thinks fit, or may direct that the land be sold in such
manner as the Court may either by the order or subsequently direct
for the best price that can be obtained, and all proper parties shall
join in the sale and conveyance as the Court shall direct.
(2) The Court may give such directions as it thinks fit for the
purpose of effecting the sale, including, without prejudice to the
generality of the foregoing words, directions-
(a)appointing the party or person who is to have the conduct
of the sale;
(b)fixing the manner of sale, whether by contract conditional
on the approval of the Court, private treaty, public auc-
tion, tender or some other manner;
(e) fixing reserve or minimum price;
(d)requiring payment of the purchase money into court or to
trustees or other persons;
(e) for settling the particulars and conditions of sale;
(f) for obtaining evidence of the value of the property;
(g)fixing the security (if any) to be given by the auctioneer, if
the sale is to be by public auction, and the remuneration to
be allowed him;
(h)requiring an abstract of the title to be referred to counsel
for his opinion thereon and to settle the particulars and
conditions of sale.
Certifying result of sale (0. 3 1, r. 3)
3. (1) If either the Court has directed payment of the pur-
chase money into court or the Court so directs, the result of a sale by
order of the Court must be certified-
(a)in the case of a sale by public auction, by the auctioneer
who conducted the sale; and
(b)in any other case, by the solicitor of the party or person
having the conduct of the sale;
and the Court may require the certificate to be verified by the
affidavit of the auctioneer or solicitor, as the case may be.
(2) The solicitor of the party or person having the conduct of
the sale must file the certificate and any affidavit in the Registry.
Mortgage, exchange or partition under order of the Court (0. 3 1, r. 4)
4. Rules 2 and 3 shall, so far as applicable and with the
necessary modifications, apply in relation to the mortgage, exchange
or partition of any land under an order of the Court as they apply in
relation to the sale of any land under such an order.
ORDER32
APPLICATIONS AND PROCEEDINGS IN CHAMBERS
1. GENERAL
Mode of making application (0. 32, r. 1)
1. Except as provided by Order 25, rule 7, every application
in chambers not made ex parte must be made by summons.
Issue of summons (0. 32, r. 2)
2. (1) Issue of a summons by which an application in
chambers is to be made takes place on its being scaled with the Seal
of the Court.
(2) A summons may not be amended after issue without the
leave of the Court.
Services of summons (0. 32, r. 3)
3. A summons asking only for the extension or abridgement
of any period of time may be served on the day before the day
specified in the summons for the hearing thereof but, except as
aforesaid and unless the Court otherwise orders or any of these rules
otherwise provides, a summons must be served on every other party
not less than 2 clear days before the day so specified.
Adjournment of bearing (0. 32, r. 4)
4. (1) The hearing of a summons may be adjourned from
time to time, either generally or to a particular date, as may be
appropriate.
(2) If the hearing is adjourned generally, the party by whom
the summons was taken out may restore it to the list on 2 clear days'
notice to all the other parties on whom the summons was served.
Proceeding in absence of party failing to attend (0. 32, r. 5)
5. (1) Where any party to a summons fails to attend on the first or
any resumed hearing thereof, the Court may proceed in his absence if,
having regard to the nature of the application, it thinks it expedient so to
do.
(2) Before proceeding in the absence of any party the Court may
require to be satisfied that the summons or, as the case may be, notice
of the time appointed for the resumed hearing was duly served on that
party.
(3) Where the Court hearing a summons proceeded in the absence
of a party, then, provided that any order made on the hearing has not
been perfected, the Court, if satisfied that it is just to do so, may re-hear
the summons.
(4) Where an application made by summons has been dismissed
without a hearing by reason of the failure of the party who took out the
summons to attend the hearing, the Court, if satisfied that it is just to do
so, may allow the summons to be restored to the list.
Order made ex parte may be set aside (0. 32, r. 6)
6. The Court may set aside an order made ex parte.
Subpoena for attendance of witness (0. 32, r. 7)
7. (1) A writ of subpoena ad testificandurn or a writ of subpoena
duces tecum to compel the attendance of a witness for the purpose of
proceedings in chambers may be issued out of the Registry, if the party
who desires the attendance of the witness produces a note from a judge
or from the Registrar or a master, as the case may be, authorizing the
issue of the writ.
(2) The Registrar or any master may give such a note or may direct
the application for it be made to the judge before whom the proceedings
are to be heard.
Registrar, etc., may administer oaths, etc. (0. 32, r. 8)
8. (1) The Registrar or any master shall have authority to administer
oaths and take affidavits for the purpose of proceedings in the Court.
Applications under the Mental Health Ordinance (0. 32, r. 9)
9. (1) The jurisdiction of the Court to grant leave under section 69
of the Mental Health Ordinance to bring proceedings against a person
may be exercised in chambers by ajudge.
(2) An originating summons by which an application for leave
under the said section 69 is made shall be in Form No. 10 in Appendix
A.
(3) The application must be supported by an affidavit setting out
the grounds on which such leave is sought and any facts necessary to
substantiate those grounds.
Application for a direction under the Limitation Ordinance (0. 32, r.
9A)
9A. The jurisdiction to direct, under section 30 of the Limitation
Ordinance, that section 27 or 28 of that Ordinance should not apply to
an action or to any specified cause of action to which the action relates
shall be exercisable by the Court.
Application to make order of Privy Council order of High Court (0. 32,
r. 10)
(HK)10. An application to make an order of the Privy Council an order
of the High Court may be made ex parte by affidavit to a master.
II. POWERS OF THE REGISTRAR, JUDGES AND THE COURT
Jurisdiction of the Registrar and masters (0. 32, r. 11)
11. (1) The Registrar and any master shall have power to transact all
such business and exercise all such authority and jurisdiction as under
any Ordinance or by these rules may be transacted and exercised by
ajudge in chambers except in respect of the following matters and
proceedings, that is to say
(a) matters relating to criminal proceedings;
(b)matters relating to the liberty of the subject other than orders
for arrest and imprisonment to enforce, secure or pursue civil
claims for the payment of money and orders prohibiting
persons from leaving Hong Kong;
(d)subject to paragraph (2), proceedings for the grant of an
injunction or other order under Part 1 of Order 29;
any other matter or proceeding which by any of these rules is
required to be heard only by a judge.
(2) The Registrar and any master shall have power to grant an
injunction, or to make an order for the detention, custody or
preservation of any property, in the terms agreed by the parties to the
proceedings in which the injunction or order is sought.
Reference of matter to judge (0. 32, r. 12)
12. The Registrar and any master may refer to a judge any matter
which he thinks should properly be decided by a judge, and the judge
may either dispose of the matter or refer it back to the Registrar or to
any master, with such directions as he thinks fit.
Power to direct bearing in court (0. 32, r. 13)
13. (1) The judge in chambers may direct that any summons,
application or appeal shall be heard in court or shall be adjourned into
court to be so heard if he considers that by reason of its importance or
for any other reason it should be so heard.
(2) Any matter heard in court by virtue of a direction under
paragraph (1) may be adjourned from court into chambers.
Obtaining assistance of experts (0. 32, r. 16)
16. If the Court thinks it expedient in order to enable it better to
determine any matter arising in proceedings in chambers, it may obtain
the assistance of any person specially qualified to advise on that matter
and may act upon his opinion.
Notice of filing, etc. of affidavit (0. 32, r. 17)
17. Any party-
(a)filing an affidavit intended to be used by him in any
proceedings in chambers, or
(b)intending to use in any such proceedings any affidavit filed
by him in previous proceedings,
must give notice to every other party of the filing or, as the case may
be, of his intention to do so.
Adjournment into or from court (0. 32, r. 18)
18. The hearing of any summons or other application in chambers
may be adjourned from chambers into court and subsequently from
court into chambers.
Disposal of matters in chambers (0. 32, r. 19)
19. The judge may by any judgment or order made in court in any
proceedings direct that such matters (if any) in the proceedings as he
may specify shall be disposed of in chambers.
Papers for use of Court, etc. (0. 32, r. 21)
21. The original of any document which is to be used in evidence in
proceedings in chambers must, if it is available, be brought in, and
copies of any such document or of any part thereof shall not be made
unless the Court directs that copies of that document or part be supplied
for the use of the Court or be given to the other parties to the
proceedings.
Notes of proceedings in chambers (0. 32, r. 22)
(HK)22. A note shall be kept of all proceedings in the judge's, registrar's
or master's chamber with the dates thereof so that all such proceedings
in any cause or matter are noted in chronological order with a short
statement of the matters decided at each hearing.
TRIAL
ORDER 33
PLACE AND MODE OF TRIAL
Place of trial (0. 33, r. 1)
1. Subject to the provisions of these rules, the place of trial of a
cause or matter, or of any question or issue arising therein, shall be
determined by the Court and shall be either the Supreme Court Building
or such other place or places as may be authorized by the Chief Justice.
Mode of trial (0. 33, r. 2)
2. Subject to the provisions of these rules, a cause or matter, or any
question or issue arising therein, may be tried before
(a) a judge alone, or
(b) a judge with a jury, or
(e) a judge with the assistance of assessors, or
(e) a master.
Time, etc. of trial of questions or issues (0. 33, r. 3)
3. The Court may order any question or issue arising in a cause or
matter, whether of fact or law or partly of fact and partly of law, and
whether raised by the pleadings or otherwise, to be tried before, at or
after the trial of the cause or matter, and may give directions as to the
manner in which the question or issue shall be stated.
Determining the place and mode of trial (0. 33, r. 4)
4. (1) In every action begun by writ, an order made on the
summons for directions shall determine the place and mode of the trial;
and any such order may be varied by a subsequent order of the Court
made at or before the trial.
(2) In any such action different questions or issues may be ordered
to be tried at different places or by different modes of trial and one or
more questions or issues may be ordered to be tried before the others.
(4) Nothing in this rule affects the provisions of Order 103. rule 26,
as to actions for the infringement of a patent.
Split trial: offer on liability (0. 33, r. 4A)
4A. (1) This rule applies where an order is made under rule 4(2) for
the issue of liability to be tried before any issue or question concerning
the amount of damages to be awarded if liability is established.
(2) After the making of an order to which paragraph (1) applies, any
party against whom a finding of liability is sought may (without
prejudice to his defence) make a written offer to the other party to
accept liability up to a specified proportion.
(3) Any offer made under the preceding paragraph may be brought
to the attention of the Judge after the issue of liability has been decided,
but not before.
Trial with jury (0. 33, r. 5)
5. (1) The provisions of rule 4(1) and (2) are, as respects any action
and as respects any question of fact arising in such an action, subject to
the provisions of section 33A of the Ordinance, but an application for
trial with a jury under that section (the time for making which is, under
that section, to be limited by rules of court) must be made before the
place and mode of trial is fixed under rule 4.
(2) The powers conferred by the said section 33A on a judge may
be exercised by a master.
Trial with assistance of assessors (0. 33, r. 6)
6. A trial of a cause or matter with the assistance of assessors
under section 53 of the Ordinance shall take place in such manner and
on such terms as the Court may direct.
Dismissal of action, etc., after decision of preliminary issue (0. 33, r. 7)
7. If it appears to the Court that the decision of any question or
issue arising in a cause or matter and tried separately from the cause or
matter substantially disposes of the cause or matter or renders the trial
of the cause or matter unnecessary, it may dismiss the cause or matter or
make such other order or give such judgment therein as may be just.
ORDER 34
SETTING DOWN FOR TRIAL ACTION BEGUN BY WRIT
Application and interpretation (0. 34, r, 1)
1. (1) This Order applies to actions begun by writ and, accordingly,
references in this Order to an action shall be construed as references to
an action so begun.
Time for setting down action (0. 34, r. 2)
2. (1) Every order made in an action which provides for trial before
ajudge shall, whether the trial is to be with or without a jury, fix a period
within which the plaintiff is to set down the action for trial.
(2) Where the plaintiff does not, within the period fixed under
paragraph (1), set the action down for trial, the defendant may set the
action down for trial or may apply to the Court to dismiss the action for
want of prosecution and, on the hearing of any such application, the
Court may order the action to be dismissed accordingly or may make
such order as it thinks just.
(3) Every order made in an action which provides for trial before a
judge (otherwise than in the commercial list or in any list which may be
specified for the purposes of this paragraph by directions under rule 4)
shall contain an estimate of the length of the trial and, shall, subject to
any such directions, specify the list in which the action is to be put.
Lodging documents when setting down (0. 34, r. 3)
3. (1) In order to set down for trial an action which is to be tried
before a Judge, the party setting it down must deliver to the Registrar,
by post or otherwise, a request that the action may be set down for trial,
together with a bundle (for the use of the judge) consisting of one copy
each of the following documents that is to say
(a) the writ,
(b)the pleadings (including any affidavits ordered to stand as
pleadings) any request or order for particulars and the
particulars given,
(c) all orders made on the summons for directions, and
(d) the requisite legal aid documents, if any.
(2) The said bundle must be bound up in the proper chronological
order, save that voluntary particulars of any pleading and particulars to
which Order 18, rule 12(7) applies shall be placed immediately after the
pleading to which they relate.
(3) In this rule 'the requisite legal aid documents' means any
documents which are required by regulations 8(7) and 13(4) of the Legal
Aid Regulations made under the Legal Aid Ordinance to be filed in the
Registry.
Directions relating to lists (0. 34, r. 4)
4. Nothing in this Order shall prejudice any powers of the Chief
Justice to give directions
(a)specifying the lists in which actions, or actions of any class
or description, are to be set down for trial and providing for
the keeping and publication of the lists;
(b)providing for the determination of a date for the trial of any
action which has been set down or a date before which the
trial thereof is not to take place; and
(c)as to the making of applications (whether to the Court or an
officer of the Court) to fix, vacate or alter any such date, and,
in particular, requiring any such application to be supported
by an estimate of the length of the trial and any other relevant
information.
Notification of setting down (0. 34, r. 8)
8. (1) A party to an action who sets it down for trial must,
within 24 hours after doing so, notify the other parties to the action
that he has done so.
(2) It shall be the duty of all parties to an action entered in any
list to furnish without delay to the officer who keeps the list all
available information as to the action being or being likely to be
settled, or affecting the estimated length of the trial, and, if the
action is settled or withdrawn, to notify that officer of the fact
without delay and take such steps as may be necessary to withdraw
the record.
(3) In performance of the duty imposed by paragraph (2), a
plaintiff who gives notice of acceptance of a payment into court in
accordance with Order 22, rule 3(1), shall at the same time lodge a
copy of the notice with the officer mentioned in that paragraph.
Abatement, etc., of action (0. 34, r. 9)
9. (1) Where after an action has been set down for trial the
action becomes abated, or the interest or liability of any party to the
action is assigned or transmitted to or devolves on some other
person, the solicitor for the plaintiff or other party having the
conduct of the action must, as soon as practicable after becoming
aware of it, certify the abatement or change of interest or liability
and send the certificate to the officer who keeps the list, and that
officer shall cause the appropriate entry to be made in the list of
actions set down for trial.
(2) Where in any such list an action stands for one year
marked as abated or ordered to stand over generally, the action shall
on the expiration of that year be struck out of the list unless, in the
case of an action ordered to stand over generally, the order other-
wise provides.
ORDER 35
PROCEDURE AT TRIAL
Failure to appear by both parties or one of them (0. 35, r. 1)
1. (1) If, when the trial of an action is called on, neither
party appears, the action may be struck out of the list, without
prejudice, however, to the restoration thereof, on the direction of a
judge.
(2) If, when the trial of an action is called on, one party does
not appear, the judge may proceed with the trial of the action or any
counterclaim in the absence of that party.
Judgment, etc., given in absence of party may he set aside (0. 35, r. 2)
2. (1) Any judgment, order or verdict obtained where one
party does not appear at the trial may be set aside by the Court, on
the application of that party, on such terms as it thinks just.
(2) An application under this rule must be made within 7 days
after the trial.
Adjournment of trial (0. 35, r. 3)
3. The judge may, if he thinks it expedient in the interest of
justice, adjourn a trial for such time, and to such place, and upon
such terms, if any, as he thinks fit.
Order of speeches (0. 35, r. 7)
7. (1) The judge before whom an action is tried (whether
with or without a jury) may give directions as to the party to begin
and the order of speeches at the trial, and, subject to any such
directions, the party to begin and the order of speeches shall be that
provided by this rule.
(2) Subject to paragraph (6), the plaintiff shall begin by
opening his case.
(3) If the defendant elects not to adduce evidence, then,
whether or not the defendant has in the course of cross-examination
of a witness for the plaintiff or otherwise put in a document, the
plaintiff may, after the evidence on his behalf has been given, make a
second speech closing his case and the defendant shall then state his
case.
(4) If the defendant elects to adduce evidence, he may, after
any evidence on behalf of the plaintiff has been given, open his case
and, after the evidence on his behalf has been given, make a second
speech closing his case, and at the close of the defendant's case the
plaintiff may make a speech in reply.
(5) Where there are 2 or more defendants who appear
separately or are separately represented, then-
(a)if none of them elects to adduce evidence, each of them
shall state his case in the order in which his name appears
on the record;
(b)if each of them elects to adduce evidence, each of them may
open his case and the evidence on behalf of each of them
shall be given in the order aforesaid and the speech of each
of them closing his case shall be made in that order after
the evidence on behalf of all the defendants has been given;
(c)if some of them elect to adduce evidence and some do not,
those who do not shall state their cases in the order
aforesaid after the speech of the plaintiff in reply to the
other defendants.
(6) Where the burden of proof of all the issues in the action lies
on the defendant or, where there are two or more defendants and
they appear separately or are separately represented, on one of the
defendants, the defendant or that defendant, as the case may be,
shall be entitled to begin, and in that case paragraphs (2), (3) and (4)
shall have effect in relation to, and as between, him and the plaintiff
as if for references to the plaintiff and the defendant there were
substituted references to the defendant and the plaintiff respectively.
(7) Where, as between the plaintiff and any defendant, the
party who would, but for this paragraph, be entitled to make the
final speech raises any fresh point of law in that speech or cites in
that speech any authority not previously cited, the opposite party
may make a further speech in reply, but only in relation to that point
of law or that authority, as the case may be.
Inspection by judge or jury (0. 35, r. 8)
8. (1) The judge by whom any cause or matter is tried may
inspect any place or thing with respect to which any question arises
in the cause or matter.
(2) Where a cause or matter is tried with a jury and the judge
inspects any place or thing under paragraph (1), he may authorize
the jury to inspect it also.
Death of party before giving of judgment (0. 35, r. 9)
9. Where a party to any action dies after the verdict or finding
of the issues of fact and before judgment is given, judgment may be
given notwithstanding the death, but the foregoing provision shall
not be taken as affecting the power of the judge to make an order
under Order 15, rule 7(2), before giving judgment.
Certificate of judicial clerk (0. 3 5, r. 10)
10. At the conclusion of the trial of any action, the judicial
clerk or other officer in attendance at the trial shall make a certificate
in which he shall certify-
(a) the time actually occupied by the trial,
(b) any order made by the judge under Order 38, rule 5 or 6,
(e)every finding of fact by the jury, where the trial was with a
jury,
(d) the judgment given by the judge, and
(e) any order made by the judge as to costs.
List of exhibits (0. 35, r. 11)
11. (1) The judicial clerk or other officer in attendance at the
trial shall take charge of every document or object put in as an
exhibit during the trial of any action and shall mark or label every
exhibit with a letter or letters indicating the party by whom the
exhibit is put in or the witness by whom it is proved, and with a
number, so that all the exhibits put in by a party, or proved by a
witness, are numbered in one consecutive series.
In this paragraph a witness by whom an exhibit is proved includes
a witness in the course of whose evidence the exhibit is put in.
(2) The judicial clerk or other officer in attendance at the trial shall
cause a list to be made of all the exhibits in the action, and any party
may, on payment of the prescribed fee, have an office copy of that list.
(3) The list of exhibits when completed shall he attached to the
pleading and shall form part of the record of the action.
(4) For the purpose of this rule a bundle of documents may be
treated and counted as one exhibit.
Exhibits retained by Registrar pending appeal (0. 35, r. 12)
(HK)12. (1) Unless the Court otherwise directs, the Registrar shall retain
in his custody all exhibits duly marked and labelled until
(a)the expiration of the time limited by these rules for appealing
to the Court of Appeal, or such extended period therefor as
may be allowed; and thereafter
(b)in the event of an appeal to the Court of Appeal, the final
disposal of such appeal; and thereafter
(c)the expiration of the time limited by Order in Council for
applying to the Court of Appeal for leave to appeal to Her
Majesty in Council, or such extended period therefor as may
be allowed; and thereafter
(d)in the event of the Court of Appeal or Her Majesty in Council
giving leave to appeal to Her Majesty in Council, the
nonfulfilment of any condition for such leave to appeal or the
final disposal of such appeal.
(2) Unless the Court otherwise directs, upon the expiration of the
time limited for retention of exhibits fixed under paragraph (1) it shall be
the duty of every party to an action who has put in any exhibits, and
where represented, of his solicitor on the record, to apply to the
Registrar for the return of the exhibits and to collect the same.
Impounded documents (0. 35, r. 13)
13. (1) Documents impounded by order of the Court shall not be
delivered out of the custody of the Court except in compliance with an
order made by a judge on an application made by motion: Provided that
where the Attorney General makes a written request in that behalf,
documents so impounded shall be delivered into his custody.
(2) Documents impounded by order of the Court, while in the
custody of the Court, shall not be inspected except by a person
authorized to do so by an order signed by ajudge.
ORDER 36
TRIALS BEFORE, AND INQUIRIES BY,
MASTER
Trial before, and inquiry by, master (0. 36, r. 1)
(HK)1. In any cause or matter other than a criminal proceeding by the
Crown, the Court may, with the consent of the parties, order that the
cause or matter, or any question or issue of fact arising therein, be tried
before a master or that the master do inquire and report thereon and, in
the case of inquiry and report, giving consequential directions.
Power of master (0. 36, r. 4)
4. (1) Subject to any directions contained in the order made
pursuant to rule 1
(a)the master shall for the purposes of the trial or inquiry
(including any interlocutory application therein) have the
same jurisdiction, powers and duties (including the power of
committal and discretion as to costs) as a judge, exercisable
or, as the case may be, to be performed as nearly as
circumstances admit, in the like cases, in the like manner and
subject to the like limitations; and
(b)every trial and all other proceedings before a master shall, as
nearly as circumstances admit, be conducted in the like
manner as the like proceedings before ajudge.
(2) Without prejudice to the generality of paragraph (1) but subject
to any such directions as are mentioned therein the master before whom
any cause or matter is tried shall have the like powers as the Court with
respect to claims relating to or connected with the original subject-
matter of the cause or matter by any party thereto against any other
person and Order 15, rule 5(2) and Order 16 shall with any necessary
modifications apply in relation to any such claim accordingly.
Report on reference (0. 36, r. 9)
9. (1) The report made by a master in pursuance of a reference
under rule 1 shall be made to the Court and notice thereof served on the
parties to the reference.
(2) The master may in his report submit any question arising
therein for the decision of the Court or make a special statement of acts
from which the Court may draw such inferences as it thinks fit.
(3) On receipt of the master's report the Court may-
(a) adopt the report in whole or in part;
(b) vary the report;
(c) require an explanation from him;
(d)remit the whole or any part of the question or issue originally
referred to him for further consideration by him or any other
master; or
(e)decide the question originally referred to him on the evidence
taken before him either with or without additional evidence.
(4) When the report of the master has been made, an application to
vary the report or remit the whole or any part of the question or issue
originally referred may be made on the hearing by the Court of further
consideration of the cause or matter, after giving not less than 4 days'
notice thereof, and any other application with respect to the report may
be made on that hearing without notice.
ORDER 37
DAMAGES: ASSESSMENT AFTER JUDGMENT AND
ORDERS FOR
PROVISIONAL DAMAGES
1. ASSESSMENT OF DAMAGES AFTER
JUDGMENT
Assessment of damages by a master (0. 37, r. 1)
1. (1) Where judgment is given for damages to be assessed and no
provision is made by the judgment as to how they are to be assessed,
the damages shall, subject to the provisions of this Order, be assessed
by a master, and the party entitled to the benefit of the judgment may,
after obtaining the necessary appointment from a master and, at least 7
days before the date of the appointment, serving notice of the
appointment on the party against whom the judgment is given, proceed
accordingly.
14
Notwithstanding anything in Order 65, rule 9, a notice under this
rule must be served on the party against whom the judgment is given.
(3) The attendance of witnesses and the production of documents
before a master in proceedings under this Order may be compelled by
writ of subpoena, and the provisions of Order 35 shall, with the
necessary adaptations, apply in relation to those proceedings as they
apply in relation to proceedings at a trial.
Certificate of amount of damages (0. 37, r. 2)
2. Where in pursuance of this Order or otherwise damages are
assessed by a master, he shall certify the amount of the damages and
the certificate shall, when judgment is entered, be filed in the Registry.
Default judgment against some but not all defendants (0. 37, r. 3)
3. Where any such judgment as is mentioned in rule lis given on
failure to give notice of intention to defend or in default of
defence, and the action proceeds against other defendants, the
damages under the judgment shall be assessed at the trial unless the
Court otherwise orders.
Power to order assessment at trial (0. 37, r. 4)
4. (1) Where judgment is given for damages to be assessed, the
Court may
(d)order that the action shall proceed to trial before a judge (with
or without a jury) as respects the damages.
(3) Where the Court orders that the action shall proceed to trial,
Order 25, rules 2 to 7, shall, with the omission of so much of rule 7(1) as
requires the parties to serve a notice specifying the orders and
directions which they desire and with any other necessary
modifications, apply as if the application to the Court in pursuance of
which the Court makes the order, were a summons for directions under
Order 25.
Assessment of value (0. 37, r. 5)
5. The foregoing provisions of this Order shall apply in relation to a
judgment for the value of goods to be assessed, with or without
damages to be assessed, as they apply to a judgment for damages to be
assessed, and references in those provisions to the assessment of
damages shall be construed accordingly.
Assessment of damages to time of assessment (0. 37, r. 6)
6. Where damages are to be assessed (whether under this Order or
otherwise) in respect of any continuing cause of action, they shall be
assessed down to the time of the assessment.
11. ORDERS FOR PROVISIONAL DAMAGES FOR PERSONAL INJURIES
Application and interpretation (0. 37, r. 7)
7. (1) This Part of this Order applies to actions to which section
56A of the Ordinance (in this Part of this Order referred to as 'section
56A') applies.
(2) In this Part of this Order 'award of provisional damages' means
an award of damages for personal injuries under which
(a)damages are assessed on the assumption that the injured
person will not develop the disease or suffer the deterioration
referred to in section 56A; and
(b)the injured person is entitled to apply for further damages at a
future date if he develops the disease or suffers the
deterioration.
Abstract
(Cap. 6.) (Cap. 32) (Cap. 10.) (Cap. 179.) (Cap. 290.) (Cap. 189.) (Cap. 1.) (Cap. 4.) (Cap. 1.) (Cap. 1.) (Cap. 149.) App. A. Form 1. App. A. Forms 8, 10, 11. App. A. Forms 13, 38. App. A. Form 14. App. A. Form 15. (1961 c. 27.) (1978 c. 33.) (1961 c. 27.) App. A. Forms 14, 15. App. A. Form 39. App. A. Form 40. App. A. Form 41. App. A. Form 42. (1978 c. 33.) App. A. Form 44. App. A. Form 14. App. A. Form 17. (Cap. 347.) (Cap. 347.) App. A. Forms 14, 15. App. A. Forms 20, 21. App. A. Form 14. (Cap. 377.) App. A. Form 10. (Cap. 8.) (Cap. 281) (Cap. 369) App. A. Form 39. App. A. Form 40. App. A. Form 41. App. A. Form 42. App. A. Form 23. (Cap. 22.) (Cap. 23.) App. A. Form 23. App. A. Form 24. (Cap. 22.) (Cap. 23.) (Cap. 91.) (Cap. 272.) (Cap. 4, sub. leg.) (Cap. 29.) App. A. Form 26. App. A. Form 27. (Cap. 8.) (Cap. 336.) (Cap. 22.) App. A. Form 8. App. A. Form 12. App. A. Form 10. App. A. Form 8. App. A. Form 10. App. A. Forms 8, 10. (Cap. 22.) (Cap. 136.) App. A. Form 10. (Cap. 347.) App. A. Form 48. (Cap. 91.) (Cap. 8.) (Cap. 8.) (Cap. 8.) App. A. Forms 28, 29. (Cap. 8.) (Cap. 8.) App. A. Forms 31, 32. App. A. Forms 33, 34. App. A. Forms 36, 37. App. A. Form 35. App. A. Forms 39-46, 48, 49. (Cap. 159.) App. A. Forms 52, 15. App. A. Form 106. App. C. Form 5. App. A. Forms 53-67. App. A. Form 69. App. A. Form 71. (Cap. 128.) App. A. Forms 72-74. App. A. Forms 73, 74. App. A. Form 53. (Cap. 1.) App. A. Form 102. App. A. Form 103. App. A. Form 104. App. A. Form 105. App. A. Forms 75, 76. App. A. Form 76. App. A. Form 79. App. A. Form 80. App. A. Form 10. App. A. Form 81. App. A. Form 10. App. A. Form 84. App. A. Forms 82, 83. App. A. Form 85. (Cap. 136.) App. A. Form 86A. App. A. Forms 87, 88. App. A. Form 90. App. A. Forms 89, 91, 92. (Cap. 227.) (Cap. 341.) (Cap. 336.) (Cap. 336.) App. A. Form 99. (Cap. 341.) (Cap. 336.) (Cap. 336.) (Cap. 91.) App. A. Form 50. App. A. Form 51. App. A. Form 51. (Cap. 159.) (Cap. 336.) (Cap. 91.) (Cap. 136.) (Cap. 136.) (Cap. 22.) (Cap. 136.) (Cap. 136.) (Cap. 22.) (1894 c. 60.) (Cap. 22.) First Schedule. (Cap. 159.) First Schedule. Second Schedule. (Cap. 91.) (Cap. 42.) (Cap. 336.) (Cap. 38.) (Cap. 149.) (Cap. 1.) (Cap. 300.) (Cap. 91.) (Cap. 91.) (Cap. 179.) (Cap. 91.) (Cap. 8.) App. A. Form 63. (Cap. 319.) App. A. Form 10. (1982 c. 37.) App. A. Form 10. App. A. Form 94. (Cap. 341.) (Cap. 341.) (Cap. 341.) App. A. Form 10. (Cap. 341.) (Cap. 341.) (Cap. 319.) (Cap. 341.) App. A. Form 10. App. A. Form 100. App. A. Form 101. (Cap. 4, sub. leg.) (Cap. 29.) (1894, c. 60.) App. B. Form 14. (Cap. 369.) (1974 c. 43.) (1971 c. 59.) App. B. Form 1. App. A. Form 1. App. B. Form 2. App. B. Form 2B. App. B. Form 2B. App. A. Form 14. App. B. Form 3. App. B. Form 15. (1971 c. 59.) App. B. Form 5. App. B. Form 6. App. B. Form 7. App. B. Form 9. App. B. Form 10. App. B. Form 11. (Cap. 159.) App. B. Form 12. App. B. Form 13. (Cap. 8.) (1894c. 60.) (1894 c. 60.) (Cap. 10.) (Cap. 10.) (Cap. 10.) (Cap. 10.) (Cap. 10.) (Cap. 300.) (Cap. 300.) App. A. Form 96. (Cap. 300.) App. A. Form 95 & Form 96. (Cap. 300.) (Cap. 300.) App. A. Form 10. (Cap. 300.) (Cap. 336.) (Cap. 300.) (Cap. 336.) (1983 c. 20.) (Cap. 136.) (Cap. 22.) App. A. Form 10. (1894 c. 60.) (Cap. 22.) (Cap. 23.) (Cap. 38.) (Cap. 21.) (Cap. 21.) App. A. Form 10. (Cap. 163.) (Cap. 163.) (Cap. 26.) (Cap. 182.) (Cap. 182.) (Cap. 174.) (Cap. 290.) (Cap. 13.) (Cap. 13.) (Cap. 336.) (Cap. 179, sub. leg.) (Cap. 179.) (Cap. 13.) (Cap. 29.) (Cap. 4, sub. leg.) (Cap. 253.) (1956 c. 74, S.I. 1972/1724; S.I. 1979/910.) (Cap. 20.) App. A. Form 10. (Cap. 20.) App. A. Form 10. (Cap. 6.) (Cap. 43.) (Cap. 32.) App. A. Form 10. App. A. Form 10. (1977 c. 37.) (Cap. 42.) (Cap. 29.) (Cap. 159.) App. A. Form 10. App. A. Form 11A. (1812 c. 101.) Not applicable if the defendant is a company served at its registered office. *Where words appear between square brackets, delete if inapplicable *Where words appear between square brackets, delete if inapplicable
Extent
Order for provisional damages (0. 37, r. 8)
8. (1) The Court may on such terms as it thinks just and subject to
the provisions of this rule make an award of provisional damages if
(a)the plaintiff has pleaded a claim for provisional damages, and
(b)the Court is satisfied that the action is one to which section
56A applies.
(2) An order for an award of provisional damages shall specify the
disease or type of deterioration in respect of which an application may
be made at a future date, and shall also, unless the Court otherwise
determines, specify the period within which such application may be
made.
(3) The Court may, on the application of the plaintiff made within
the period, if any, specified in paragraph (2), by order extend that period
if it thinks it just to do so, and the plaintiff may make more than one
such application.
(4) An order for an award of provisional damages may be made in
respect of more than one disease or type of deterioration and may in
respect of each disease or deterioration specify a different period within
which an application may be made at a future date.
(5) Orders 13 and 19 shall not apply in relation to an action in
which the plaintiff claims provisional damages.
Offer to submit to an award (0. 37, r. 9)
9. (1) Where an application is made for an award of provisional
damages, any defendant may at any time (whether or not he makes a
payment into court) make a written offer to the plaintiff--
(a)to tender a sum of money (which may include an amount, to
be specified, in respect of interest) in satisfaction of the
plaintiff's claim for damages assessed on the assumption that
the injured person will not develop the disease or suffer the
deterioration referred to in section 56A; and
(b) to agree to the making of an award of provisional damages.
(2) Any offer made under paragraph (1) shall not be brought to the
attention of the Court until after the Court has determined the claim for
an award of provisional damages.
(3) Where an offer is made under paragraph (1), the plaintiff may,
within 21 days after receipt of the offer, give written notice to the
defendant of his acceptance of the offer and shall on such acceptance
make an application to the Court for an order in accordance with the
provisions of rule 8(2).
Application for award of further damages (0. 37, r. 10)
10. (1) This rule applies where the plaintiff, pursuant to an award of
provisional damages, claims further damages.
(2) No application for further damages may be made after the
expiration of the period, if any, specified under rule 8(2), or of such
period as extended under rule 8(3).
(3) The plaintiff shall give not less than three months' written
notice to the defendant of his intention to apply for further damages
and, if the defendant is to the plaintiff's knowledge insured in respect of
the plaintiff's claim, to the insurers.
(4) The plaintiff must take out a summons for directions as to the
future conduct of the action within 21 days after the expiry of the period
of notice referred to in paragraph (3).
(5) On the hearing of the summons for directions the Court shall
give such directions as may be appropriate for the future conduct of the
action, including, but not limited to, the disclosure of medical reports
and the place, mode and date of the hearing of the application for further
damages.
(6) Only one application for further damages may be made in
respect of each disease or type of deterioration specified in the order for
the award of provisional damages.
(7) The provisions of Order 29 with regard to the making of interim
payments shall, with the necessary modifications, apply where an
application is made under this rule.
(8) The Court may include in an award of further damages simple
interest at such rate as it thinks fit on all or any part thereof for all or any
part of the period between the date of notification of the plaintiff's
intention to apply for further damages and the date of the award.
ORDER 38
EVIDENCE
1. GENERAL RULES
General rule: witnesses to he examined orally (0. 38, r. 1)
1. Subject to the provisions of these rules and of the Evidence
Ordinance and any other written law relating to evidence, any fact
required to be proved at the trial of any action begun by writ by the
evidence of witnesses shall be proved by the examination of the
witnesses orally and in open court.
Evidence by affidavit (0. 38, r. 2)
2. (1) The Court may, at or before the trial of an action begun by
writ, order that the affidavit of any witness may be read at the trial if in
the circumstances of the case it thinks it reasonable so to order.
(2) An order under paragraph (1) may be made on such terms as to
the filing and giving of copies of the affidavits and as to the production
of the deponents for cross-examination as the Court thinks fit but,
subject to any such terms and to any subsequent order of the Court, the
deponents shall not be subject to cross-examination and need not
attend the trial for the purpose.
(3) In any cause or matter begun by originating summons,
originating motion or petition, and on any application made by
summons or motion, evidence may be given by affidavit unless in the
case of any such cause, matter or application any provision of these
rules otherwise provides or the Court otherwise directs, but the Court
may, on the application of any party, order the attendance for cross-
examination of the person making any such affidavit, and where, after
such an order has been made, the person in question does not attend,
his affidavit shall not be used as evidence without the leave of the
Court.
Exchange of witness statements (0. 38, r. 2A)
2A. (2) At any stage in any cause or matter, the Court may, if it
thinks fit for the purpose of disposing fairly and expeditiously of the
cause or matter and saving costs, direct any party to serve on the other
parties, on such terms as the Court shall think just, written statements of
the oral evidence which the party intends to lead on any issues of fact
to be decided at the trial.
(3) Directions given under paragraph (2) may-
(a)make different provision with regard to different issues of fact
or different witnesses;
(b)require any written statement served to be signed by the
intended witness;
(c) require that statements be filed with the Court.
(4) Subject to paragraph (6), where the party serving a statement
under paragraph (2) does not call the witness to whose evidence it
relates no other party may put the statement in evidence at the trial.
(5) Subject to paragraph (6) and unless the Court otherwise orders,
where the party serving the statement does call such a witness at the
trial
(a)that party may not without the consent of the other parties or
the leave of the Court lead evidence from that witness the
substance of which is not included in the statement served,
except in relation to new matters which have arisen in the
course of the trial;
(b)the Court may, on such terms as it thinks fit, direct that the
statement served, or part of it, shall stand as the evidence in
chief of the witness or part of such evidence;
(e)whether or not the statement or any part of it is referred to
during the evidence in chief of the witness, any party may
put the statement or any part of it in cross-examination of
that witness.
(6) Where any statement served is one to which the Evidence
Ordinance applies, paragraphs (4) and (5) shall take effect subject to
the provisions of that Ordinance and Parts 111 and IV of this Order.
The service of a statement pursuant to a direction given under para-
graph (2) shall not, unless expressly so stated by the party serving the
same, be treated as a notice under the said Ordinance.
(7) Where a party fails to comply with a direction given under
paragraph (2) he shall not be entitled to adduce evidence to which
such direction related without the leave of the Court.
(8) Nothing in this rule shall deprive any party of his right to
treat any communication as privileged or make admissible evidence
otherwise inadmissible.
Evidence of particular facts (0. 38. r. 3)
3. (1) Without prejudice to rule 2, the Court may, at or
before the trial of any action, order that evidence of any particular
fact shall be given at the trial in such manner as may be specified by
the order.
(2) The power conferred by paragraph (1) extends in partic-
ular to ordering that evidence of any particular fact may be given at
the trial-
(a) by statement on oath of information or belief, or
(b) by the production of documents or entries in books, or
(c) by copies of documents or entries in books, or
(d)in the case of a fact which is or was a matter of common
knowledge either generally or in a particular district, by
the production of a specified newspaper which contains
a statement of that fact.
Limitation of expert evidence (0. 38, r. 4)
4. The Court may, at or before the trial of any action, order
that the number of medical or other expert witnesses who may be
called at the trial shall be limited as specified by the order.
Limitation of plans, etc., in evidence (0. 38, r. 5)
5. Unless, at or before the trial, the Court for special reasons
otherwise orders, no plan, photograph or model shall be receivable
in evidence at the trial of an action unless at least 10 days before the
commencement of the trial the parties, other than the party produc-
ing it, have been given an opportunity to inspect it and to agree to
the admission thereof without further proof.
Revocation or variation of orders under rules 2 to 5 (0. 38, r. 6)
6. Any order under rules 2 to 5 (including an order made on appeal)
may, on sufficient cause being shown, be revoked or varied by a
subsequent order of the Court made at or before the trial.
Evidence of finding on foreign law (0. 38, r. 7)
7. (1) A party to any cause or matter who intends to adduce in
evidence a finding or decision on a question of foreign law by virtue of
section 59 of the Evidence Ordinance shall
(a)in the case of an action to which Order 25, rule 1, applies
within 14 days after the pleadings in the action are deemed to
be closed, and
(b)in the case of any other cause or matter, within 21 days after
the date on which an appointment for the first hearing of the
cause or matter is obtained,
or in either case, within such other period as the Court may specify,
serve notice of his intention on every other party to the proceedings.
(2) The notice shall specify the question on which the finding or
decision was given or made and specify the document in which it is
reported or recorded in citable form.
(3) In any cause or matter in which evidence may be given by
affidavit, an affidavit specifying the matters contained in paragraph (2)
shall constitute notice under paragraph (1) if served within the period
mentioned in that paragraph.
Application to trials of issues, references, etc. (0. 38, r. 8)
8. The foregoing rules of this Order shall apply to trials of issues or
questions of fact or law, references, inquiries and assessments of
damages as they apply to the trial of actions.
Depositions: when receivable in evidence at trial (0. 38, r. 9)
9. (1) No deposition taken in any cause or matter shall be received
in evidence at the trial of the cause or matter unless
(a)the deposition was taken in pursuance of an order under
Order 39, rule 1, and
(b)either the party against whom the evidence is offered
consents or it is proved to the satisfaction of the Court that
the deponent is dead, or beyond the jurisdiction of the Court
or unable from sickness or other infirmity to attend the trial.
(2) A party intending to use any deposition in evidence at the trial
of a cause or matter must, a reasonable time before the trial, give notice
of his intention to do so to the other party.
(3) A deposition purporting to be signed by the person before
whom it was taken shall be receivable in evidence without proof of the
signature being the signature of that person.
Supreme Court documents admissible or receivable in evidence (0. 38,
r. 10)
10. (1) Office copies of writs, records, pleadings and docu-
ments filed in the Supreme Court shall be admissible in evidence in
any cause or matter and between all parties to the same extent as the
original would be admissible.
(2) Without prejudice to the provisions of any enactment,
every document purporting to be sealed with the seal of any office or
department of the Supreme Court shall be received in evidence
without further proof, and any document purporting to be so sealed
and to be a copy of a document filed in, or issued out of, that office
or department shall be deemed to be an office copy of that document
without further proof unless the contrary is shown.
Evidence of consent of new trustee to act (0. 38, r. 11)
11. A document purporting to contain the written consent of a
person to act as trustee and to bear his signature verified by some
other person shall be evidence of such consent.
Evidence at trial may he used in subsequent proceedings (0. 38, r. 12)
12. Any evidence taken at the trial of any cause or matter may
be used in any subsequent proceedings in that cause or matter.
Order to produce document at proceeding other than trial (0. 38, r. 13)
13. (1) At any stage in a cause or matter the Court may order
any person to attend any proceeding in the cause or matter and
produce any document, to be specified or described in the order, the
production of which appears to the Court to be necessary for the
purpose of that proceeding.
(2) No person shall be compelled by an order under para-
graph (1) to produce any document at a proceeding in a cause or
matter which he could not be compelled to produce at the trial of
that cause or matter.
11. WRITS OF SUBPOENA
Form and issue of writ of subpoena (0. 38, r. 14)
14. (1) A writ of subpoena must be in Form No. 28 or 29 in
Appendix A, whichever is appropriate.
(2) Issue of a writ of subpoena takes place upon its being
sealed by an officer of the Court.
(3) Where a writ of subpoena is to be issued in a cause or
matter in the Court, the appropriate office for the issue of the writ is
the Registry.
(HK)(5) Before a writ of subpoena is issued a praecipe for the issue of
the writ must be filed in the Registry together with a note from a judge or
master authorizing the issue of such writ and the sum of $500 shall be
deposited in the Registry, in addition to any fee payable in respect of
such issue, as a deposit in respect of the witness' reasonable expenses;
and the praccipe must contain the name and address of the party issuing
the writ, if he is acting in person, or the name or firm and business
address of that party's solicitor and also (if the solicitor is the agent of
another) the name or firm and business address of his principal.
(HK)(6) In any proceedings, whether in chambers or in court, the Court
may order the reimbursement by one or more of the parties to a witness
who has been served with a writ of subpoena in respect of any expenses
reasonably and properly incurred by that witness.
(HK)(7) Any expenses so ordered by the Court to be paid shall be
assessed by the Court making the order or, if no such assessment is
made by the Court, shall be taxed (if not agreed) and paid by the party
ordered to make such payment.
(HK)(8) A witness whose expenses have been ordered to be paid may, if
the party ordered to make such payment is the party who made the
deposit on issue of the writ of subpoena, recover such expenses, after
assessment, agreement or taxation, from the said deposit and look to the
party liable to make such payment for the balance, if any.
(HK)(9) The deposit (or such part of it as shall remain after payment to
the witness under rule 14(8)) shall be refunded to the party that paid the
deposit if
(a)that party was not ordered to pay the costs of the witness; or
(b)that party was ordered to pay the costs of the witness and
has effected payment of such costs after assessment,
agreement or taxation.
More than one name may be included in one writ of subpoena (0. 38, r.
15)
15. The names of two or more persons may be included in one writ
of subpoena ad testificandum.
Amendment of writ of subpoena (0. 38, r. 16)
16. Where there is a mistake in any person's name or address in a
writ of subpoena, then, if the writ has not been served, the party by
whom the writ was issued may have the writ re-sealed in correct form by
filing a second praecipe under rule 14(5) endorsed with the words
'Amended and re-sealed'.
Service of writ of subpoena (0. 38, r. 17)
17. A writ of subpoena must be served personally and, subject to
rule 19, the service shall not be valid unless effected within 12 weeks
after the date of issue of the writ and not less than four days, or such
other period as the Court may fix, before the day on which attendance
before the Court is required.
Duration of writ of subpoena (0. 38, r. 18)
18. Subject to rule 19, a writ of subpoena continues to have effect
until the conclusion of the trial at which the attendance of the witness is
required.
Writ of subpoena in aid of inferior court or tribunal (0. 38, r. 19)
19. (1) The office of the Court out of which a writ of subpoena ad
testificandum or a writ of subpoena duces tecum in aid of an inferior
court or tribunal may be issued is the Registry, and no order of the
Court for the issue of such a writ is necessary.
(2) A writ of subpoena in aid of an inferior court or tribunal
continues to have effect until the disposal of the proceedings before
that court or tribunal at which the attendance of the witness is required.
(3) A writ of subpoena issued in aid of an inferior court or tribunal
must be served personally.
(4) Unless a writ of subpoena issued in aid of an inferior court or
tribunal is duly served on the person to whom it is directed not less
than 4 days, or such other period as the Court may fix, before the day on
which the attendance of that person before the court or tribunal is
required by the writ, that person shall not be liable to any penalty or
process for failing to obey the writ.
(5) An application to set aside a writ of subpoena issued in aid of
an inferior court or tribunal may be heard by a master.
HEARSAY EVIDENCE
Interpretation and application (0. 38, r. 20)
20. (1) In this Part of this Order 'the Ordinance' means the
Evidence Ordinance and any expressions used in this Part and in Parts
IV and V of the Ordinance have the same meanings in this Part as they
have in the said Parts IV and V.
(2) This Part of this Order shall apply in relation to the trial or
hearing of an issue or question arising in a cause or matter, and to a
reference, inquiry and assessment of damages, as it applies in relation
to the trial or hearing of a cause or matter.
Notice of intention to give certain statements in evidence (0. 3 8, r. 2 1)
21. (1) Subject to the provisions of this rule, a party to a cause
or matter who desires to give in evidence at the trial or hearing of the
cause or matter any statement which is admissible in evidence by
virtue of section 47, 49 or 50 of the Ordinance must-
(a)in the case of a cause or matter which is required to be set
down for trial or hearing or adjourned into court, within
21 days after it is set down or so adjourned, or within such
other period as the Court may specify; and
(b)in the case of any other cause or matter, within 21 days
after the date on which an appointment for the first
hearing of the cause or matter is obtained, or within such
other period as the Court may specify,
serve on every other party to the cause or matter notice of his desire
to do so, and the notice must comply with the provisions of rule 22,
23 or 24, as the circumstances of the case require.
(2) Paragraph (1) shall not apply in relation to any statement
which is admissible as evidence of any fact stated therein by virtue
not only of section 47, 49 or 50 of the Ordinance but by virtue also of
any other statutory provision within the meaning of section 46 of the
Ordinance.
(3) Paragraph (1) shall not apply in relation to any statement
which any party to a probate action desires to give in evidence at the
trial of that action and which is alleged to have been made by the
deceased person whose estate is the subject of the action.
(4) Where by virtue of any provision of these rules or of any
order or direction of the Court the evidence in any proceedings is to
be given by affidavit then, without prejudice to paragraph (2),
paragraph (1) shall not apply in relation to any statement which any
party to the proceedings desires to have included in any affidavit to
be used on his behalf in the proceedings, but nothing in this
paragraph shall affect the operation of rule 5 of Order 41, or the
powers of the Court under rule 3 of this Order.
(5) Rule 9 of Order 65 shall not apply to a notice under this
rule but the Court may direct that the notice need not be served on
any party who at the time when service is to be effected is in default
as to acknowledgment of service or who has no address for service.
Statement admissible by virtue of section 47 of the Ordinance:
contents of notice (0. 38, r. 22)
22. (1) If the statement is admissible by virtue of section 47 of
the Ordinance and was made otherwise than in a document, the
notice must contain particulars of--
(a)the time, place and circumstances at or in which the
statement was made;
(b)the person by whom, and the person to whom, the state-
ment was made; and
(c)the substance of the statement or, if material, the words
used.
(2) If the statement is admissible by virtue of section 47 of the
Ordinance and was made in a document, a copy or transcript of the
document, or of the relevant part thereof, must be annexed to the
notice and the notice must contain such (if any) of the particulars
mentioned in paragraph (1)(a) and (b) as are not apparent on the
face of the document or part.
(3) If the party giving the notice alleges that any person,
particulars of whom are contained in the notice, cannot or should
not be called as a witness at the trial or hearing for any of the reasons
specified in rule 25, the notice must contain a statement to that effect
specifying the reason relied on.
Statement admissible by virtue of section 49 of the Ordinance:
contents of notice (0. 38, r. 23)
23. (1) If the statement is admissible by virtue of section 49 of
the Ordinance, the notice must have annexed to it a copy or
transcript of the document containing the statement, or of the
relevant part thereof, and must contain-
(a) particulars of-
(i) the person by whom the record containing the
statement was compiled;
(ii) the person who originally supplied the information
from which the record was compiled; and
(iii) any other person through whom that information
was supplied to the compiler of that record,
and, in the case of any such person as is referred to in (i) or
(iii) above, a description of the duty under which that
person was acting when compiling that record or supplying
information from which that record was compiled, as the
case may be;
(b)if not apparent on the face of the document annexed to the
notice, a description of the nature of the record which, or
part of which, contains the statement; and
(c)particulars of the time, place and circumstances at or in
which that record or part was compiled.
(2) If the party giving the notice alleges that any person,
particulars of whom are contained in the notice, cannot or should
not be called as a witness at the trial or hearing for any of the reasons
specified in rule 25, the notice must contain a statement to that effect
specifying the reason relied on.
Statement admissible by virtue of section 50 of the Ordinance:
contents of notice (0. 38, r. 24)
24. (1) If the statement is contained in a document produced
by a computer and is admissible by virtue of section 50 of the
Ordinance, the notice must have annexed to it a copy or transcript of
the document containing the statement, or of the relevant part
thereof, and must contain particulars of-
(a)a person who occupied a responsible position in relation to
the management of the relevant activities for the purpose
of which the computer was used regularly during the
material period to store or process information;
(b)a person who at the material time occupied such a position
in relation to the supply of information to the computer,
being information which is reproduced in the statement or
information from which the information contained in the
statement is derived; and
(c)a person who occupied such a position in relation to the
operation of the computer during the material period,
and where there are two or more persons who fall within sub-
paragraph (a), (b) or (c) and some only of those persons are at the
date of service of the notice capable of being called as witnesses at
the trial or hearing, the person particulars of whom are to be
contained in the notice must be such one of those persons as is at
that date so capable.
(2) The notice must also state whether the computer was
operating properly throughout the material period and, if not,
whether any respect in which it was not operating properly or was
out of operation during any part of that period was such as to affect
the production of the document in which the statement is contained
or the accuracy of its contents.
(3) If the party giving the notice alleges that any person,
particulars of whom are contained in the notice, cannot or should
not be called as a witness at the trial or hearing for any of the reasons
specified in rule 25, the notice must contain a statement to that effect
specifying the reason relied on.
Reasons for not calling a person as a witness (0. 38, r. 25)
25. The reasons referred to in rules 22(3), 23(2) and 24(3) are
that the person in question is dead, or beyond the seas or unfit by
reason of his bodily or mental condition to attend as a witness or
that despite the exercise of reasonable diligence it has not been
possible to identify or find him or that he cannot reasonably be
expected to have any recollection of matters relevant to the accuracy
or otherwise of the statement to which the notice relates.
Counter-notice requiring person to he called as a witness (0. 38, r. 26)
26. (1) Subject to paragraphs (2) and (3), any party to a cause
or matter on whom a notice under rule 21 is served may. within 21
days after service of the notice on him, serve on the party who gave
the notice a counter-notice requiring that party to call as a witness at
the trial or hearing of the cause or matter any person (naming him)
particulars of whom are contained in the notice.
(2) Where any notice under rule 21 contains a statement that
any person, particulars of whom are contained in the notice, cannot
or should not be called as a witness for the reason specified therein, a
party shall not be entitled to serve a counter-notice under this rule
requiring that person to be called as a witness at the trial or hearing
of the cause or matter unless he contends that that person can or, as
the case may be, should be called, and in that case he must include in
his counter-notice a statement to that effect.
(3) Where a statement to which a notice under rule 21 relates is
one to which rule 28 applies, no party on whom the notice is served
shall be entitled to serve a counter-notice under this rule in relation
to that statement, but this provision is without prejudice to the right
of any party to apply to the Court under rule 28 for directions with
respect to the admissibility of that statement.
(4) If any party to a cause or matter by whom a notice under
rule 21 is served fails to comply with a counter-notice duly served on
him under this rule, then, unless any of the reasons specified in rule
25 applies in relation to the person named in the counter-notice, and
without prejudice to the powers of the Court under rule 29, the
statement to which the notice under rule 21 relates shall not be
admissible at the trial or hearing of the cause or matter as evidence
of any fact stated therein by virtue of section 47, 49 or 50 of the
Ordinance, as the case may be.
Determination of question whether person can or should he called as
a witness (0. 38, r. 27)
27. (1) Where in any cause or matter a question arises
whether any of the reasons specified in rule 25 applies in relation to a
person, particulars of whom are contained in a notice under rule 2 1,
the Court may, on the application of any party to the cause or
matter, determine that question before the trial or hearing of the
cause or matter or give directions for it to be determined before
the trial or hearing and for the manner in which it is to be so
determined.
(2) Unless the Court otherwise directs, the summons by which
an application under paragraph (1) is made must be served by the
party making the application on every other party to the cause or
matter.
(3) Where any such question as is referred to in paragraph (1)
has been determined under or by virtue of that paragraph, no
application to have it determined afresh at the trial or hearing of the
cause or matter may be made unless the evidence which it is sought
to adduce in support of the application could not, with reasonable
diligence, have been adduced at the hearing which resulted in the
determination.
Directions with respect to statement made in previous proceedings (0.
38, r. 28)
28. Where a party to a cause or matter has given notice in
accordance with rule 21 that he desires to give in evidence at the trial or
hearing of the cause or matter--
(a)a statement falling within section 47(1) of the Ordinance which
was made by a person, whether orally or in a document, in the
course of giving evidence in some other legal proceedings
(whether civil or criminal); or
(b)a statement falling within section 49(1) of the Ordinance which
is contained in a record of direct oral evidence given in some
other legal proceedings (whether civil or criminal),
any party to the cause or matter may apply to the Court for directions
under this rule, and the Court hearing such an application may give
directions as to whether, and if so on what conditions, the party
desiring to give the statement in evidence will be permitted to do so and
(where applicable) as to the manner in which that statement and any
other evidence given in those other proceedings is to be proved.
Power of Court to allow statement to he given in evidence (0. 38, r. 29)
29. (1) Without prejudice to sections 47(2)(a) and 49(2)(a) of the
Ordinance and rule 28, the Court may, if it thinks it just to do so, allow a
statement falling within section 47(1), 49(1) or 50(1) of the Ordinance to
be given in evidence at the trial or hearing of a cause or matter
notwithstanding
(a)that the statement is one in relation to which rule 21(1) applies
and that the party desiring to give the statement in evidence
has failed to comply with that rule; or
(b)that that party has failed to comply with any requirement of a
counter-notice relating to that statement which was served on
him in accordance with rule 26.
(2) Without prejudice to the generality of paragraph (1), the Court
may exercise its power under that paragraph to allow a statement to be
given in evidence at the trial or hearing of a cause or matter if a refusal
to exercise that power might oblige the party desiring to give the
statement in evidence to call as a witness at the trial or hearing an
opposite party or a person who is or was at the material time the servant
or agent of an opposite party.
Restriction on adducing evidence as to credibility of maker, etc. of
certain statements (0. 38, r. 30)
30. Where-
(a)a notice given under rule 21 in a cause or matter relates to a
statement which is admissible by virtue of section 47 or 49 of
the Ordinance; and
(b)the person who made the statement, or, as the case may be,
the person who originally supplied the information from which
the record containing the statement was compiled, is not
called as a witness at the trial or hearing of the cause or
matter; and
(c)none of the reasons mentioned in rule 25 applies so as to
prevent the party who gave the notice from calling that person
as a witness,
no other party to the cause or matter shall be entitled, except with the
leave of the Court, to adduce in relation to that person any evidence
which could otherwise be adduced by him by virtue of section 52 of the
Ordinance unless he gave a counter-notice under rule 26 in respect of
that person or applied under rule 28 for a direction that that person be
called as a witness at the trial or hearing of the cause or matter.
Notice required of intention to give evidence of certain inconsistent
statements (0. 3 8, r. 3 1)
31. (1) Where in a cause or matter a person, particulars of whom
were contained in a notice given under rule 21, is not to be called as a
witness at the trial or hearing of the cause or matter, any party to the
cause or matter who is entitled and intends to adduce in relation to that
person any evidence which is admissible for the purpose mentioned in
section 52(1)(b) of the Ordinance must, not more than 21 days after
service of that notice on him, serve on the party who gave that notice,
notice of his intention to do so.
(2) Rule 22(1) and (2) shall apply to a notice under this rule as if the
notice were a notice under rule 21 and the statement to which the notice
relates were a statement admissible by virtue of section 47 of the
Ordinance.
(3) The Court may, if it think sit just to do so, allow aparty to give in
evidence at the trial or hearing of a cause or matter any evidence which
is admissible for the purpose mentioned in section 52(1)(b) of the
Ordinance notwithstanding that that party has failed to comply with the
provisions of paragraph (1).
Costs (0. 38, r. 32)
32. If-
(a)a party to a cause or matter serves a counter-notice under rule
26 in respect of any person who is called as a witness at the
trial of the cause or matter in compliance with a requirement of
the counter-notice; and
(b)it appears to the Court that it was unreasonable to require that
person to be called as a witness,
then, without prejudice to Order 62 and, in particular, to rule 10(1)
thereof, the Court may direct that any costs to that party in respect
of the preparation and service of the counter-notice shall not be allowed
to him and that any costs occasioned by the counter-notice to any
other party shall be paid by him to that other party.
Certain powers exercisable in chambers (0. 38, r. 33)
33. The jurisdiction of the Court under sections 47(2)(a), 47(3),
49(2)(a) and 5 1 (1) of the Ordinance may be exercised in chambers.
Statements of opinion (0. 38, r. 34)
34. Where a party to a cause or matter desires to give in evidence
by virtue of Part IV of the Ordinance, as extended by section 56 of the
Ordinance, a statement of opinion other than a statement to which Part
IV of this Order applies, the provisions of rules 20 to 23 inclusive and 25
to 33 inclusive shall apply with such modifications as the Court may
direct or the circumstances of the case may require.
IV. EXPERT EVIDENCE
Interpretation (0. 38, r. 35)
35. In this Part of this Order a reference to a summons for directions
includes a reference to any summons or application to which, under any
of these rules, Order 25, rules 2 to 7, apply, and expressions used in this
Part of this Order which are used in the Evidence Ordinance have the
same meanings in this Part of this Order as in that Ordinance.
Restrictions on adducing expert evidence (0. 38, r. 36)
36. (1) Except with the leave of the Court or where all parties agree,
no expert evidence may be adduced at the trial or hearing of any cause
or matter unless the party seeking to adduce the evidence
(a)has applied to the Court to determine whether a direction
should be given under rule 37, 38 or 41 (whichever is
appropriate) and has complied with any direction given on the
application, or
(b)has complied with automatic directions taking effect under
Order 25, rule 8(1)(b); or
(2) Nothing in paragraph (1) shall apply to evidence which is
permitted to be given by affidavit or shall affect the enforcement under
any other provision of these rules (except of Order 45, rule 5) of a
direction given under this Part of this Order.
Direction that expert report be disclosed (0. 38, r. 37)
37. Where in any cause or matter an application is made under rule
36(1) in respect of oral expert evidence, then, unless the Court considers
that there are special reasons for not doing so, it shall
direct that the substance of the evidence be disclosed in the form of
a written report or reports to such other parties and within such
period as the Court may specify.
Meeting of experts (0. 38, r. 38)
38. In any cause or matter the Court may, if it thinks fit, direct
that there be a meeting 'without prejudice' of such experts within
such periods before or after the disclosure of their reports as the
Court may specify, for the purpose of identifying those parts of their
evidence which are in issue. Where such a meeting takes place the
experts may prepare a joint statement indicating those parts of their
evidence on which they are, and those on which they are not, in
agreement.
Disclosure of part of expert evidence (0. 38, r. 39)
39. Where the Court considers that any circumstances render-
ing it undesirable to give a direction under rule 37 relate to part
only of the evidence sought to be adduced, the Court may, if it
thinks fit, direct disclosure of the remainder.
Expert evidence contained in statement (0. 38, r. 41)
41. Where an application is made under rule 36 in respect of
expert evidence contained in a statement and the applicant alleges
that the maker of the statement cannot or should not be called as a
witness, the Court may direct that the provisions of rules 20 to 23
inclusive and 25 to 33 inclusive shall apply with such modifications
as the Court thinks fit.
Putting in evidence expert report disclosed by another party (0. 38,
r. 42)
42. A party to any cause or matter may put in evidence any
expert report disclosed to him by any other party in accordance with
this Part of this Order.
Time for putting expert report in evidence (0. 38, r. 43)
43. Where a party to any cause or matter calls as a witness the
maker of a report which has been disclosed in accordance with a
direction given under rule 37, the report may be put in evidence
at the commencement of the examination in chief of its maker or at
such other time as the Court may direct.
Revocation and variation of directions (0. 38, r. 44)
44. Any direction given under this Part of this Order may on
sufficient cause being shown be revoked or varied by a subsequent
direction given at or before the trial of the cause or matter.
ORDER 39
EVIDENCE BY DEPOSITION: EXAMINERS OF THE COURT
Power to order depositions to be taken (0. 39, r. 1)
1. (1) The Court may, in any cause or matter where it appears
necessary for the purposes of justice, make an order (in Form No. 32 in
Appendix A) for the examination on oath before a judge, an officer or
examiner of the Court or some other person, at any place, of any person.
(2) An order under paragraph (1) may be made on such terms
(including, in particular, terms as to the giving of discovery before the
examination takes place) as the Court thinks fit and may contain an
order for the production of any document which appears to the Court to
be necessary for the purposes of the examination.
Where person to he examined is out of the jurisdiction (0. 39, r. 2)
2. (1) Where the person in relation to whom an order under rule 1 is
required is out of the jurisdiction, an application may be made
(a)for an order (in Form No. 34 in Appendix A) under that rule for
the issue of a letter of request to the judicial authorities of the
country in which that person is to take, or cause to be taken,
the evidence of that person, or
(b)if the government of that country allows a person in that
country to be examined before a person appointed by the
Court, for an order (in Form No. 37 in Appendix A) under that
rule appointing a special examiner to take the evidence of that
person in that country.
(2) An application may be made for the appointment as special
examiner of a British consul in the country in which the evidence is to
be taken or his deputy
(a)if there subsists with respect to that country a Civil Procedure
Convention providing for the taking of the evidence of any
person in that country for the assistance of proceedings in the
Court, or
(b) with the consent of the Chief Secretary.
Order for issue of letter of request (0. 39, r. 3)
3. (1) Where an order is made under rule 1 for the issue of a letter of
request to the judicial authorities of a country to take, or cause to be
taken, the evidence of any person in that country the following
provisions of this rule shall apply.
(2) The party obtaining the order must prepare the letter of request
and lodge it in the Registry, and the letter must be in Form No. 35 in
Appendix A, with such variations as the order may require.
(3) If the evidence of the person to be examined is to be
obtained by means of written questions, there must be lodged with
the letter of request a copy of the interrogatories and cross-
interrogatories to be put to him on examination.
(4) Each document lodged under paragraph (2) or (3) must
be accompanied by a translation of the document in the official
language of the country in which the examination is to be taken or, if
there is more than one official language of that country, in any one
of those languages which is appropriate to the place in that country
where the examination is to be taken unless-
(a) the Registrar has given a general direction in relation to
that country that no translation need be provided, or
(b)the official language or one of the official languages of that
country is English.
(5) Every translation lodged under paragraph (4) must be
certified by the person making it to be a correct translation; and the
certificate must contain a statement of that person's full name, of his
address and of his qualifications for making the translation.
(6) The party obtaining the order must, when he lodges in the
Registry the documents mentioned in paragraphs (2) to (5), also file
in that office an undertaking signed by him or his solicitor to be
responsible personally for all expenses incurred by the Chief Secre-
tary in respect of the letter of request and, on receiving due
notification of the amount of those expenses, to pay that amount to
the Treasury and to produce a receipt for the payment to the
Registrar.
Examination otherwise than on oath (0. 39, r. 3A)
3A. Notwithstanding the provisions of rule 1, where the per-
son to be examined is out of the jurisdiction that person may be
examined on oath or affirmation or otherwise in accordance with the
procedure of the country in which the examination is to take place.
Enforcing attendance of witness at examination (0. 39, r. 4)
4. Where an order has been made under rule 1-
(a)for the examination of any person before an officer of the
Court or some other person (in this rule and rules 5 to 14
referred to as 'the examiner'), or
(b)for the cross-examination before the examiner of any
person who has made an affidavit which is to be used in
any cause or matter,
the attendance of that person before the examiner and the produc-
tion by him of any document at the examination may be enforced by
writ of subpoena in like manner as the attendance of a witness and
the production by a witness of a document at a trial may be
enforced.
Refusal of witness to attend, he sworn, etc. (0. 39, r. 5)
5. (1) If any person, having been duly summoned by writ of
subpoena to attend before the examiner, refuses or fails to attend or
refuses to be sworn for the purpose of the examination or to answer
any lawful question or produce any document therein, a certificate
of his refusal or failure, signed by the examiner, must be filed in the
Registry, and upon the filing of the certificate the party by whom the
attendance of that person was required may apply to, the Court for
an order requiring that person to attend, or to be sworn, or to
answer any question or produce any document, as the case may be.
(2) An application for an order under this rule may be made
ex parte.
(3) If the Court makes an order under this rule it may order
the person against whom the order is made to pay any costs
occasioned by his refusal or failure.
(4) A person who wilfully disobeys any order made against
him under paragraph (1) is guilty of contempt of court.
Appointment of time and place for examination (0. 39, r. 6)
6. (1) The examiner must give the party on whose applica-
tion the order for examination was made by a notice appointing the
place and time at which, subject to any application by the parties,
the examination shall be taken, and such time shall, having regard to
the convenience of the persons to be examined and all the circum-
stances of the case, be as soon as practicable after the making of the
order.
(2) The party to whom a notice under paragraph (1) is given
must, on receiving it, forthwith give notice of the appointment to all
the other parties.
Examiner to have certain documents (0. 39, r. 7)
7. The party on whose application the order for examination
before the examiner was made must furnish the examiner with copies
of such of the documents in the cause or matter as are necessary to
inform the examiner of the questions at issue in the cause or matter.
Conduct of examination (0. 39, r. 8)
8. (1) Subject to any directions contained in the order for
examination-
(a)any person ordered to be examined before the examiner
may be cross-examined and re-examined, and
(b)the examination, cross-examination and re-examination of
persons before the examiner shall be conducted in like
manner as at the trial of a cause or matter.
(2) The examiner may put any question to any person exam-
ined before him as to the meaning of any answer made by that
person or as to any matter arising in the course of the examination.
(3) The examiner may, if necessary, adjourn the examination from
time to time.
Examination of additional witnesses (0. 39, r. 9)
9. The examiner may, with the written consent of all the parties to
the cause or matter, take the examination of any person in addition to
those named or provided for in the order for examination, and must
annex such consent to the original deposition of that person.
Objection to questions (0. 39, r. 10)
10. (1) If any person being examined before the examiner objects to
answer any question put to him, or if objection is taken to any such
question, that question, the ground for the objection and the answer to
any such question to which objection is taken must be set out in the
deposition of that person or in a statement annexed thereto.
(2) The validity of the ground for objecting to answer any such
question or for objecting to any such question shall be decided by the
Court and not by the examiner, but the examiner must state to the parties
his opinion thereon, and the statement of his opinion must be set out in
the deposition or in a statement annexed thereto.
(3) If the Court decides against the person taking the objection it
may order him to pay the costs occasioned by his objection.
Taking of depositions (0. 39, r. 11)
11. (1) The deposition of any person examined before the examiner
must be taken down by the examiner or a shorthand writer or some other
person in the presence of the examiner but, subject to paragraph (2) and
rule 10(1), the deposition need not set out every question and answer
so long as it contains as nearly as may be the statement of the person
examined.
(2) The examiner may direct the exact words of any particular
question and the answer thereto to be set out in the deposition if that
question and answer appear to him to have special importance.
(3) The deposition of any person shall be read to him, and he shall
be asked to sign it, in the presence of such of the parties as may attend,
but the parties may agree in writing to dispense with the foregoing
provision. If a person refuses to sign a deposition when asked under
this paragraph to do so, the examiner must sign the deposition.
(4) The original deposition of any person, authenticated by the
signature of the examiner before whom it was taken, must be sent by the
examiner to the Registry and shall be filed therein.
Time taken by examination to he indorsed on depositions (0. 39, r. 12)
12. Before sending any deposition to the Registry under rule 11(4)
the examiner must indorse on the deposition a statement signed by him
of the time occupied in taking the examination and the fees received in
respect thereof.
Special report by examiner (0. 39, r. 13)
13. The examiner may make a special report to the Court with
regard to any examination taken before him and with regard to the
absence or conduct of any person thereat, and the Court may direct
such proceedings to be taken, or make such order, on the report as it
thinks fit.
Order for payment of examiner's fees (0. 39, r. 14)
14. (1) If the fees and expenses due to an examiner are not
paid he may report that fact to the Court, and the Court may direct
the Crown Solicitor to apply for an order against the party on whose
application the order for examination was made to pay the examiner
the fees and expenses due to him in respect of the examination.
(2) An order under this rule shall not prejudice any determina-
tion on the taxation of costs or otherwise as to the party by whom
the costs of the examination are ultimately to be borne.
Perpetuation of testimony (0. 39, r. 15)
15. (1) Witnesses shall not be examined to perpetuate testi-
mony unless an action has been begun for the purpose.
(2) Any person who would under the circumstances alleged by
him to exist become entitled, upon the happening of any future
event, to any honour, title, dignity or office, or to any estate or
interest in any real or personal property, the right or claim to which
cannot be brought to trial by him before the happening of such
event, may begin an action to perpetuate any testimony which may
be material for establishing such right or claim.
(3) No action to perpetuate the testimony of witnesses shall be
set down for trial.
ORDER 40
COURT EXPERT
Appointment of expert to report on certain questions (0. 40, r. 1)
1. (1) In any cause or matter which is to be tried without a
jury and in which any question for an expert witness arises the Court
may at any time, on the application of any party, appoint an
independent expert or, if more than one such question arises, 2 or
more such experts, to inquire and report upon any question of fact
or opinion not involving questions of law or of construction.
An expert appointed under this paragraph is referred to in this
Order as a 'court expert'.
(2) Any court expert in a cause or matter shall, if possible, be a
person agreed between the parties and, failing agreement, shall be
nominated by the Court.
(3) The question to be submitted to the court expert and the
instructions (if any) given to him shall, failing agreement between the
parties, be settled by the Court.
(4) In this rule 'expert', in relation to any question arising in a
cause or matter, means any person who has such knowledge or
experience of or in connection with that question that his opinion on it
would be admissible in evidence.
Report of court expert (0. 40, r. 2)
2. (1) The court expert must send his report to the Court, together
with such number of copies thereof as the Court may direct, and the
Registrar must send copies of the report to the parties or their solicitors.
(2) The Court may direct the court expert to make a further or
supplemental report.
(3) Any part of a court expert's report which is not accepted by all
the parties to the cause or matter in which it is made shall be treated as
information furnished to the Court and be given such weight as the
Court thinks fit.
Experiments and tests (0. 40, r. 3)
3. If the court expert is of opinion that an experiment or test of any
kind (other than one of a trifling character) is necessary to enable him to
make a satisfactory report he shall inform the parties or their solicitors
and shall, if possible, make an arrangement with them as to the expenses
involved, the persons to attend and other relevant matters; and if the
parties are unable to agree on any of those matters it shall be settled by
the Court.
Cross-examination of court expert (0. 40, r. 4)
4. Any party may, within 14 days after receiving a copy of the court
expert's report, apply to the Court for leave to crossexamination the
expert on his report, and on that application the Court shall make an
order for the cross-examination of the expert by all the parties either
(a) at the trial, or
(b)before an examiner at such time and place as may be specified
in the order.
Remuneration of court expert (0. 40, r. 5)
5. (1) The remuneration of the court expert shall be fixed by the
Court and shall include a fee for his report and a proper sum for each
day during which he is required to be present either in court or before
an examiner.
(2) Without prejudice to any order providing for payment of the
court expert's remuneration as part of the costs of the cause or
Special report by examiner (0. 39, r. 13)
13. The examiner may make a special report to the Court with
regard to any examination taken before him and with regard to the
absence or conduct of any person thereat, and the Court may direct
such proceedings to be taken, or make such order, on the report as it
thinks fit.
Order for payment of examiner's fees (0. 39, r. 14)
14. (1) If the fees and expenses due to an examiner are not paid he
may report that fact to the Court, and the Court may direct the Crown
Solicitor to apply for an order against the party on whose application
the order for examination was made to pay the examiner the fees and
expenses due to him in respect of the examination.
(2) An order under this rule shall not prejudice any determination
on the taxation of costs or otherwise as to the party by whom the costs
of the examination are ultimately to be borne.
Perpetuation of testimony (0. 39, r. 15)
15. (1) Witnesses shall not be examined to perpetuate testimony
unless an action has been begun for the purpose.
(2) Any person who would under the circumstances alleged by him
to exist become entitled, upon the happening of any future event, to any
honour, title, dignity or office, or to any estate or interest in any real or
personal property, the right or claim to which cannot be brought to trial
by him before the happening of such event, may begin an action to
perpetuate any testimony which may be material for establishing such
right or claim.
(3) No action to perpetuate the testimony of witnesses shall be set
down for trial.
ORDER 40
COURT EXPERT
Appointment of expert to report on certain questions (0. 40, r. 1)
1. (1) In any cause or matter which is to be tried without a jury and
in which any question for an expert witness arises the Court may at any
time, on the application of any party, appoint an independent expert or,
if more than one such question arises, 2 or more such experts, to inquire
and report upon any question of fact or opinion not involving
questions of law or of construction.
An expert appointed under this paragraph is referred to in this
Order as a 'court expert
(2) Any court expert in a cause or matter shall, if possible, be a
person agreed between the parties and, failing agreement, shall be
nominated by the Court.
(3) The question to be submitted to the court expert and the
instructions (if any) given to him shall, failing agreement between the
parties, be settled by the Court.
(4) In this rule 'expert', in relation to any question arising in a
cause or matter, means any person who has such knowledge or
experience of or in connection with that question that his opinion on it
would be admissible in evidence.
Report of court expert (0. 40, r. 2)
2. (1) The court expert must send his report to the Court, together
with such number of copies thereof as the Court may direct, and the
Registrar must send copies of the report to the parties or their solicitors.
(2) The Court may direct the court expert to make a further or
supplemental report.
(3) Any part of a court expert's report which is not accepted by all
the parties to the cause or matter in which it is made shall be treated as
information furnished to the Court and be given such weight as the
Court thinks fit.
Experiments and tests (0. 40, r. 3)
3. If the court expert is of opinion that an experiment or test of any
kind (other than one of a trifling character) is necessary to enable him to
make a satisfactory report he shall inform the parties or their solicitors
and shall, if possible, make an arrangement with them as to the expenses
involved, the persons to attend and other relevant matters; and if the
parties are unable to agree on any of those matters it shall be settled by
the Court.
Cross-examination of court expert (0. 40, r. 4)
4. Any party may, within 14 days after receiving a copy of the court
expert's report, apply to the Court for leave to crossexamination the
expert on his report, and on that application the Court shall make an
order for the cross-examination of the expert by all the parties either
(a) at the trial, or
(b)before an examiner at such time and place as may be specified
in the order.
Remuneration of court expert (0. 40, r. 5)
5. (1) The remuneration of the court expert shall be fixed by the
Court and shall include a fee for his report and a proper sum for each
day during which he is required to be present either in court or before
an examiner.
(2) Without prejudice to any order providing for payment of the
court expert's remuneration as part of the costs of the cause or
Alterations in affidavits (0. 41, r. 7)
7. (1) An affidavit which has in the jurat or body thereof any
interlineation, erasure or other alteration shall not be filed or used in any
proceeding without the leave of the Court unless the person before
whom the affidavit was sworn has initialled the alteration and, in the
case of an erasure, has re-written in the margin of the affidavit any
words or figures written on the erasure and has signed or initialled them.
(2) Where an affidavit is sworn at the Registry, the Seal of the
Court may be substituted for the signature or initials required by this
rule.
Affidavit not to be sworn before solicitor of party, etc. (0. 41, r. 8)
8. No affidavit shall be sufficient if sworn before the solicitor of the
party on whose behalf the affidavit is to be used or before any agent,
partner or clerk of that solicitor.
Filing of affidavits (0. 41, r. 9)
9. (4) Every affidavit used in a cause or matter proceeding in the
Court must be filed in the Registry.
(5) Every affidavit must be indorsed with a note showing on whose
behalf it is filed and the dates of swearing and filing, and an affidavit
which is not so indorsed may not be filed or used without the leave of
the Court.
Use of original affidavit or office copy (0. 4 1, r. 10)
10. (1) Subject to paragraph (2), an original affidavit may be used
without the leave of the Court, notwithstanding that it has not been
filed in accordance with rule 9.
(2) Where an original affidavit is used then, unless the party whose
affidavit it is undertakes to file it, he must immediately after it is used
leave it with the judicial clerk in court or chambers, as the case may be,
who shall send it to be filed.
(3) Where an affidavit has been filed, an office copy thereof may be
used in any proceedings.
Document to be used in conjunction with affidavit to he exhibited to it
(0. 41, r. 11)
11. (1) Any document to be used in conjunction with an affidavit
must be exhibited, and not annexed, to the affidavit.
(2) Any exhibit to an affidavit must be identified by a certificate of
the person before whom the affidavit is sworn.
The certificate must be entitled in the same manner as the affidavit
and rule 1(1), (2) and (3) shall apply accordingly.
Affidavit taken in Commonwealth or foreign country admissible
without proof of seal, etc. (0. 41, r. 12)
12. (1) Any affidavit sworn in any part of the Commonwealth
outside Hong Kong before any judge, officer or other person duly
authorized, or before any commissioner authorized by the Court, to take
affidavits therein, may be used in the Court in all cases where affidavits
are admissible.
(2) Any affidavit sworn in any foreign parts out of Her Majesty's
dominions before a judge or magistrate, being authenticated by the
official seal of the foreign court to which he is attached or of such
magistrate, or before a notary public or a British consular officer, may be
used in the Court in all cases where affidavits are admissible.
(3) The fact that an affidavit purports to have been sworn in the
manner prescribed by paragraph (1) or (2) of this rule shall be prima facie
evidence of the seal or signature, as the case may be, of any such court,
judge, magistrate, commissioner or other officer or person therein
mentioned, appended or subscribed to such affidavit, and of the
authority of such court, judge, magistrate, commissioner or other officer
or person to administer oaths.
JUDGMENTS, ORDERS, ACCOUNTS AND INQUIRIES
ORDER 42
JUDGMENTS AND ORDERS
Form of judgment and interest thereon, etc. (0. 42, r. 1)
1. (1) If, in the case of any judgment, a form thereof is prescribed
by Appendix A the judgment must be in that form.
(2) The party entering any judgment shall be entitled to have
recited therein a statement of the manner in which, and the place at
which, the writ or other originating process by which the cause or
matter in question was begun was served.
(3) An order other than a consent order to which rule 5A applies
must be marked with the name of the judge or master by whom it was
made and must be sealed.
Judgment in favour of reversioner for detention of goods (0. 42, r. I A)
1A. (1) Where a claim relating to the detention of goods is made by
a partial owner whose right of action is not founded on a possessory
title, any judgment or order given or made in respect of the claim shall be
for the payment of damages only.
In this paragraph 'partial owner means one of two or more persons
having interest in the goods, unless he has the written authority of
every other such person to sue on the latter's behalf.
Judgment, etc. requiring act to be done: time for doing it (0. 42, r. 2)
2. (1) Subject to paragraph (2), a judgment or order which requires a
person to do an act must specify the time after service of the judgment
or order, or some other time, within which the act is to be done.
(2) Where the act which any person is required by any judgment or
order to do is to pay money to some other person, give possession of
any land or deliver any goods, a time within which the act is to be done
need not be specified in the judgment or order by virtue of paragraph
(1), but the foregoing provision shall not affect the power of the Court to
specify such a time and to adjudge or order accordingly.
Date from which judgment or order takes effect (0. 42, r. 3)
3. (1) A judgment or order of the Court takes effect from the day of
its date.
(2) Such a judgment or order shall be dated as of the day on which
it is pronounced, given or made, unless the Court orders it to be dated
as of some other earlier or later day, in which case it shall be dated as of
that other day.
(3) A judgment or order shall take effect for the purposes of this
rule notwithstanding that the reasons therefor may not be given until a
later date.
Orders required to he drawn up (0. 42, r. 4)
4. (1) Subject to paragraph (2), every order of the Court shall be
drawn up unless the Court otherwise directs.
(2) An order-
(a) which-
(i) extends the period within which a person is required or
authorized by these rules, or by any judgment, order or
direction, to do any act, or
(ii) grants leave for the doing of any of the acts mentioned
in paragraph (3), and
(b)which neither imposes any special terms nor includes any
special directions other than a direction as to costs,
need not be drawn up unless the Court otherwise directs.
(3) The acts referred to in paragraph (2)(a)(ii) are-
(a)the issue of any writ, other than a writ of summons for service
out of the jurisdiction;
(b)the amendment of a writ of summons or other originating
process or a pleading;
(c) the filing of any document;
(d)any act to be done by an officer of the Court other than a
solicitor;
(HK)(e) the extension of the validity of a writ;
(HK)(f) the abridgement of time for service of a summons;
(HK)(g) the adjournment of the hearing of a summons;
(HK)(h) the adjournment of the trial of an action;
(HK)(i)an order made by a Judge ordering that an application or
summons shall be heard by a master or a similar order made by
a master that an application or summons shall be heard by a
Judge;
(HK)(j) leave to inspect and take copies of documents filed in the
Registry;
(HK)(k) the transfer of an action from one list to another;
(HK)(/)the vacation or variation of the dates upon which an action
has been set down to be heard; and
(HK)(m) the admission of a person as a solicitor or a barrister of the
Supreme Court under the Legal Practitioners Ordinance, and
any order made under rule 13 of the Admission and
Registration Rules.
Drawing up and entry of judgments and orders (0. 42, r. 5)
5. (1) Where a judgment given in a cause or matter is presented for
entry in accordance with this rule at the Registry, it shall be entered in
the book kept for the purpose by the Registrar.
(2) The party seeking to have such a judgment entered must draw
up the judgment and present it to the Registrar for entry.
(3) A party presenting a judgment for entry must produce any
certificate, order or other document needed to satisfy the Registrar that
he is entitled to have the judgment entered.
(4) On entering any such judgment the Registrar shall file the
judgment.
(5) Every order made and required to be drawn up must be drawn
up by the party having the custody of the summons, notice or other
document on which the order is indorsed and if that party fails to draw
up the order within 7 days after it is made any other party affected by
the order may draw it up.
(6) The order referred to in paragraph (5) must, when drawn up, be
produced at the Registry, together with a copy thereof, and when
passed by the Registrar the order, after it has been sealed, shall be
returned to the party producing it and the copy shall be lodged in the
Registry.
Consent judgment and orders (0. 42, r. 5A)
SA. (1) Subject to paragraphs (2), (3), (4) and (5), where all the
parties to a cause or matter are agreed upon the terms in which a
judgment should be given, or an order should be made, a judgment or
order in such terms may be given effect as a judgment or order of the
Court by the procedure provided in rule 5.
(2) This rule applies to any judgment or order which consists of
one or more of the following
(a) any judgment or order for-
(i) the payment of a liquidated sum, or damages to be
assessed, or the value of goods to be assessed;
(ii) the delivery up of goods, with or without the option of
paying the value of the goods to be assessed, or the agreed
value;
(iii) the possession of land where the claim does not relate
to a dwelling-house;
(b) any order for-
(i) the dismissal, discontinuance or withdrawal of any
proceedings, wholly or in part;
(ii) the stay of proceedings, either unconditionally or upon
conditions as to the payment of money;
(iii) the stay of proceedings upon terms which are
scheduled to the order but which are not otherwise part of it (a
'Tomlin order');
(iv) the stay of enforcement of a judgment, either
unconditionally or upon condition that the money due under
judgment is paid by instalments specified in the order;
(v) the setting aside of a judgment in default;
(vi) the transfer of any proceedings to the District Court;
(vii) the payment out of money in court;
(viii) the discharge from liability of any party;
(ix) the payment, taxation or waiver of costs, or such other
provision for costs as may he agreed;
(c)any order, to be included in a judgment or order to which the
preceding sub-paragraphs apply, for
(i) the extension of the period required for the service or
filing of any pleading or other document;
(ii) the withdrawal of the record;
(iii) liberty to apply, or to restore.
(3) Before any judgment, or order to which this rule applies may be
entered, or sealed, it must be drawn up in the terms agreed and
expressed as being 'By Consent' and it must be indorsed by solicitors
acting for each of the parties.
(4) This rule shall not apply to any judgment or order in
proceedings which are pending in the Admiralty jurisdiction or in the
Commercial List.
(5) This rule shall not apply to any judgment or order in
proceedings in which any of the parties is a litigant in person or a
person under a disability.
Reasons for judgment or order (0. 42, r. 5B)
(HK)5B. (1) A Court shall give the reasons for any decision either at the
time the judgment or order is pronounced or, where it is at that time
announced that the reasons will be given at a later date, at such later
date as may be fixed.
(2) Where the judgment or order is not pronounced on the day on
which the hearing is concluded or where a decision is pronounced but it
is announced in accordance with paragraph (1) that reasons therefor will
be given at a later date, the Court may state that the judgment or order
or the judgment or order and the reasons therefor, as the case may be,
will be recorded in writing.
(3) Where a date has been fixed for delivery of a written decision or
of written reasons notice shall be given to the parties, but it shall not be
necessary for them to appear by counsel or in person.
(4) Where it has been announced that a judgment or order and
reasons therefor or the reasons for a judgment or order previously
pronounced will be recorded in writing, the Court may on the date fixed,
instead of reading in full the judgment or order and reasons therefor or
the reasons, as the case may be, supply copies thereof in accordance
with paragraph (5). Thereupon any judgment or order contained in the
writing shall be deemed to have been pronounced for the purposes of
rule 3.
(5) Where the judgment or order and reasons therefor or the
reasons are given at a later date and, being recorded in writing, are not
read in full, the Court shall
(a)hand down a copy thereof for each of the parties and endorse
the record accordingly;
(b) lodge a copy thereof in the Supreme Court Library; and
(e)make a copy thereof available for public inspection in the
Registry.
(6) Where a written decision is given pursuant to this rule the
Court may make therein an order nisi as to costs and, unless an
application has been made to vary that order, that order shall become
absolute 14 days after the decision is pronounced.
(7) Where a court consisting of more than one judge sits to deliver
pursuant to this rule a decision and reasons for a decision previously
pronounced, it shall be sufficient if at least one of the judges who
conducted the hearing is present.
(8) Nothing in this rule shall affect the provisions of Order 63, rule
4.
ORDER 43
ACCOUNTS AND INQUIRIES
Summary order for account (0. 43, r. 1)
1. (1) Where a writ is indorsed with a claim for an account
or a claim which necessarily involves taking an account, the plaintiff
may, at any time after the defendant has acknowledged service of the
writ or after the time limited for acknowledging service, apply for an
order under this rule.
(IA) A defendant to an action begun by writ who has served
a counterclaim, which includes a claim for an account or a claim
which necessarily involves taking an account, on-
(a) the plaintiff, or
(b) any other party, or
(c) any person who becomes a party by virtue of such service,
may apply for an order under this rule.
(2) An application under this rule must be made by summons
and, if the Court so directs, must be supported by affidavit or other
evidence.
(3) On the hearing of the application, the Court may, unless
satisfied that there is some preliminary question to be tried, order
that an account be taken and may also order that any amount
certified on taking the account to be due to either party be paid to
him within a time specified in the order.
Court may direct taking of accounts, etc. (0. 43, r. 2)
2. (1) The Court may, on an application made by summons
at any stage of the proceedings in a cause or matter, direct any
necessary accounts or inquiries to be taken or made.
(2) Every direction for the taking of an account or the making
of an inquiry shall be numbered in the judgment or order so that, as
far as may be, each distinct account and inquiry may he designated
by a number.
Directions as to manner of taking account or making inquiry (0. 43,
r. 3)
3. (1) Where the Court orders an account to be taken or
inquiry to be made it may by the same or a subsequent order give
directions with regard to the manner in which the account is to be
taken or vouched or the inquiry is to be made.
(2) Without prejudice to the generality of paragraph (1), the
Court may direct that in taking an account the relevant books of
account shall be evidence of the matters contained therein with
liberty to the parties interested to take such objections thereto as
they think fit.
Account to be made, verified, etc. (0. 43, r. 4)
4. (1) Where an account has been ordered to be taken, the
accounting party must make out his account and, unless the Court
otherwise directs, verify it by an affidavit to which the account must
be exhibited.
(2) The items on each side of the account must be numbered
consecutively.
(3) Unless the order for the taking of the account otherwise
directs, the accounting party must lodge the account with the Court
and must at the same time notify the other parties that he has done
so and of the filing of any affidavit verifying the account and of any
supporting affidavit.
Notice to be given of alleged omissions, etc. in account (0. 43, r. 5)
5. Any party who seeks to charge an accounting party with
an amount beyond that which he has by his account admitted to
have received or who alleges that any item in his account is
erroneous in respect of amount or in any other respect must give him
notice thereof stating, so far as he is able, the amount sought to be
charged with brief particulars thereof or, as the case may be, the
grounds for alleging that the item is erroneous.
Allowances (0. 43, r. 6)
6. In taking any account directed by any judgment or order
all just allowances shall be made without any direction to that effect.
Delay in prosecution of accounts, etc. (0. 43, r. 7)
7. (1) If it appears to the Court that there is undue delay in
the prosecution of any accounts or inquiries, or in any other
proceedings under any judgment or order, the Court may require the
party having the conduct of the proceedings or any other party to
explain the delay and may then make such order for staying the
proceedings or for expediting them or for the conduct thereof and
for costs as the circumstances require.
(2) The Court may direct any party or the Crown Solicitor to
take over the conduct of the proceedings in question and to carry
out any directions made by an order under this rule and may make
such order as it thinks fit as to the payment of the Crown Solicitor's
costs.
Distribution of fund before all persons entitled are ascertained (0. 43,
r. 8)
8. Where some of the persons entitled to share in a fund are
ascertained, and difficulty or delay has occurred or is likely to occur
in ascertaining the other persons so entitled, the Court may order or
allow immediate payment of their shares to the persons ascertained
without reserving any part of those shares to meet the subsequent
costs of ascertaining those other persons.
Guardian's accounts (0. 43, r. 9)
9. The accounts of a person appointed guardian of a minor's estate
must be verified and passed in such a manner as the Court may direct.
ORDER 44
PROCEEDINGS UNDER JUDGMENTS AND
ORDERS
Application to orders (0. 44, r. 1)
1. In this Order references to a judgment include references to an
order.
Service of notice of judgment on person not a party (0. 44, r. 2)
2. (1) Where in an action for
(a) the administration of the estate of a deceased person, or
(b) the execution of a trust, or
(e) the sale of any property,
the Court gives a judgment or makes a direction which affects persons
not parties to the action, the Court may when giving the judgment or at
any stage of the proceedings under the judgment direct notice of the
judgment to be served on any such person and any person so served
shall, subject to paragraph (4), be bound by the judgment as if he had
originally been a party to the action.
(2) If it appears that it is not practicable to serve notice of a
judgment on a person directed to be served the Court may dispense
with service and may also order that such person be bound by the
judgment.
(3) Every notice of a judgment for service under this rule must be
indorsed with a memorandum in Form No. 52 in Appendix A and
accompanied by a form of acknowledgment of service in Form No. 15 in
Appendix A with such modifications as may be appropriate.
(4) A person served with notice of ajudgment may, within one
month after service of the notice on him, and without acknowledging
service, apply to the Court to discharge, vary or add to the judgment.
(5) A person served with notice of a judgment may, after
acknowledging service of the notice, attend the proceedings under the
judgment.
(6) Order 12, rules 1 to 4, shall apply in relation to the
acknowledgment of service of a notice of judgment as if the judgment
were a writ, and the person by whom the notice is served were the
plaintiff and the person on whom it is served a defendant.
Directions by the Court (0. 44, r. 3)
3. (1) Where a judgment given in a cause or matter contains
directions which make it necessary to proceed in chambers under the
judgment the Court may, when giving the judgment or at any time during
proceedings under the judgment, give further directions for the conduct
of those proceedings, including, in particular, directions with respect to
(a)the manner in which any account or inquiry is to be
prosecuted,
(b) the evidence to be adduced in support thereof,
(c)the preparation and service on the parties to be bound thereby
of the draft of any deed or other instrument which is directed
by the judgment to be settled by the Court and the service of
any objections to the draft,
(d)without prejudice to Order 15, rule 17, the parties required to
attend all or any part of the proceedings,
(e)the representation by the same solicitors of parties who
constitute a class and by different solicitors of parties who
ought to be separately represented, and
(f) the time within which each proceeding is to be taken,
and may fix a day or days for the further attendance of the parties.
(2) The Court may revoke or vary any directions given under the
rule.
Application of rules 5 to 8 (0. 44, r. 4)
4. Rules 5 to 8 apply-
(a)where in proceedings for the administration under the
direction of the Court of the estate of a deceased person the
judgment directs any account of debts or other liabilities of
the deceased's estate to be taken or any inquiry for next of kin
or other unascertained claimants to be made, and
(b)where in proceedings for the execution under the direction of
the Court of a trust the judgment directs any such inquiry to
be made,
and those rules shall, with the necessary modifications, apply where in
any other proceedings the judgment directs any account of debts or
other liabilities to be taken or any inquiry to be made.
Advertisements for creditors and other claimants (0. 44, r. 5)
5. The Court may, when giving a judgment or at any stage of
proceedings under a judgment, give directions for the issue of
advertisements for creditors or other claimants and may fix the time
within which creditors and claimants may respond.
Examination of claims (0. 44, r. 6)
6. (1) Where an account of debts or other liabilities of the
estate of a deceased person has been directed, such party as the
Court may direct must-
(a)examine the claims of persons claiming to be creditors of
the estate,
(b)determine, so far as he is able, to which of such claims the
estate is liable, and
(c)at least seven clear days before the time appointed for
adjudicating on claims, make an affidavit stating his
findings and his reasons for them and listing all the other
debts of the deceased which are or may still be due.
(2) Where an inquiry for next of kin or other unascertained
claimants has been directed, such party as the Court may direct
must-
(a) examine the claims,
(b) determine, so far as he is able, which of them are valid, and
(c)at least seven clear days before the time appointed for
adjudicating on claims, make an affidavit stating his
findings and his reasons for them.
(3) If the personal representative or trustee concemed are not
the parties directed by the Court to examine claims, they must join
with the party directed to examine them in making the affidavit
required by this rule.
Adjudication on claims (0. 44, r. 7)
7. For the purpose of adjudicating on claims the Court
may-
(a)direct any claim to be investigated in such manner as it
thinks fit,
(b)require any claimant to attend and prove his claim or to
furnish further particulars or evidence of it, or
(c) allow any claim after or without proof thereof.
Notice of adjudication (0. 44, r. 8)
8. The Court shall give directions that there be served on
every creditor whose claim or any part thereof has been allowed or
disallowed, and who did not attend when the claim was disposed of,
a notice informing him of that fact.
Interest on debts (0. 44, r. 9)
9. (1) Where an account of the debts of a deceased person is
directed by any judgment, then, unless the deceased's estate is
insolvent or the Court otherwise orders, interest shall be allowed-
(a)on any such debt as carries interest, at the rate it carries, and
(b)on any other debt, from the date of the judgment at the rate
payable on judgment debts at that date.
(2) A creditor who has established his debt in proceedings under
the judgment and whose debt does not carry interest shall be entitled to
interest on his debt in accordance with paragraph (1)(b) out of any
assets which may remain after satisfying the costs of the cause or
matter, the debts which have been established and the interest on such
of those debts as by law carry interest.
(3) For the purposes of this rule 'debt' includes funeral,
testamentary or administration expenses and, in relation to expenses
incurred after the judgment, for the reference in paragraph (1)(b) to the
date of the judgment there shall be substituted a reference to the date
when the expenses became payable.
Interest on legacies (0. 44, r. 10)
10. Where an account of legacies is directed by any judgment,
then, subject to any directions contained in the will or codicil in
question and to any order made by the Court, interest shall be allowed
on each legacy at the rate of 8 per cent per annum beginning at the
expiration of one year after the testator's death.
Master's order (0. 44, r. 11)
11. (1) The result of proceedings before a master under a judgment
shall be stated in the form of an order.
(2) Subject to any direction of the master under paragraph (3) or
otherwise an order under this rule shall have effect as a final order
disposing of the cause or matter in which it is made.
(3) An order under this rule shall contain such directions as the
master thinks fit as to the further consideration, either in court or in
chambers, of the cause or matter in which it is made.
(4) Every order made under this rule shall have immediate binding
effect on the parties to the cause or matter in which it is made and
copies of the order shall be served on such of the parties as the master
may direct.
Appeal against master's order (0. 44, r. 12)
12. (1) Subject to paragraph (2), Order 58, rule 1 shall apply to an
order under this rule as it applies to any judgment, order or decision of a
master.
(2) If the order is to be acted on by the Judiciary Accountant or is
an order passing a receiver's account, notice of appeal must be issued
not later than two clear days after the making of the order and, where
the order is to be acted on by the Judiciary Accountant, a duplicate of it
must be served on the Judiciary Accountant as soon as practicable after
it is made.
PROVISIONAL REMEDIES
(HK) ORDER 44A
(HK) PROHIBITION ORDER BEFORE OR AFTER JUDGMENT AND
ATTACHMENT OF PROPERTY BEFORE JUDGMENT
Prohibition order against debtor
Application of the Order to an intended action (0. 44A, r. 1)
1. (1) Subject to paragraph (2), on the hearing of an application by a
plaintiff, the Judge may, if he thinks fit, order that the relief provided by
this Order shall be available to the plaintiff notwithstanding that the
plaintiff has not commenced his action.
(2) An order shall not be made under paragraph (1) unless the
plaintiff, at the hearing of his application for such order
(a) produces at the hearing of the application, a draft writ; and
(b)undertakes to the Judge to issue the writ on the next day on
which an office of the Court is open.
(3) In paragraph (1), 'plaintiff' means a person who intends to
commence an action and elsewhere in this Order, where the Judge has
made an order under paragraph (1), 'plaintiff includes a person who
intends to commence an action and 'defendant' or 'debtor' includes a
person against whom a plaintiff intends to commence an action.
Application for an order prohibiting a debtor from leaving Hong Kong
(0. 44A, r. 2)
2. A plaintiff or judgment creditor may apply ex parte to the Court
for an order prohibiting a debtor from leaving Hong Kong.
Making of prohibition order (0. 44A, r. 3)
3. (1) Subject to the provisions of section 21B of the Ordinance the
Court may make an order prohibiting the debtor from leaving Hong
Kong.
(2) The order prohibiting a debtor from leaving Hong Kong shall
be in Form No. 106 in Appendix A.
Application to discharge order (0. 44A, r. 4)
4. (1) Where a debtor is prohibited from leaving Hong Kong, he
may, on 2 days clear notice to the plaintiff or judgment creditor and
upon being present in person in Court, apply for the order to be
discharged.
(2) In an application under paragraph (1) by a debtor under a
judgment for money, the Court shall, after the assessment of the amount
due to the judgment creditor if appropriate
(a) discharge the order; and
(b)proceed as if the judgment debtor appears under arrest for
examination under Order 49B.
(3) Where, in an application under paragraph (1), a debtor for
money, other than a judgment debtor
(a) consents to judgment being entered against him; or
(b)satisfies the Court that he has a substantial defence to the
plaintiff's claim; or
(c)consents to judgment being entered against him in respect of
part of the plaintiff's claim and, as to the reminder of that claim,
satisfies the Court that he has a substantial defence to the
plaintiff's claim,
the Court shall-
(i) discharge the order; and
(ii)where the defendant consents to judgment being entered
against him in respect of the whole or any part of the plaintiff's
claim, give judgment in accordance with that consent and
thereafter proceed as if the defendant appears under arrest for
examination under Order 49B.
(4) Where, in an application under paragraph (1), a debtor, other
than a debtor for money or a debtor under a judgment for money,
satisfies the Court that he has a substantial defence to the plaintiff's
claim, the Court shall discharge the order.
(5) In an application under paragraph (1), the Court may either for
the purposes of the application or to achieve a speedy determination of
any issue in dispute, give such directions as it thinks fit as to the filing
of statements of claim, defences and counter-claims, the filing of
affidavits, the assessment of the amount due or otherwise.
(6) Paragraphs (2), (3) and (4) shall not prevent the Court from
discharging the order, either absolutely or subject to conditions, in any
circumstances in which it thinks fit to do so.
Power to award compensation (0. 44A, r. 5)
5. (1) Where it appears to the Court that the order prohibiting a
debtor from leaving Hong Kong
(a) was applied for on insufficient grounds; or
(b)was not caused to lapse by the plaintiff or judgment creditor
as soon as reasonably possible after it was no longer required,
the Court may, on the application of the debtor, award against the
plaintiff or judgment creditor reasonable compensation to the debtor for
any injury or loss sustained by the debtor by reason of subparagraph
(a) or (b):
Provided that the Court shall not award a larger sum by way of
compensation under this rule than is competent to the Court to award in
an action for damages.
(2) An award of compensation under this rule shall bar any action
for damages in respect of the prohibition order.
Interim attachment of property of defendant
Application for taking security from defendant or for attachment of his
property in certain cases (0. 44A, r. 7)
7. (1) If in any action the defendant, with intent to obstruct or delay
the execution of any judgment that may be given against him in the
action, is about to dispose of his property or any part thereof, or to
remove any such property from the jurisdiction of the Court, the plaintiff
may, either at the institution of the action or at any time thereafter until
final judgment, apply to the Court to call upon the defendant to furnish
sufficient security to produce and place at the disposal of the Court,
when required, his property, or the value of the same, or such portion
thereof as may be sufficient to answer any judgment that may be given
against him in the action, and, in the event of his failing to furnish such
security, to direct that any property, movable or immovable, belonging
to the defendant shall be attached until the further order of the Court.
(2) The application shall contain a specification of the property
required to be attached, and the estimated value thereof, so far as the
plaintiff can reasonably ascertain the same.
(3) There shall be filed with the application an affidavit to the effect
that the defendant is about to dispose of or remove his property or
some part thereof, with such intent as aforesaid.
Issue of warrant requiring defendant to furnish security or to appear
and show cause, and attaching his property (0. 44A, r. 8)
8. (1) If the Court, after making such investigation as it may
consider necessary, is of opinion that there is probable cause for
believing that the defendant is about to dispose of or remove his
property or some part thereof, with such intent as aforesaid, it shall be
lawful for the Court to issue a warrant to the bailiff commanding him to
call upon the defendant, within a time to be fixed by the Court, either to
furnish security, in such sum as may be specified in the order to
produce and place at the disposal of the Court, when required, the said
property, or the value of the same, or such portion thereof as may be
sufficient to answer any judgment that may be given against him in the
action, or to appear before the Court and show cause why he should not
furnish such security.
(2) The Court may also in the warrant direct the attachment until
further order of the whole or any portion of the property of the
defendant within the Colony.
(3) The attachment shall be made, according to the nature of
the property to be attached, in the manner prescribed for the
attachment of property in execution of a judgment for money.
Showing cause, and procedure thereon (0. 44A, r. 9)
9. (1) If the defendant shows such cause or furnishes the
required security within the time fixed by the Court, and the
property specified in the application, or any portion thereof, has
been attached, the Court shall order the attachment to be withdrawn.
(2) If the defendant fails to show such cause or to furnish the
required security within the time fixed by the Court, the Court may
direct that the property specified in the application, if not already
attached, or such portion thereof as may be sufficient to answer any
judgment that may be given against the defendant in the action, shall
be attached until the further order of the Court.
(3) The attachment shall be made, according to the nature
of the property to be attached, in the manner prescribed for the
attachment of property in execution of a judgment for money.
Saving of rights of other persons under attachment (0. 44A, r. 10)
10. (1) The attachment shall not affect the rights of any
persons not being parties to the action, and in the event of any claim
being preferred to the property attached before judgment, such
claim shall be investigated in the manner prescribed for the investi-
gation of claims to property attached in execution of a judgment.
(2) Where the property consists of movable property to which
the judgment debtor is entitled subject to a lien or right of some
other person to the immediate possession thereof, the attachment.
shall be made by a written order prohibiting the person in possession
from giving over the property to the judgment debtor or to any other
person.
Removal of attachment on furnishing of security (0. 44A, r. 11)
11. In any case of attachment before judgment the Court shall.
at any time remove the same on the defendant furnishing the
required security together with security for the costs of the attach-
ment.
Power to award compensation to defendant for unjustifiable attach-
ment (0. 44A, r. 12)
12. (1) If it appears to the Court that the attachment was
applied for on insufficient grounds, or if the action is dismissed or
judgment is given against the plaintiff by default or otherwise and it
appears to the Court that there was no probable ground for
instituting the action, the Court may, on the application of the
defendant, made either before or at the time of the pronouncing of
the judgment, award against the plaintiff such amount, as it may
deem a reasonable compensation to the defendant for any injury or
loss which he may have sustained by reason of the attachment:
Provided that the Court shall not award a larger sum by way of
compensation under this rule than it is competent to the Court to award
in an action for damages.
(2) An award of compensation under this rule shall bar any action
for damages in respect of the attachment.
ENFORCEMENT OF JUDGMENTS AND ORDERS
ORDER 45
ENFORCEMENT OF JUDGMENTS AND ORDERS:
GENERAL
Enforcement of judgment, etc., for payment of money (0. 45, r. 1)
1. (1) Subject to the provisions of these rules, a judgment or order
for the payment of money, not being a judgment or order for the
payment of money into court, may be enforced by one or more of the
following means, that is to say
(a) writ of fieri facias;
(b) garnishee proceedings;
(e) a charging order;
(d) the appointment of a receiver;
(e) in a case in which rule 5 applies, an order of committal;
(f) in such a case, writ of sequestration;
(HK)(g) an order of imprisonment made under Order 49B.
(2) Subject to the provisions of these rules, a judgment or order for
the payment of money into court may be enforced by one or more of the
following means, that is to say
(a) the appointment of a receiver;
(b) in a case in which rule 5 applies, an order of committal;
(e) in such a case, writ of sequestration.
(3) Paragraphs (1) and (2) are without prejudice to any other
remedy available to enforce such a judgment or order as is therein
mentioned or to any written law relating to bankruptcy or the winding
up of companies.
(4) In this Order references to any writ shall be construed as
including references to any further writ in aid of the first mentioned writ.
Enforcement of judgment for possession of land (0. 45, r. 3)
3. (1) Subject to the provisions of these rules, a judgment or order
for the giving of possession of land may be enforced by one or more of
the following means, that is to say
(a) writ of possession;
(b) in a case in which rule 5 applies, an order of committal;
(c) in such a case, writ of sequestration.
(2) A writ of possession to enforce a judgment or order for the
giving of possession of any land shall not be issued without the leave
of the Court except where the judgment or order was given or made
in a mortgage action to which Order 88 applies.
(3) Such leave shall not be granted unless it is shown that every
person in actual possession of the whole or any part of the land has
received such notice of the proceedings as appears to the Court
sufficient to enable him to apply to the Court for any relief to which
he may be entitled.
(4) A writ of possession may include provision for enforcing
the payment of any money adjudged or ordered to be paid by the
judgment or order which is to be enforced by the writ.
Enforcement of judgment for delivery of goods (0. 45, r. 4)
4. (1) Subject to the provisions of these rules, a judgment or
order for the delivery of any goods which does not give a person
against whom the judgment is given or order made the alternative of
paying the assessed value of the goods may be enforced by one or
more of the following means, that is to say-
(a)writ of delivery to recover the goods without alternative
provision for recovery of the assessed value thereof (here-
after in this rule referred to as a 'writ of specific delivery');
(b) in a case in which rule 5 applies, an order of committal;
(c) in such a case, writ of sequestration.
(2) Subject to the provisions of these rules, a judgment or
order for the delivery of any goods or payment of their assessed
value may be enforced by one or more of the following means,
that is to say-
(a)writ of delivery to recover the goods or their assessed
value;
(b) by order of the Court, writ of specific delivery;
(c) in a case in which rule 5 applies, writ of sequestration.
An application for an order under sub-paragraph (b) shall be made
by summons, which must, notwithstanding Order 65, rule 9, be
served on the defendant against whom the judgment or order sought
to be enforced was given or made.
(3) A writ of specific delivery, and a writ of delivery to recover
any goods or their assessed value, may include provision for
enforcing the payment of any money adjudged or ordered to be paid
by the judgment or order which is to be enforced by the writ.
(4) A judgment or order for the payment of the assessed value
of any goods may be enforced by the same means as any other
judgment or order for the payment of money.
Enforcement of judgment to do or abstain from doing any act (0. 45,
r. 5)
5. (1) Where-
(a)a person required by a judgment or order to do an act
within a time specified in the judgment or order refuses or
neglects to do it within that time or, as the case may be,
within that time as extended or abridged under Order 3,
rule 5, or
(b)a person disobeys a judgment or order requiring him to
abstain from doing an act,
then, subject to the provisions of these rules, the judgment or order
may be enforced by one or more of the following means, that is to
say-
(i) with the leave of the Court, a writ of sequestration against
the property of that person;
(ii) where that person is a body corporate, with the leave of the
Court, a writ of sequestration against the property of any
director or other officer of the body;
(iii)an order of committal against that person or, where that
person is a body corporate, against any such officer.
(2) Where a judgment or order requires a person to do an act
within a time therein specified and an order is subsequently made
under rule 6 requiring the act to be done within some other time,
references in paragraph (1) of this rule to a judgment or order shall
be construed as references to the order made under rule 6.
(3) Where under any judgment or order requiring the delivery
of any goods the person liable to execution has the alternative of
paying the assessed value of the goods, the judgment or order shall
not be enforceable by order of committal under paragraph (1), but
the Court may, on the application of the person entitled to enforce
the judgment or order, make an order requiring the first mentioned
person to deliver the goods to the applicant within a time specified in
the order, and that order may be so enforced.
Judgment, etc. requiring act to be done: order fixing time for doing it
(0. 45, r. 6)
6. (1) Notwithstanding that a judgment or order requiring a
person to do an act specifies a time within which the act is to be
done, the Court shall, without prejudice to Order 3, rule 5, have
power to make an order requiring the act to be done within another
time, being such time after service of that order, or such other time,
as may be specified therein.
(2) Where, notwithstanding Order 42, rule 2(1), or by reason of
Order 42, rule 2(2), a judgment or order requiring a person to do an act
does not specify a time within which the act is to be done, the Court
shall have power subsequently to make an order requiring the act to be
done within such time after service of that order, or such other time, as
may be specified therein.
(3) An application for an order under this rule must be made by
summons and the summons must, notwithstanding anything in Order
65, rule 9, be served on the person required to do the act in question.
Service of copy of judgment, etc., prerequisite to enforcement under r.
5 (0. 45, r. 7)
7. (1) In this rule references to an order shall be construed as
including references to a judgment.
(2) Subject to Order 24, rule 16, Order 26, rule 6(3) and paragraphs
(6) and (7) of this rule, an order shall not be enforced under rule 5
unless
(a)a copy of the order has been served personally on the person
required to do or abstain from doing the act in question, and
(b)in the case of an order requiring a person to do an act, the
copy has been so served before the expiration of the time
within which he was required to do the act.
(3) Subject as aforesaid, an order requiring a body corporate to do
or abstain from doing an act shall not be enforced as mentioned in rule
5(1)(ii) or (iii) unless
(a)a copy of the order has also been served personally on the
officer against whose property leave is sought to issue a writ
of sequestration or against whom an order of committal is
sought, and
(b)in the case of an order requiring the body corporate to do an
act, the copy has been so served before the expiration of the
time within which the body was required to do the act.
(4) There must be indorsed on the copy of an order served under
this rule a notice informing the person on whom the copy is served
(a)in the case of service under paragraph (2) that if he neglects to
obey the order within the time specified therein, or, if the order
is to abstain from doing an act, that if he disobeys the order,
he is liable to process of execution to compel him to obey it,
and
(b)in the case of service under paragraph (3) that if the body
corporate neglects to obey the order within the time so
specified or, if the order is to abstain from doing an act, that if
the body corporate disobeys the order, he is liable to process
of execution to compel the body to obey it.
(5) With the copy of an order required to be served under this
rule, being an order requiring a person to do an act, there must also
be served a copy of any order made under Order 3, rule 5, extending
or abridging the time for doing the act and, where the first-
mentioned order was made under rule 5(3) or 6 of this Order, a copy
of the previous order requiring the act to be done.
(6) An order requiring a person to abstain from doing an act
may be enforced under rule 5 notwithstanding that service of a copy
of the order has not been effected in accordance with this rule if the
Court is satisfied that, pending such service, the person against
whom or against whose property it is sought to enforce the order has
had notice thereof either-
(a) by being present when the order was made, or
(b)by being notified of the terms of the order, whether by
telephone, telegram or otherwise.
(7) Without prejudice to its powers under Order 65, rule 4, the
Court may dispense with service of a copy of an order under this rule
if it thinks it just to do so.
Court may order act to he done at expense of disobedient party (0. 45,
r. 8)
8. If an order of mandamus, a mandatory order, an injunc-
tion or a judgment or order for the specific performance of a
contract is not complied with, then, without prejudice to its powers
to punish the disobedient party for contempt, the Court may direct
that the act required to be done may, so far as practicable. be done
by the party by whom the order or judgment was obtained or some
other person appointed by the Court, at the cost of the disobedient
party, and upon the act being done the expenses incurred may be
ascertained in such manner as the Court may direct and execution
may issue against the disobedient party for the amount so ascer-
tained and for costs.
Execution by or against person not being a party (0. 45, r. 9)
9. (1) Any person, not being a party to a cause or matter,
who obtains any order or in whose favour any order is made, shall
be entitled to enforce obedience to the order by the same process as
if he were a party.
(2) Any person, not being a party to a cause or matter, against
whom obedience to any judgment or order may be enforced, shall be
liable to the same process for enforcing obedience to the judgment or
order as if he were a party.
Conditional judgment: waiver (0. 45, r. 10)
10. A party entitled under any judgment or order to any relief
subject to the fulfilment of any condition who fails to fulfil that
condition is deemed to have abandoned the benefit of the judgment
or order, and, unless the Court otherwise directs, any other person
interested may take any proceedings which either are warranted by the
judgment or order or might have been taken if the judgment or order had
not been given or made.
Matters occurring after judgment: stay of execution, etc. (0. 45, r. 11)
11. Without prejudice to Order 47, rule 1, a party against whom a
judgment has been given or an order made may apply to the Court for a
stay of execution of the judgment or order or other relief on the ground
of matters which have occurred since the date of the judgment or order,
and the Court may by order grant such relief, and on such terms, as it
thinks just.
Forms of writs (0. 45, r. 12)
12. (1) A writ of fieri facias must be in such of the Forms Nos. 53 to
63 in Appendix A as is appropriate in the particular case.
(2) A writ of delivery must be in Form No. 64 or 65 in Appendix A,
whichever is appropriate.
(3) A writ of possession must be in Form No. 66 or 66A in
Appendix A.
(4) A writ of sequestration must be in Form No. 67 in Appendix A.
Enforcement of judgments and orders for recovery of money, etc.
(0. 45, r. 13)
13. (1) Rule 1(1) of this Order, with the omission of subparagraphs
(e) and (j) thereof, and Orders 46 to 51 shall apply in relation to a
judgment or order for the recovery of money as they apply in relation to
a judgment or order for the payment of money.
(2) Rule 3 of this Order, with the omission of paragraph (1)(b) and
(c) thereof, and Order 47, rule 3(2), shall apply in relation to a judgment
or order for the recovery of possession of land as they apply in relation
to a judgment or order for the giving or delivery of possession of land.
(3) Rule 4 of this Order, with the omission of paragraphs (1)(b) and
(c) and (2)(c) thereof, and Order 47, rule 3(2), shall apply in relation to a
judgment or order that a person do have a return of any goods and to a
judgment or order that a person do have a return of any goods or do
recover the assessed value thereof as they apply in relation to a
judgment or order for the delivery of any goods and a judgment or order
for the delivery of any goods or payment of the assessed value thereof
respectively.
Power of the Court to order immediate execution (0. 45, r. 14)
(HK)14. (1) The Court may at the time of giving judgment, on the oral
application of the party in whose favour the judgment is given,
order immediate execution thereof without the issue of a writ of
execution, except as to so much as relates to the costs, and that the
judgment shall be executed as to the costs as soon as the amount
thereof has been ascertained by taxation.
(2) The order for immediate execution shall be in writing and shall
be sufficient authority to the bailiff to proceed at once to execution of
the judgment against the property of the party against whom judgment
is given: Provided that the party obtaining the order shall as soon
thereafter as practicable comply with the requirements of Order 46, rule
6: Provided further that, if the party against whom the order has been
made satisfies the Court that he has sufficient means and intends to
satisfy the judgment, the Court may discharge the order for immediate
execution.
Judgment for money against representatives of deceased persons
(0. 45, r. 15)
(HK)15. If the judgment is against a party as the representative of a
deceased person and such judgment is for money to be paid out of the
property of the deceased person, it may be executed by the attachment
and sale of any such property or, if no such property can be found and
the defendant fails to satisfy the Court that he has duly applied such
property of the deceased person as may be proved to have come into
his possession, the judgment may be executed against the defendant to
the extent of the property not duly applied by him, in the same manner
as if the judgment had been against him personally.
Execution in case of cross-judgments for money (0. 45, r. 16)
(HK)16. If there are cross-judgments between the same parties for the
payment of money execution shall be taken out by that party only who
has obtained a judgment for the larger sum and for so much only as may
remain after deducting the smaller sum, and satisfaction for the smaller
sum shall be entered on the judgment for the larger sum as well as
satisfaction on the judgment for the smaller sum, and if both sums are
equal satisfaction shall be entered on both judgments.
Application for leave to issue execution by one of several persons
entitled (0. 45, r. 17)
(HK)17. (1) If a judgment has been given jointly in favour of more
persons than one, any one or more of such persons, or his or their
representatives, may apply to the Court for leave to issue execution on
the whole judgment for the benefit of them all or, where any of them has
died, for the benefit of the survivors and of the representative in interest
of the deceased person.
(2) If the Court grants such leave it shall make such order as it may
think fit for protecting the interests of the persons who have not joined
in the application.
ORDER 46
WRITS OF EXECUTION: GENERAL
Definition (0. 46, r. 1)
1. In this Order, unless the context otherwise requires, 'writ of
execution' includes a writ of fieri facias, a writ of possession, a writ of
delivery, a writ of sequestration and any further writ in aid of any of the
aforementioned writs.
When leave to issue any writ of execution is necessary (0. 46, r. 2)
2. (1) A writ of execution to enforce a judgment or order may not
issue without the leave of the Court in the following cases, that is to
say
(a)where 6 years or more have elapsed since the date of the
judgment or order;
(b)where any change has taken place, whether by death or
otherwise, in the parties entitled or liable to execution under
the judgment or order;
(e)where the judgment or order is against the assets of a
deceased person coming to the hands of his executors or
administrators after the date of the judgment or order, and it is
sought to issue execution against such assets;
(d)where under the judgment or order any person is entitled to
relief subject to the fulfilment of any condition which it is
alleged has been fulfilled;
(e)where any goods sought to be seized under a writ of
execution are in the hands of a receiver appointed by the
Court or a sequestrator.
(2) Paragraph (1) is without prejudice to any written law or rule by
virtue of which a person is required to obtain the leave of the Court for
the issue of a writ of execution or to proceed to execution on or
otherwise to the enforcement of a judgment or order.
(3) Where the Court grants leave, whether under this rule or
otherwise, for the issue of a writ of execution and the writ is not issued
within one year after the date of the order granting such leave, the order
shall cease to have effect, without prejudice, however, to the making of
a fresh order.
Leave required for issue of writ in aid of other writ (0. 46, r. 3)
3. A writ of execution in aid of any other writ of execution shall not
issue without the leave of the Court.
Application for leave to issue writ (0. 46, r. 4)
4. (1) An application for leave to issue a writ of execution may be
made ex parte unless the Court directs it to be made by summons.
(2) Such an application must be supported by an affidavit-
(a)identifying the judgment or order to which the application
relates and, if the judgment or order is for the payment of
money, stating the amount originally due thereunder and the
amount due thereunder at the date of the application;
(b)stating, where the case falls within rule 2(1)(a), the reasons for
the delay in enforcing the judgment or order;
(c)stating where the case falls within rule 2(1)(b), the change
which has taken place in the parties entitled or liable to
execution since the date of the judgment or order;
(d)stating, where the case falls within rule 2(1)(c) or (d), that a
demand to satisfy the judgment or order was made on the
person liable to satisfy it and that he has refused or failed to
do so;
(e)giving such other information as is necessary to satisfy the
Court that the applicant is entitled to proceed to execution on
the judgment or order in question and that the person against
whom it is sought to issue execution is liable to execution on
it.
(3) The Court hearing such application may grant leave in
accordance with the application or may order that any issue or question,
a decision on which is necessary to determine the rights of the parties,
be tried in any manner in which any question of fact or law arising in an
action may be tried and, in either case, may impose such terms as to
costs or otherwise as it thinks just.
Application for leave to issue writ of sequestration (0. 46, r. 5)
5. (1) Notwithstanding anything in rules 2 and 4, an application for
leave to issue a writ of sequestration must be made to a judge by
motion.
(2) Subject to paragraph (3), the notice of motion, stating the
grounds of the application and accompanied by a copy of the affidavit
in support of the application, must be served personally on the person
against whose property it is sought to issue the writ.
(3) Without prejudice to its powers under Order 65, rule 4, the
Court may dispense with service of the notice of motion under this rule
if it thinks it just to do so.
(4) The judge hearing an application for leave to issue a writ of
sequestration may sit in private in any case in which, if the application
were for an order of committal, he would be entitled to do so by virtue of
Order 52, rule 6, but, except in such a case, the application shall be heard
in open court.
Issue of writ of execution (0. 46, r. 6)
6. (1) Issue of a writ of execution takes place on its being sealed by
the Registrar.
(2) Before such a writ is issued a praecipe for its issue must be
filed.
(3) The praecipe must be signed by or on behalf of the solicitor of
the person entitled to execution or, if that person is acting in person, by
him.
(4) No such writ shall be sealed unless at the time of the tender
thereof for sealing
(a) the person tendering it produces-
(i) the judgment or order on which the writ is to issue, or an
office copy thereof,
(ii) where the writ may not issue without the leave of the
Court, the order granting such leave or evidence of the
granting of it, and
(b)the Registrar is satisfied that the period, if any, specified in the
judgment or order for the payment of any money or the doing
of any other act thereunder has expired.
(5) Every writ of execution shall bear the date of the day on which
it is issued.
Duration and renewal of writ of execution (0. 46, r. 8)
8. (1) For the purpose of execution, a writ of execution is valid in
the first instance for 12 months beginning with the date of its issue.
(2) Where a writ has not been wholly executed the Court may by
order extend the validity of the writ from time to time for a period of 12
months at any one time beginning with the day on which the order is
made, if an application for extension is made to the Court before the day
next following that on which the writ would otherwise expire or such
later day, if any, as the Court may allow.
(3) Before a writ the validity of which has been extended under this
this rule is executed either the writ must be sealed with the Seal of the
Court showing the date on which the order extending its validity was
made or the applicant for the order must serve a notice (in Form No. 71
in Appendix A), sealed as aforesaid, on the bailiff to whom the writ is
directed informing him of the making of the order and the date thereof.
(4) The priority of a writ, the validity of which has been extended
under this rule, shall be determined by reference to the date on which it
was originally delivered to the bailiff.
(5) The production of a writ of execution, or of such a notice as is
mentioned in paragraph (3), purporting in either case to be scaled as
mentioned in that paragraph, shall be evidence that the validity of that
writ or, as the case may be, of the writ referred to in that notice, has been
extended under this rule
Return to writ of execution (0. 46, r. 9)
9. (1~ Any party at whose instance a writ of execution was issued
may serve a notice on the bailiff to whom the writ was directed requiring
him, within such time as may be specified in the notice, to endorse on
the writ a statement of the manner in which he has executed it and to
send to that party a copy of the statement.
(2) If a bailiff on whom such a notice is served fails to comply with
it the party by whom it was served may apply to the Court for an order
directing the bailiff to comply with the notice.
(3) Upon receipt of a writ of execution it shall be the duty of the
bailiff, without fee, to indorse upon the back thereof the hour, day,
month and year when he received the same.
ORDER 47
WRITS OF FIERI FACIAS
Power to stay execution by writ of fieri facias (0. 47, r. 1)
1. (1) Where a judgment is given or an order made for the payment
by any person of money, and the Court is satisfied, on an application
made at the time of the judgment or order, or at any time thereafter, by
the judgment debtor or other party liable to execution
(a)that there are special circumstances which render it
inexpedient to enforce the judgment or order, or
(b)that the applicant is unable from any cause to pay the money,
then, notwithstanding anything in rule 3, the Court may by order stay
the execution of the judgment or order by writ of fieri facias either
absolutely or for such period and subject to such conditions as the
Court thinks fit.
(2) An application under this rule, if not made at the time the
judgment is given or order made, must be made by summons and may be
so made notwithstanding that the party liable to execution did not
acknowledge service of the writ or originating summons in the action or
did not state in his acknowledgment of service that he intended to apply
for a stay of execution under this rule pursuant to Order 13, rule 8.
(3) An application made by summons must be supported by an
affidavit made by or on behalf of the applicant stating the grounds of
the application and the evidence necessary to substantiate them and, in
particular, where such application is made on the grounds of the
applicant's inability to pay, disclosing his income, the nature and value
of any property of his and the amount of any other liabilities of his.
(4) The summons and a copy of the supporting affidavit must, not
less than 4 clear days before the return day, be served on the party
entitled to enforce the judgment or order.
(5) An order staying execution under this rule may be varied or
revoked by a subsequent order.
Separate writs to enforce payment of costs, etc. (0. 47, r. 3)
3. (1) Mere only the payment of money, together with costs to be
taxed, is adjudged or ordered, then, if when the money becomes payable
under the judgment or order the costs have not been taxed, the party
entitled to enforce that judgment or order may issue a writ of fieri facias
to enforce payment of the sum (other than for costs) adjudged or
ordered and, not less than 8 days after the issue of that writ, he may
issue a second writ to enforce payment of the taxed costs.
(2) A party entitled to enforce a judgment or order for the delivery
of possession of any property (other than money) may, if he so elects,
issue a separate writ of fieri facias to enforce payment of any damages
or costs awarded to him by that judgment or order.
Order for sale in execution of judgment (0. 47, r. 6)
(HK)6. (1) Every sale in execution of a judgment shall be made under the
direction of the Registrar and shall be conducted according to such
orders, if any, as the Court may make on application of the person at
whose instance the writ of execution under which the sale is to be made
was issued, of the person against whom that writ was issued or of the
bailiff to whom it was issued. In the absence of any such application the
sale shall be made by public auction.
(2) Such an application must be made by summons and the
summons must contain a short statement of the grounds of the
application.
(3) Where the applicant for an order under this rule is not a bailiff,
the bailiff must, on the demand of the applicant, send to the applicant a
list containing the name and address of every person at whose instance
any other writ of execution against the goods of the judgment debtor
was issued and delivered to the bailiff (in this rule referred to as 'the
bailiff's list'); and where the bailiff is the applicant, he must prepare
such a list.
(4) Not less than 4 clear days before the return day the applicant
must serve the summons on each of the other persons by whom the
application might have been made and on every person named in the
bailiff's list.
(HK)(5) Where any goods of a debtor are taken in execution, and the
bailiff has notice of another execution or other executions, the Court
shall not consider an application for sale otherwise than by auction
until service of the summons on the person or persons named in the
bailiff's list has been effected.
(6) The applicant must produce the bailiff's list to the Court on the
hearing of the application.
(7) Every person on whom the summons was served may attend
and be heard on the hearing of the application.
(HK) Special rules as to the sale of immovable property (0. 47, r. 7)
7. (1) At any time within 10 days from the date of sale of any
immovable property in execution of a judgment, application may be
made to the Court to set aside the sale on the ground of any material
irregularity in the conduct of the sale, but no such sale shall be set aside
on the ground of such irregularity unless the applicant proves to the
satisfaction of the Court that he has sustained substantial injury by
reason of such irregularity.
(2)(a) If no such application is made the sale shall be deemed
absolute.
(b)If such application is made and the objection is disallowed,
the Court shall make an order confirming the sale.
(c)If such application is made and the objection is allowed, the
Court shall make an order setting aside the sale for
irregularity.
(3) Whenever a sale of immovable property is set aside for
irregularity the purchaser shall be entitled to receive back any money
deposited or paid by him on account of such sale, with or without
interest, to be paid by such parties and in such manner as it may appear
to the Court proper to direct.
(4)(a) After a sale of immovable property has become absolute in
manner aforesaid the Court shall grant a certificate to the
person who has been declared the purchaser at such sale to
the effect that he has purchased the right, title and interest of
the judgment debtor in the property sold.
(b)Such certificate shall be liable to the same stamp duty as an
assignment of the same property and, when duly stamped as
aforesaid, shall be taken and deemed to be a valid transfer of
such right, title and interest and may be registered in the Land
Office under the Land Registration Ordinance.
(5)(a) Where the property sold consists of immovable property
in the occupancy of the judgment debtor, or of some person
on his behalf, or of some person claiming under a title created
by the judgment debtor subsequently to the attachment of the
property, the Court shall, on the application of the purchaser,
order delivery of the property to be made by putting the party
to whom the property has been sold, or any person whom he
may appoint to receive
delivery on his behalf, in possession thereof and, if neces-
sary, by removing any person who may refuse to vacate
the same.
(b)Where the property sold consists of immovable property in
the occupancy of any other person entitled to occupy the
same the Court shall, on the application of the purchaser,
order delivery thereof to be made by affixing a copy of the
certificate of sale in some conspicuous place on the prop-
erty or at the court house.
(6)(a) If the purchaser of any immovable property sold in
execution of a judgment is, notwithstanding the order of
the Court, resisted or obstructed in obtaining possession
of the property, the provisions of this Order relating to
resistance or obstruction to the execution of the judgment
for immovable property shall be applicable in the case of
such resistance or obstruction.
(b)If it appears that the resistance or obstruction to the
delivery of possession was occasioned by any person
other than the judgment debtor claiming a right to the
possession of the property sold as proprietor, mortgagee,
lessee, or under any other title, or if in the delivery of
possession to the purchaser any such person claiming as
aforesaid is dispossessed, the Court, on the complaint of
the purchaser or of such person claiming as aforesaid, if
made within one month from the date of such resistance
or obstruction or of such dispossession, as the case may
be, shall inquire into the matter of the complaint and
make such order as may be proper in the circumstances
of the case.
(c)The person against whom any such order is made shall be
at liberty to bring an action to establish his right at an),
time within three months from the date of the order.
(HK) Special rules as to the sale of movable property (0. 47, r. 8)
8.(1) (a) Where the property sold consists of movable
property in the possession of the judgment debtor, or to
the immediate possession of which the judgment debtor is
entitled, and of which actual seizure has been made, the
property shall be delivered to the purchaser.
(b)Where the property sold consists of movable property to
which the judgment debtor is entitled subject to a lien or
right of any person to the immediate possession thereof,
the delivery to the purchaser shall as far as practicable be
made by the bailiff giving notice to the person in possession
prohibiting him from delivering possession of the property
to any person except the purchaser.
(2) Where the property sold consists of debts, not being negotiable
instruments, or of shares in any public company or corporation, the
Court shall, on the application of the purchaser, make an order
prohibiting the judgment debtor from receiving the debts and his debtor
from making payment thereof to any person except the purchaser, or
prohibiting the person in whose name the shares are standing from
making any transfer of the shares to any person except the purchaser, or
receiving payment of any dividends thereon, and the manager, secretary
or other proper officer of the company or corporation from permitting
any such transfer or making any such payment to any person except the
purchaser.
(3) Where the property sold consists of a negotiable instrument of
which actual seizure has been made the same shall be delivered to the
purchaser.
(4)(a) If the execution of a transfer by any person in whose name
any share in a public company or corporation is standing, or
the indorsement by any person of any negotiable instrument,
or the execution by any person of any deed or other
instrument relating to immovable property or any interest
therein, is lawfully required to give effect to any sale in
execution of a judgment, the Registrar, with the sanction of
the Court, may
(i) execute such transfer; or
(ii) endorse such negotiable instrument; or (iii)
execute such deed or other instrument.
(b)The execution of such transfer, the endorsement of such
negotiable instrument and the execution of such deed or other
instrument by the Registrar shall have the same effect as the
execution and the endorsement by the person whose
execution or endorsement is so required as aforesaid.
(c)Until the execution of such transfer or the endorsement of
such negotiable instrument the Court may, by order, appoint
some person to receive any dividend or interest due in respect
of any such share or negotiable instrument.
ORDER 48
EXAMINATION OF JUDGMENT DEBTOR, ETC.
Order for examination of judgment debtor (0. 48, r. 1)
1. (1) Where a person has obtained a judgment or order for the
payment by some other person (hereinafter referred to as 'the judgment
debtor') of money, the Court may, on an application made ex parte by
the person entitled to enforce the judgment or order, order the judgment
debtor or, if the judgment debtor is a
body corporate, an officer thereof, to attend before the Registrar or
such officer as the Court may appoint and be orally examined on
the questions-
(a)whether any and, if so, what debts are owing to the
judgment debtor, and
(b)whether the judgment debtor has any and, if so, what other
property or means of satisfying the judgment or order,
and the Court may also order the judgment debtor or officer to
produce any books or documents in the possession of the judgment
debtor relevant to the questions aforesaid at the time and place
appointed for the examination.
(2) An order under this rule must be served personally on the
judgment debtor and on any officer of a body corporate ordered to
attend for examination.
(3) Any difficulty arising in the course of an examination
under this rule before the Registrar or officer, including any dispute
with respect to the obligation of the person being examined to
answer any question put to him, may be referred to ajudge and he
may determine it or give such directions for determining it as he
thinks fit.
Examination of party liable to satisfy other judgment (0. 48, r. 2)
2. Where any difficulty arises in or in connection with the
enforcement of any judgment or order, other than such a judgment
or order as is mentioned in rule 1, the Court may make an order
under that rule for the attendance of the party liable to satisfy the
judgment or order and for his examination on such questions as may
be specified in the order, and that rule shall apply accordingly with
the necessary modifications.
Examiner to make record of debtor's statement (0. 48, r. 3)
3. The Registrar or officer conducting the examination shall
take down, or cause to be taken down, in writing the statement made
by the judgment debtor or other person at the examination, read it
to him and ask him to sign it; and if he refuses the officer shall sign
the statement.
ORDER 49
GARNISHEE PROCEEDINGS
Attachment of debt due to judgment debtor (0. 49, r. 1)
1. (1) Where a person (in this Order referred to as 'the
judgment creditor') has obtained a judgment or order for the
payment by some other person (in this Order referred to as 'the
judgment debtor') of a sum of money amounting in value to at least
$1,000, not being a judgment or order for the payment of money
into court, and any other person within the jurisdiction (in this
Order referred to as 'the garnishee') is indebted to the judgment
debtor, the Court may, subject to the provisions of this Order and of
any written law, order the garnishee to pay the judgment creditor
the amount of any debt due or accruing due to the judgment debtor
from the garnishee, or so much thereof as is sufficient to satisfy that
judgment or order and the costs of the garnishee proceedings.
(2) An order under this rule shall in the first instance be an
order to show cause, specifying the time and place for further
consideration of the matter, and in the meantime attaching such
debt as is mentioned in paragraph (1), or so much thereof as may be
specified in the order, to answer the judgment or order mentioned in
that paragraph and the costs of the garnishee proceedings.
Application for order (0. 49, r. 2)
2. An application for an order under rule 1 must be made
ex parte supported by an affidavit-
(a)stating the name and the last known address of the judg-
ment debtor,
(b)identifying the judgment or order to be enforced and
stating the amount remaining unpaid under it at the time
of the application,
(c)stating that to the best of the information or belief of the
deponent the garnishee (naming him) is within the jurisdic-
tion and is indebted to the judgment debtor and stating the
sources of the deponent's information or the grounds for
his belief, and
(d)stating, where the garnishee is a bank having more than
one place of business, the name and address of the branch
at which the judgment debtor's account is believed to be
held or, if it be the case, that this information is not known
to the deponent.
Service and effect of order to show cause (0. 49, r. 3)
3. (1) Unless the Court otherwise directs, an order under
rule 1 to show cause must be served-
(a)on the garnishee personally, at least 15 days before the day
appointed thereby for the further consideration of the
matter, and
(b)on the judgment debtor, at least 7 days after the order has
been served on the garnishee and at least 7 days before the
day appointed for the further consideration of the matter.
(2) Such an order shall bind in the hands of the garnishee as
from the service of the order on him any debt specified in the order
or so much thereof as may be so specified.
No appearance or dispute of liability by garnishee (0. 49, r. 4)
4. (1) Where on the further consideration of the matter the
garnishee does not attend or does not dispute the debt due or
claimed to be due from him to the judgment debtor, the Court may
make an order absolute under rule 1 against the garnishee.
(2) An order absolute under rule 1 against the garnishee may
be enforced in the same manner as any other order for the payment
of money.
Dispute of liability by garnishee (0. 49, r. 5)
5. Where on the further consideration of the matter the
garnishee disputes liability to pay the debt due or claimed to be
due from him to the judgment debtor, the Court may summarily
determine the question at issue or order that any question necessary
for determining the liability of the garnishee be tried in any manner
in which any question or issue in an action may be tried, without if it
orders trial before a master the need for any consent by the parties.
Claims of third persons (0. 49, r. 6)
6. (1) If in garnishee proceedings it is brought to the notice
of the Court that some other person than the judgment debtor is or
claims to be entitled to the debt sought to be attached or has or
claims to have a charge or lien upon it, the Court may order that
person to attend before the Court and state the nature of his claim
with particulars thereof.
(2) After hearing any person who attends before the Court
in compliance with an order under paragraph (1), the Court may
summarily determine the questions at issue between the claimants or
make such other order as it thinks just, including an order that any
question or issue necessary for determining the validity of the claim
of such other person as is mentioned in paragraph (1) be tried in
such manner as is mentioned in rule 5.
Discharge of garnishee (0. 49, r. 8)
8. Any payment made by a garnishee in compliance with an
order absolute under this Order, and any execution levied against
him in pursuance of such an order, shall be a valid discharge of his
liability to the judgment debtor to the extent of the amount paid
or levied notwithstanding that the garnishee proceedings are
subsequently set aside or the judgment or order from which they
arose reversed.
Money in court (0. 49, r. 9)
9. (1) Where money is standing to the credit of the judgment
debtor in court, the judgment creditor shall not be entitled to take
garnishee proceedings in respect of that money but may apply to the
Court by summons for an order that the money or so much thereof
as is sufficient to satisfy the judgment or order sought to be enforced
and the costs of the application be paid to the judgment creditor.
(2) The money to which the application relates shall not be paid
out of court until after the determination of the application.
(3) Unless the Court otherwise directs, the summons must be
served on the judgment debtor at least 7 days before the day named
therein for the hearing of it.
(4) Subject to Order 75, rule 24, the Court hearing an application
under this rule may make such order with respect to the money in court
as it thinks just.
Costs (0. 49, r. 10)
10. The costs of any application for an order under rule 1 or 9, and
of any proceedings arising therefrom or incidental thereto, shall, unless
the Court otherwise directs, be retained by the judgment creditor out of
the money recovered by him under the order and in priority to the
judgment debt.
ORDER 49B
(HK) EXECUTION AND ENFORCEMENT OF JUDGMENT FOR
MONEY BY IMPRISONMENT
Securing attendance at examination (0. 49B, r. 1)
1. (1) Where a judgment for the payment of a specified sum of
money is, wholly or partly, unsatisfied, the Court, on an ex parte
application of the judgment creditor, may order that the judgment debtor
be examined under rule 1A and shall, for the purpose of securing the
attendance of the judgment debtor at an examination under rule 1A
either
(a)order the judgment debtor, by an order which shall be served
personally upon him, to appear before the Court at a time
appointed by the Court, with such documents or records as
the Court may specify; or
(b)where it appears to the Court that there is reasonable cause,
from all the circumstances of the case, including the conduct
of the judgment debtor, to believe that an order under
paragraph (a) may be ineffective to secure the attendance of
the judgment debtor for examination, order that he be arrested
and brought before the Court before the expiry of the day after
the day of arrest.
(2) On an application under paragraph (1), the Court may make an
order prohibiting the judgment debtor from leaving Hong Kong.
(3) Where a judgment debtor fails to appear as ordered under
paragraph (1)(a), the Court may order that he be arrested and brought
before the Court for examination before the expiry of the day'after the
day of arrest.
(4) Section 71 of the Interpretation and General Clauses Ordinance
shall not apply to this rule.
(5) The order for arrest shall be in Form No. 102 in Appendix A.
Examination of debtor (0. 49B r. I A)
1A. (1) Upon appearance of the judgment debtor for examination,
he shall give evidence and he may be examined on oath by the
judgment creditor and the Court; and the Court may receive such other
evidence as it thinks fit.
(2) The judgment debtor shall, at his examination, make a full
disclosure of all his assets, liabilities, income and expenditure and of the
disposal of any assets or income and shall, subject to the directions of
the Court, answer all questions put to him.
(3) Where the examination is adjourned, the Court shall order that
the judgment debtor appear at the resumption of the examination and
may
(a) order that he be prohibited from leaving Hong Kong; or
(b)where it appears to the Court that there is reasonable cause,
from all the circumstances of the case, including any evidence
heard by the Court and the conduct of the judgment debtor,
to believe that he may not appear at the resumption of the
examination, order that he be imprisoned until that
resumption.
(4) The order under paragraph (3)(b) shall be in Form No. 103 in
Appendix A.
Power of the Court following examination (0. 49B, r. 1B)
1B. (1) Where the Court is satisfied, following the examination
conducted under rule 1A or following an examination conducted under
Order 48, that the judgment debtor
(a) is able to satisfy the judgment, wholly or partly; or
(b)has disposed of assets with a view to avoiding satisfaction of
the judgment or the liability which is the subject of the
judgment, wholly or partly; or
(c)has wilfully failed to make a full disclosure as required under
rule I A(2) or at the examination under Order 48 or to answer
any question as provided under that rule or Order,
it may, in its discretion, order the imprisonment of the judgment debtor
for a period not exceeding 3 months.
(2)(a) Where the Court is satisfied, following the examination
conducted under rule I A or following an examination
conducted under Order 48, that the judgment debtor is
able or will be able to satisfy the judgment, wholly or partly,
by instalments or otherwise, it may order him to satisfy the
judgment in such manner as it thinks fit.
(b)The Court may, on application, discharge, vary or suspend an
order made under sub-paragraph (a), either absolutely or
subject to such conditions as it thinks fit.
(3)(a) Where the judgment debtor fails to comply with an order
made under paragraph (2), the judgment creditor may apply to
the Court, on not less than 2 clear days notice to the judgment
debtor, for an order for the imprisonment of the judgment
debtor and the Court may, unless the judgment debtor shows
good cause, order the imprisonment of the judgment debtor
for a period not exceeding 3 months.
(b)Notwithstanding rule 7, the Court may order the imprisonment
of the judgment debtor on each occasion of a failure to comply
with an order under paragraph (2) or more than once in respect
of a continuing failure to comply with an order under that
paragraph.
(4) The order for imprisonment shall be in Form No. 104 in
Appendix A.
(5) The application under paragraph (3)(a) shall be in Form No. 105
in Appendix A.
(6) An order under paragraph (1), (2) or (3) shall not prevent
execution of the judgment by other means unless the Court so directs.
(7) An order for imprisonment of a judgment debtor shall be made
in open court.
Imprisonment not to satisfy debt (0. 49B r. 1 C)
1C. An order for imprisonment under this Order shall not satisfy or
extinguish any judgment debt.
Support and maintenance allowance to prisoner for debt (0. 49B r. 2)
2. When a judgment debtor is committed to prison in execution of
the judgment the Court shall fix whatever monthly allowance it may
think sufficient for his support and maintenance, not exceeding $150 per
DIEM which shall be paid by the person at whose instance the
judgment has been executed to the Commissioner of Correctional
Services by monthly payments in advance, the second and subsequent
such payments to be made not less than 7 days before the last
preceding such payment is exhausted.
Removal to hospital of prisoner for debt in case of serious illness
(0. 49B r. 3)
3. (1) In case of the serious illness of any person imprisoned in
execution of a judgment it shall be lawful for the Court, on the
certificate of the medical officer of the prison in which he is confined or
of the Director of Medical and Health Services of the Government, to
make an order for the removal of the judgment debtor to a hospital and
for his treatment there under custody until further order.
(2) In any such case the period of the judgment debtor's stay in
hospital shall be counted as part of his term of imprisonment and his
support and maintenance money shall be paid as if no such order had
been made.
Release of prisoner for debt (0. 49B r. 4)
4. Every person arrested or imprisoned in execution of a judgment
shall be released at any time on the judgment being fully satisfied, or at
the request of the person at whose instance the judgment has been
executed, or on such person omitting to pay his support and
maintenance money.
Recovery of amount of support and maintenance money (0. 49B r. 5)
5. All sums paid by a plaintiff for the support and maintenance of a
person imprisoned in execution of a judgment shall be added to the
costs of the judgment and shall be recoverable by the attachment and
sale of the property of the judgment debtor; but the judgment debtor
shall not be detained in custody or arrested on account of any sum so
paid.
Recovery of costs of execution (0. 49B, r. 6)
6. The costs of obtaining and executing the order and warrant of
arrest or imprisonment shall be added to the costs of the judgment and
shall be recoverable accordingly.
Effect of discharge of prisoner for debt (0. 49B r. 7)
7. Subject to rule 1B(3)(b) when any person imprisoned in
execution of a judgment has been once discharged he shall not again be
imprisoned on account of the same judgment, but his property shall
continue liable, under the ordinary rules, to attachment and sale until
the judgment is fully satisfied.
Meaning of 'Judgment creditor' (0. 49B r. 8)
8. In this Order, 'Judgment creditor' includes any person entitled to
enforce the judgment.
ORDER 50
CHARGING ORDERS, STOP ORDERS, ETC.
Order imposing a charge on a beneficial interest (0. 50, r. 1)
1. (2) An application by a judgment creditor for a charging order in
respect of a judgment debtor's beneficial interest may be made ex parte,
and any order made on such an application shall in
the first instance be an order, made in Form No. 75 in Appendix A,
to show cause, specifying the time and place for further considera-
tion of the matter and imposing the charge in any event until that
time.
(3) The application shall be supported by an affidavit-
(a)identifying the judgment or order to be enforced and
stating the amount unpaid at the date of the application;
(b)stating the name of the judgment debtor and of any
creditor of his whom the applicant can identify;
(c)giving full particulars of the subject-matter of the intended
charge, including, in the case of securities other than
securities in court, the full title of the securities, their
amount and the name in which they stand and, in the case
of funds in court, the number of the account; and
(d)verifying that the interest to be charged is owned bene-
ficially by the judgment debtor.
(4) Unless the Court otherwise directs, an affidavit for the
purposes of this rule may contain statements of information or
belief with the sources and grounds thereof.
(5) An application may be made for a single charging order in
respect or more than one judgment or order against the debtor.
Service of notice of order to show cause (0. 50, r. 2)
2. (1) On the making of an order to show cause, notice of
the order shall, unless the Court otherwise directs, be served as
follows-
(a)a copy of the order, together with a copy of the affidavit in
support, shall be served on the judgment debtor;
(b)where the order relates to securities other than securities in
court, copies of the order shall also be served-
(iii) in the case of stock of any body incorporated
within Hong Kong, on that body;
(iv) in the case of stock of any body incorporated
outside Hong Kong, being stock registered in a register
kept in Hong Kong, on the keeper of the register;
(v) in the case of units of any unit trust in respect of
which a register of unit holders is kept in Hong Kong, on
the keeper of the register;
(c)where the order relates to a fund in court, a copy of the
order shall be served on the Registrar at the Registry, and
(d)where the order relates to an interest under a trust, copies
of the order shall be served on such of the trustees as the
Court may direct.
(2) Without prejudice to the provisions of paragraph (1) the
Court may, on making the order to show cause, direct the service of
copies of the order, and of the affidavit in support, on any other creditor
of the judgment debtor or on any other interested person as may be
appropriate in the circumstances.
(3) Documents to be served under this rule must be served at least
seven days before the time appointed for the further consideration of
the matter.
Order made on further consideration (0. 50, r. 3)
3. (1) On the further consideration of the matter the Court shall
either make the order absolute, with or without modifications, or
discharge it.
(2) Where the order is made absolute, it shall be in Form 76 in
Appendix A, and where it is discharged, the provisions of rule 7,
regarding the service of copies of the order of discharge, shall apply.
Order imposing a charge on an interest held by a trustee (0. 50, r. 4)
4. (1) Save as provided by this rule, the provisions of rules 1, 2 and
3 shall apply to an order charging an interest held by a trustee as they
apply to an order charging the judgment debtor's beneficial interest.
(2) Instead of verifying the judgment debtor's beneficial ownership
of the interest to be charged, the affidavit required by rule 1(3) shall
state the ground on which the application is based and shall verify the
material facts.
(3) On making the order to show cause, the Court shall give
directions for copies of the order, and of the affidavit in support, to be
served on such of the trustees and beneficiaries, if any, as may be
appropriate.
(4) Rules 5, 6 and 7 shall apply to an order charging an interest held
by a trustee as they apply to an order charging the judgment debtor's
beneficial interest, except that, where the order is made under
subsection (ii) or (iii) of section 20A(1)(b) of the Ordinance references
in those rules to 'the judgment debtor' shall be references to the
trustee.
(5) Forms No. 75 and 76 in Appendix A shall be modified so as to
indicate that the interest to be charged is held by the debtor as trustee
or, as the case may be, that it is held by a trustee (to be named in the
order) on trust for the debtor beneficially.
Effect of order in relation to securities out of court (0. 50, r. 5)
5. (1) No disposition by the judgment debtor of his interest in any
securities to which an order to show cause relates made after the
making of that order shall, so long as that order remains in force, be
valid as against the judgment creditor.
(2) Until such order is discharged or made absolute, the person or
body served in accordance with rule 2(1)(b) shall not permit any
transfer of any of the securities specified in the order, or
pay any dividend, interest or redemption payment in relation thereto,
except with the authority of the Court, and, if it does so, shall be liable to
pay the judgment creditor the value of the securities transferred or, as
the case may be, the amount of the payment made or, if that value or
amount is more than sufficient to satisfy the judgment or order to which
such order relates, so much thereof as is sufficient to satisfy it.
(3) If the Court makes the order absolute, a copy of the order,
including a stop notice as provided in Form No. 76 in Appendix A, shall
be served on the person or body specified in rule 2(1)(b) as may be
appropriate and, save as provided in rule 7(5), rules 11 to 14 shall apply
to such a notice as they apply to a stop notice made and served under
rule 11.
(4) This rule does not apply to orders in respect of securities in
court.
Effect of order in relation to funds in court (0. 50, r. 6)
6. (1) Where an order to show cause has been made in relation to
funds in court (including securities in court) and a copy thereof has
been served on the Registrar in accordance with rule 2, no disposition
by the judgment debtor of any interest to which the order relates, made
after the making of that order, shall, so long as the order remains in
force, be valid as against the judgment creditor.
(2) If the Court makes the order absolute, a copy of the order shall
be served on the Registrar at the Registry.
Discharge, etc., of charging order (0. 50, r. 7)
7. (1) Subject to paragraph (2) on the application of the judgment
debtor or any other person interested in the subject-matter of the
charge, the Court may, at any time, whether before or after the order is
made absolute, discharge or vary the order on such terms (if any) as to
costs or otherwise as it thinks just.
(2) Where an application is made for the discharge of a charging
order in respect of the judgment debtor's land on the ground that the
judgment debt has been satisfied, the applicant shall state in his
application, and the Court shall specify in its order the lot number of the
land and the memorial number of any relevant charge registered against
the land.
(3) Notice of an application for the discharge or variation of the
order shall be served on such interested parties as the Court may direct.
(4) Where an order is made for the discharge or variation of a
charging order in respect of funds in court, a copy thereof shall be
served on the Registrar at the Registry.
(5) Where an order is made for the discharge or variation of a
charging order in respect of securities other than securities in court, a
copy thereof shall be served on the person or body specified in
rule 2(1)(b) as may be appropriate, and the service thereof shall
discharge, or, as the case may be, vary, any stop notice in respect of
such securities which may be in force pursuant to the original order.
Jurisdiction of master to grant injunction (0. 50, r. 9)
9. A master shall have power to grant an injunction if, and only so
far as, it is ancillary or incidental to an order under rule 1, 3 or 4 and an
application for an injunction under this rule may be joined with the
application for the order under rule 1, 3 or 4 to which it relates.
Enforcement of charging order by sale (0. 50, r. 9A)
9A. (1) Proceedings for the enforcement of a charging order by sale
of the property charged must be begun by originating summons.
(2) The provisions of Order 88 shall apply to all such proceedings.
Funds in court: stop order (0. 50, r. 10)
10. (1) The Court, on the application of any person-
(a)who has a mortgage or charge on the interest of any person in
funds in court, or
(b) to whom that interest has been assigned, or
(c)who is a judgment creditor of the person entitled to that
interest,
may make an order prohibiting the transfer, sale, delivery out, payment
or other dealing with such funds, or any part thereof, or the income
thereon, without notice to the applicant.
(2) An application for an order under this rule must be made by
summons in the cause or matter relating to the funds in court, or, if there
is no such cause or matter, by originating summons.
(3) The summons must be served on every person whose interest
may be affected by the order applied for but shall not be served on any
other person.
(HK)(4) Without prejudice to the Court's powers and discretion as to
costs, the Court may order the applicant for an order under this rule to
pay the costs of any party to the cause or matter relating to the funds in
question, or of any person interested in those funds occasioned by the
application.
Securities not in court: stop notice (0. 50, r. 11)
11. (1) Any person claiming to be beneficially entitled to an interest
in any securities of the kinds set out in section 20A(2)(b) of the
Ordinance, other than securities in court, who wishes to be notified of
any proposed transfer or payment of those securities may avail himself
of the provisions of this rule.
(2) A person claiming to be so entitled must file in the
Registry-
(a)an affidavit identifying the securities in question and des-
cribing his interest therein by reference to the document
under which it arises, and
(b)a notice in Form No. 80 in Appendix A (a stop notice),
signed by the deponent to the affidavit, and annexed to it,
addressed to the body or unit trust concerned,
and must serve an office copy of the affidavit, and a copy of the
notice sealed with the Seal of the Court on that person or body as
provided in rule 2(1)(b).
(3) There must be endorsed on the affidavit filed under this
rule a note stating the address to which any such notice as is referred
to in rule 12 is to be sent and, subject to paragraph (4), that address
shall for the purpose of that rule be the address for service of the
person on whose behalf the affidavit is filed.
(4) A person on whose behalf an affidavit under this rule is
filed may change his address for service for the purpose of rule 12 by
serving on the person or body concerned, a notice to that effect, and
as from the date of service of such a notice the address stated therein
shall for the purpose of that rule be the address for service of that
person.
Effect of stop notice (0. 50, r. 12)
12. Where a stop notice has been served in accordance with
rule 11, then, so long as the stop notice is in force, the person or body
on which it is served shall not register a transfer of the securities or
take any other steps restrained by the stop notice until 14 days after
sending notice thereof, by ordinary pre-paid post, to the person on
whose behalf the stop notice was filed, but shall not by reason only
of that notice refuse to register a transfer, or to take any other step,
after the expiry of that period.
Amendment of stop notice (0. 50, r. 13)
13. If any securities are incorrectly described in a stop notice
which has been filed and of which a sealed copy has been served in
accordance with rule 11, an amended stop notice may be filed and
served in accordance with the same procedure and shall take effect as
a stop notice on the day on which the sealed copy of the amended
notice is served.
Withdrawal, etc. of stop notice (0. 50, r. 14)
14. (1) The person on whose behalf a stop notice was filed
may withdraw it by serving a request for its withdrawal on the
person or body on whom the notice was served.
(2) Such request must be signed by the person on whose behalf
the notice was filed and his signature must be witnessed by a
practising solicitor.
(3) The Court, on the application of any person claiming to be
beneficially entitled to an interest in the securities to which a notice
under rule 11 relates, may by order discharge the notice.
(4) An application for an order under paragraph (3) must be made
by originating summons, and the summons must be served on the
person on whose behalf a stop notice was filed.
The summons shall be in Form No. 10 in Appendix A.
Order prohibiting transfer, etc. of securities (0. 50, r. 15)
15. (1) The Court, on the application of any person claiming to be
beneficially entitled to an interest in any securities of the kinds set out
in section 20A(2)(b) of the Ordinance may by order prohibit the person
or body concerned from registering any transfer of the securities or
taking any other step to which section 55C(4) of the Ordinance applies.
(L.N. 356188)
The order shall specify the securities to which the prohibition
relates, the name in which they stand and the steps which may not be
taken, and shall state whether the prohibition applies to the securities
only or to the dividends or interest as well.
(2) An application for an order under this rule must be made by
motion or summons.
An originating summons under this rule shall be in Form No. 10 in
Appendix A.
(3) The Court, on the application of any person claiming to be
entitled to an interest in any securities to which an order under this rule
relates, may vary or discharge the order on such terms (if any) as to
costs or otherwise as it thinks fit.
ORDER 51
RECEIVERS: EQUITABLE EXECUTION
Appointment of receiver by way of equitable execution (0. 51, r. 1)
1. (1) Where an application is made for the appointment of a
receiver by way of equitable execution, the Court in determining whether
it is just or convenient that the appointment should be made shall have
regard to the amount claimed by the judgment creditor, to the amount
likely to be obtained by the receiver and to the probable costs of his
appointment and may direct an inquiry on any of these matters or any
other matter before making the appointment.
Masters may appoint receiver etc. (0. 5 1, r. 2)
2. A master shall have power to make an order for the appointment
of a receiver by way of equitable execution and to grant an injunction if,
and only so far as, the injunction is ancillary or incidental to such order.
Application of rules as to appointment of receiver, etc. (0. 5 1, r. 3)
3. An application for the appointment of a receiver by way of
equitable execution may be made in accordance with Order 30, rule 1,
and rules 2 to 6 of that Order shall apply in relation to a receiver
appointed by way of equitable execution as they apply in relation to a
receiver appointed for any other purpose.
ORDER 52
COMMITTAL
Committal for contempt of court (0. 52, r. 1)
1. The power of the Court or of the Court of Appeal to punish for
contempt of court may be exercised by an order of committal made by a
single Judge or by a single justice of appeal.
(HK) Grant of leave to apply for committal (0. 52, r. 2)
(HK)2. (1) No application for an order of committal against any person
may be made unless leave to make such an application has been granted
in accordance with this rule.
(2) An application for such leave must be made ex parte to a judge,
and must be supported by a statement setting out the name and
description of the applicant, the name, description and address of the
person sought to be committed and the grounds on which his committal
is sought, and by an affidavit, to be filed before the application is made,
verifying the facts relied on.
(3) The applicant must give notice of the application for leave not
later than the preceding day to the Registrar and must at the same time
lodge with the Registrar copies of the statement and affidavit.
(HK)(4) The judge may determine the application for leave without a
hearing, unless a hearing is requested in the notice of application, and
need not sit in open court; and in any case the Registrar shall serve a
copy of the judge's order on the applicant.
(HK)(5) Where an application for leave is refused by a judge or is
granted on terms, the applicant may appeal against the judge's order to
the Court of Appeal within 10 days after such order.
(HK)(6) Without prejudice to the powers conferred by Order 20, rule 8,
the judge hearing an application for leave may allow the applicant's
statement to be amended on such terms, if any, as the judge thinks fit.
(HK)(7) If the judge grants leave he may impose such terms as to costs
and as to giving of security as he thinks fit.
Application for order after leave to apply granted (0. 52, r. 3)
3. (1) When leave has been granted to make an application for an
order of committal, the application shall be made by
originating motion to a judge and unless the Court granting leave has
otherwise directed, there must be at least 8 clear days between the
service of the notice of motion and the day named therein for the
hearing.
(2) Unless within 14 days after such leave was granted the motion
is entered for hearing the leave shall lapse.
(3) The notice of motion, accompanied by a copy of the statement
and affidavit in support of the application for leave under rule 2, must be
served personally on the person sought to be committed.
(4) Without prejudice to the powers of the Court under Order 65,
rule 4, the Court may dispense with service of the notice of motion
under this rule if it thinks it just to do so.
Saving for power to commit without application for purpose (0. 52, r. 5)
5. Nothing in the foregoing provisions of this Order shall be taken
as affecting the power of the High Court or the Court of Appeal to make
an order of committal of its own motion against a person guilty of
contempt of court.
Provisions as to hearing (0. 52, r. 6)
6. (1) Subject to paragraph (2), the Court hearing an application for
an order of committal may sit in private in the following cases, that is to
say
(a)where the application arises out of proceedings relating to the
wardship or adoption of an infant or wholly or mainly to the
guardianship, custody, maintenance or upbringing of an
infant, or rights of access to an infant;
(b)where the application arises out of proceedings relating to a
person suffering or appearing to be suffering from mental
disorder within the meaning of the Mental Health Ordinance;
(c)where the application arises out of proceedings in which a
secret process, discovery or invention was in issue;
(d)where it appears to the Court that in the interests of the
administration of justice or for reasons affecting the security of
Hong Kong the application should be heard in private;
but, except as aforesaid, the application shall be heard in open court.
(2) If the Court hearing an application in private by virtue of
paragraph (1) decides to make an order of committal against the person
sought to be committed, it shall in open court state
(a) the name of that person,
(b)in general terms the nature of the contempt of court in respect
of which the order of committal is being made, and
(c) the length of the period for which he is being committed.
(3) Except with the leave of the Court hearing an application for an
order of committal, no grounds shall be relied upon at the hearing except
the grounds set out in the statement under rule 2 or, as the case may be,
in the notice of motion under rule 4.
The foregoing provision is without prejudice to the powers of the
Court under Order 20, rule 8.
(4) If on the hearing of the application the person sought to be
committed expresses a wish to give oral evidence on his own behalf, he
shall be entitled to do so.
Power to suspend execution of committal order (0. 52, r. 7)
7. (1) The Court by whom an order of committal is made may by
order direct that the execution of the order of committal shall be
suspended for such period or on such terms or conditions as it may
specify.
(2) Where execution of an order of committal is suspended by an
order under paragraph (1), the applicant for the order of committal must,
unless the Court otherwise directs, serve on the person against whom it
was made a notice informing him of the making and terms of the order
under that paragraph.
Discharge of person committed (0. 52, r. 8)
8. (1) The Court may, on the application of any person committed
to prison for any contempt of court, discharge him.
(2) Where a person has been committed for failing to comply with a
judgment or order requiring him to deliver any thing to some other
person or to deposit it in court or elsewhere, and a writ of sequestration
has also been issued to enforce that judgment or order, then, if the thing
is in the custody or power of the person committed, the commissioners
appointed by the writ of sequestration may take possession of it as if it
were the property of that person and, without prejudice to the generality
of paragraph (1), the Court may discharge the person committed and
may give such directions for dealing with the thing taken by the
commissioners as it thinks fit.
Saving for other powers (0. 52, r. 9)
9. Nothing in the foregoing provisions of this Order shall be taken
as affecting the power of the Court to make an order requiring a person
guilty of contempt of court, or a person punishable by virtue of any
written law in like manner as if he had been guilty of contempt of the
High Court, to pay a fine or to give security for his good behaviour, and
those provisions, so far as applicable, and with the necessary
modifications, shall apply in relation to an application for such an order
as they apply in relation to an application for an order of committal.
ORDER 53
APPLICATIONS FOR JUDICIAL REVIEW
Cases appropriate for application for judicial review (0. 53, r. 1)
1. (1) An application for-
(a) an order of mandamus, prohibition or certiorari, or
(b)an injunction under section 21J of the Ordinance restrain-
ing a person from acting in any office in which he is not
entitled to act,
shall be made by way of an application for judicial review in
accordance with the provisions of this Order.
(2) An application for a declaration or an injunction (not
being an injunction mentioned in paragraph (1)(b)) may be made by
way of an application for judicial review, and on such an application
a judge may grant the declaration or injunction claimed if he
considers that, having regard to-
(a)the nature of the matters in respect of which relief may be
granted by way of an order of mandamus, prohibition or
certiorari,
(b)the nature of the persons and bodies against whom relief
may be granted by way of such an order, and
(c) all the circumstances of the case,
it would be just and convenient for the declaration or injunction to
be granted on an application for judicial review.
Joinder of claims for relief (0. 53, r. 2)
2. On an application for judicial review any relief mentioned
in rule 1(1) or (2) may be claimed as an alternative or in addition to
any other relief so mentioned if it arises out of or relates to or is
connected with the same matter.
Grant of leave to apply for judicial review (0. 53, r. 3)
3. (1) No application for judicial review shall be made unless
the leave of the Court has been obtained in accordance with this rule.
(2) An application for leave must be made ex parte by filing in
the Registry-
(a) a notice in Form 86A containing a statement of-
(i) the name and description of the applicant,
(ii) the relief sought and the grounds upon which it is
sought,
(iii) the name and address of the applicant's solicitors
(if any), and
(iv) the applicant's address for service; and
(b) an affidavit verifying the facts relied on.
(3) The judge may determine the application without a hear-
ing, unless a hearing is requested in the notice of application, and
need not sit in open court; and in any case the Registrar shall serve
a copy of the judge's order on the applicant.
(HK)(4) Where an application for leave is refused by a judge or is
granted on terms, the applicant may appeal against the judge's order
to the Court of Appeal within 10 days after such order.
(6) Without prejudice to its powers conferred by Order 20,
rule 8, the Court hearing an application for leave may allow the
applicant's statement to be amended, whether by specifying different
or additional grounds or relief or otherwise, on such terms, if any,
as the Court thinks fit.
(7) The Court shall not grant leave unless it considers that
the applicant has a sufficient interest in the matter to which the
application relates.
(8) Where leave is sought to apply for an order of certiorari to
remove for the purpose of its being quashed any judgment, order,
conviction or other proceeding which is subject to appeal and a time
is limited for the bringing of the appeal, the Court may adjourn the
application for leave until the appeal is determined or the time for
appealing has expired.
(9) If the Court grants leave it may impose such terms as to
costs and as to giving security as it thinks fit.
(10) Where leave to apply for judicial review is granted, then-
(a)if the relief sought is an order of prohibition or certiorari
and the Court so directs, the grant shall operate as a stay
of the proceedings to which the application relates until
the determination of the application or until the Court
otherwise orders;
(b)if any other relief is sought, the Court may at any time
grant in the proceedings such interim relief as could be
granted in an action begun by writ.
Delay in applying for relief (0. 53, r. 4)
4. (1) An application for leave to apply for judicial review
shall be made promptly and in any event within three months from
the date when grounds for the application first arose unless the
Court considers that there is good reason for extending the period
within which the application shall be made. (L.N. 356188)
(2) Where the relief sought is an order of certiorari in respect
of any judgment, order, conviction or other proceeding, the date
when grounds for the application first arose shall be taken to be
the date of that judgment, order, conviction or proceeding.
(3) The preceding paragraphs are without prejudice to any
statutory provision which has the effect of limiting the time within
which an application for judicial review may be made.
Mode of applying for judicial review (0. 53, r. 5)
(HK)5. (1) When leave has been granted to make an application for
judicial review, the application shall be made by originating motion to
ajudge sitting in open court or, if the judge granting leave has so
ordered, by originating summons, to a judge in chambers.
(3) The notice of motion or summons must be served on all
persons directly affected and, where it relates to any proceedings in or
before a court and the object of the application is either to compel the
court or an officer of the court to do any act in relation to the
proceedings or to quash them or any order made therein, the notice or
summons must also be served on the clerk or registrar of the court and,
where any objection to the conduct of the judge is to be made, on that
judge.
(4) Unless the Court granting leave has otherwise directed, there
must be at least 10 days between the service of the notice of motion or
summons and the day named therein for the hearing.
(5) A motion must be entered for hearing within 14 days after the
grant of leave.
(6) An affidavit giving the names and addresses of, and the places
and dates of service on, all persons who have been served with the
notice of motion must be filed before the motion is entered for hearing
and, if any person who ought to be served under this rule has not been
served, the affidavit must state that fact and the reason for it; and the
affidavit shall be before the Court on the hearing of the motion.
(7) If on the hearing of the motion the Court is of opinion that any
person who ought, whether under this rule or otherwise, to have been
served has not been served, the Court may adjourn the hearing on such
terms (if any) as it may direct in order that the notice may be served on
that person.
Statements and affidavits (0. 53, r. 6)
6. (1) Copies of the statement in support of an application for leave
under rule 3 must be served with the notice of motion or summons and,
subject to paragraph (2), no grounds shall be relied upon or any relief
sought at the hearing except the grounds and relief set out in the
statement.
(2) The Court may on the hearing of the motion or summons allow
the applicant to amend his statement, whether by specifying different or
additional grounds or relief or otherwise, on such terms, if any, as it
thinks fit and may allow further affidavits to be used if they deal with
new matters arising out of an affidavit of any other party to the
application.
(3) Where the applicant intends to ask to be allowed to amend his
statement or to use further affidavits, he shall give notice of his
intention and of any proposed amendment to every other party.
(5) Each party to the application must supply to every other party
copies of every affidavit which he proposes to use at the hearing,
including, in the case of the applicant, the affidavit in support of the
application for leave under rule 3.
Claim for damages (0. 53, r. 7)
7. (1) On an application for judicial review the judge may, subject to
paragraph (2), award damages to the applicant if
(a)he has included in the statement in support of his application
for leave under rule 3 a claim for damages arising from any
matter to which the application relates, and
(b)the Court is satisfied that, if the claim had been made in an
action begun by the applicant at the time of making his
application, it could have been awarded damages.
(2) Order 18, rule 12, shall apply to a statement relating to a claim
for damages as it applies to a pleading.
Application for discovery, interrogatories, cross-examination, etc.
(0. 53, r. 8)
8. (1) Unless the judge otherwise directs, any interlocutory
application in proceedings on an application for judicial review may be
made to any judge in chambers or a master.
(2) In this paragraph interlocutory application' includes an
application for an order under Order 24 or 26 or Order 38, rule 2(3), or for
an order dismissing the proceedings by consent of the parties.
(3) This rule is without prejudice to any statutory provision or rule
of law restricting the making of an order against the Crown.
Hearing of application for judicial review (0. 53, r. 9)
9. (1) On the hearing of any motion or summons under rule 5, any
person who desires to be heard in opposition to the motion or
summons, and appears to the Court to be a proper person to be heard,
shall be heard, notwithstanding that he has not been served with notice
of the motion or the summons.
(2) Where the relief sought is or includes an order of certiorari to
remove any proceedings for the purpose of quashing them, the
applicant may not question the validity of any order, warrant,
commitment, conviction, inquisition or record unless before the hearing
of the motion or summons he has lodged with the Registrar a copy
thereof verified by affidavit or accounts for his failure to do so to the
satisfaction of the Court hearing the motion or summons.
(3) Where an order of certiorari is made in any such case as is
referred to in paragraph (2), the order shall, subject to paragraph (4),
direct that the proceedings shall be quashed forthwith on their removal
into the High Court.
(4) Where the relief sought is an order of certiorari and the Court is
satisfied that there are grounds for quashing the decision to which the
application relates, the Court may, in addition to quashing it, remit the
matter to the court, tribunal or authority concemed with a direction to
reconsider it and reach a decision in accordance with the findings of the
Court.
(5) Where the relief sought is a declaration, an injunction or
damages and the Court considers that it should not be granted on an
application for judicial review but might have been granted if it had
been sought in an action begun by writ by the applicant at the time of
making his application, the Court may, instead of refusing the
application, order the proceedings to continue as if they had been
begun by writ; and Order 28, rule 8, shall apply as if the application had
been made by summons.
Saving for person acting in obedience to mandamus (0. 53, r. 10)
10. No action or proceeding shall be begun or prosecuted against
any person in respect of anything done in obedience to an order of
mandamus.
Consolidation of applications (0. 53, r. 12)
12. Where there is more than one application pending under
section 21K of the Ordinance against several persons in respect of the
same office, and on the same grounds, the Court may order the
applications to be consolidated.
Order made by judge may he set aside, etc. (0. 53, r. 13)
(HK)13. An appeal shall lie, from an order of ajudge granting or refusing
an application for judicial review, to the Court of Appeal, which may set
aside or confirm any such order or substitute such order as ought to
have been made.
Meaning of 'Court' (0. 53, r. 14)
14. In relation to the hearing by ajudge of an application for leave
under rule 3 or of an application for judicial review, any reference in this
Order to 'the Court' shall, unless the context otherwise requires, be
construed as a reference to the judge.
ORDER 54
APPLICATIONS FOR WRIT OF HABEAS
CORPUS
Application for writ of habeas corpus ad subjiciendum (0. 54, r. 1)
1. (1) An application fora writ of habeas corpus ad subjicien- shall
be made to a single judge in court, except that
(b)at any time when no judge is sitting in court, it may be made
to ajudge otherwise than in court; and
(c)any application on behalf of a minor must be made in the
first instance to a judge otherwise than in court.
(2) An application for such writ may be made ex parte and,
subject to paragraph (3), must be supported by an affidavit by the
person restrained showing that it is made at his instance and setting
out the nature of the restraint.
(3) Where the person restrained is unable for any reason to
make the affidavit required by paragraph (2), the affidavit may be
made by some other person on his behalf and that affidavit must
state that the person restrained is unable to make the affidavit
himself and for what reason.
Power of Court to whom ex parte application made (0. 54, r. 2)
2. (1) The judge to whom an application under rule 1 is
made ex parte may make an order forthwith for the writ to issue,
or may-
(a)where the application is made otherwise than in court,
direct that an originating summons for the writ be issued,
or that an application therefor be made by originating
motion to ajudge in court;
(b)where the application is made to ajudge in court, adjourn
the application so that notice thereof may be given, or
direct that an application be made by originating motion.
(2) The summons or notice of the motion must be served on
the person against whom the issue of the writ is sought and on such
other persons as the judge may direct, and, unless the judge
otherwise directs, there must be at least 8 clear days between the
service of the summons or notice and the date named therein for the
hearing of the application.
Copies of affidavits to he supplied (0. 54, r. 3)
3. Every party to an application under rule 1 must supply to
every other party on demand copies of the affidavits which he
proposes to use at the hearing of the application.
Power to order release of person restrained (0. 54, r. 4)
4. Without prejudice to rule 2(1), the judge hearing an
application for a writ of habeas corpus ad subjiciendum may in his
discretion order that the person restrained be released, and such
order shall be a sufficient warrant to any superintendent of a prison,
constable or other person for the release of the person under
restraint.
Directions as to return to writ (0. 54, r. 5)
5. Where a writ of habeas corpus ad subjiciendum is ordered to
issue, the judge by whom the order is made shall give directions as to
the judge before whom, and the date on which, the writ is returnable.
Service of writ and notice (0. 54, r. 6)
6. (1) Subject to paragraphs (2) and (3), a writ of habeas corpus ad
subjiciendum must be served personally on the person to whom it is
directed.
(2) If it is not possible to serve such writ personally, or if it is
directed to a superintendent of a prison or other public official, it must
be served by leaving it with a servant or agent of the person to whom
the writ is directed at the place where the person restrained is confined
or restrained.
(3) If the writ is directed to more than one person, the writ must be
served in manner provided by this rule on the person first named in the
writ, and copies must be served on each of the other persons in the
same manner as the writ.
(4) There must be served with the writ a notice (in Form No. 90 in
Appendix A) stating the judge before whom and the date on which the
person restrained is to be brought and that in default of obedience
proceedings for committal of the party disobeying will be taken.
Return to the writ (0. 54, r. 7)
7. (1) The return to a writ of habeas corpus ad subjiciendwn must
be indorsed on or annexed to the writ and must state all the causes of
the detainer of the person restrained.
(2) The return may be amended, or another return substituted
therefor, by leave of the judge before whom the writ is returnable.
Procedure at bearing of writ (0. 54, r. 8)
8. When a return to a writ of habeas corpus ad subjiciendwn is
made, the return shall first be read, and motion then made for
discharging or remanding the person restrained or amending or
quashing the return, and where that person is brought up in accordance
with the writ, his counsel shall be heard first, then counsel for the
Crown, and then one counsel for the person restrained in reply.
Bringing up prisoner to give evidence, etc. (0. 54, r. 9)
9. (1) An application for a writ of habeas corpus ad testifi- candum
or of habeas corpus ad respondendum must be made on affidavit to a
judge in chambers.
Form of writ (0. 54, r. 10)
10. A writ of habeas corpus must be in Form No. 89, 91 or 92 in
Appendix A, whichever is appropriate.
ORDER 55
APPEALS TO THE HIGH COURT FROM COURT, TRIBUNAL OR
PERSON:
GENERAL
Application (0. 55, r. 1)
1. (1) Subject to paragraphs (2), (3) and (4), this Order shall
apply to every appeal which by or under any enactment lies to the
High Court from any court, tribunal or person.
(2) This Order shall not apply to
(a) an appeal by case stated, of
(HK)(b) an appeal under the Magistrates Ordinance. v rules
of this Order shall, in relation
tion to an
appeal to which this Order applies, have effect subject to any
provision made in relation to that appeal by any other provision of
these rules or by or under any enactment.
(5) In this Order references to a Tribunal shall be construed as
references to any Tribunal constituted by or under any enactment other
than any of the ordinary courts of law.
Court to he (0 55, r. 2)
2. Except where it is otherwise provided by these rules or by or under
any enactment, an appeal to which this Order applies shall be heard
and determined
by the Court of Appeal; and
(b) in any other case, by a single judge.
Bringing of appeal (0. 55, r. 3)
3. (1) An appeal to which this Order applies shall be by way of
rehearing and must be brought by originating motion.
(2) Every notice of the motion by which such an appeal is brought
must state the grounds of the appeal and, if the appeal is against a
judgment, order or other decision of a court, must state whether the
appeal is against the whole or a part of that decision and, if against a
part only, must specify the part.
(3) The bringing of such an appeal shall not operate as a stay of
proceedings on the judgment, determination or other decision against
which the appeal is brought unless the Court by which the appeal is to
be heard or the court, tribunal or person by which or by whom the deceision
was given so orders.
Service of notice of motion and entry of appeal (0. 55, r. 4)
4. (1) The persons to be served with notice of the motion by which
an appeal to which this Order applies is brought are the following
(a)if the appeal is against a judgment, order or other decision
of a court, the registrar or clerk of the court and any party
to the proceedings in which the decision was given who is
directly affected by the appeal;
(b)if the appeal is against an order, determination, award or
other decision of a tribunal, government department or
other person, the chairman of the tribunal, government
department or person, as the case may be, and every party
to the proceedings (other than the appellant) in which the
decision appealed against was given.
(2) The notice must be served, and the appeal entered, within
28 days after the date of the judgment, order, determination or other
decision against which the appeal is brought.
(3) In the case of an appeal against a judgment, order or
decision of a court, the period specified in paragraph (2) shall be
calculated from the date of the judgment or order or the date on
which the decision was given.
(4) In the case of an appeal against an order, determination,
award or other decision of a tribunal, government department or
other person, the period specified in paragraph (2) shall be calcu-
lated from the date on which notice of the decision was given to the
appellant by the person who made the decision or by a person
authorized in that behalf to do so.
Date of hearing of appeal (0. 55, r. 5)
.5. Unless the Court having jurisdiction to determine the
appeal otherwise directs, an appeal to which this Order applies shall
not be heard sooner than 21 days after service of notice of the
motion by which the appeal is brought.
Amendment of grounds of appeal, etc. (0. 55, r. 6)
6. (1) The notice of the motion by which an appeal to which
this Order applies is brought may be amended by the appellant,
without leave, by supplementary notice served not less than 7 days
before the day appointed for the hearing of the appeal, on each of
the persons on whom the notice to be amended was served.
(2) Within 2 days after service of a supplementary notice
under paragraph (1) the appellant must lodge two copies of the
notice in the office in which the appeal is entered.
(3) Except with the leave of the Court hearing any such
appeal, no grounds other than those stated in the notice of the
motion by which the appeal is brought or any supplementary notice
under paragraph (1) may be relied upon by the appellant at the
hearing; but that Court may amend the grounds so stated or make
any other order, on such terms as it thinks just, to ensure the
determination on the merits of the real question in controversy
between the parties.
(4) The foregoing provisions of this rule are without prejudice
to the powers of the Court under Order 20.
Powers of court hearing appeal (0. 55, r. 7)
7. (1) In addition to the power conferred by rule 6(3), the
Court hearing an appeal to which this Order applies shall have the
powers conferred by the following provisions of this rule.
(2) The Court shall have power to receive further evidence on
questions of fact, and the evidence may be given in such manner as
the Court may direct either by oral examination in court, by
affidavit, by deposition taken before an examiner or in some other
manner.
(3) The Court shall have power to draw any inferences of fact
which might have been drawn in the proceedings out of which the
appeal arose.
(4) It shall be the duty of the appellant to apply to the judge or
other person presiding at the proceedings in which the decision
appealed against was given for a signed copy of any note made by
him of the proceedings and to furnish that copy for the use of the
Court; and in default of production of such a note, or, if such note
is incomplete, in addition to such note, the Court may hear and
determine the appeal on any other evidence or statement of what
occurred in those proceedings as appears to the Court to be
sufficient.
Except where the Court otherwise directs, an affidavit or note
by a person present at the proceedings shall not be used in evidence
under this paragraph unless it was previously submitted to the
person presiding at the proceedings for his comments.
(5) The Court may give any judgment or decision or make any
order which ought to have been given or made by the court, tribunal
or person and make such further or other order as the case may
require or may remit the matter with the opinion of the Court for
rehearing and determination by it or him.
(6) The Court may, in special circumstances, order that such
security shall be given for the costs of the appeal as may be just.
(7) The Court shall not be bound to allow the appeal on the
ground merely of misdirection, or of the improper admission or
rejection of evidence, unless in the opinion of the Court substantial
wrong or miscarriage has been thereby occasioned.
Right of government department to appear and he heard (0. 55, r. 8)
8. Where an appeal to which this Order applies is against any
order, determination or other decision of a government department,
the department shall be entitled to appear and be heard in the
proceedings on the appeal.
ORDER 58
APPEALS FROM MASTERS
Appeals from certain decisions of masters to a judge in chambers
(0. 58, r. 1)
1. (1) Except as provided by rule 2, Order 5, rule 6, and Order 12,
rule 1, an appeal shall lie to a judge in chambers from any judgment,
order or decision of a master.
(2) The appeal shall be brought by serving on every other party to
the proceedings in which the judgment, order or decision was given or
made a notice to attend before the judge on a day specified in the notice
or as on such other day as may be directed.
(3) Unless the Court otherwise orders, the notice must be issued
within 5 days after the judgment, order or decision appealed against was
given or made and served not less than 2 clear days before the day fixed
for hearing the appeal.
(4) Except so far as the Court may otherwise direct, an appeal
under this rule shall not operate as a stay of the proceedings in which
the appeal is brought.
Appeals from certain decisions of masters to Court of Appeal (0. 58, r.
2)
2. An appeal shall lie to the Court of Appeal from any judgment,
order or decision (other than an interlocutory judgment, order or
decision) of a master, given or made
(HK)(a)on the hearing or determination of any cause, matter, question
or issue tried before him under Order 14, rule 6(2) and Order
36, rule 1;
(b)on an assessment of damages under Order 37 or otherwise; or
(HK)(c)on the hearing or determination of an application under Order
84, rule 3; or
(HK)(d) on the hearing or determination of an application under Order
49B.
Appeal from judgment, etc. of judge in interpleader proceedings
(0. 58, r. 7)
7. (1) Any judgment, order or decision of a judge given or made in
summarily determining under Order 17, rule 5(2)(b) or (e), any question
at issue between claimants in interpleader proceedings shall be final and
conclusive against the claimants and all persons claiming under them
unless leave to appeal to the Court of Appeal is given by the judge or
the Court of Appeal.
(2) Where an interpleader issue is tried by a judge (with or without
a jury), an appeal shall lie to the Court of Appeal, without the leave of
the judge or that Court, from any judgment, order or decision given or
made by the judge on the trial.
(3) The time within which notice of appeal under this rule
must be served shall be the same as in the case of an appeal from an
interlocutory order.
ORDER 59
APPEALS TO THE COURT OF APPEAL
Application of Order to appeals (0. 59, r. 1)
1. This Order applies, subject to the provisions of these rules
with respect to particular appeals, to every appeal to the Court of
Appeal (including so far as it is applicable thereto, any appeal to that
Court from a master or other officer of the Supreme Court or from
any tribunal from which an appeal lies to that Court under or by
virtue of any enactment) not being an appeal for which other
provision is made by these rules and references to 'the court below'
apply to any Court, tribunal or person from which such appeal lies.
Application of Order to applications for new trial (0. 59, r. 2)
2. This Order (except so much of rule 3(1) as provides that an
appeal shall be by way of rehearing and except rule 11(1)) applies to
an application to the Court of Appeal for a new trial or to set aside a
verdict, finding or judgment after trial with or without a jury, as it
applies to an appeal to that Court, and references in this Order to an
appeal and to an appellant shall be construed accordingly.
GENERAL PROVISIONS AS To APPEALS
Notice of appeal (0. 59, r. 3)
3. (1) An appeal to the Court of Appeal shall be by way of
rehearing and must be brought by motion, and the notice of the
motion is referred to in this Order as 'notice of appeal'.
(2) Notice of appeal may be given either in respect of the
whole or in respect of any specified part of the judgment or order of
the court below; and every such notice must specify the grounds of
the appeal and the precise form of the order which the appellant
proposes to ask the Court of Appeal to make.
(3) Except with the leave of the Court of Appeal, a single judge
or the Registrar, the appellant shall not be entitled on the hearing of
an appeal to rely on any grounds of appeal, or to apply for any relief,
not Specified in the notice of appeal.
(5) A notice of appeal must be served on all parties to the
proceedings in the court below who are directly affected by the
appeal; and, subject to rule 8, it shall not be necessary to serve the
notice on parties not so affected.
(6) No notice of appeal shall be given by a respondent in a case
to which rule 6(1) relates.
Time for appealing (0. 59, r. 4)
(HK)4. (1) Except as otherwise provided by these rules, every notice of
appeal must be served under rule 3(5) within the following period
(calculated from the date on which the judgment or order of the court
below was sealed or otherwise perfected), that is to say
(a)in the case of an appeal from an interlocutory order (not being
such an order as is mentioned in sub-paragraph (b)) and in
the case of an appeal from ajudgment or order given or made
under Order 14 or Order 86, 14 days;
(b)in the case of an appeal from an order or decision made or
given in the matter of the winding up of a company, or in the
matter of any bankruptcy, 21 days;
(c) in any other case, 6 weeks.
(3) Where leave to appeal is granted by the Court of Appeal upon
an application made within the time limited for serving notice of appeal
under paragraph (1), a notice of appeal may, instead of being served
within that time, be served within 7 days after the date when leave is
granted.
Setting down appeal (0. 59, r. 5)
5. (1) Within 7 days after the later of (i) the date on which service
of the notice of appeal was effected, or (ii) the date on which the
judgment or order of the Court below was sealed or otherwise perfected,
the appellant must lodge with the Registrar--
(a) a copy of the said judgment or order, and
(b)two copies of the notice of appeal, one of which shall be
indorsed with the amount of the fee paid, and the other
indorsed with a certificate of the date of service of the notice.
(2) Upon the said documents being left, the Registrar shall file one
copy of the notice of appeal and cause the appeal to be set down in the
list of appeals; and the appeal shall come on to be heard according to its
order in that list unless the Court of Appeal or a judge of that Court
otherwise orders.
(4) Within 4 days after an appeal has been set down, the appellant
must give notice to that effect to all parties on whom the notice of
appeal was served.
Respondent's notice (0. 59, r. 6)
6. (1) A respondent who, having been served with a notice of
appeal, desires
(a)to contend on the appeal that the decision of the court below
should be varied, either in any event or in the event of the
appeal being allowed in whole or in part, or
(b)to contend that the decision of the court below should be
affirmed on grounds other than those relied upon by that
court, or
(c)to contend by way of cross-appeal that the decision of the
court below was wrong in whole or in part,
must give notice to that effect, specifying the grounds of his conten-
tion and, in a case to which sub-paragraph (a) or (c) relates, the precise
form of the order which he proposes to ask the Court to make.
(2) Except with the leave of the Court of Appeal or a single
judge or the Registrar, a respondent shall not be entitled on the
hearing of the appeal to apply for any relief not specified in a notice
under paragraph (1) or to rely, in support of any contention, upon
any ground which has not been specified in such a notice or relied
upon by the court below.
(HK)(3) Any notice given by a respondent under this rule (in this
Order referred to as a 'respondent's notice') must be served on the
appellant, and on all parties to the proceedings in the court below
who are directly affected by the contentions of the respondent, and
must be served-
(a)where the notice of appeal related to an interlocutory
order, within 14 days, and
(b) in any other case, within 21 days,
after the service of the notice of appeal on the respondent.
(4) A party by whom a respondent's notice is given must,
within 2 days after service of the notice, furnish 2 copies of the notice
to the Registrar.
Amendment of notice of appeal and respondent's notice (0. 59, r. 7)
7. (1) A notice of appeal or respondent's notice may be
amended-
(a)by or with the leave of the Court of Appeal, a single judge
or the Registrar at any time;
(b)without such leave, by supplementary notice served not
less than three weeks before the date fixed for the hearing
of the appeal.
(2) A party by whom a supplementary notice is served under
this rule must, within 2 days after service of the notice, furnish two
copies of the notice to the Registrar.
Directions of the Court as to service (0. 59, r. 8)
8. (1) The Court of Appeal, or a single judge or the Regis-
trar may in any case direct that a notice of appeal or respondent's
notice be served on any party to the proceedings in the court below
on whom it has not been served, or on any person not party to those
proceedings.
(2) Where a direction is given under paragraph (1) the hearing
of the appeal may be postponed or adjourned for such period and on
such terms as may be just and such judgment may be given and such
order made on the appeal as might have been given or made if the
persons served in pursuance of the direction had originally been
parties.
Documents to he lodged by appellant (0. 59, r. 9)
9. (1) Not less than 7 days before the appeal is likely to be
listed for hearing the appellant must cause to be lodged with the
Registrar the number of copies for which paragraph (2) provides of
each of the following documents, namely-
(a) the notice of appeal;
(b) the respondent's notice;
(c) any supplementary notice served under rule 7;
(d) the judgment or order of the court below;
(e)the originating process by which the proceedings in the
court below were begun, any interlocutory or other related
process which is the subject of the appeal, the pleadings
(including particulars), if any, and, in the case of an appeal
in an Admiralty cause or matter, the preliminary acts, if any;
the transcript of the official shorthand note, if any, of the
judgment or order of the court below or, in the absence of
such a note, the judge's note of his reasons for giving the
judgment or making the order;
(g)such parts of the transcript of the official shorthand note, if
any, of the evidence given in the court below as are relevant
to any question at issue on the appeal or, in the absence of
such a note, such parts of the judge's note of the evidence
as are relevant to any such question;
(h)any list of exhibits made under Order 3 5, rule 11, or the
schedule of evidence, as the case may be;
(HK)(i)such documents, affidavits, exhibits, or parts of exhibits, as
were in evidence in the court below and as are relevant to
any question at issue on the appeal.
(2) Unless otherwise directed the number of copies to be
lodged in accordance with paragraph (1) is three copies except-
(a)where the appeal is to be heard by two judges in which case
it is two copies; or
(b)in the case of an appeal in an Admiralty cause or matter, in
which case it is four copies or, if the Court of Appeal is to
hear the appeal with assessors, six copies.
(M) When the transcripts, if any, referred to in items (f)
and (g) of paragraph (1) have been bespoken by the appellant and
paid for, the number of such transcripts required in accordance
with paragraph (2) shall be sent by the official shorthand writer or
transcriber direct to the Registrar.
(3) At any time after an appeal has been set down in accordance
with rule 5 the Registrar may give such directions in relation to the
documents to be produced at the appeal, and the manner in which they
are to be presented, and as to other matters incidental to the conduct of
the appeal, as appear best adapted to secure the just, expeditious and
economical disposal of the appeal.
(4) The directions referred to in paragraph (3) may be given without
a hearing provided always that the Registrar may at any time issue a
summons requiring the parties to an appeal to attend before him and
any party to an appeal may apply at any time for an appointment before
the Registrar.
General powers of the Court (0. 59, r. 10)
10. (1) In relation to an appeal the Court of Appeal shall have all the
powers and duties as to amendment and otherwise of the High Court.
(2) The Court of Appeal shall have power to receive further
evidence on questions of fact, either by oral examination in court, by
affidavit, or by deposition taken before an examiner, but, in the case of
an appeal from a judgment after trial or hearing of any cause or matter
on the merits no such further evidence (other than evidence as to
matters which have occurred after the date of the trial or hearing) shall
be admitted except on special grounds.
(3) The Court of Appeal shall have power to draw inferences of fact
and to give any judgment and make any order which ought to have been
given or made, and to make such further or other order as the case may
require.
(4) The powers of the Court of Appeal under the foregoing
provisions of this rule may be exercised notwithstanding that no notice
of appeal or respondent's notice has been given in respect of any
particular part of the decision of the court below or by any particular
party to the proceedings in that court, or that any ground for allowing
the appeal or for affirming or varying the decision of that court is not
specified in such a notice; and the Court of Appeal may make any order,
on such terms as the Court thinks just, to ensure the determination on
the merits of the real question in controversy between the parties.
(5) The Court of Appeal may, in special circumstances, order that
such security shall be given for the costs of an appeal as may be just.
(6) The powers of the Court of Appeal in respect of an appeal shall
not be restricted by reason of any interlocutory order from which there
has been no appeal.
(7) Documents impounded by order of the Court of Appeal shall
not be delivered out of the custody of that Court except in compliance
with an order of that Court:
Provided that where a Law Officer or the Crown Prosecutor makes
a written request in that behalf, documents so impounded shall be
delivered into his custody.
(8) Documents impounded by order of the Court of Appeal, while
in the custody of that Court, shall not be inspected except by a person
authorized to do so by an order of that Court.
(9) In any proceedings incidental to any cause or matter pending
before the Court of Appeal, the powers conferred by this rule on the
Court may be exercised by a single judge or the Registrar:
Provided that the said powers of the Court of Appeal shall be
exercisable only by that Court or a single judge in relation to--
(a)the grant, variation, discharge or enforcement of an injunction,
or an undertaking given in lieu of an injunction; and
(b) the grant or lifting of a stay of execution or proceedings.
Powers of the Court as to new trials (0. 59, r. 11)
11. (1) On the hearing of any appeal the Court of Appeal may, if it
thinks fit, make any such order as could be made in pursuance of an
application for a new trial or to set aside a verdict, finding or judgment
of the court below.
(2) The Court of Appeal shall not be bound to order a new trial on
the ground of misdirection, or of the improper admission or rejection of
evidence, or because the verdict of the jury was not taken upon a
question which the judge at the trial was not asked to leave to them,
unless in the opinion of the Court of Appeal some substantial wrong or
miscarriage has been thereby occasioned.
(3) A new trial may be ordered on any question without interfering
with the finding or decision on any other question; and if it appears to
the Court of Appeal that any such wrong or miscarriage as is mentioned
in paragraph (2) affects part only of the matter in controversy, or one or
some only of the parties, the Court may order a new trial as to that part
only, or as to that party or those parties only, and give final judgment as
to the remainder.
(4) In any case where the Court of Appeal has power to order a.
new trial on the ground that damages awarded by ajury are excessive or
inadequate, the Court may, in lieu of ordering a new trial
(a)with the consent of all parties concerned, substitute for the
sum awarded by the jury such sum as appears to the Court to
be proper;
(b)with the consent of the party entitled to receive or liable to
pay the damages, as the case may be, reduce or increase the
sum awarded by the jury by such amount as appears to the
Court to be proper in respect of any distinct head of damages
erroneously included in or excluded from the sum so awarded;
but except as aforesaid the Court of Appeal shall not have power to
reduce or increase the damages awarded by a jury.
(5) A new trial shall not be ordered by reason of the ruling of any
judge that a document is sufficiently stamped or does not require to be
stamped.
Evidence on appeal (0. 59, r. 12)
12. Where any question of fact is involved in an appeal, the
evidence taken in the court below bearing on the question shall, subject
to any direction of the Court of Appeal, or a single judge or the
Registrar, be brought before that Court as follows
(a)in the case of evidence taken by affidavit, by the production
of a true copy of such affidavit;
(b)in the case of evidence given orally, by a copy of so much of
the transcript of the official shorthand note as is relevant or
by a copy of the judge's note, where he has intimated that in
the event of an appeal his note will be sufficient, or by such
other means as the Court of Appeal, or a single judge or the
Registrar, may direct.
Non-disclosure of payment into court (0. 59, r. 12A)
12A. (1) Where
(a)any question on an appeal in an action for a debt, damages or
salvage relates to liability for the debt, damages or salvage or
to the amount thereof, and
(b)money was paid into court under Order 22, rule 1, in the
proceedings in the court below before judgment,
neither the fact of the payment nor the amount thereof shall be stated in
the notice of appeal or the respondent's notice or in any supplementary
notice or be communicated to the Court of Appeal until all such
questions have been decided. This rule shall not apply in the case of an
appeal as to costs only or an appeal in an action to which a defence of
tender before action was pleaded.
(2) For the purpose of complying with this rule the appellant must
cause to be omitted from the copies of the documents lodged by him
under rule 9(d) and (f) every part thereof which states that money was
paid into court in the proceedings in that court before judgment.
Stay of execution, etc. (0. 59, r. 13)
13. (1) Except so far as the court below or the Court of Appeal or a
single judge may otherwise direct
(a)an appeal shall not operate as a stay of execution or of
proceedings under the decision of the court below;
(b)no intermediate act or proceeding shall be invalidated by an
appeal.
(2) On an appeal from the High Court, interest for such time as
execution has been delayed by the appeal shall be allowed unless the
Court otherwise orders.
Applications to the Court of Appeal (0. 59, r. 14)
14. (1) Unless otherwise directed, every application to the Court of
Appeal, a single judge or the Registrar which is not made
ex parte must be made by summons and such summons must be served
on the party or parties affected at least 2 clear days before the day on
which it is heard or, in the case of an application which is made after the
expiration of the time for appealing, at least 7 days before the day on
which the summons is heard.
(2) Unless otherwise directed, any application to the Court of
Appleal for leave to appeal 1 (other than an application made after the
expiration for appealing) must be made ex parte in the first instance but unless
the application and give directions for the service of notice thereof
on the party or parties affected, teh Court shall grant the application.
(3) Where an ex parte application has been refused by the court
below, an application for a similar purpose may be made to the Court of
Appeal ex parte within 7 days after the date of the refusal.
(4) Wherever under these rules an application may be made either
to the court below or to the Court of Appeal, it shall not be made in the
first instance to the Court of Appeal, except where there are special
circumstances which make it impossible or impracticable to apply to the
court below.
(5) Where an application is made to the Court of Appeal with
regard to arbitration proceedings before a judge-arbitrator or
judgeumpire which would, in the case of an ordinary arbitrator or
umpire, be made to the High Court, the provisions of Order 73, rule 5,
shall apply as if, for the words 'the Court', wherever they appear in that
rule, there were substituted the words 'the Court of Appeal' and as if,
for the words 'arbitrator' and 'umpire', there were substituted the
words 'judge-arbitrator' and 'judge-umpire' respectively.
(6) Where an application is made to the Court of Appeal under
section 23(5) of the Arbitration Ordinance (including any application for
leave), notice thereof must be served on the judgearbitrator or judge-
umpire and on any other party to the reference.
(HK)(6A) In this rule 'judge-arbitrator' and 'judge-umpire' mean
ajudge appointed as sole arbitrator or, as the case may be, as umpire by
or by vrtue of an arbitration agreement.
(7) An application, not being an application for leave to appeal,
which may be heard by a single judge, shall, unless otherwise directed,
be heard in chambers.
(8) An application which may under the provisions of this Order be
heard by the Registrar shall be heard in chambers.
(9) The Registrar may refer to a single judge any matter which he
thinks should properly be decided by a single judge, and, following
such reference, the judge may either dispose of the matter or refer it
back to the Registrar with such direction as the single judge thinks fit.
(10) A single judge may refer to the Court of Appeal any matter
which he thinks should properly be decided by that Court, and,
following such reference, that Court may either dispose of the
matter or refer it back to a single judge or the Registrar, with such
directions as that Court thinks fit.
(11) An appeal shall lie to a single judge from any determina-
tion made by the Registrar and shall be brought by way of fresh
application made within 10 days of the determination appealed
against.
(12) An appeal shall lie to the Court of Appeal from any
determination by a single judge, not being the determination of an
application for leave to appeal, and shall be brought by way of fresh
application made within 10 days of the determination appealed
against:
Provided that an appeal shall not lie to the Court of Appeal
without the leave of that Court in respect of a determination of the
Registrar which has been reviewed by a single judge.
Extension of time (0. 59, r. 15)
15. (1) Without prejudice to the power of the Court of Appeal,
a single judge or the Registrar under Order 3, rule 5, to extend or
abridge the time prescribed by any provision of this Order, the period
for serving notice of appeal under rule 4 or for making application
ex parte under rule 14(3) may be extended or abridged by the court
below on application made before the expiration of that period.
SPECIAL PROVISIONS AS TO PARTICULAR APPEALS
Appeal against decree nisi (0. 59, r. 16)
16. (1) The following provisions of this rule shall apply to any
appeal to the Court of Appeal in a matrimonial cause against a
decree nisi of divorce or nullity of marriage.
(2) The period of 6 weeks specified in rule 4 shall be calculated
from the date on which the decree was pronounced and rule 15 shall
not apply in relation to that period.
(3) The appellant must, within the period mentioned in para-
graph (2) produce to the Registrar of civil appeals a sealed copy of
the decree appealed against and leave with him a copy of that decree
and two copies of the notice of appeal (one of which shall be
indorsed with the amount of the fee paid and the other indorsed with
a certificate of the date of service of the notice); and the appeal shall
not be competent unless this paragraph has been complied with.
(4) For the purposes of rule 5 the leaving of the said copies
shall be sufficient for the setting down of the appeal and rule 5(1)
shall not apply.
(5) A party who intends to apply ex parte to the Court of
Appeal to extend the period referred to in paragraphs (2) and (3)
must give notice of his intention to the appropriate Registrar before
the application is made; and where any order is made by the Court
of Appeal extending the said period, it shall be the duty of the Registrar
forthwith to give notice of the making of the order and of the terms
thereof to the appropriate Registrar.
(6) In this rule 'the appropriate Registrar' means-
(a)in relation to a cause pending in a district court, the registrar
of that court.
Appeal from District Court (0. 59, r. 19)
19. (1) The following provisions of this rule shall apply to any
appeal to the Court of Appeal from a District Court other than an appeal
against a decree nisi of divorce or nullity of marriage.
(2) The notice of appeal must be served on the registrar of the
District Court as well as on the party or parties required to be served
under rule 3.
(3) In the relation to the appeal-
(a)rule 4(1) shall have effect as if for the words 'the date on
which the judgment or order of the court below was signed,
entered or otherwise perfected' there were substituted the
words 'the date on which leave to appeal has been granted
under section 63 of the District Court Ordinance'.
(4) It shall be the duty of the appellant to apply to the judge of the
District Court for a signed copy of any note made by him of the
proceedings and of his decision, and to furnish that copy for the use of
the Court of Appeal; and in default of production of such a note, or, if
such note is incomplete, in addition to such note, the Court of Appeal
may hear and determine the appeal on any other evidence or statement
of what occurred before the judge of the District Court which appears to
the Court of Appeal to be sufficient.
Except where the Court of Apeal or a single judge or the Registrar
otherwise directs, an affidavit or note by a person present in the District
Court shall not be used in evidence under this paragraph unless it was
previously submitted to the judge for his comments.
(4A) Rule 12A shall apply in any case where money was paid into
court by the defendant before judgment in district court proceedings in
satisfaction of the plaintiff's cause of action or of one or more causes
joined in one action or on account of a sum admitted by the defendant
to be due to the plaintiff.
(5) Rule 13(1)(a) shall apply subject to the provisions of section 66
of the District Court Ordinance.
Appeals in cases of contempt of court (0. 59, r. 20)
20. (1) In the case of an appeal to the Court of Appeal against an
order of committal or other punishment for contempt of Court made by a
judge of the High Court, the notice of appeal must be served on the
Registrar as well as on the party or parties required to be served under
rule 3.
This paragraph shall not apply in relation to an appeal to which
rule 19 applies.
(2) Where, in the case of such an appeal as is mentioned in
paragraph (1), the appellant is in custody, the Court of Appeal may
order his release on his giving security (whether by recognizance, with
or without sureties, or otherwise and for such reasonable sum as that
Court may fix) for his appearance within 10 days after the judgment of
the Court of Appeal on the appeal shall have been given, before the
court from whose order or decision the appeal is brought unless the
order or decision is reversed by that judgment.
(3) An application for the release of a person under paragraph (2)
pending an appeal to the Court of Appeal must be made by motion, and
the notice of the motion must, at least 24 hours before the day named
therein for the hearing, be served on the Registrar and on all parties to
the proceedings who are directly affected by the appeal.
ORDER 60A
(HK) APPEALS FROM TRIBUNALS TO COURT OF APPEAL ON A
QUESTION OF LAW OTHER THAN BY WAY OF CASE STATED
Application of Order (0. 60A, r. 1)
1. This Order applies to appeals that lie from any tribunal to the
Court of Appeal on a question of law other than by way of case stated.
Notice of appeal from tribunal (0. 60A, r. 2)
2. (1) An appeal to which the Order applies must be brought by
motion, notice of which is referred to in this Order as 'notice of appeal'.
(2) A notice of appeal must specify the grounds of the appeal,
together with the question of law to be decided by the Court of Appeal.
Time for appealing (0. 60A, r. 3)
3. Subject to the provisions of any Ordinance, a notice of appeal
must be served on all parties to the proceedings before the tribunal, and
on the tribunal, within 21 days of the date on which the decision or
order of the tribunal was given.
Setting down appeal (0. 60A, r. 4)
4. (1) The appellant must, within 7 days after service of the notice
of appeal, or within such further time as may be allowed by the
Registrar, produce to the Registrar
(a) a copy of the decision or order of the tribunal;
(b)2 copies of the notice of appeal, one of which shall be
endorsed with the amount of the fee paid, and the other
endorsed with a certificate of the date of service of the notice.
(2) Upon the said documents being left, the Registrar shall file one
copy of the notice of appeal and cause the appeal to be set down in the
list of appeals; and the appeal shall come on to be heard according to
its order in that list unless the Court of Appeal or a single judge or the
Registrar otherwise orders.
Application of Order 59 (0. 60A, r. 5)
5. Order 59, rules 9 and 10 shall, so far as applicable, apply to an
appeal to which this Order applies.
(L.N. 356188)
Duty of Registrar to notify tribunal of result (0. 60A, r. 6)
6. The Registrar shall notify the tribunal of the decision of the
Court of Appeal on the appeal and of any direction given by the Court
therein.
ORDER 61
APPEALS FROM TRIBUNALS TO COURT OF
APPEAL
BY WAY OF CASE STATED
Statement of case by tribunals (0. 61, r. 2)
2. (1) Where any tribunal is empowered or may be required to state
a case on a question of law for determination by the Court of Appeal,
any party to the proceedings who is aggrieved by the tribunal's refusal
to state a case may apply to the Court of Appeal or a single judge of
that Court for an order requiring the tribunal to state a case.
(2) An application under this rule must be made by motion and the
notice of the motion, stating in general terms the grounds of the
application, together with the question of law on which it is desired that
a case shall be stated and any reasons given by the tribunal for its
refusal, must within 21 days after the refusal, be served on the clerk or
registrar of the tribunal and on every other party to the proceedings
before the tribunal.
(3) Within 2 days after service of the notice of motion, the
applicant must lodge two copies of the notice with the Registrar who
shall enter the motion in the list of appeals.
(4) Where a tribunal is ordered under this rule to state a case, the
tribunal must, within such period as may be specified in the order, state
a case stating the facts on which the decision of the tribunal was based
and the decision, sign it and cause it to be sent by post to the applicant.
(4A) Where the decision of the tribunal in respect of which a case
is stated states all the relevant facts found by the tribunal and indicates
the questions of law to be decided by the Court of Appeal, a copy of
the decision signed by the person who presided at the hearing shall be
annexed to the case, and the facts so found and the question of law to
be decided shall be sufficiently stated in the case by referring to the
statement thereof in the decision.
Proceedings on case stated (0. 61, r. 3)
3. (1) The party at whose instance a case has been stated by any
tribunal to which this Order applies must, within 21 days after receiving
the case
(a)serve on every other party to the proceedings before the
tribunal a copy of the case, together with a notice setting out
his contentions on the question of law, and
(b)serve a copy of the notice on the clerk or registrar of the
tribunal.
(2) Within 2 days after service of the notice, the said party must
lodge the case and two copies of the notice with the Registrar who shall
enter the case in the list of appeals, and the case shall not be heard until
after the expiration of 21 days from the date of entry.
(3) Where any enactment under which the case is stated provides
that a government department shall have a right to be heard in the
proceedings on the case, a copy of the case and of the notice served
under paragraph (1) must be served on that department and on the
Attorney General.
(4) On the hearing of the case, the Court of Appeal may amend the
case or order it to be sent back to the tribunal for amendment.
(5) Order 59, rule 10, shall, so far as applicable, apply in relation to
a case stated by a tribunal to which this Order applies.
(6) The Registrar shall notify the clerk or registrar of the tribunal of
the decision of the Court of Appeal on the case and of any directions
given by that Court thereon.
COSTS
ORDER 62
COSTS
PRELIMINARY
Interpretation (0. 62, r. 1)
1. (1) In this Order-
'certificate' includes allocatur;
(HK)'contentious business' means business done, whether as a
solicitor or advocate, in or for the purpose of proceedings begun
before the Court or before an arbitrator appointed under the
Arbitration Ordinance not being common form probate business;
'costs' include fees, charges, disbursements, expenses and
remuneration;
'the Court' means the Supreme Court or any one or more judges
thereof, whether sitting in Court or in chambers, the Registrar or
assistant registrar or master;
(HK)'District Court' means the District Court established under the
provisions of the District Court Ordinance, and any judge of that
court;
(HK)'mentally disordered person' means a person who is so far
disabled in mind or who is so mentally ill or subnormal due to
arrested or incomplete development of mind as to render it either
necessary or expedient that he, either for his own sake or in the
public interest, should be placed and kept under control;
(HK)'non-contentious business' means any business done by and as a
solicitor which is not contentious business;
'taxed costs' means costs taxed in accordance with this Order;
(HK)'taxing master' means the Registrar as taxing master.
(2) In this Order, references to a fund, being a fund out of which
costs are to be paid or which is held by a trustee or personal
representative, include references to any estate or property whether
immovable or personal held for the benefit of any person or class of
persons; and references to a fund held by a trustee or personal
representative include references to any fund to which he is entitled
(whether alone or together with any other person) in that capacity,
whether the fund is for the time being in his possession or not.
Application (0. 62, r. 2)
(HK)2. (1) This Order shall apply to all proceedings in the Court, except
non-contentious or common form probate proceedings and proceedings
in matters of prize.
(2) Where by virtue of any Ordinance the costs of or incidental to
any proceedings before an arbitrator or umpire or before a tribunal or
other body constituted by or under any Ordinance, not being
proceedings in the Supreme Court, are taxable in the High Court, the
following provisions of this Order, that is to say, rule 7(4) and (5), rule
8(6), rules 14 to 16, rule 17(1), rule 18, rule 21 (except paragraph (3)), rules
22 to 26 and rules 33 to 35, shall have effect in relation to proceedings
for taxation of those costs as they have effect in relation to proceedings
for taxation of the costs of or arising out of proceedings in the Supreme
Court.
(3) This Order shall have effect subject to the provisions of the
District Court Ordinance and to any rules made thereunder and to any
other enactment.
(4) The powers and discretion of the Court as to costs under
section 52A of the Ordinance (which provides that the costs of and
incidental to proceedings in the Supreme Court shall be in the discretion
of the Court and that the Court shall have full power to determine by
whom and to what extent the costs are to be paid) and under the
enactments relating to the costs of criminal proceedings to which this
Order applies shall be exercised subject to and in accordance with this
Order.
ENTITLEMENT TO COSTS
When costs to follow the event (0. 62, r. 3)
3. (1) Subject to the provisions of this Order, no party shall be
entitled to recover any costs of or incidental to any proceedings from
any other party to the proceedings except under an order of the Court.
(2) If the Court in the exercise of its discretion sees fit to make
any order as to the costs of or incidental to any proceedings, the
Court shall, subject to this Order, order the costs to follow the event,
except when it appears to the Court that in the circumstances of the
case some other order should be made as to the whole or any part of
the costs.
(3) The costs of and occasioned by any amendment made
without leave in the writ of summons or any pleading shall be borne
by the party making the amendment, unless the Court otherwise
orders.
(4) The costs of and occasioned by any application to extend
the time fixed by these rules, or any direction or order thereunder,
for serving or filing any document or the doing of any other act
(including the costs of any order made on the application) shall be
borne by the party making the application, unless the Court other-
wise orders.
(5) If a party on whom a notice to admit facts is served under
Order 27, rule 2, refuses or neglects to admit the facts within 7 days
after the service on him of the notice or such longer time as may be
allowed by the Court, the costs of proving the facts shall be paid
by him, unless the Court otherwise orders.
(6) If a party-
(a)on whom a list of documents is served in pursuance of any
provision of Order 24, or
(b)on whom a notice to admit documents is served under
Order 27, rule 5,
gives notice of non-admission of any of the documents in accord-
ance with Order 27, rule 4(2) or 5(2) as the case may be, the costs
of proving that document shall be paid by him, unless the Court
otherwise orders.
(7) Where a defendant by notice in writing and without leave
discontinues his counterclaim against any party or withdraws any
particular claim made by him therein against any party, that party
shall, unless the Court otherwise directs, be entitled to his costs of
the counterclaim or his costs occasioned by the claim withdrawn,
as the case may be, incurred to the time of receipt of the notice of
discontinuance or withdrawal.
(8) Where a plaintiff accepts money paid into Court by a
defendant who counterclaimed against him, then, if the notice of
payment given by that defendant stated that he had taken into
account and satisfied the cause of action or, as the case may be,
all the causes of action in respect of which he counterclaimed, that
defendant shall, unless the Court otherwise directs, be entitled to his
costs of the counterclaim incurred to the time of receipt of the notice
of acceptance by the plaintiff of the money paid into court.
(9) Where any person claiming to be a creditor-
(a)seeks to establish his claim to a debt under any judgment
or order in accordance with Order 44, or
(b)comes in to prove his title, debt or claim in relation to a
company in pursuance of any such notice as is mentioned
in Order 102, rule 13,
he shall, if his claim succeeds, be entitled to his costs incurred in
establishing it, unless the Court otherwise directs, and, if his claim or
any part of it fails, may be ordered to pay the costs of any person
incurred in opposing it.
(10) Where a claimant is entitled to costs under paragraph (9),
the amount of the costs shall be fixed by the Court unless it thinks fit
to direct taxation, and the amount fixed or allowed shall be added to
the claimant's debt.
(11) Where a claimant (other than a person claiming to be a.
creditor) having established a claim to be entitled under a judgment
or order in accordance with Order 44 has been served with notice of
the judgment or order pursuant to rule 3 or 15 of that Order, he
shall, if he acknowledges service of the notice be entitled as part of
his costs of action (if allowed) to costs incurred in establishing his
claim, unless the Court otherwise directs; and where such a claimant
fails to establish his claim or any part of it he may be ordered to pay
the costs of any person incurred in opposing it.
(12) Where an application is made in accordance with Order 24,
rule 7A or Order 29, rule 7A, for an order under section 41, 42 or 44
of the Ordinance, the person against whom the order is sought shall
be entitled, unless the Court otherwise directs, to his costs of and
incidental to the application and of complying with any order made
thereon and he may, after giving the applicant 7 days' notice of his
intention to do so, tax such costs and, if they are not paid within
4 days after taxation, sign judgment for them.
Stage of proceedings at which costs to he dealt with (0. 62, r. 4)
4. (1) Costs may be dealt with by the Court at any stage of
the proceedings or after the conclusion of the proceedings; and any
order of the Court for the payment of any costs may, if the Court
thinks fit, and the person against whom the order is made is not an
assisted person, require the costs to be paid forthwith notwith-
standing that the proceedings have not been concluded.
(2) In the case of an appeal the costs of the proceedings giving
rise to the appeal, as well as the costs of the appeal and of the
proceedings connected with it, may be dealt with by the Court
hearing the appeal; and in the case of any proceedings transferred or
removed to the High Court from any other court, the costs of the
whole proceedings, both before and after the transfer or removal, may
(subject to any order of the court ordering the transfer or removal) be
dealt with by the Court to which the proceedings are transferred or
removed.
(3) Where under paragraph (2) the Court makes an order as to the
costs of any proceedings before another court, rules 28, 31 and 32 shall
not apply in relation to those costs, but. except in relation to costs of
proceedings transferred or removed from the District Court, the order
(a) shall specify the amount of the costs to be allowed, or
(b)shall direct that the costs shall be assessed by the court
before which the proceedings took place or taxed by an officer
of that court, or
(c)if the order is made on appeal from the District Court in
relation to proceedings in that court, may direct that the costs
shall be taxed by the taxing master.
Special matters to be taken into account in exercising discretion (0.
62, r. 5)
5. The Court in exercising its discretion as to costs shall, to such
extent, if any, as may be appropriate in the circumstances, take into
account
(a)any such offer of contribution as is mentioned in Order 16,
rule 10, which is brought to its attention in pursuance of a
reserved right to do so;
(b)any payment of money into court and the amount of such
payment;
(c) any written offer made under Order 33, rule 4A(2); and
(d)any written offer made under Order 22, rule 14, provided that
the Court shall not take such an offer into account if, at the
time it is made, the party making it could have protected his
position as to costs by means of a payment into court under
Order 22.
Restriction of discretion to order costs (0. 62, r. 6)
6. (1) Notwithstanding anything in this Order or in section 52A of
the Ordinance
(c)unless the Court is of opinion that there was no reasonable
ground for opposing the will, no order shall be made for the
costs of the other side to be paid by the party opposing a will
in a probate action who has given notice with his defence to
the party setting up the will that he merely insists upon the
will being proved in solemn form of law and only intends to
cross-examine the witnesses produced in support of the will.
(2) Where a person is or has been a party to any proceedings in
the capacity of trustee, personal representative or mortgagee, he
shall, unless the Court otherwise orders, be entitled to the costs of
those proceedings, in so far as they are not recovered from or paid
by any other person, out of the fund held by the trustee or personal
representative or the mortgaged property, as the case may be; and
the Court may otherwise order only on the ground that the trustee,
personal representative or mortgagee has acted unreasonably or, in
the case of a trustee or personal representative, has in substance
acted for his own benefit rather than for the benefit of the fund.
Costs arising from misconduct or neglect (0. 62, r. 7)
7. (1) Where in any cause or matter any thing is done or
omission is made improperly or unnecessarily by or on behalf of a
party, the Court may direct that any costs to that party in respect of
it shall not be allowed to him and that any costs occasioned by it to
other parties shall be paid by him to them.
(2) Without prejudice to the generality of paragraph (1), the
Court shall for the purpose of that paragraph have regard in
particular to the following matters, that is to say-
(a)the omission to do any thing the doing of which would
have been calculated to save costs;
(b)the doing of any thing calculated to occasion, or in a
manner or at a time calculated to occasion, unnecessary
costs;
(c) any unnecessary delay in the proceedings.
(3) The Court may, instead of giving a direction under para-
graph (1) in relation to any thing done or omission made, direct the
taxing master to inquire into it and, if it appears to him that such
a direction as aforesaid should have been given in relation to it,
to act as if the appropriate direction had been given.
(4) The taxing master shall, in relation to any thing done or
omission made in the course of taxation and in relation to any
failure to procure taxation, have the same power to disallow or to
award costs as the Court has under paragraph (1) to direct that costs
shall be disallowed to or paid by any party.
(5) Where a party entitled to costs fails to procure or fails to
proceed with taxation, the taxing master in order to prevent any
other parties being prejudiced by that failure, may allow the party so
entitled a nominal or other sum for costs or may certify the failure
and the costs of the other parties.
Personal liability of solicitor for costs (0. 62, r. 8)
8. (1) Subject to the following provisions of this rule, where
in any proceedings costs are incurred improperly or without reason-
able cause or are wasted by undue delay or by any other misconduct
or default, the Court may make against any solicitor whom it
considers to be responsible whether personally or through a servant
or agent an order-
(a)disallowing the costs as between the solicitor and his client;
and
(b)directing the solicitor to repay to his client costs which the
client has been ordered to pay to other parties to the
proceedings; or
(c)directing the solicitor personally to indemnify such other
parties against costs payable by them.
(2) No order under this rule shall be made against a solicitor
unless he has been given a reasonable opportunity to appear before
the Court and show cause why the order should not be made except
where any proceeding in Court or in chambers cannot conveniently
proceed, and fails or is adjourned without useful progress being
made,-
(a)because of the failure of the solicitor to attend in person or
by a proper representative; or
(b)because of the failure of the solicitor to deliver any
document for the use of the Court which ought to have
been delivered or to be prepared with any proper evidence
or account or otherwise to proceed.
(3) Before making an order under this rule the Court may, if it
thinks fit refer the matter (except in the case of undue delay in the
drawing up of, or in any proceedings under, an order or judgment as
to which the Registrar has reported to the Court) to a taxing master
for inquiry and report and direct the solicitor in the first place to
show cause before the taxing master.
(4) The Court may, if it thinks fit, direct or authorize the
Crown Solicitor to attend and take part in any proceedings or
inquiry under this rule, and may make such order as it thinks fit as
to the payment of his costs.
(5) The Court may direct that notice of any proceedings or
order against a solicitor under this rule shall be given to his client
in such manner as may be specified in the direction.
(6) Where in any proceedings before a taxing master the
solicitor representing any party is guilty of neglect or delay or puts
any other party to any unnecessary expense in relation to those
proceedings, the taxing master may direct the solicitor to pay costs
personally to any of the parties to those proceedings, and where any
solicitor fails to leave his bill of costs [with the documents required
by this Order] for taxation within the time fixed by or under this
Order or otherwise delays or impedes the taxation, then, unless the
taxing master otherwise directs, the solicitor shall not be allowed the
fees to which he would otherwise be entitled for drawing his bill of
costs and for attending the taxation.
(7) If, on the taxation of costs to be paid out of a fund other
than funds provided by the Legislative Council pursuant to section
27 of the Legal Aid Ordinance, one sixth or more of the amount of
the bill for those costs is taxed off, the solicitor whose bill it is shall
not be allowed the fees to which he would otherwise be entitled for
drawing the bill and for attending the taxation.
(8) In any proceeding in which the party by whom the fees
prescribed by any enactment relating to court fees are payable is
represented by a solicitor, if the fees or any part of the fees payable
under the said enactment are not paid as therein prescribed, the
Court may, on the application of the Crown Solicitor by summons.
order the solicitor personally to pay that amount in the manner
so prescribed and to pay the costs of the Crown Solicitor of the
application.
Fractional or gross sums in place of taxed costs (0. 62, r. 9)
9. (1) Subject to this order, where by or under these rules
or any order or direction of the Court costs are to be paid to any
person, that person shall be entitled to his taxed costs.
(2) Paragraph (1) shall not apply to costs which by or under
any order or direction of the Court-
(a)are to be paid to a receiver appointed by the High Court
under section 21L of the Ordinance in respect of his remu-
neration, disbursements or expenses; or
(b) are to be assessed or settled by a taxing master,
but rules 28, 28A, 31 and 32 shall apply in relation to the assessment
or settlement by a taxing master of costs which are to be assessed or
settled as aforesaid as they apply in relation to the taxation of costs
by a taxing master.
(3) Where a writ in an action is endorsed in accordance with
Order 6, rule 2(1)(b), and judgment is entered on failure to give
notice of intention to defend or in default of defence for the amount
claimed for costs (whether alone or together with any other amount
claimed), paragraph (1) of this rule shall not apply to those costs,
but if the amount claimed for costs as aforesaid is paid in accordance
with the indorsement (or is accepted by the plaintiff as if so paid) the
defendant shall nevertheless be entitled to have those costs taxed.
(4) The Court in awarding costs to any person may direct that,
instead of taxed costs, that person shall be entitled-
(a)to a proportion specified in the direction of the taxed costs
or to the taxed costs from or up to a stage of the
proceedings so specified; or
(b)to a gross sum so specified in lieu of taxed costs, but where
the person entitled to such a gross sum is a litigant in
person, rule 28A shall apply with the necessary modifica-
tions to the assessment of the gross sum as it applies to the
taxation of the costs of a litigant in person.
When a party may sign judgment for costs without an order (0. 62,
r. 10)
10. (1) Where a plaintiff by notice in writing and without
leave either wholly discontinues his action against any defendant or
withdraws any particular claim made or question raised by him therein as
against any defendant, the defendant may tax his costs of the action or
his costs occasioned by the matter withdrawn, as the case may be, and,
if the taxed costs are not paid within 4 days after taxation, may sign
judgment for them.
(2) If a plaintiff accepts money paid into court in satisfaction of the
case of action, or all the causes of action, in respect of which he claims,
or if he accepts a sum or sums paid in respect of one or more specified
causes of action and gives notice that he abandons the others, then
subject to paragraph (4) he may, after 4 days from payment out and
unless the Court otherwise orders, tax his costs incurred to the time of
receipt of the notice of payment into court and 48 hours after taxation
may sign judgment for his taxed costs.
(3) Where a plaintiff in an action for libel or slander against several
defendants sued jointly accepts money paid into court by one of the
defendants, he may, subject to paragraph (4), tax his costs and sign
judgment for them against that defendant in accordance with paragraph
(2).
(4) Where money paid into court in an action is accepted by the
plaintiff after the trial or hearing has begun, the plaintiff shall not be
entitled to tax his costs under paragraph (2) or (3).
When order for taxation of costs not required (0. 62, r. 11)
11. (1) Where an action, petition or summons is dismissed with
costs, or a motion is refused with costs, or an order of the Court directs
the payment of any costs, or any party is entitled under rule 10 to tax his
costs, no order directing the taxation of those costs need be made.
(2) Where a summons is taken out to set aside with costs any
proceeding on the ground of irregularity and the summons is dismissed
but no direction is given as to costs, the summons is to be taken as
having been dismissed with costs.
POWERS OF TAXING OFFICERS
Powers of taxing masters to tax costs (0. 62, r. 12)
12. (1) A taxing master shall have power to tax-
(a)the costs of or arising out of any cause or matter in the
Supreme Court;
(b)the costs directed by an award made on a reference to
arbitration under any enactment or pursuant to an arbitration
agreement to be paid; and
(c)any other costs the taxation of which is directed by an order
of the Court.
Powers of certain judicial clerks to tax costs (0. 62, r. 13)
(HK)13. (1) The Chief Judicial Clerk -of the Registry shall have power to
transact all such business and exercise all such authority as under
paragraph (4) of rule 21 of this Order may be transacted and exercised
by the Registrar and to issue a certificate for any costs taxed by him.
(2) Paragraph (1) shall not be taken as empowering the Chief
Judicial Clerk to tax any costs in respect of which an appointment to tax
has been given.
a, (3) In exercising the powers conferred on him by this Order, the
Chief Judicial Clerk shall comply with any directions given to him by a
taxing master.
Supplementary powers of taxing masters (0. 62, r. 14)
14. A taxing master may, in the discharge of his functions with
respect to the taxation of costs
(a)take an account of any dealing in money made in connection
with the payment of the costs being taxed, if the Court so
directs;
(b)require any party represented jointly with any other party in
any proceedings before him to be separately represented;
(e) examine any witness in those proceedings;
(d)direct the production of any document which may be relevant
in connection with those proceedings;
(e)correct any clerical mistake in any certificate or order, or any
error arising therein from any accidental slip or omission.
Disposal of business by one taxing master for another (0. 62, r. 15)
15. (1) If, apart from this paragraph, a taxing master has power to
tax any costs, the taxation of which has been assigned to some other
taxing master, he may tax those costs and if, apart from this paragraph,
he has power to issue a certificate for the taxed costs he shall issue a
certificate for them.
(2) Any taxing master may assist any other taxing master in the
taxation of any costs the taxation of which has been assigned to that
other officer.
(3) On an application in that behalf made by a party to any cause or
matter, a taxing master may, and if the circumstances require it shall,
hear and dispose of any application in the cause or matter on behalf of
the taxing master by whom the application would otherwise be heard.
Extension etc., of time (0. 62, r. 16)
16. (1) A taxing master may-
(a)extend the period within which a party is required by or
under this Order to begin proceedings for taxation or to do
anything in or in connection with proceedings before that
master;
(b)extend the period provided by rule 33(2) beyond the
signing of the taxing officer's certificate by setting the
certificate aside;
(c)where no period is specified by or under this Order or by
the Court for the doing of anything in or in connection
with such proceedings, specify the period within which the
thing is to be done.
(2) Where an order of the Court specifies a period within
which anything is to be done by or before a taxing master, then
unless the Court otherwise directs, the taxing master may from time
to time extend the period so specified on such terms (if any) as he
thinks just.
(3) A taxing master may extend any such period as is referred
to in the foregoing provisions of this rule although the application
for extension is not made until after the expiration of that period.
Interim certificates (0. 62, r. 17)
17. (1) A taxing master may from time to time in the course
of the taxation of any costs by him issue an interim certificate for any
part of those costs which has been taxed.
(2) If, in the course of the taxation of a solicitor's bill to his
own client, it appears to the taxing master that in any event the
solicitor will be liable in connection with that bill to pay money to
the client, he may from time to time issue an interim certificate
specifying an amount which in his opinion is payable by the solicitor
to his client.
(3) On the filing of a certificate issued under paragraph (2), the
Court may order the amount specified therein to be paid forthwith
to the client or into court.
Power of taxing master where party liable to be paid and to pay
costs (0. 62, r. 18)
18. Where a party entitled to be paid costs is also liable to pay
costs, the taxing master may-
(a)tax the costs which that party is liable to pay and set off the
amount allowed against the amount he is entitled to be
paid and direct payment of any balance, or
(b)delay the issue of a certificate for the costs he is entitled to
be paid until he has paid or tendered the amount he is
liable to pay.
Taxation of bill of costs comprised in account (0. 62, r. 19)
19. (1) Where the Court directs an account to be taken and the
account consists in part of a bill of costs, the Court may direct a taxing
master to tax those costs and the taxing master shall tax the costs in
accordance with the direction and shall return the bill of costs, after
taxation thereof, together with his report thereon to the Court.
(2) A taxing master taxing a bill of costs in accordance with a
direction under this rule shall have the same powers, and the same fees
shall be payable in connection with the taxation, as if an order for
taxation of the costs had been made by the Court.
PROCEDURE ON TAXATION
Mode of beginning proceedings for taxation (0. 62, r. 21)
(HK)21. (1) A party entitled to require any costs to be taxed shall file in
the Court his bill of costs and shall obtain from the taxing master an
appointment to tax.
(HK)(2) Not less than 7 days' notice of such appointment to tax together
with a copy of the bill of costs shall be served by such person on every
person entitled to be heard on taxation.
(HK)(3) Except where an order for the taxation of the bill of costs of a
solicitor is made under section 67 of the Legal Practitioners Ordinance at
the instance of the solicitor, it shall not be necessary for a copy of the
bill of costs or of the notice of appointment to tax to be sent to any
party who has not acknowledged service in the proceedings which gave
rise to the taxation.
(HK)(4) In proceedings for the taxation of costs of, or arising out
of, a cause or mattwhich the amount of the bill of costs does
not
exceed the sum 0 the taxing master may by notice inform
the party commencing the proceedings for taxation the amount
which the taxing master proposes to allow in respect of the costs to
be taxed and further the taxing master shall not give any notice
under paragraph (2) unless, within 14 days after serving notice of the
amount he proposes to allow, any person entitled to be heard on
taxation applies to the taxing master for an appointment to tax.
(HK)(5) A party must, when he files his bill of costs, deposit with the
Court an amount equivalent to the taxing fee which would be payable if
the bill were to be allowed in full. When the taxing master signs a
certificate, the balance of the sum so deposited, if any, after deducting
the prescribed taxing fee, shall be repaid to the party who deposited
such amount.
Delay in filing of bill of costs (0. 62, r. 22)
(HK)22. (1) If, within one month after an order of the Court requiring the
payment of any costs to be taxed, the person entitled to
payment thereof has neither agreed the amount of such costs with
the person liable to pay the same nor served upon such person a
notice of appointment to tax in accordance with rule 21, the taxing
master, on the application of the person liable to pay such costs and
on not less than 7 days' notice to the person entitled to payment
thereof, may order that the person entitled to payment of the costs
shall proceed to taxation in accordance with rule 21 within such
period as the taxing master may order.
(2) If within the period ordered by the taxing master or any
extension thereof granted by a taxing master, notice of appointment
to tax has not been served in accordance with rule 21 and the
amount due has not been agreed between the parties, the order of the
Court requiring payment of the costs shall thereupon be wholly
discharged.
(3) On any order in accordance with paragraph (1) and on the
taxation of a bill of costs, whether or not an order has been made
under paragraph (1), the taxing master, if he is satisfied that there
has been undue delay in the filing of the bill of costs or in the service
of the notice of appointment to tax, may make such order as he shall
consider appropriate as to the costs of any application or of any
order or as to the costs of the taxation and may disallow any item
contained in the bill of costs.
Deposit of papers and vouchers (0. 62, r. 23)
23. (1) Not less than 2 days before the date appointed for
taxation, the person who filed the bill of costs in accordance with
rule 21 shall deposit with the taxing master all papers and vouchers
relating to the items contained in the bill of costs.
(2) If by reason of the failure of such person to deposit such
papers and vouchers the taxation is adjourned, the taxing master
may make such order as to costs thrown away by such adjournment
as he may consider appropriate.
Notice of taxation (0. 62, r. 24)
24. (1) If, at the date and time of an appointment to tax, a
person entitled to be heard upon such taxation does not appear
before the taxing master in person or by his solicitor, the taxing
master, on being satisfied that notice of the appointment to tax and
a copy of the bill of costs were duly served on such person in
accordance with rule 21, may proceed to taxation of the bill of costs
in the absence of such person or of his representative.
(2) If notice of the appointment to tax and the copy of the bill
of costs were not served upon such person, the taxing master shall
adjourn the taxation for such period as he may consider necessary to
enable service of the notice of the adjourned appointment to tax and
of the bill of costs to be effected on such person and may make such
order as he may consider appropriate in relation to costs thrown
away by such adjournment.
Provisions as to hills of costs (0. 62, r. 25)
25. (1) In any solicitor's bill of costs the professional charges
and the disbursements must be entered in separate columns and
every column must be cast before the bill is left for taxation.
(2) Before a solicitor's bill of costs is left for taxation it must
be indorsed with the name or firm and business address of the
solicitor whose bill it is.
Power to adjourn (0. 62, r. 26)
26. (2) The taxing master by whom any taxation proceedings
are being conducted may, if he thinks it necessary to do so, adjourn
those proceedings from time to time.
Powers of taxing master taxing costs payable out of fund (0. 62, r. 27)
27. (1) Where any costs are to be paid out of a fund the taxing
master may give directions as to the parties who are entitled to
attend on the taxation of those costs and may disallow the costs of
attendance of any party not entitled to attend by virtue of the
directions and whose attendance he considers unnecessary.
(2) Where the Court has directed that a bill of costs be taxed
for the purpose of being paid out of a fund the taxing master by
whom the bill is being taxed may, if he thinks fit, adjourn the
taxation for a reasonable period and direct the party whose bill it is
to sent to any person having an interest in the fund a copy of the bill,
or of any part thereof, free of charge together with a letter contain-
ing the following information, that is to say-
(a)that the bill of costs, a copy of which or of part of which is
sent with the letter, has been referred to a taxing master for
taxation;
(b)the name of the taxing master and the address of the office
at which the taxation is proceeding;
(e)the time appointed by the taxing master at which the
taxation will be continued; and
(d)such other information, if any, as the taxing master may
direct.
ASSESSMENT OF COSTS
Costs payable to one party by another or out of a fund (0. 62, r. 28)
28. (1) This rule applies to costs which by or under these rules
or any order or direction of the Court are to be paid to a party to any
proceedings either by another party to those proceedings or out of
any fund (other than a fund which the party to whom the costs are to
be paid holds as trustee or personal representative).
(2) Subject to the following provisions of this rule, costs to
which this rule applies shall be taxed on the party and party basis,
and on a taxation on that basis there shall be allowed all such costs
as were necessary or proper for the attainment of justice or for
enforcing or defending the rights of the party whose costs are being
taxed.
(3) The Court in awarding costs to which this rule applies may
in any case in which it thinks fit to do so order or direct that the costs
shall be taxed on the common fund basis.
(4) On a taxation on the common fund basis, being a more
generous basis than that provided for by paragraph (2), there shall
be allowed a reasonable amount in respect of all costs reasonably
incurred, and paragraph (2) shall not apply; and accordingly in all
cases where costs are to be taxed on the common fund basis the
ordinary rules applicable on a taxation as between solicitor and
client where the costs are to be paid out of a common fund in which
the client and others are interested shall be applied, whether or not
the costs are in fact to be so paid.
(5) The Court in awarding costs to which this rule applies to
any person may if it thinks fit and if-
(a) the costs are to be paid out of a fund, or
(b)the person to whom the costs are to be paid is or was a
party to the proceedings in the capacity of trustee or
personal representative,
order or direct that the costs shall be taxed as if that person were a
trustee of the fund or as if the costs were to be paid out of a fund
held by that person, as the case may be, and where the Court so
orders or directs rule 31(2) shall have effect in relation to the
taxation in substitution for paragraph (2) of this rule.
(6) The foregoing provisions of this rule shall be without
prejudice to the powers of the Court under section 43 of the District
Court Ordinance (which empowers the Court in relation to an
action began in the Court which could have been begun in the
District Court to make an order in certain circumstances allowing
the costs on such one of the District Court scales and under such
one of the columns in the scale as the order may direct).
Costs of a litigant in person (0. 62, r. 28A)
28A. (1) On a taxation of the costs of a litigant in person
there may, subject to the provisions of this rule, be allowed such
costs as would have been allowed if the work and disbursements to
which the costs relate had been done or made by a solicitor on the
litigant's behalf.
(2) The amount allowed in respect of any item shall be such
sum as the taxing master thinks fit not exceeding, except in the case
of a disbursement. two-thirds of the sum which in the opinion of the
taxing master would have been allowed in respect of that item if the
litigant had been represented by a solicitor.
(3) Where in the opinion of the taxing master the litigant has not
suffered any pecuniary loss in doing any work to which the costs relate,
he shall not be allowed in respect of the time reasonably spent by him
on the work more than $200 an hour.
(4) A litigant who is allowed costs in respect of attending court to
conduct his own case shall not be entitled to a witness allowance in
addition.
(5) Nothing in Order 6, rule 2(1)(b), or rule 32(4) of this Order or the
Second Schedule to this Order shall apply to the costs of a litigant in
person.
(6) For the purposes of this rule a litigant in person does not
include a litigant who is a practising solicitor.
Costs payable to a solicitor by his own client (0. 62, r. 29)
29. (1) On the taxation of a solicitor's bill to his own client (except a
bill to be paid out of funds provided by the Legislative Council
pursuant to section 27 of the Legal Aid Ordinance, or a bill with respect
to non-contentious business) all costs shall be allowed except in so far
as they are of an unreasonable amount or have been unreasonably
incurred.
(2) For the purposes of paragraph (1), all costs incurred with the
express or implied approval of the client shall.. subject to paragraph (3),
be conclusively presumed to have been reasonably incurred and, where
the amount thereof has been expressly or impliedly approved by the
client, to have been reasonable in amount.
(3) For the purposes of paragraph (1), any costs which in the
circumstances of the case are of an unusual nature and such that they
would not be allowed on a taxation of costs in a case to which rule 28(2)
applies, shall, unless the solicitor expressly informed his client before
they were incurred that they might not be so allowed., be presumed,
until the contrary is shown, to have been unreasonably incurred.
(4) In paragraphs (2) and (3), the references to the client shall be
construed
(a)if the client was at the material time a mentally disordered
person within the meaning of the Mental Health Ordinance
and represented by a person acting as guardian ad litem or
next friend, as references to that person acting, where
necessary, with the authority of the Court;
(b)if the client was at the material time a minor and represented
by a person acting as guardian ad litem or next friend, as
references to that person.
Costs payable to solicitor where money recovered by or on behalf of
infant, etc. (0. 62, r. 30)
-30. (1) This rule applies to-
(a)any proceedings in which money is claimed or recovered by
or on behalf of, or adjudged or ordered or agreed to be
paid to, or for the benefit of, a person who is a minor or
a mentally disordered person within the meaning of the
Mental Health Ordinance or in which money paid into
court is accepted by or on behalf of such a person; and
(b)any proceedings under the Fatal Accidents Ordinance, in
which money is recovered by or on behalf of, or adjudged
or ordered or agreed to be paid to, or for the benefit of, the
widow of the person whose death gave rise to the proceed-
ings in satisfaction of a claim under the said Ordinance or
in which money paid into court is accepted by her or on her
behalf in satisfaction of such a claim, if the proceedings
were for the benefit also of a person who, when the money
is recovered, or adjudged or ordered or agreed to be paid,
or accepted, is a minor; and
(e)any proceedings in the Court of Appeal on an application
or appeal made in connection with any such proceedings to
which this rule applies by virtue of the foregoing provisions
of this paragraph.
(2) Unless the Court otherwise directs the costs payable to his
solicitor by any plaintiff in any proceedings to which this rule applies
by virtue of paragraph (1)(a) or (b), being the costs of those
proceedings or incident to the claim therein or consequent thereon,
shall be taxed under rule 29; and no costs shall be payable to the
solicitor of any plaintiff in respect of those proceedings, except such
amount of costs as may be certified in accordance with this rule on
the taxation under rule 29 of the solicitor's bill to that plaintiff.
(3) On the taxation under rule 29 of a solicitor's bill to any
plaintiff in any proceedings to which this rule applies by virtue of
paragraph (1)(a) or (b) who is his own client, the taxing master shall
also tax any costs payable to that plaintiff in those proceedings and
shall certify---
(a)the amount allowed on the taxation under rule 29, the
amount allowed on that taxation of any costs payable to
the plaintiff in those proceedings and the amount (if any),
by which the first-mentioned amount exceeds the other,
and
(b)where necessary, the proportion of the amount of the
excess payable respectively by, or out of money belonging
to, any party to the proceedings who is a minor or a
mentally disordered person within the meaning of the
Mental Health Ordinance or the widow of the man whose
death gave rise to the proceedings and any other party.
(4) Paragraphs (2) and (3) shall apply in relation to any
proceedings to which this rule applies by virtue of paragraph (1)(c)
as if for references to a plaintiff there were substituted references
to the party, whether appellant or respondent, who was the
plaintiff in the proceedings which gave rise to the first-mentioned
proceedings.
(5) Nothing in the foregoing provisions of this rule shall
prejudice a solicitor's lien for costs.
(6) Where in any proceedings to which this rule applies
directions given by the Court under Order 80, rule 12 provide for
the transfer or payment of money to or into a District Court and for
the payment to the solicitor of any plaintiff in the proceedings of an
amount in respect of costs out of the money so transferred or paid,
the taxing master by whom those costs are taxed shall send a copy of
his certificate to the registrar of the District Court.
(7) The foregoing provisions of this rule shall apply in relation
to-
(a)a counterclaim by or on behalf of a person who is a minor
or a mentally disordered person within the meaning of the
Mental Health Ordinance and a counterclaim consisting of
or including a claim under the Fatal Accidents Ordinance
by or on behalf of the widow of the man whose death gave
rise to the claim; and
(b)a claim made by or on behalf of a person who is a minor
or a mentally disordered person as aforesaid in an action
by any other person for relief under section 504 of the
Merchant Shipping Act, 1894, and a claim consisting of or
including a claim under the Fatal Accidents Ordinance
made by or on behalf of that widow in such an action,
as if for references to a plaintiff there were substituted references to a
defendant.
Costs payable to a trustee out of the trust funds, etc. (0. 62, r. 3 1)
31. (1) This rule applies to every taxation of the costs which a
person who is or has been a party to any proceedings in the capacity
of trustee or personal representative is entitled to be paid out of any
fund which he holds in that capacity.
(2) On any taxation to which this rule applies, no costs shall be
disallowed except in so far as those costs or any part of their amount
should not, in accordance with the duty of the trustee or personal
representative as such, have been incurred or paid, and should for
that reason be borne by him personally.
Scales of costs (0. 62, r. 32)
32. (1) Subject to the foregoing rules and the following
provisions of this rule, the scale of costs contained in the First
Schedule of this Order, together with the notes and general pro-
visions contained in that Schedule, shall apply to the taxation of all
costs incurred in relation to contentious business done after the
commencement of these rules.
(2) On a taxation in relation to which rule 29 or rule 31(2) has
effect and in other special cases costs may at the discretion of the
taxing master be allowed-
(a) in relation to items not mentioned in the said scale; or
(b) of an amount higher than that prescribed by the said scale.
(3) Where the amount of a solicitor's remuneration in respect of non-
contentious business connected with sales, purchases, leases,
mortgages and other matters of conveyancing or in respect of any other
non-contentious business is regulated [in the absence of agreement to
the contrary] by any rules for the time being in force under the Legal
Practitioners Ordinance, the amount of the costs to be allowed on
taxation in respect of the like contentious business shall be the same,
notwithstanding anything in the scale contained in the First Schedule.
(4) Notwithstanding paragraph (1), costs shall, unless the Court
otherwise orders, be allowed in the cases to which the Second Schedule
to this Order applies in accordance with the provisions of that Schedule.
REVIEW
Application to taxing master for review (0. 62, r. 33)
33. (1) Any party to any taxation proceedings who is dissatisfied
with the allowance or disallowance in whole or in part of any item by a
taxing master, or with the amount allowed by a taxing master in respect
of any item, may apply to the taxing master to review his decision in
respect of that item.
(2) An application under this rule for review of a taxing master's
decision may be made at any time within 14 days after that decision or
such shorter period as may be fixed by the taxing master:
Provided that no application under this rule for review of a
decision in respect of any item may be made after the signing of the
taxing master's certificate dealing finally with that item.
(3) Every applicant for review under this rule must at the time of
making his application deliver to the taxing master objections in writing
specifying by a list the items or parts of items the allowance or
disallowance of which or the amount allowed in respect of which, is
objected to and stating concisely the nature and grounds of the
objection in each case, and must deliver a copy of the objections to
each other party (if any) who attended on the taxation of those items or
to whom the taxing master directs that a copy of the objections shall be
delivered.
(4) Any party to whom a copy of the objections is delivered under
this rule may, within 14 days after delivery of the copy to him or such
shorter period as may be fixed by the taxing master, deliver to the taxing
master answers in writing to the objections stating concisely the
grounds on which he will oppose the objections, and shall at the same
time deliver a copy of the answers to the party applying for review and
to each other party (if any) to whom a copy of the objections has been
delivered or to whom the taxing master directs that a copy of the
answers shall be delivered.
(5) An application under this rule for review of the taxing master's
decision in respect of any item shall not prejudice the power of the
taxing master under rule 17 to issue an interim certificate in respect of
items his decision as to which is not objected to.
Review by taxing master (0. 62, r. 34)
(HK)34. (1) A review under rule 33 shall be carried out by the taxing
master to whom the taxation was originally assigned.
(2) On reviewing any decision in respect of any item, a taxing
master may receive further evidence and may exercise all the powers
which he might exercise on an original taxation in respect of that item,
including the power to award costs of and incidental to the proceedings
before him; and any costs awarded by him to any party may be taxed by
him and may be added to or deducted from any other sum payable to or
by that party in respect of costs.
(3) On a hearing of a review under rule 33 a party to whom a copy
of objections was delivered under paragraph (4) of that rule shall be
entitled to be heard in respect of any item to which the objections relate
notwithstanding that he did not deliver written answers to the
objections under that paragraph.
(4) A taxing master who has reviewed a decision in respect of any
item shall issue his certificate accordingly and, if requested to do so by
any party to the proceedings before him, shall state in his certificate or
otherwise in writing by reference to the objections to that decision the
reasons for his decision on the review, and any special facts or
circumstances relevant to it. A request under this paragraph must be
made within 14 days after the review or such shorter period as may be
fixed by the taxing master.
Review of taxing master's certificate by a judge (0. 62, r. 35)
35. (1) Any party who is dissatisfied with the decision of a taxing
master to allow or to disallow any item in whole or in part on review
under rule 33 or 34, or with the amount allowed in respect of any item by
a taxing master on any such review, may apply to a judge for an order to
review the taxation as to that item or part of an item if, but only if, one of
the parties to the proceedings before the taxing master requested that
officer in accordance with rule 34(4) to state the reasons for his decision
in respect of that item or part on the review.
(2) An application under this rule for review of a taxing master's
decision in respect of any item may be made at any time within 14 days
after the taxing master's certificate in respect of that item is signed, or
such longer time as the taxing master at the time when he signs the
certificate, or the Court at any time, may allow.
(3) An application under this rule shall be made by summons and
shall, except where the judge thinks fit to adjourn into court, be heard in
chambers.
(4) Unless the judge otherwise directs, no further evidence shall be
received on the hearing of an application under this rule, and no ground
of objection shall be raised which was not raised on the review by the
taxing master but, save as aforesaid, on the hearing of any such
application the judge may exercise all such powers and discretion as are
vested in the taxing master in relation to the subjectmatter of the
application.
(5) If the judge thinks fit to exercise in relation to an application
under this rule the power of the Court to appoint assessors under
section 53 of the Ordinance, the judge shall appoint not less than 2
assessors, of whom one shall be a taxing master.
(6) On an application under this rule the judge may make such order
as the circumstances require, and in particular may order the taxing
master's certificate to be amended or, except where the dispute as to the
item under review is as to amount only, order the item to be remitted to
the same or another taxing master for taxation.
(7) In this rule 'judge' means a judge in person.
FIRST SCHEDULE (rule 32.1
PART 1
SCALE OF COSTS
item Particulars Charges
1. Mechanical preparation of documents-
(a) for the top copy, per page-
(i) quarto size or above .......................................................
(ii) less than quarto size ...........................
$30
(b) for additional copies, either by photographic means, printing,
carbon or any other method, per page of whatever size
$3
2......................................Attendance suitable for unqualified staff, such as for filing of
documents, delivery or collection of papers and to make appoint-
ments, whether such attendance are made by qualified or un-
qualified persons, for each attendance
$100
3.Attendance for necessary search and inquiries-such fee as the
Registrar thinks proper but not less than $100 for each
attendance.
4.Service of any documents---such fee as the Registrar thinks
proper but not less than $50 in each case.
5.The Registrar may allow such fee as he thinks proper in respect
of every other matter or thing not hereinbefore specially
mentioned
Note to item 5: This item is intended to cover
(a)the doing of any work not otherwise provided for and which
was properly done in preparing for a trial, hearing or appeal,
or before a settlement of the matters in dispute, including--
(i) The client: taking instructions to sue, defend,
counterclaim, appeal or oppose etc.; attending upon and
corresponding with client;
Item Particulars Charges
(ii) Witnesses: interviewing and corresponding with
witnesses and potential witnesses, taking and preparing
proofs of evidence and, where appropriate, arranging
attendance at Court, including issue of subpoena;
(iii) Expert evidence: obtaining and considering reports or
advice from experts and plans, photographs and models;
where appropriate arranging their attendance at Court,
including issue of subpoena;
(iv) Inspections: inspecting any property or place
material to the proceedings;
(v) Searches and Inquiries: making searches in
Government Registries and elsewhere for relevant
documents;
(vi) Special damages: obtaining details of special
damages and making or obtaining any relevant calculations;
(vii) Other parties: attending upon and corresponding
with other parties or their solicitors;
(viii) Discovery: perusing, considering or collating
documents for affidavit or list of documents; attending to
inspect or produce for inspection any documents required to
be produced or inspected by order of the Court or by virtue
of Order 24;
(ix) Documents: drafting, perusing, considering and
collating any relevant documents (including pleadings,
affidavits, cases and instructions to and advice from counsel,
orders and judgments) and any law involved;
(x) Negotiations: work done in connection with
negotiations with a view to settlement;
(xi) Attendances: attendances at Court (whether in Court
or chambers) for the hearing of any summons or other
application, on examination of any witness, on the trial or
hearing of a cause or matter, on any appeal and on delivery
of any judgment; attendances on counsel in conference, and
any other necessary attendances;
(xii) Interest: where relevant the calculation of interest
on damages; and
(xiii) Notices: preparation and service of miscellaneous
notices, including notices to witnesses to attend court; and
(b) the general care and conduct of the proceedings.
PART 11
GENERAL
Discretionary costs
1. (1) Where in the foregoing provisions of this Schedule there is entered in
the third column against any item specified in the second column an upper and a
lower sum of money, the amount of costs to be allowed in respect of that item
shall (subject to any order of the Court fixing the costs to be allowed) be in the
discretion of the taxing master, within the limits of the sums so entered.
(2) In exercising his discretion under this paragraph or under rule 32(2) in
relation to any item, the taxing master shall have regard to all relevant
circumstances, and in particular to
(a)the complexity of the item or of the cause or matter in which it arises
and the difficulty or novelty of the questions involved;
(b)the skill, specialized knowledge and responsibility required of, and the
time and labour expended by, the solicitor or counsel;
(e)the number and importance of the documents (however brief) prepared or
perused;
(d) the place and circumstances in which the business involved is transacted;
(e) the importance of the cause or matter to the client;
(1) where money or property is involved, its amount or value;
(g)any other fees and allowances payable to the solicitor or counsel in
respect of other items in the same cause or matter, but only where work
done in relation to those items has reduced the work which would
otherwise have been necessary in relation to the item in question.
Fees to counsel
2. (1) Except in the case of taxation under the Legal Aid Ordinance and
taxations of fees payable by the Crown, no fee to counsel shall be allowed unless
(a)before taxation its amount has been agreed by the solicitor instructing
counsel; and
(b)before the taxing master issues his certificate a receipt for the fees signed
by counsel is produced to him.
(2) No retaining fee to counsel shall be allowed on any taxation of costs in
relation to which rule 28(2) has effect.
(3) No costs shall be allowed in respect of counsel appearing before a master in
chambers, or of more counsel than one appearing before a judge in chambers, unless
the master or judge, as the case may be, has certified the attendance as being proper
in the circumstances of the case.
(4) A refresher fee, the amount of which shall be in the discretion of the
taxing master, shall be allowed to counsel, either for each period of five hours (or
part thereof), after the first, during which a trial or hearing is proceeding or, at the
discretion of the taxing master, in respect of any day, after the first day, on which
the attendance of counsel at the place of trial is necessary.
(HK)(5) Every fee paid to counsel shall be allowed in full on taxation, unless the
taxing master is satisfied that the same is excessive and unreasonable, in which
event the taxing master shall exercise his discretion having regard to all the
relevant circumstances and in particular to the matters set out in paragraph 1(2).
Items to be authorized, certified etc.
4. (1) In an action arising out of an accident on land due to a collision or
apprehended collision, the costs of preparing a plan (other than a sketch plan) of
the place where the accident happened shall not be allowed unless
(a) before the trial the Court authorized the preparation of the plan, or
(b)notwithstanding the absence of an authorization under sub-paragraph (a)
the taxing officer is satisfied that it was reasonable to prepare the plan for
use at the trial.
(2) The costs of calling an expert witness with regard to any question as to
which a court expert is appointed under Order 40 (or a scientific adviser is
appointed under Order 103 rule 27) shall riot be allowed on a taxation of costs in
relation to which rule 28(2) or (3) has effect unless the Court at the trial has
certified that the calling of the witness was reasonable.
(3) If any action or claim for a declaration under section 8(1) of the Registra
tion of Patents Ordinance proceeds to trial, no costs shall be allowed to the parties
delivering any particulars of breaches or particulars of objection in respect of any
issues raised in those particulars and relating to that patent except in so far as those
issues or particulars have been certified by the Court to have been proven or to
have been reasonable and proper.
Attendances in Chambers---equity jurisdiction
5. (1) The following provisions of this paragraph apply in relation to every
hearing in chambers in the equity jurisdiction of the Court,
(3) Where on any such hearing as aforesaid the Court certifies that the speedy
and satisfactory disposal of the proceedings required and received from the solicitor
engaged in them exceptional skill and labour in the preparation for the hearing, the
taxing master in taxing the costs to be allowed for instructions in relation to the
summons or application shall take the certificate into account.
Copies of documents
7. (1) There shall be allowed for printing copies of any document the amount
properly paid to the printer, and where any part of a document is properly printed
in a foreign language or as a facsimile or in any unusual or special manner, or
where any alteration becomes necessary after the first proof of the document,
there shall be allowed such an amount as the taxing master thinks reasonable, such
amount to include any attendances on the printer.
(2) The solicitor for a party entitled to take printed copies of any documents
shall be allowed the amount he pays for such number of copies as he necessarily or
properly takes.
(3) The allowance for printed copies of documents under item 1 of Part 1 of
this Schedule shall be made in addition to the allowances under the foregoing
provisions of this paragraph and shall, subject to sub-paragraph (4), be made for
such printed copies as may be necessary or proper
(a) of any pleading, for service on the opposite party;
(b) of any special case, for filing;
(e) of any pleading or special case, for the use of the Court;
(d) of any affidavit, for attestation in print;
(e) of any pleading, special case or evidence for the use of counsel in court;
or
(f)of any other document necessarily and properly copied and not otherwise
provided for.
(4) The allowance under item 1 of Part 1 shall not be made in relation to
printed copies of documents for the use of the Court or of counsel where written
copies have been made before printing, and shall not be made more than once in
the same cause or matter.
SECOND SCHEDULE [rule 32.1
FIXED COSTS
For the purposes of this Schedule there shall be five Scales, namely
Scale Applicable Sum of Money
Scale I Exceeding 50 but not exceeding 200
Scale II Exceeding 200 but not exceeding 500
Scale 111 Exceeding 500 but not exceeding $2,000
Scale IV Exceeding $2,000 but not exceeding $5,000
Scale V Exceeding $5,000
The Scale of Costs in garnishee
proceedings shall be determined
(a)as regards the costs of the
judgment creditor, by the
amount recovered against the
garnishee; and
(b)as regards the costs of the
garnishee or the judgment
debtor, by the amount claimed
by the judgment creditor in the
garnishee proceedings.
PART 1
COSTS ON JUDGMENT WITHOUT TRIAL FOR A LIQUIDATED SUM
1. The scale of costs set out in Part 11 of this Schedule (which includes the
scale prescribed pursuant to section 72 of the District Court Ordinance) shall apply
in relation to the following cases if the writ of summons therein was issued after 1
January 1966, and was indorsed with a claim for a debt or liquidated demand only,
that is to say
(a)cases in which the defendant pays the amount claimed within the time and
in the manner required by the indorsement of the writ;
(b)cases in which the plaintiff obtains judgment on failure to give notice of
intention to defend under Order 13, rule 1, or judgment in default of
defence under Order 19, rule 2;
(c)cases in which the plaintiff obtains judgment under Order 14, rule 3, either
unconditionally or unless that sum is paid into court or to the plaintiff`s
solicitors.
2. Notwithstanding anything in paragraph 1 of this Schedule or in the said
scale, no costs shall be allowed in any case to which the said paragraph 1 applies
unless
(a) the Court orders costs to be allowed; or
(b)in a case to which sub-paragraph (b) of paragraph 1 applies, judgment or
an order for judgment, as the case may be, is obtained within 28 days after
the service of the writ or within such further time as the Court may allow.
3. In every case to which the said scale applies there shall be added to the basic
costs set out in the said scale the fee which would have been payable on the issue of
a writ for the amount recovered.
PART 11
SCALE OF COSTS
Item Scale
Basic Costs
To be allowed in cases under-
sub-paragraph (a) of paragraph 1 400.00
sub-paragraph (b) of paragraph 1 505.00
sub-paragraph (c) of paragraph 1 650.00
Additional Costs
1. For each additional defendant after the first 65.00
1 Where substituted service is ordered and effected, for each defendant
served 500.00
3. Where service out of the jurisdiction is ordered and effected 225.00
4. In the case of judgment in default of defence or judgment under Order
14, rule 3, where notice of intention to defend is given after the time
limited therefor and the plaintiff makes an affidavit of service for the
purpose of a judgment on failure to give notice of intention to defend
(the allowance to include the search fee) 120.00
5. In the case of judgment under Order 14, rule 3, where an affidavit of
service of summons is required 120.00
6. In the case of judgment under Order 14, rule 3, for each adjournment of
the summons 50.00
7. In the case of judgment on failure to give notice of intention to defend
on all application by notice under Order 83A, rule 4, (which applies to
moneylenders' actions)-
(a) where judgment is given for interest at a rate exceeding 48 per cent
per annum on production of an affidavit justifying the rate 120.00
(b) in any other case
60.00
(c) for each additional defendant after the first
30.00
PART 111
MISCELLANEOUS
Item Scale
1. Where a plaintiff or defendant signs judgment for costs under rule 11,
there shall be allowed---
cost of the judgment 120.00
2. Where upon the application of any person who has obtained a
judgment or order against a debtor for the recovery or payment of
money a garnishee order is made under Order 49 against a garnishee
attaching debts owing or accruing from him to the debtor, the
following costs shall be allowed-
(a) to the garnishee, to be deducted by him from any debt owing by
him as aforesaid before payments to the applicant-
(i) if no affidavit used 50.00
(ii) if affidavit used
100.00
(b) to the applicant, to be retained unless the Court otherwise orders,
put of the money recovered by him under the garnishee order and
in priority to the amount of the debt owing to him under the
judgment or order-
basic costs 150.00
additional costs where the garnishee fails to attend the hear-
ing of the application and an affidavit of service is required 50.00
3. Where a charging order is made-
(a)in respect of any stock, funds, annuities or shares, or any dividends
or interest thereon or produce thereof, under Order 50; or
(b)in respect of any partnership property or profits, under section 25
of the Partnership Ordinance;
there shall be allowed-
basic costs 575.00
additional costs where an affidavit of service is required 50.00
4. Where a writ of execution within the meaning of Order 46, rule 1 is
issued against any party, there shall be allowed-
cost of issuing execution 170.00
GENERAL AND ADMINISTRATIVE PROVISIONS
ORDER 63
THE REGISTRY
Practice master (0. 63, r. 2)
2. Subject to the direction of the Registrar one of the masters shall
be present at the Registry on every day on which the Registry is open
for the purpose of superintending the business performed there and
giving any directions which may be required on questions of practice
and procedure.
Date of filing to he marked, etc. (0. 63, r. 3)
3. (1) Any document filed in the Registry in any proceedings must
be marked showing the date on which the document was filed.
(2) Particulars of the time of delivery at the Registry of any
document for filing, the date of the document and the title of the cause
or matter of which the document forms part of the record shall be
entered in books kept in the Registry for the purpose.
Right to inspect, etc. certain documents filed in the Registry (0. 63, r. 4)
4. (1) Any person shall, on payment of the prescribed fee, be
entitled during such hours as the Registrar may direct to search for,
inspect and obtain a copy of any of the following documents filed in the
Registry, namely
(a)the copy of any writ of summons or other originating process,
(b)any judgment or order given or made in court or the copy of
any such judgment or order, and
(c)with the leave of the Court, which may be granted on an
application made ex parte, any other document.
(2) Nothing in the foregoing provisions shall be taken as
preventing any party to a cause or matter searching for, inspecting and
obtaining a copy of any affidavit or other document filed in the Registry
in that cause or matter or filed therein before the commencement of that
cause or matter but made with a view to its commencement.
Deposit of documents (0. 63, r. 5)
5. Where the Court orders any documents to be lodged in court,
they must. unless otherwise directed, be deposited in the Registry.
Inspection, etc. of powers of attorney (0. 63, r. 8)
8. (1) An index shall be kept in the Registry of all powers of
attorney which have been deposited in the Registry prior to 1 October
1972.
(2 Any person shall, on payment of the prescribed fee, be entitled
to
(a) search the index;
(b)inspect any power of attorney and any document which has
been deposited together with the power of attorney; and
(c)office copies of the power of attorney and any document
relating thereto,
and a copy of such power of attorney and document may be presented
at the Registry to be marked as office copies.
Restriction on removal of documents (0. 63, r. 9)
9. No document filed in or in the custody of the Registry of the
Supreme Court shall be taken out of that Registry without the leave of
the Court.
Enrolment of instruments (0. 63, r. 10)
10. Any deed which by virtue of any written law is required or
authorized to be enrolled in the Supreme Court may be enrolled in the
Registry.
In this rule 'deed' includes assurances and other instruments.
ORDER 64
SITTINGS, VACATIONS AND OFFICE
HOURS
Sittings of the Supreme Court (0. 64, r. 1)
1. (1) The sittings of the Court of Appeal and of the High Court
shall be three in every year, that is to say
(a)the Winter sittings which shall begin on 4 January and end on
the Thursday before Easter Sunday;
(b)the Spring sittings which shall begin on the second Monday
after Easter Sunday and end on 31 July;
(e)the Autumn sittings which shall begin on 12 September and
end on 23 December.
Court of Appeal (0. 64, r. 2)
2. (1) The Court of Appeal shall sit in vacation on such days as the
Chief Justice may, from time to time direct to hear such appeals or
applications as require to be immediately or promptly heard and to hear
other appeals and applications if the Chief Justice determines that
sittings are necessary for that purpose.
(2) Any party to an appeal may at any time apply to the Court of
Appeal for an order that the appeal be heard in vacation and, if that
Court is satisfied that the appeal requires to be immediately or promptly
heard, it may make an order accordingly and fix a date for the hearing.
(3) The Court of Appeal may hear such other appeals in vacation
as that Court may direct.
(4) The provisions of 0. 59, r. 10(9) shall apply to the powers
conferred on the Court of Appeal by this rule.
High Court (0. 64, r. 3)
3. (1) One or more judges of the High Court shall sit in vacation on
such days as the Chief Justice may, from time to time direct, to hear
such causes, matters or applications as require to be immediately or
promptly heard and to hear other causes, matters or applications if the
Chief Justice determines that sittings are necessary for that purpose.
(2) Any party to a cause or matter may at any time apply to tile
Court tor an order that such cause or matter be heard in vacation and, if
the Court is satisfied that the cause or matter requires to be immediately
or promptly heard, it may make an order accordingly and fix a date for
the hearing.
(3) Any judge of the High Court may hear such other causes or
matters in vacation as the Court may direct.
Business in vacation (0. 64, r. 3A)
(HK)3A. (1) Upon application by any party to an action or matter, the
Court may, if it thinks fit
(a)complete such action or matter in vacation if it is partheard;
and
(b) deliver judgment in such action or matter in vacation.
Supreme Court Offices: days on which open and office hours (0. 64, r. 7)
7. (1) The offices of the Supreme Court shall be open on every day
of the year except
(a) Saturdays from 1 p.m.,
(b) Sundays,
(c)Christmas Eve or, if that day is a Sunday, then 23 December,
(e) general holidays under the Holidays Ordinance,
(f) such other days as the Chief Justice may direct.
(2) The hours during which any office of the Supreme Court shall
be open to the public shall be such as the Chief Justice may from time to
time direct.
ORDER 65
SERVICE OF DOCUMENTS
When personal service required (0. 65, r. 1)
1. (1) Any document which by virtue of these rules is required to
be served on any person need not be served personally unless the
document is one which by an express provision of these rules or by
order of the Court is required to be so served.
(2) Paragraph (1) shall not affect the power of the Court under any
provision of these rules to dispense with the requirement for personal
service.
Personal service: how effected (0. 65, r. 2)
2. Personal service of a document is effected by leaving a copy of
the document with the person to be served.
Personal service on body corporate (0. 65, r. 3)
3. (1) Personal service of a document on a body corporate may, in
cases for which provision is not otherwise made by any written law, be
effected by serving it in accordance with rule 2 on the chairman or
president of the body, or the clerk, secretary, treasurer or other similar
officer thereof.
(2) Where a writ is served on a body corporate in accordance with
Order 10, rule 1(2), that rule shall have effect as if for the reference to the
usual or last known address of the defendant there were substituted a
reference to the registered or principal office of the body corporate and
as if for the reference to the knowledge of the defendant there were
substituted a reference to the knowledge of a person mentioned in
paragraph (1).
Substituted service (0. 65, r. 4)
4. (1) If, in the case of any document which by virtue of any
provision of these rules is required to be served personally or in the
case of a document to which Order 10, rule 1, applies, it appears to the
Court that it is impracticable for any reason to serve that document in
the manner prescribed on that person, the Court may make an order for
substituted service of that document.
(2) An application for an order for substituted service may be made
by an affidavit stating the facts on which the application is founded.
(3) Substituted service of a document, in relation to which an order
is made under this rule, is effected by taking such steps as the Court
may direct to bring the document to the notice of the person to be
served.
Ordinary service: how effected (0. 65, r. 5)
5. (1) Service of any document, not being a document which by
virtue of any provision of these rules is required to be served personally
or a document to which Order 10, rule 1, applies, may be effected
(a)by leaving the document at the proper address of the person
to be served, or
(b) by post, or
(c)where the proper address for service includes a numbered box
at a document exchange, by leaving the document at that
document exchange or at a document exchange which
transmits documents every business day to that document
exchange or
(d) in such other manner as the court may direct.
In these rules 'document exchange' means any document
exchange for the time being approved by the Chief Justice.
(2) For the purposes of this rule, and of section 8 of the
Interpretation and General Clauses Ordinance, in its application to this
rule, the proper address of any person on whom a document is to be
served in accordance with this rule shall be the address for service of
that person, but if at the time when service is effected that person has
no address for service his proper address for the purposes aforesaid
shall be
(a)in any case, the business address of the solicitor (if any) who
is acting for him in the proceedings in connection with which
service of the document in question is to be effected, or
(b)in the case- of an individual, his usual or last known address,
or
(c)in the case of individuals who are suing or being sued in the
name of a firm, the principal or last known place of business of
the firm within the jurisdiction, or
(d)in the case of a body corporate, the registered or principal
office of the body.
(2A) Any such document which is left at a document exchange in
accordance with paragraph (1)(c) shall, unless the contrary is proved,
be deemed to have been served on the business day following the day
on which it is left.
(3) Nothing in this rule shall be taken as prohibiting the personal
service of any document or as affecting any enactment which provides
for the manner in which documents may be served on bodies corporate.
(4) In this rule 'business day' means a day other than a general
holiday.
Service on Attorney General in proceedings which are not by or
against the Crown (0. 65, r. 6)
6. Where for the purpose of or in connection with any proceedings
in the Surpreme Court, not being civil proceedings by or against the
Crown within the meaning of Part 111 of the Crown Proceedings
Ordinance, any document is required by any written law or these rules
to be served on the Attorney General, section 14 of the said Ordinance
and Order 77, rule 4, shall apply in relation to the service of the
document as they apply in relation to the service of documents required
to be served on the Crown for the purpose of or in connection with any
civil proceedings by or against the Crown.
Effect of service after certain hours (0. 65, r. 7)
7. Any document (other than a writ of summons or other
originating process) service of which is effected under rule 2 or under
rule 5(1)(a) between 1 p.m. on a Saturday and midnight on the following
day or after four in the afternoon on any other weekday shall, for the
purpose of computing any period of time after service
of that document, be deemed to have been served on the Monday
following that Saturday or on the day following that other weekday, as
the case may be.
Affidavit of service (0. 65, r. 8)
8. Except as provided in Order 10, rule 1(3)(b) and Order 81, rule
3(2)(b), an affidavit of service of any document must state by whom the
document was served, the day of the week and date on which it was
served, where it was served and how.
No service required in certain cases (0. 65, r. 9)
9. Where by virtue of these rules any document is required to be
served on any person but it is not required to be served personally or in
accordance with Order 10, rule 1(2), and at the time when service is to be
effected that person is in default as to acknowledgment of service or has
no address for service, the document need not be served on that person
unless the Court otherwise directs or any of these rules otherwise
provides.
Service of process on Sunday (0. 65, r. 10)
10. (1) No process shall be served or executed within the
jurisdiction on a Sunday, except, in case of urgency, with the leave of
the Court.
(2) For the purposes of this rule 'process' includes a writ,
judgment, notice, order, petition, originating or other summons or
warrant.
ORDER 66
PAPER, PRINTING, NOTICES AND COPIES
Quality of paper (0. 66, r. 1)
1. Unless the nature of the document renders it impracticable,
every document prepared by a party for use in the Court must be on
paper of durable quality, having a margin not less than 35 mm wide, to
be left blank on the left side of the face of the paper and on the right
side of the reverse.
Regulations as to printing, etc. (0. 66, r. 2)
2. (1) Except where these rules otherwise provide, every document
prepared by a party for use in the Supreme Court must be produced by
one of the following means, that is to say, printing, writing (which must
be clear and legible) and typewriting otherwise than by means of a
carbon, and may be produced partly by one of those means and partly
by another or others of them.
(2) For the purposes of these rules a document shall be deemed to
be printed if it is produced by type lithography or stencil duplicating.
(3) Any type used in producing a document for use as afore-
said must be such as to give a clear and legible impression and must
be not smaller than 11 point type for printing or elite type for type
lithography, stencil duplicating or typewriting.
(4) Any document produced by a photographic or similar
process giving a positive and permanent representation free from
blemishes shall, to the extent that it contains a facsimile of any
printed, written or typewritten matter, be treated for the purposes of
these rules as if it were printed, written or typewritten, as the case
may be.
(5) Any notice required by these rules may not be given orally
except with the leave of the Court.
Copies of documents for other party (0. 66, r. 3)
3. (1) Where a document prepared by a party for use in the
Supreme Court is printed the party by whom it was prepared must.
on receiving a written request from any other party entitled to a
copy of that document and on payment of the proper charges,
supply him with such number of copies thereof, not exceeding ten,
as may be specified in the request.
(2) Where a document prepared by a party for use in the
Supreme Court is written or typewritten, the party by whom it was
prepared must supply any other party entitled to a copy of it, not
being a party on whom it has been served, with one copy of it and,
where the document in question is an affidavit, of any document
exhibited to it.
The copy must be ready for delivery within 48 hours after a
written request for it, together with an undertaking to pay the
proper charges, is received and must be supplied thereafter on
payment of those charges.
Requirements as to copies (0. 66, r. 4)
4. (2) Before a copy of a document is supplied to a party
under these rules, it must be indorsed with the name and address of
the party or solicitor by whom it was supplied.
(3) The party by whom a copy is supplied under rule 3, or,
if he sues or appears by a solicitor, his solicitor, shall be answerable
for the copy being a true copy of the original or of an office copy,
as the case may be.
ORDER 67
CHANGE OF SOLICITOR
Notice of change of solicitor (0. 67, r. 1)
1. (1) A party to any cause or matter who sues or defends by
a solicitor may change his solicitor without an order for that
purpose but, unless and until notice of the change is filed and copies
of the notice are lodged and served in accordance with this rule, the
former solicitor shall, subject to rules 5 and 6, be considered the
solicitor of the party until the final conclusion of the cause or matter,
whether in the High Court or the Court of Appeal.
(2) Notice of a change of solicitor must be filed, and a copy
thereof lodged in the Registry.
(3) The party giving the notice must serve on every other party
to the cause or matter (not being a party in default as to acknow-
ledgment of service) and on the former solicitor a copy of the notice
indorsed with a memorandum stating that the notice has been duly
filed in the Registry.
(4) The party giving the notice may perform the duties pre-
scribed by this rule in person or by his new solicitor.
Notice of appointment of solicitor (0. 67, r. 3)
3. Where a party, after having sued or defended in person,
appoints a solicitor to act in the cause or matter on his behalf,
the change may be made without an order for that purpose and
rule 1(2), (3) and (4) shall, with the necessary modifications, apply
in relation to a notice of appointment of a solicitor as they apply
in relation to a notice of change of solicitor.
Notice of intention to act in person (0. 67, r. 4)
4. Where a party, after having sued or defended by a solicitor,
intends and is entitled to act in person, the change may be made
without an order for that purpose and rule 1 shall, with the
necessary modifications, apply in relation to a notice of intention to
act in person as it applies in relation to a notice of change of solicitor
except that the notice of intention to act in person must contain an
address for service of the party giving it.
Removal of solicitor from record at instance of another party (0. 67,
r. 5)
5. (1) Where-
(a)a solicitor who has acted for a party in a cause or matter
has died or become bankrupt or cannot be found or has
failed to take out a practising certificate or has been struck
off the roll of solicitors or has been suspended from
practising or has for any other reason ceased to practise,
and
(b)the party has not given notice of change of solicitor or
notice of intention to act in person in accordance with the
foregoing provisions of this Order,
any other party to the cause or matter may apply to the Court, or if
an appeal to the Court of Appeal is pending in the cause or matter,
to the Court of Appeal, for an order declaring that the solicitor has
ceased to be the solicitor acting for the first-mentioned party in the
cause or matter. and the Court or Court of Appeal, as the case may
be, may make an order accordingly.
(2) An application for an order under this rule must be made by
summons or, in the case of an application to the Court of Appeal, by
motion, and the summons or notice of the motion must, unless the
Court or Court of Appeal, as the case may be, otherwise directs, be
served on the party to whose solicitor the application relates.
The application must be supported by an affidavit stating the
grounds of the application.
(3) Where an order is made under this rule the party on whose
application it was made must
(a)serve on every other party to the cause or matter (not being a
party in default as to acknowledgment of service) a copy of the
order, and
(b) procure the order to be entered in the Registry, and
(c)leave at the Registry a copy of the order and a certificate
signed by him or his solicitor that the order has been duly
served as aforesaid.
(4) An order made under this rule shall not affect the rights of the
solicitor and the party for whom he acted as between themselves.
Withdrawal of solicitor who has ceased to act for party (0. 67, r. 6)
6. (1) Where a solicitor who has acted for a party in a cause or
matter has ceased so to act and the party has not given notice of
change in accordance with rule 1, or notice of intention to act in person
in accordance with rule 4, the solicitor may apply to the Court for an
order declaring that the solicitor has ceased to be the solicitor acting for
the party in the cause or matter, and the Court or Court of Appeal, as the
case may be, may make an order accordingly, but, unless and until the
solicitor
(a)serves on every party to the cause or matter (not being a party
in default as to acknowledgment of service) a copy of the
order, and
(b) procures the order to be entered in the Registry, and
(c)leaves at the Registry a copy of the order and a certificate
signed by him that the order has been duly served as
aforesaid,
he shall, subject to the foregoing provisions of this Order, be
considered the solicitor of the party till the final conclusion of the cause
or matter whether in the High Court or Court of Appeal.
(2) An application on r an order under this rule must be made
application on by summons or, in the c case of an
application to the Court of Appeal,
c
S
by motion, and the summons or notice of the motion must, unless the
Court or the Court of Appeal, as the case may be, otherwise S, be served
direct on 1 the party for whom the solicitor acted.
The must be supported by an affidavit stating the
p 1
grounds of application.
(3) An order made under this rule shall not affect the rights of the
solicitor and the party for whom he acted as between themselves.
(4) Notwithstanding anything in paragraph (1), where the certificate
of an assisted person within the meaning of the Legal Aid Ordinance is
revoked or discharged, the solicitor who acted for the assisted person
shall cease to be the solicitor acting in the cause or matter as soon as
his retainer is determined under that Ordinance; and if the assisted
person whose certificate has been revoked or discharged desires to
proceed with the cause or matter without legal aid and appoints that
solicitor or another solicitor to act on his behalf, the provisions of rule 3
shall apply as if that party had previously sued or defended in person.
Address for service of party whose solicitor is removed, etc. (0. 67, r. 7)
7. Where-
(a) an order is made under rule 5, or
(b)an order is made under rule 6, and the applicant for that order
has complied with rule 6(1), or
(c)the certificate of an assisted person within the meaning of the
Legal Aid Ordinance is revoked or discharged,
then, unless and until the party to whose solicitor or to whom, as the
case may be, the order or certificate relates either appoints another
solicitor and complies with rule 3 or, being entitled to act in person,
gives notice of his intention so to do and complies with rule 4, his last
known address or, where the party is a body corporate, its registered or
principal office shall, for the purpose of the service on him of any
document not required to be served personally, be deemed to be his
address for service.
Order to apply to matrimonial causes and matters (0. 67, r. 9)
9. This Order shall have effect in relation to matrimonial causes and
matters and, in its application to such a cause or matter, any reference in
rules 4 and 7 to an address for service shall be construed as a reference
to the address for service required by the rules in force by virtue of the
provisions of section 10 or made under section 54 of the Matrimonial
Causes Ordinance.
ORDER 68
OFFICIAL SHORTHAND NOTE
Official shorthand note of all evidence, etc. (0. 68, r. 1)
1. (1) In every action or other proceeding in the High Court which
is tried or heard with witnesses, an official shorthand note shall, unless
the judge otherwise directs, be taken of any evidence given orally in
court and of any summing up by the judge and of any
judgment delivered by him, and, if any party so requires the note
so taken shall be transcribed and such number of transcripts as
any party- may demand shall be supplied to him at the charges
authorized by any scheme in force providing for the taking of
official shorthand notes of proceedings in the High Court.
(2) Nothing in this rule shall be construed as prohibiting the
supply of transcripts to persons not parties to the proceedings.
(3) The powers of the Court of Appeal under this Order may
be exercised by a single judge of that Court or by the registrar of
civil appeals.
Evidence when not to he transcribed (0. 68, r. 2)
2. (1) If the judge intimates that in the event of an appeal his
note will be sufficient, the shorthand note of the evidence need not
be transcribed for the purposes of an appeal.
(2) If the parties agree or the judge is of opinion that the
evidence or some part of the evidence of any witness would, in the
event of an appeal, be of no assistance to the Court of Appeal,
the shorthand note of such evidence need not be transcribed for the
purposes of an appeal.
(3) If any party requires a transcript of any such evidence as
aforesaid the charge therefor shall be borne by that party in any event.
Payment for transcripts out of public funds: excepted proceedings
(0. 68, r. 3)
3. Rules 4 and 5 shall not apply in relation to a transcript of a
note taken in proceedings in connection with which legal aid might
have been given under the Legal Aid Ordinance whether or not such
aid was given thereunder to any party to the proceedings.
Payment for transcripts for the Court of Appeal (0. 68, r. 4)
4. (1) An appellant shall not be required to pay for the
transcript to which a certificate given under this rule relates but,
except as aforesaid, any transcript required for the Court of Appeal
shall be paid for by the appellant in the first instance.
(2) Where the judge by whom any such proceeding as is
referred to in rule 1 was tried or heard or the Court of Appeal is
satisfied that an appellant in that proceeding is in such poor financial
circumstances that the cost of a transcript would be an excessive
burden on him, and, in the case of a transcript of evidence, that there
is reasonable ground for the appeal, the judge or the Court of
Appeal, as the case may be, may certify that the case is one in which
it is proper that the said cost should be borne by public funds.
(3) An application for a certificate under this rule must be
made in the first instance to the judge; if the application is refused,
the application (if any) to the Court of Appeal must be made within
7 days after the refusal.
(4) Where an application is made to the Court of Appeal for a
certificate under this rule, then, if the Court of Appeal is of opinion
that for the purpose of determining the application it is necessary for
that Court to see a transcript of the summing up and judgment, with
or without a transcript of the evidence, the Court of Appeal may
certify that both transcripts or, as the case may be, only a transcript
of the summing up and judgment may properly be supplied for the
use of that Court at the expense of public funds.
(5) No transcript supplied for the use of the Court of Appeal
under a certificate given under paragraph (4) shall be handed to the
appellant except by direction of the Court of Appeal.
(6) Where the judge or the Court of Appeal certifies under
paragraph (2) that there is reasonable ground for the appeal, the
appellant may be supplied with as many free copies of the transcript
referred to in the certificate as will, together with any free copies
already supplied under a certificate given under paragraph (4), make
up a total of one for his own use and three for the use of the Court of
Appeal.
(7) References in this rule to an appellant include references to
an intending appellant.
Payment for transcript for poor respondent (0. 68, r. 5)
5. (1) Where the judge by whom any such proceeding as is
referred to in rule 1 was tried or heard or the Court of Appeal is
satisfied that the respondent to an appeal in that proceeding is in
such poor financial circumstances that the cost of obtaining a
transcript, or a specified part thereof, for the purpose of resisting the
appeal would be an excessive burden on him, the judge or the Court
of Appeal, as the case may be, may certify that the case is one in
which it is proper that the cost of the transcript or that part thereof,
as the case may be, should be borne by public funds, and where such
a certificate is given the respondent shall not be required to pay the
said cost.
(2) Rule 4(3) shall apply in relation to an application for a
certificate under this rule as it applies in relation to an application
for a certificate under that rule.
Mechanical recording (0. 68, r. 8)
8. In this Order any reference to a shorthand note of any
proceedings shall be construed as including a reference to a record of
the proceedings made by mechanical means.
Definition (0. 68, r. 8A)
8A. In this Order 'transcript' includes the transcript of the
official shorthand note and any official typescript of the Judge's
manuscript note.
PROVISIONS AS TO FOREIGN PROCEEDINGS
ORDER 69
SERVICE OF FOREIGN PROCESS
Definitions (0. 69, r. 1)
1. In this Order-
,la convention country' means a foreign country in relation to which
there subsists a civil procedure convention providing for service in
that country of process of the High Court, and includes a country
which is a party to the Convention on the Service Abroad of
Judicial and Extra-Judicial Documents in Civil or Commercial
Matters signed at The Hague on 15 November 1965;
'process' includes a citation;
'process server' means the process server appointed under rule 4 or
his authorized agent;
'taxing master' means a taxing master of the Supreme Court.
Applications (0. 69, r. 2)
2. This Order applies to the service on a person in Hong Kong of
any process in connection with civil or commercial proceedings in a
foreign court or tribunal where the Registrar receives a written request
for service
(a)from the Chief Secretary with a recommendation by him that
service should be effected; or
(b)where the foreign court or tribunal is in a convention country,
from a consular or other authority of that country.
Service of process (0. 69, r. 3)
3. (1) The request shall be accompanied by a translation thereof in
English, two copies of the process and, unless the foreign court or
tribunal certifies that the person to be served understands the language
of the process, two copies of a translation thereof.
(2) Subject to paragraphs (3) and (5) and to any enactment
providing for the manner of service of documents on corporate bodies,
the process shall be served by the process server's leaving a copy of
the process and a copy of the translation or certificate, as the case may
be, with the person to be served.
(3) The provisions of Order 10, rule 1(2)(b) regarding service by
insertion through a letter-box shall apply to the service of foreign
process as they apply to the service of writs, except that service may be
proved by an affidavit or by a certificate or report in such form as the
Registrar may direct.
(4) The process server shall send to the Registrar a copy of the
process and an affidavit, certificate or report proving due service of
process or stating the reason why service could not be effected, as the
case may be, and shall, if the Court so directs, specify the costs incurred
in effecting or attempting to effect service.
(5) Order 65, rule 4 (substituted service) shall apply to the service
of foreign process as it applies to the service of writs, except that the
Registrar may make an order for substituted service of foreign process
on the basis of the process server's affidavit, certificate or report,
without an application being made to him in that behalf.
(6) The Registrar shall send a certificate, together with a copy of
the process, to the consular or other authority or the Chief Secretary, as
the case may be, stating
(a)when and how service was effected or the reason why service
could not be effected, as the case may be;
(b)where appropriate, the amount certified by the taxing master
to be the costs of effecting or attempting to effect service.
(7) The certificate under paragraph (6) shall be scaled with the seal
of the Supreme Court for use out of the jurisdiction.
Appointment of process server (0. 69, r. 4)
4. The process server for the purposes of this Order shall be the
Chief Bailiff.
ORDER 70
OBTAINING EVIDENCE FOR FOREIGN COURTS,
ETC.
Interpretation and exercise of jurisdiction (0. 70, r. 1)
1. (1) In this Order 'the Ordinance' means the Evidence Ordinance
and expressions used in this Order which are used in the Ordinance
shall have the same meaning as in the Ordinance.
(2) The power of the High Court to make an order under section 76
of the Ordinance may be exercised by the Registrar.
Application for order (0. 70, r. 2)
2. (1) Subject to rule 3 an application for an order under the
Ordinance must be made ex parte and must be supported by affidavit.
(2) There shall be exhibited to the affidavit the request in
pursuance of which the application is made, and if the request is not in
the English language, a translation thereof in that language.
Application by Crown Solicitor in certain cases (0. 70, r. 3)
3. Where a request-
(a)is received by the Chief Secretary and sent by him to the
Registrar with an intimation that effect should be given to the
request without requiring an application for that purpose to be
made by the agent in Hong Kong of any party to the matter
pending or contemplated before the foreign court or tribunal;
or
(b)is received by the Registrar in pursuance of a Civil Procedure
Convention providing for the taking of the evidence of any
person in Hong Kong for the assistance of a court or tribunal
in the foreign country, and no person is named in the
document as the person who will make the necessary
application on behalf of such party,
the Registrar shall send the document to the Crown Solicitor and the
Crown Solicitor may make an application for an order under the
Ordinance, and take such other steps as may be necessary, to give
effect to the request.
Person to take and manner of taking examination (0. 70, r. 4)
4. (1) Any order made in pursuance of this Order for the
examination of a witness may order the examination to be taken before
any fit and proper person nominated by the person applying for the
order or before such other qualified person as to the Court seems fit.
(2) Subject to rule 6 and to any special directions contained in any
order made in pursuance of this Order for the examination of any
witness, the examination shall be taken in manner provided by Order 39,
rules 5 to 10 and 11 (1) to (3), and an order may be made under Order 39,
rule 14, for payment of the fees and expenses due to the examiner, and
those rules shall apply accordingly with any necessary modifications.
Dealing with deposition (0. 70, r. 5)
5. Unless any order made in pursuance of this Order for the
examination of any witness otherwise directs, the examiner before whom
the examination was taken must send the deposition of that witness to
the Registrar, and the Registrar shall
(a)give a certificate sealed with the Seal of the Court for use out
of the jurisdiction identifying the documents annexed thereto,
that is to say, the request, the order of the Court for
examination and the deposition taken in pursuance of the
order; and
(b)send the certificate with the documents annexed thereto to the
Chief Secretary, or, where the request was sent to the
Registrar by some other person in accordance with a Civil
Procedure Convention, to that other person, for transmission
to the court or tribunal out of the jurisdiction requesting the
examination.
Claim to privilege (0. 70, r. 6)
6. (1) The provisions of this rule shall have effect where a claim by
a witness to be exempt from giving any evidence on the ground
specified in section 77(1)(b) of the Ordinance is not supported or
conceded as mentioned in subsection (2) of that section.
(2) The examiner may, if he thinks fit, require the witness to give the
evidence to which the claim relates and, if the examiner does not do so,
the Court may do so, on the ex parte application of the person who
obtained the order under section 76.
(3) If such evidence is taken-
(a)it must be contained in a document separate from the
remainder of the deposition of the witness;
(b)the examiner shall send to the Registrar with the deposition a
statement signed by the examiner setting out the claim and the
ground on which it was made;
(c)on receipt of the statement the Registrar shall,
notwithstanding anything in rule 5, retain the document
containing the part of the witness's evidence to which the
claim relates and shall send the statement and a request to
determine the claim to the foreign court or tribunal with the
documents mentioned in rule 5;
(d)if the claim is rejected by the foreign court or tribunal, the
Registrar shall send to that court or tribunal the document
containing that part of the witness's evidence to which the
claim relates, but if the claim is upheld he shall send the
document to the witness, and shall in either case notify the
witness and the person who obtained the order under section
76 of the court or tribunal's determination.
ORDER 71
RECIPROCAL ENFORCEMENT OF
JUDGMENTS
Application for registration (0. 7 1, r. 2)
2. (1) An application under section 4 of the Foreign Judgments
(Reciprocal Enforcemnt) Ordinance, (in this Order referred to as 'the
Ordinance') in respect of a judgment to which the Ordinance applies to
have the judgment registered in the Court may be made exparte, but the
Court may direct a summons to be issued.
(2) If the Court directs a summons to he issued, the summons shall
be an originating summons.
(3) An originating summons under this rule shall be in Form No. 10
in Appendix A.
Evidence in support of application (0. 71, r. 3)
3. (1) An application for registration must be supported by an
affidavit
(a)exhibiting the judgment or a verified or certified or other-
wise duly authenticated copy thereof and, where the judg-
ment is not in the English language, a translation thereof in
that language certified by a notary public or authenticated
by affidavit;
(b)stating the name, trade or business and the usual or last
known place of abode or business of the judgment creditor
and the judgment debtor respectively, so far as known to
the deponent;
(c)stating to the best of the information or belief of the
deponent-
(i) that the judgment creditor is entitled to enforce the
judgment;
(ii) as the case may require, either that at the date of the
application the judgment has not been satisfied, or the
amount in respect of which it remains unsatisfied;
(iv) that at the date of the application the judgment can
be enforced by execution in the country of the original
court and that, if it were registered, the registration would
not be, or be liable to be, set aside under section 6 of the
Ordinance;
(d)specifying the amount of the interest, if any, which under
the law of the country of the original court has become due
under the judgment up to the time of registration.
(2) Where a judgment sought to be registered is in respect of
difrerent matters, and some, but not all, of the provisions of the
judgment are such that if those provisions had been contained in
separate judgments, those judgments could properly have been
registered, the affidavit must state the provisions in respect of which
it is sought to register the judgment.
(3) The affidavit must be accompanied by such other evidence
with respect to the enforceability of the judgment by execution in the
country of the original court, and of the law of that country under
which any interest has become due under the judgment, as may be
required having regard to the provisions of the Order in Council
extending the Ordinance to that country.
Security for costs (0. 7 1, r. 4)
4. Save as otherwise provided by any relevant Order in
Council, the Court may order the judgment creditor to give security
for the costs of the application for registration and of any proceed-
ings which may be brought to set aside the registration.
Order for registration (0. 71, r. 5)
5. (1) An order giving leave to register a judgment must be
drawn up by, or on behalf of, the judgment creditor.
(2) Except where the order is made on summons, no such
order need be served on the judgment debtor.
(3) Every such order shall state the period within which an
application may be made to set aside the registration and shall
contain a notification that execution on the judgment will not issue
until after the expiration of that period.
(4) The Court may, on an application made at any time while
it remains competent for any party to apply to have the registration
set aside, extend the period (either as originally fixed or as sub-
sequently extended) within which an application to have the regis-
tration set aside may be made.
Register of judgments (0. 71, r. 6)
6. (1) There shall be kept in the Registry under the direction
of the Registrar a register of the judgments ordered to be registered
under the Ordinance.
(2) There shall be included in each such register particulars of
any execution issued on a judgment ordered to be so registered.
Notice of registration (0. 71, r. 7)
7. (1) Notice of the registration of a judgment must be
served on the judgment debtor by delivering it to him personally or
by sending it to him at his usual or last known place of abode or
business or in such other manner as the Court may direct.
(2) Service of such a notice out of the jurisdiction is permis-
sible without leave, and Order 11, rules 5, 6 and 8, shall apply in
relation to such a notice as they apply in relation to notice of a writ.
(3) The notice of registration must state-
(a)full particulars of the judgment registered and the order for
registration,
(b)the name and address of the judgment creditor or of his
solicitor or agent on whom, and at which, any summons
issued by the judgment debtor may be served,
(c)the right of the judgment debtor to apply to have the
registration set aside, and
(d)the period within which an application to set aside the
registration may be made.
Application to set aside registration (0. 7 1, r. 9)
9. (1) An application to set aside the registration of a
judgment must be made by summons supported by affidavit.
(2) The Court hearing such application may order any issue
between the judgment creditor and the judgment debtor to be tried in
any manner in which an issue in an action may be ordered to be tried.
Issue of execution (0. 7 1, r. 10)
10. (1) Execution shall not issue on a judgment registered
under the Ordinance until after the expiration of the period which, in
accordance with rule 5(3), is specified in the order for registration as
the period within which an application may be made to set aside the
registration or, if that period has been extended by the Court, until after
the expiration of that period as so extended.
(2) If an application is made to set aside the registration of a
judgment, execution on the judgment shall not issue until after such
application is finally determined.
(3) Any party wishing to issue execution on a judgment registered
under the Ordinance must produce to the Registrar an affidavit of
service of the notice of registration of the judgment and any order made
by the Court in relation to the judgment.
Determination of certain questions (0. 7 1, r. 11)
11. If, in any case under the Ordinance, any question arises
whether a foreign judgment can be enforced by execution in the country
of the original court, or what interest is payable under a foreign
judgment under the law of the original court, that question shall be
determined in accordance with the provisions in that behalf contained in
the Order in Council extending the Ordinance to that country.
Rules to have effect subject to Orders in Council (0. 7 1, r. 12)
12. The foregoing rules shall, in relation to any judgment registered
or sought to be registered under the Ordinance, have effect subject to
any such provisions contained in the Order in Council extending the
Ordinance to the country of the original court as are declared by the
Order to be necessary for giving effect to the agreement made between
Hong Kong and that country in relation to matters with respect to which
there is power to make those rules.
Certified copy of judgment (0. 71, r. 13)
13. (1) An application under section 12 of the Ordinance for a
certified copy of a judgment entered in the High Court must be made ex
parte to the Registrar on affidavit.
(3) An affidavit by which an application under section 12 of the
Ordinance is made must
(a)give particulars of the proceedings in which the judgment was
obtained;
(b)have annexed to it a copy of the writ, originating summons or
other process by which the proceedings were begun, the
evidence of service thereof on, or appearance by, the
defendant, copies of the pleadings, if any, and a statement of
the grounds on which the judgment was based;
(c)state whether the defendant did or did not object to the
jurisdiction, and, if so, on what grounds;
(d)show that the judgment is not subject to any stay of
execution;
(e)state that the time for appealing has expired or, as the case
may be, the date on which it will expire and in either case
whether notice of appeal against the judgment has been
entered; and
state the rate at which the judgment carries interest.
(4) The certified copy of the judgment shall be an office copy
sealed with the Seal of the Supreme Court and indorsed with a certificate
signed by the Registrar certifying that the copy is a true copy of a
judgment obtained in the High Court of Hong Kong and that it is issued
in accordance with section 12 of the Ordinance.
(5) There shall also be issued a certificate (signed by the Registrar
and sealed with the Seal of the Supreme Court) having annexed to it a
copy of the writ, originating summons or other process by which the
proceedings were begun, and stating--
(a)the manner in which the writ or such summons or other
process was served on the defendant or that the defendant
acknowledged service thereof,
(b) what objections, if any, were made to the jurisdiction, (e)
what pleadings, if any, were served,
(d) the grounds on which the judgment was based,
(e)that the time for appealing has expired or, as the case may be,
the date on which it will expire,
whether notice of appeal against the judgment has been
entered, and
(g)such other particulars as it may be necessary to give to the
court in the foreign country in which it is sought to obtain
execution of the judgment,
and a certificate (signed and scaled as aforesaid) stating the rate at
which the judgment carries interest.
ENFORCEMENT OF RECOMMENATIONS ETC. UNDER THE MERCHANT
SHIPPING (LINER CONFERENCES) ACT 1982
Application for registration (0. 71, r. 41)
41. An application under section 9 of the Merchant Shipping (Liner
Conferences) Act 1982 (in this Order referred to as 'the Act of 1982')
for the registration of a recommendation, determination or award shall
be made by originating summons, which shall be in Form No. 10 in
Appendix A.
Evidence in support of application (0. 7 1, r. 42)
42. (1) An application under section 9 of the Act of 1982 for the
registration of a recommendation must be supported by an affidavit
(a)exhibiting a verified or certified or otherwise duly
authenticated copy of the recommendation and the reasons
therefor and of the record of settlement;
(b)where the recommendation and reasons or the record of
settlement or the acceptance of the recommendation is not in
the English language, a translation thereof into English
certified by a notary public or authenticated by affidavit;
(c)exhibiting copies of the acceptance of the recommendation by
the parties upon whom it is binding, where the acceptance
was in writing, or otherwise verifying the acceptance;
(d)giving particulars of the failure to implement the
recommendations; and
(e)verifying that none of the grounds which would render the
recommendation unenforceable under section 9(2) of the Act
of 1982 is applicable.
(2) An application under section 9 of the Act of 1982 for the
registration of a determination or award as to costs must be supported
by an affidavit
(a)exhibiting a verified or certified or otherwise duly
authenticated copy of the recommendation or other document
containing the pronouncement on costs; and
(b) stating that such costs have not been paid.
Order for registration (0. 7 1, r. 43)
43. (1) An order giving leave to register a recommendation,
determination or award under section 9 of the Act of 1982 must be
drawn up by or on behalf of the party making the application for
registration.
(2) Such an order shall contain a provision that the reasonable
costs of registration be taxed.
Register of recommendations etc. (0. 71, r. 44)
44. (1) There shall be kept in the Registry under the direction of the
Registrar a register of the recommendations, determinations and awards
ordered to be registered under section 9 of the Act of 1982.
(2) There shall be included in such register particulars of the
enforcement of a recommendation, determination or award so registered.
SPECIAL PROVISIONS AS TO PARTICULAR
PROCEEDINGS
ORDER 72
(HK) PARTICULAR PROCEEDINGS
Application and interpretation (0. 72, r. 1)
1. (1) This Order applies to particular proceedings, and the other
provisions of these rules apply to those actions subject to the
provisions of this Order.
(2) In this Order 'particular proceedings' means a type of
proceedings for which provision has been made by the Chief Justice
for separate listing.
The Various Lists (0. 72, r. 2)
2. (1) There may be lists, in which actions and other pro-
ceedings may be entered in accordance with the provisions of this
Order, and ajudge sal be in charge of each list.
(2) In this Order references to the judge shall be construed as
references to the judge for the time being in charge of a particular list.
(3) The judge shall have control of the proceedings in his
particular list and, subject to the provisions of this Order and to
any directions of the judge, the powers of a judge in chambers
(including those exercisable by the Registrar) shall, in relation to any
proceedings in such an action (including any appeal from any
judgment, order or decision of the Registrar, given or made prior to
the transfer of the action or proceedings to the relevant fist) be
exercisable by the judge.
(4) Paragraph (3) shall not be construed as preventing the
powers of the judge being exercised by some other judge.
Entry of action in particular list when action begun (0. 72, r. 4)
4. (1) Before a writ or originating summons by which partic-
ular proceedings are to be begun is issued out of the Registry, it may
be marked in the top left hand corner with words identifying the
relevant list, and on the issue of a writ or summons so marked the
action begun thereby shall be entered in that list.
(2) If the plaintiff intends to issue the writ or originating
summons by which particular proceedings are to be begun out of the
Registry and to mark it in accordance with paragraph (1), and the
writ or the originating summons, as the case may be, is to be served
out of the jurisdiction, an application for leave to issue the writ or
summons and to serve the writ or the summons out of the jurisdic-
tion may be made to the judge.
(3) The affidavit in support of an application made to the
judge by virtue of paragraph (2) must, in addition to the matters
required by Order 11, rule 4(1), to be stated, state that the plaintiff
intends to mark the writ or originating summons in accordance with
paragraph (1) of this rule.
(4) If the judge hearing an application made to him by virtue
of paragraph (2) is of opinion that the action in question should not
be entered in the list in question, he may adjourn the application to
be heard by the Registrar.
Transfer of action to particular list after action begun (0. 72, r. 5)
5. (1) At any stage of the proceedings in any action any
party thereto may apply by summons to the judge to transfer the
action to a particular list.
(3) If, at any stage of the proceedings in any action, it appears
to the Court that the action may be one suitable for trial in a
particular list and any party wishes the action to be transferred to
that list, then the Court may adjourn any hearing so that it can
proceed before the judge and be treated by him as a summons to
transfer the action to that list.
Removal of action from particular list (0. 72, r. 6)
6. (1) The judge may, of his own motion or on the applica-
tion of any part, order an action in a particular list to be removed
from that list.
(2) Where an action is in a particular list by virtue of rule 4, an
application by a defendant or third party for an order under this rule
must be made within 7 days after giving notice of intention to defend.
Pleadings in particular proceedings (0. 72, r. 7)
7. (1) The pleadings in an action in a particular list may be
in the form of points of claim, or of defence, counterclaim, defence
to counterclaim or reply, as the case may be, and must be as brief as
possible.
(2) Without prejudice to Order 18, rule 12(1), no particulars
shall be applied for or ordered in an action in the particular list
designated the commercial list except such particulars as are
necessary to enable the party applying to be informed of the case he
has to meet or as are for some other reason necessary to secure the
just, expeditious and economical disposal of any question at issue in
the proceedings.
(3) The foregoing provisions are without prejudice to the
power of the judge to order that an action in a particular list shall be
tried without pleadings or further pleadings, as the case may be.
Directions in particular proceedings (0. 72, r. 8)
8. (1) Notwithstanding anything in Order 25, rule 1(1), any
party to particular proceedings may take out a summons for
directions before the pleadings are deemed to be closed.
(2) Where an application is made to transfer an action to a
particular list, Order 25, rules 2 to 7, shall, with the omission of so
much of rule 7(1) as requires the parties to serve a notice specifying
the orders and directions which they desire and with any other
necessary modifications, apply as if the application were a summons
for directions.
Trial with a special jury (0. 72, r. 9)
9. (1) If an action in, or ordered to be transferred to, a
particular list, is ordered to be tried with a jury, the Court may, at
the same time or subsequently, order the action to be tried with a
special jury on such terms, if any, as to costs and otherwise as may
be just.
(2) It shall be the duty of the Court to make an order under this rule
if it is satisfied that it is a proper case for trial with a jury and an
application for the order is made by any party to the proceeding either
at the time at which the mode of trial is fixed or, with the leave of the
judge, at any later stage.
(3) In this rule 'the Court' means the judge.
Production of certain documents in marine insurance actions (0. 72, r.
10)
10. (1) Where in an action in a particular list relating to a marine
insurance policy an application for an order under Order 24, rule 3, is
made by the insurer, then, without prejudice to its powers under that
rule, the Court, if satisfied that the circumstances of the case are such
that it is necessary or expedient to do so, may make an order, either in
Form No. 94 in Appendix A or in such other form as it thinks fit, for the
production of such documents as are therein specified or described.
(2) An order under this rule may be made on such terms, if any, as
to staying proceedings in the action or otherwise, as the Court thinks fit.
(3) In this rule 'the Court' means the judge.
ORDER 73
ARBITRATION PROCEEDINGS
Matters for a judge in court (0, 73, r. 2)
2. (1) Every to the Court-
(a)to remit an award under section 24 of the Arbitration
Ordinance, or
(b)to remove an arbitrator or umpire under section 25(1) of that
Ordinance, or
(c)to set aside an award under section 25(2) of that Ordinance, or
(HK)(d) for leave to appeal under section 23(2) of that Ordinance, or
(e)to determine, under section 23A(1) of that Ordinance, any
question of law arising in the course of a reference, or
(HK)(f) to make an order under section 29A(2) of that Ordinance,
must be made by originating motion to a single judge in court.
7 (2) Any appeal to the High Court under section 23(2) of the
Arbitration Ordinance shall be made by originating motion to a single
judge in court and notice thereof may be included in the notice of
application for leave to appeal, where leave is required.
(3) An application for a declaration that an award made by an
arbitrator or umpire is not binding on a party to the award on the
ground that it was made without jurisdiction may be made by
originating motion to a single judge in court, but the foregoing
provision shall not be taken as affecting the judge's power to refuse
to make such a declaration in proceedings begun by motion.
Matters for judge in chambers or master (0. 73, r. 3)
3. (1) Subject to the foregoing provisions of this Order and
the provisions of this rule, the jurisdiction of the High Court or a
judge thereof under the Arbitration Ordinance, may be exercised by
ajudge in chambers or a master.
(2) Any application-
(a)for leave to appeal under section 23(2) of the Arbitration
Ordinance, or
(b)under section 23(5) of that Ordinance (including any
application for leave), or
(e) under section 23 of that Ordinance, or
(HK)(d) under section 29A of that Ordinance,
shall be made to ajudge in chambers.
(3) Any application to which this rule applies shall, where an
action is pending, be made by summons in the action, and in any
other case by an originating summons which shall be in Form No. 10
in Appendix A.
(4) Where an application is made under section 23(5) of the
Arbitration Ordinance (including any application for leave) the
summons must be served on the arbitrator or umpire and on any
other party to the reference.
Time limits and other special provisions as to appeals and applications
under the Arbitration Ordinance (0. 73, r. 5)
5. (1) An application to the Court-
(a)to remit an award under section 24 of the Arbitration
Ordinance, or
(b)to set aside an award under section 25(2) of that Ordinance
or otherwise, or
(c)to direct an arbitrator or umpire to state the reasons for an
award under section 23(5) of that Ordinance,
must be made, and the summons or notice must be served, within 21
days after the award has been made and published to the parties.
(2) In the case of an appeal to the Court under section 23(2) of
the Arbitration Ordinance, the notice must be served, and the appeal
entered, within 21 days after the award has been made and published
to the parties:
Provided that, where reasons material to the appeal are given on a
date subsequent to the publication of the award, the period of 21 days
shall run from the date on which the reasons are given.
(3) An application, under section 23A(1) of the Arbitration
Ordinance, to determine any question of law arising in the course of a
reference, must be made, and notice thereof served, within 14 days after
the arbitrator or umpire has consented to the application being made, or
the other parties have so consented.
(4) For the purpose of paragraph (3) the consent must be given in
writing.
(5) In the case of every appeal or application to which this rule
applies, the notice of originating motion, or as the case may be, the
originating summons, must state the grounds of appeal or application
and, where the appeal or application is founded on evidence by
affidavit, or is made with the consent of the arbitrator or umpire or of the
other parties, a copy of every affidavit intended to be used, or as the
case may be, of every consent given in writing, must be served with that
notice.
Applications and appeals to he heard in a particular list (0. 73, r. 6)
6. (1) Any matter which is required, by rule 2 or 3, to be heard by a
judge, shall be entered in a particular list unless the Judge in charge of
such list otherwise directs.
(2) Nothing in the foregoing paragraph shall be construed as
preventing the powers of the Judge in charge of a particular list from
being exercised by any judge of the High Court.
Service out of the jurisdiction of summons, notice, etc. (0. 73, r. 7)
7. (HK)(1) Subject to paragraph (IA), service out of the jurisdiction
of
(a)any originating summons or notice of originating motion
under the Arbitration Ordinance, or
(b)any order made on such a summons or motion as aforesaid,
is permissible with leave of the Court provided that the arbitration to
which the summons, motion or order relates is granted by Hong Kong
law or has been, is being, or is to be held within the jurisdiction.
(IA) Service out of the jurisdiction of an originating summons for
leave to enforce an award is permissible with the leave of the Court
whether or not the arbitration is governed by Hong Kong law.
(2) An application for the grant of leave under this rule must be
supported by an affidavit stating the grounds on which the application
is made and showing in what place or country the person
to be served is, or probably may be found; and no such leave shall be
granted unless it shall be made sufficiently to appear to the Court that
the case is a proper one for service out of the jurisdiction under this
rule.
(3) Order 11, rules 5, 6 and 8 shall apply in relation to any such
summons, notice or order as is referred to in paragraph (1) as they apply
in relation to a writ.
Registration in High Court of foreign awards (0. 73, r. 8)
8. Where an award is made in proceedings on an arbitration in any
territory to which sections 3 to 9 of the Foreign Judgments (Reciprocal
Enforcement) Ordinance extend, being a part to which the said
Ordinance has been applied, then, if the award has, in pursuance of the
law in force in the place where it was made, become enforceable in the
same manner as a judgment given by a court in that place, Order 71 shall
apply in relation to the award as it applies in relation to a judgment
given by that court, subject, however, to the following modifications
(a)for references to the country of the original court there shall be
substituted references to the place where the award was made;
and
(b)the affidavit required by rule 3 of the said Order must state (in
addition to the other matters required by that rule) that to the
best of the information or belief of the deponent the award has,
in pursuance of the law in force in the place where it was made,
become enforceable in the same man
ner as a judgment given by a court in that place.
Enforcement of settlement agreement under section 2A(4) of the
Arbitration Ordinance or of award under section 28 of that
Ordinance (0. 73, r. 10)10. (1) An application for leave.2 c
(HK)(a) under section 2A(4) of the Arbitration Ordinance to enforce a
settlement agreement. or
(b)under section 28 of that Ordinance to enforce an award on an
arbitration agreement,
in the same manner as a judgment or order may be made ex parte but the
Court hearing the application may direct a summons to be issued.
(2) If the Court directs a summons to be issued, the summons shall
be an originating summons which shall be in Form No. 10 in Appendix
A.
(3) An application for leave must be supported by affidavit-
(a) exhibiting---
(HK)(i) where the application is under section 2A(4) of the
Arbitration Ordinance, the arbitration agreement and the
original settlement agreement or, in either case, a copy
thereof;
Identifier
https://oelawhk.lib.hku.hk/items/show/3867
Bibliographic Citation
22
(ii) where the application is under section 2H of the
Arbitration Ordinance, the arbitration agreement and the
original award or, in either case, a copy thereof,
(iii) where the application is under section 42(1) of the
Arbitration Ordinance, the documents required to be
produced by section 43 of that Ordinance,
(b)stating the name and the usual or last known place of abode
or business of the applicant (hereinafter referred to as 'the
creditor') and the person against whom it is sought to enforce
the settlement agreement or award (hereinafter referred to as
'the debtor') respectively,
(c)as the case may require, either that the settlement agreement
or award has not been complied with or the extent to which it
has not been complied with at the date of the application.
(4) An order giving leave must be drawn up by or on behalf of the
creditor and must be served on the debtor by delivering a copy to him
personally or by sending a copy to him at his usual or last known place
of abode or business or in such other manner as the Court may direct.
(5) Service of the order out of the jurisdiction is permissible
without leave, and Order 11, rules 5, 6 and 8, shall apply in relation to
such an order as they apply in relation to a writ.
(6) Within 14 days after service of the order or, if the order is to be
served out of the jurisdiction, within such other period as the Court may
fix, the debtor may apply to set aside the order and the settlement
agreement or award shall not be enforced until after the expiration of
that period or, if the debtor applies within that period to set aside the
order, until after the application is finally disposed of.
(7) The copy of the order served on the debtor shall state the effect
of paragraph (6).
(8) In relation to a body corporate this rule shall have effect as if for
any reference to the place of abode or business of the creditor or the
debtor there were substituted a reference to the registered or principal
address of the body corporate; so, however, that nothing in this rule
shall affect any enactment which provides for the manner in which a
document may be served on a body corporate.
Payments into court (0. 73, r. 11)
(HK)11. (1) In any arbitration proceedings any party to the reference
may at any time pay into court a sum of money in satisfaction of any
claim against him under the reference.
(2) On making payment into court under this rule, and on
increasing any such payment already made the party making payment
must give notice thereof in Form No. 100 in Appendix A to all
other parties to the reference; and within 3 days after receiving the
notice the recipient parties must send the party making payment a
written acknowledgment of its receipt.
(3) A party who has made payment into court under this rule
may, without leave, give notice of an increase in such a payment but,
subject to that and without prejudice to paragraph (5), a notice of
payment may not be withdrawn or amended without leave of the
Court which may be granted on such terms as may be just.
(4) Where there are two or more matters in dispute in the
arbitration proceedings and money is paid into court under this rule
in respect of all, or some only of, those matters, the notice of
payment-
(a)must state that the money is paid in respect of all those
matters in dispute or, as the case may be, must specify the
matters in respect of which payment is made, and
(b)where the party makes separate payments in respect of
each, or any two of those matters in dispute, must specify
the sum paid in respect of that matter or, as the case may
be, those matters.
(5) Where a single sum of money is paid into court under this
rule in respect of two or more matters in dispute, then, if it appears
to the Court that any party to the arbitration proceedings is
embarrassed by the payment, the Court may order the party making
payment to amend the notice of payment so as to specify the sum
paid in respect of each matter in dispute.
(6) For the purposes of this rule, a claim under a reference to
arbitration shall be construed as a claim in respect, also, of such
interest as might be included in the award if the award were made at
the date of the payment into court.
Payment in by party who has counterclaimed (0. 73, r. 12)
(HK)12. Where a party, who makes by counterclaim in the arbitra-
tion proceedings a claim against any other party to the arbitration
proceedings, pays a sum or sums of money into court under rule 11,
the notice of payment must state if it be the case, that in making the
payment he has taken into account and intends to satisfy the matter
in dispute, or matters in dispute, as the case may be, under his
counterclaim.
Acceptance of money paid into court (0. 73, r. 13)
(HK)13. (1) Where money is paid into court under rule 11, then,
subject to paragraph (2), within 14 days after the receipt of the
notice of payment or, where more than one payment has been made
or the notice has been amended, within 14 days after receipt of the
notice of the last payment or the amended notice but, in any case,
before the hearing of the arbitration proceedings begins, a party to
the arbitration proceedings may-
(a)where the money was paid in respect of the matter in dispute
or all the matters in dispute in respect of which he claims,
accept the money in satisfaction of that matter in dispute or
those matters in dispute, as the case may be, or
(b)where the money was paid in respect of some only of the
matters in dispute in respect of which he claims, accept in
satisfaction of any such matter in dispute the sum specified in
respect of that matter in dispute in the notice of payment,
by giving notice in Form No. 10 1 in Appendix A to all other parties to
the arbitration proceedings.
(2) Where after the hearing of the arbitration proceedings has
begun
(a) money is paid into court under rule 11, or
(b)money in court is increased by a further payment into court
under that rule,
any party may accept the money in accordance with paragraph (1)
within 2 days after receipt of the notice of payment or notice of the
further payment, as the case may be, but, in any case, before the
arbitrator publishes his award.
(3) Rule 11(5) shall not apply in relation to money paid into court
after the hearing of the arbitration proceedings has begun.
(4) On a party accepting any money paid into court all further
proceedings in the arbitration proceedings or in respect of the specified
matter in dispute or matters in dispute, as the case may be, to which the
acceptance relates shall be stayed.
(5) Where money is paid into court by a party who made a
counterclaim in the arbitration proceedings and the notice of payment
stated, in relation to any sum so paid, that in making the payment the
party had taken into account and satisfied the matter in dispute, or
matters in dispute, as the case may be, in respect of which he claimed,
then, on the claimant party accepting that sum, all further proceedings
on the counterclaim or in respect of the specified matter or matters in
dispute, as the case may be, shall be stayed.
(6) A party to arbitration proceedings who has accepted any sum
paid into court shall, subject to rule 14, be entitled to receive payment of
that sum in satisfaction of the matter or matters in dispute to which the
arbitration proceedings relate.
Order for payment out of money accepted required (0. 73, r. 14)
(HK)14. (1) Where a party to arbitration proceedings accepts any sum
paid into court and that sum was paid into court by some but not all of
the other parties to the arbitration proceedings the money in court shall
not be paid out except under paragraph (2) or in pursuance of an order
of the Court, and the order shall deal with the whole costs of the
arbitration proceedings or the matter in dispute to which the payment
relates, as the case may be.
(2) Where an order of the Court is required under paragraph (1),
then if, either before or after accepting the money paid into court by
some only of the other parties the party discontinues the arbitration
proceedings against all the other parties and those parties consent in
writing to the payment out of that sum, it may be paid out without an
order of the Court.
(3) Where after the hearing of the arbitration proceedings has
begun a claimant party accepts any money paid into court and all further
proceedings in the arbitration proceedings or in respect of the matter in
dispute or matters in dispute, as the case may be, to which the
acceptance relates are stayed by virtue of rule 13(4), then,
notwithstanding anything in paragraph (2), the money shall not be paid
out except in pursuance of an order of the Court, and the order shall deal
with the whole costs of the arbitration proceedings or with the costs
relating to the matter in dispute or matters in dispute as the case may be,
to which the arbitration proceedings relate.
Money remaining in court (0. 73, r. 15)
(HK)15. If any money paid into court in connection with arbitration
proceedings is not accepted in accordance with rule 13, the money
remaining in court shall not be paid out except in pursuance of an order
of the Court which may be made at any time before during or after the
hearing of the arbitration proceedings; and where such an order is made
before the hearing the money shall not be paid out except in satisfaction
of the matter or matters in dispute in respect of which it was paid in.
Counterclaim (0. 73, r. 16)
(HK)16. A party to arbitration proceedings against whom a counterclaim
is made may pay money into court in accordance with rule 11, and that
rule and rules 13 (except paragraph (5)), 14 and 15 shall apply
accordingly with the necessary modifications.
Non-disclosure of payment into court; amendment of arbitrator's award
(0. 73, r. 17)
(HK)17. Except in arbitration proceedings in which all further
proceedings are stayed after the hearing has begun by virtue of rule
13(4), the fact that money has been paid into court under the foregoing
provisions of this Order shall not be communicated to the arbitrator
until he has published his award, whereupon the arbitrator may amend
his award by adding thereto such directions as he may think proper
with respect to the payment of the costs of the reference.
Investment of money in court (0. 73, r. 18)
(HK)18. Cash under the control of or subject to the order of the Court
may be invested in any manner specified in the Supreme Court Suitors'
Funds Rules and the Trustee Ordinance.
ORDER 74
PROCEEDINGS UNDER MERCHANT SHIPPING ACT, 1894 To 1984
Proceedings for limiting ship-owner's responsibility (0. 74, r. 1A)
(HK)1A. All proceedings in cases within section 504 of the Merchant
Shipping Act, 1894 to 1984 shall be by way of originating motion
supported by affidavit; and the Court shall, if it thinks fit, by rule or
order, give such relief a the said section any such competent court as is
mentioned in Act has power to give.
ORDER 75*
(HK) ADMIRALTY PROCEEDINGS
Application and interpretation (0. 75, r. 1)
1. (1) This Order applies to Admiralty causes and matters, and the
other provisions of these rules apply to those causes and matters
subject to the provisions of this Order.
(2) In this Order
,,action in rem' means an Admiralty action in rem;
'caveat against arrest' means a caveat entered in the caveat book
under rule 6;
'caveat against release and payment' means a caveat entered in the
caveat book under rule 14;
'caveat book' means the book kept in the Registry in which caveats
issued under this Order are entered;
-collision regulations' means the regulations made or deemed to be
made under section 93 of the Merchant Shipping (Safety)
Ordinance;
'limitation action' means an action by shipowners or other persons
under the Merchant Shipping Acts 1894 to 1984 for the limitation of
the amount of their liability in connection with a ship or other
property;
',ship' includes any description of vessel used in navigation.
Proceedings against, or concerning, the International Oil Pollution
Compensation Fund (0. 75, r. 2A)
2A. (2) For the purposes of section 6(2) of the Merchant Shipping
Act 1974 any party to proceedings brought against an owner or
guarantor in respect of liability under section 1 of the Merchant
Shipping (Oil Pollution) Act 1971 may give notice to the Fund of such
proceedings by serving a notice in writing on the Fund together with a
copy of the writ and copies of the pleadings (if any) served in the
action.
In operation on 24.2.1989-see Ord. No. 3189, section 5.
(3) The Court shall, on the application made ex parte by the Fund
grant leave to the Fund to intervene in any proceedings to which the
preceding paragraph applies, whether notice of such proceedings has
been served on the Fund or not, and paragraphs (3) and (4) of rule 17
shall apply to such an application.
(4) Where judgment is given against the Fund in any proceedings
under section 4 of the Merchant Shipping Act 1974, the Registrar shall
cause a stamped copy of the judgment to be sent by post to the Fund.
(5) The Fund shall notify the Registrar of the matters set out in
section 4(12)(b) of the Merchant Shipping Act 1974 by a notice in
writing sent by post to, or delivered at, the Registry.
Issue of writ and acknowledgment of service (0. 75, r. 3)
3. (1) An action in rem must be begun by writ; and the writ must be
in Form No. 1 in Appendix B.
(2) The writ by which an Admiralty action in personam is begun
must be in Form No. 1 in Appendix A.
(3) The writ by which a limitation action is begun must be in Form
No. 2 in Appendix B.
(4) Subject to the following paragraphs Order 6, rule 7, shall apply
in relation to a writ by which an Admiralty action is begun.
(5) An acknowledgment of service in an action in rem or a
limitation action shall be in Form No. 2B in Appendix B.
(6) A defendant to an action in rem in which the writ has not been
served, or a defendant to a limitation action who has not been served
with the writ, may, if he desires to take part in the proceedings,
acknowledge the issue of the writ by handing in at, or sending to, the
Registry an acknowledgment of issue in the same form as an
acknowledgment of service but with the substitution for the references
therein to service of references to issue of the writ.
(7) These rules shall apply, with the necessary modifications, in
relation to an acknowledgment of issue or service in Form 2B in
Appendix B as they apply in relation to an acknowledgment of service in
Form No. 14 in Appendix A which contains a statement to the effect that
the defendant intends to contest the proceedings to which the
acknowledgment relates.
Service of writ out of jurisdiction (0. 75, r. 4)
4. (1) Subject to the following provisions of this rule, service out of
the jurisdiction of a writ containing any claim for damage, loss of life or
personal injury arising out of a collision between ships or the carrying
out of or omission to carry out a manoeuvre in the case of one or more
of two or more ships or noncompliance on the part of one or more of
two or more ships with the collision regulations, every limitation action
and every action to
enforce a claim under section 1 of the Merchant Shipping (Oil Pollution)
Act 1971 or section 4 of the Merchant Shipping Act 1974 as these
provisions apply to Hong Kong is permissible with the leave of the
Court if, but only if
(a)the defendant has his habitual residence or a place of
business in Hong Kong; or
(b)the cause of action arose within the territorial waters of Hong
Kong; or
(c)an action arising out of the same incident or series of
incidents is proceeding in the Court or has been heard and
determined in the Court; or
(d)the defendant has submitted or agreed to submit to the
jurisdiction of the Court.
(2) Order 11, rule 3 and rule 4(1), (2) and (4), shall apply in relation
to an application for the grant of leave under this rule as they apply in
relation to an application for the grant of leave under rule 1 or 2 of that
Order.
(3) Paragraph (1) shall not apply to an action in rem.
(4) The proviso to rule 7(1) of Order 6 and Order 11, rule 1(2), shall
not apply to a writ by which any Admiralty action is begun.
Warrant of arrest (0. 75, r. 5)
5. (1) After a writ has been issued in an action in rem a warrant in
Form No. 3 in Appendix B for the arrest of the property against which
the action or any counterclaim in the action is brought may, subject to
the provisions of this rule, be issued at the instance of the plaintiff or of
the defendant, as the case may be.
(3) A party applying for the issue out of the Registry of a warrant
to arrest any property shall procure a search to be made in the caveat
book for the purpose of ascertaining whether there is a caveat against
arrest in force with respect to that property.
(4) A warrant of arrest shall not be issued until the party applying
for it has filed an affidavit requesting issue of the warrant together with
an affidavit made by him or his agent containing the particulars required
by paragraph (8) so, however, that the Court may, if it thinks fit, allow
the warrant to issue notwithstanding that the affidavit does not contain
all those particulars.
(5) Except with the leave of the Court, a warrant of arrest shall not
be issued in an action in rem against a foreign ship belonging to a port
of a State having a consulate in Hong Kong, being an action for
possession of the ship or for wages, until notice that the action has
been begun has been sent to the consul.
(6) Except with the leave of the Court, a warrant of arrest shall not
be issued in an action in rem in which there is a claim arising out of
bottomry until the bottomry bond and, if the bond is in a foreign
language, a notarial translation thereof is produced to the Registrar.
(7) Where, by, or under, any convention or treaty, Hong Kong has
undertaken to minimise the possibility of arrest of ships of another
state, no application shall be made for the issue of a warrant of arrest in
an action in rem against a ship owned by that state until a notice in
Form No. 15 in Appendix B has been served on a consular officer at the
consular office of, or acting on behalf of, that state in Hong Kong.
(8) An affidavit required by paragraph (4) must state-
(a) in every case-
(i) the nature of the claim or counterclaim and that it has not
been satisfied and, if it arises in connection with a ship, the
name of that ship; and
(ii) the nature of the property to be arrested and, if the
property is a ship, the name of the ship and her port of
registry; and
(b)in the case of a claim against a ship in rem by virtue of
paragraph (10)
(i) the name of the person who would be liable on the claim
in an action in personam ('the relevant person'); and
(ii) that the relevant person was when the cause of action
arose the owner or charterer of, or in possession or in control
of, the ship in connection with which the claim arose; and
(iii) that at the time of the issue of the writ the relevant
person was either the beneficial owner of all the shares in the
ship in respect of which the warrant is required or (where
appropriate) the charterer of it under a charter by demise; and
(c)in the case of a claim for possession of a ship or for wages,
the nationality of the ship in respect of which the warrant is
required and that the notice (if any) required by paragraph (5)
has been sent; and
(e)in the case of a claim in respect of a liability incurred under
Section 1 of the Merchant Shipping (Oil Pollution) Act 1971,
the facts relied on as establishing that the Court is not
prevented from entertaining the action by reason of Section
13(2) of that Act.
(9) The following documents shall, where appropriate, be exhibited
to an affidavit required by paragraph (4)-
(a) a copy of any notice sent to a consul under paragraph (5);
(b)a certified copy of any bottomry bond, or of the translation
thereof, produced under paragraph (6).
(c)a copy of any notice served on a consular officer under
paragraph (7).
(10) The claims against a ship in rem coming within the provisions
of sub-paragraph (b) (whether or not the claim gives rise to a maritime
lien on that ship) are
(a) for damage done by a ship;
(b)for loss of life or personal injury sustained in consequence of
any defect in a ship or in her apparel or equipment or in
consequence of the wrongful act, neglect or default of the
owners, charterers or persons in possession or control of a
ship or the master or crew of a ship or any other person for
whose wrongful acts, neglects or defaults the owners,
charterers or persons in possession or control of a ship are
responsible, being an act, neglect or default in the navigation
or management of a ship in the loading, carriage or discharge
of goods on, in or from the ship or in the embarkation, carriage
or disembarkation of persons on, in or from the ship;
(c) for loss of or damage to goods carried in a ship;
(d)those arising out of any agreement relating to the carriage of
goods in a ship or to the use or hire of a ship;
(e)those in the nature of salvage (including any claim arising by
virtue of the application by or under section 51 of the Civil
Aviation Act 1949 as it applies to Hong Kong, of the law
relating to salvage to aircraft and their apparel and cargo);
those in the nature of towage or pilotage in respect of a ship
or an aircraft when an action in rem may be brought against
that aircraft if, at the time when the action is brought, it is
beneficially owned by the person who would be liable on the
claim in an action in personam;
(g)those in respect of goods or materials supplied to a ship for
her operation or maintenance;
(h)those in respect of the construction, repair or equipment of a
ship or dock charges or dues;
(i)those by a master or member of a crew of a ship for wages
(including any sum allotted out of wages or adjudged by a
superintendent to be due by way of wages);
(j)those by a master, shipper, charterer or agent in respect of
disbursements made on account of a ship;
(k)those arising out of an act which is or is claimed to be a
general average act;
(1) those-arising out of bottomry
And where the person who would be liable on the claim in an action in
personam ('the relevant person') was, when the cause of action arose,
the owner or charterer of, or in possession or in control of, the ship and
at the time when the action is brought is either the
beneficial owner of that ship as respects all the shares in it or the
charterer of it under a charter by demise or, in the case of any other
ship, where the relevant person is the beneficial owner as respects all
the shares in it at the time when the action is brought.
Caveat against arrest (0. 75, r. 6)
6. (1) A person who desires to prevent the arrest of any property
must file in the Registry a praecipe, in Form No. 5 in Appendix B, signed
by him or his solicitor undertaking
(a)to acknowledge issue or service (as may be appropriate) of the
writ in any action that may be begun against the property
described in the praecipe, and
(b)within 3 days after receiving notice that such an action has
been begun, to give bail in the action in a sum not exceeding
an amount specified in the praecipe or to pay the amount so
specified into court,
and on the filing of the praecipe a caveat against the issue of a warrant
to arrest the property described in the praecipe shall be entered in the
caveat book.
(2) The fact that there is a caveat against arrest in force shall not
prevent the issue of a warrant to arrest the property to which the caveat
relates.
Remedy where property protected by caveat is arrested (0. 75, r. 7)
7. Where any property with respect to which a caveat against arrest
is in force is arrested in pursuance of a warrant of arrest, the party at
whose instance the caveat was entered may apply to the Court by
motion for an order under this rule and, on the hearing of the
application, the Court, unless it is satisfied that the party procuring the
arrest of the property had a good and sufficient reason for so doing,
may by order discharge the warrant and may also order the last-
mentioned party to pay to the applicant damages in respect of the loss
suffered by the applicant as a result of the arrest.
Service of writ in action in rem (0. 75, r. 8)
8. (1) Subject to paragraph (2), a writ by which an action in rem is
begun must be served on the property against which the action is
brought save that
(a)where that property is freight it must be served on the cargo in
respect of which the freight is payable or on the ship in which
that cargo was carried, or
(b)where the property has been sold by the bailiff, the writ may
not be served on that property, but a sealed copy of it must be
filed in the Registry and the writ shall be deemed to have been
duly served on the day on which it was filed.
(2) A writ need not be served or filed as mentioned in paragraph (1)
if the writ is deemed to have been duly served on the defendant by
virtue of Order 10, rule 1(4) or (5).
(3) Where by virtue of this rule a writ is required to be served on
any property, then, if the plaintiff wishes service of the writ to be
effected by the bailiff, he must file in the Registry a praecipe in Form No.
6 in Appendix B and lodge
(a) the writ and a copy thereof, and
(b)an undertaking to pay on demand all expenses incurred by the
bailiff or his substitute in respect of the service of the writ,
and thereupon the bailiff or his substitute shall serve the writ on the
property described in the praecipe.
(3A) Where a writ is served on any property by the bailiff or his
substitute the person effecting service must indorse on the writ the
following particulars, that is to say, where it was served, the property on
which it was served, the day of the week and the date on which it was
served, the manner in which it was served and the name and the address
of the person effecting service, and the indorsement shall be evidence
of the facts stated therein.
(4) Where the plaintiff in an action in rem, or his solicitor, becomes
aware that there is in force a caveat against arrest with respect to the
property against which the action is brought, he must serve the writ
forthwith on the person at whose instance the caveat was entered.
(5) Where a writ by which an action in rem is begun is amended
under Order 20, rule 1, after service thereof, Order 20, rule 1(2), shall not
apply and, unless the Court otherwise directs on an application made ex
parte, the amended writ must be served on any intervener and any
defendant who has acknowledged issue or service of the writ in the
action or, if no defendant has acknowledged issue or service of the writ,
it must be served in accordance with paragraph (1) of this rule.
Committal of solicitor failing to comply with undertaking (0. 75, r. 9)
9. Where the solicitor of a party to an action in rem fails to comply
with a written undertaking given by him to any other party or his
solicitor to acknowledge issue or service of the writ in the action, give
bail or pay money into court in lieu of bail, he shall be liable to
committal.
Execution, etc., of warrant of arrest (0. 75, r. 10)
10. (1) A warrant of arrest is valid for 12 months beginning with the
date of its issue.
(2) A warrant of arrest may be executed only by the bailiff or his
substitute.
(3) A warrant of arrest shall not be executed until an undertaking to
pay on demand the fees of the bailiff and all expenses incurred by him
or on his behalf in respect of the arrest of the property and the care and
custody of it while under arrest has been lodged in the bailiff's office.
(4) A warrant of arrest shall not be executed if the party at whose
instance it was issued lodges a written request to that effect with the
bailiff.
(5) A warrant of arrest issued against freight may be executed by
serving the warrant on the cargo in respect of which the freight is
payable or on the ship in which that cargo was carried or on both of
them.
(6) Subject to paragraph (5), a warrant of arrest must be served on
the property against which it is issued.
(7) Within 7 days after the service of a warrant of arrest, the
warrant must be filed, in the Registry by the bailiff.
Service on ships, etc.: how effected (0. 75, r. 11)
11. (1) Subject to paragraph (2), service of a warrant of arrest or writ
in an action in rem against a ship, freight or cargo shall be effected by
(a)affixing the warrant or writ for a short time on any mast of the
ship or on the outside of any suitable part of the ship's
superstructure, and
(b)on removing the warrant or writ, leaving a copy of it affixed (in
the case of the warrant) in its place or (in the case of the writ)
on a sheltered, conspicuous part of the ship.
(2) Service of a warrant of arrest or writ in an action in rem against
freight or cargo or both shall, if the cargo has been landed or
transhipped, be effected
(a)by placing the warrant or writ for a short time on the cargo
and, on removing the warrant or writ, leaving a copy of it on
the cargo, or
(b)if the cargo is in the custody of a person who will not permit
access to it, by leaving a copy of the warrant or writ with that
person.
(3) Order 65, rule 10, shall not apply to a warrant of arrest or a writ
in rem.
Applications with respect to property under arrest (0. 75, r. 12)
12. (1) The bailiff may at any time apply to the Court for directions
with respect to property under arrest in an action and may, or, if the
Court so directs, shall, give notice of the application to any or all of the
persons referred to in paragraph 2.
(2) The bailiff shall send by hand or by post a copy of any
order made on an application under paragraph (1) to all those
persons who, in relation to that property, have-
(a) entered a caveat which is still in force; or
(b)caused a warrant for the arrest of the property to be
executed by the bailiff, or
(c)acknowledged issue or service of the writ in any action in
which the property is under arrest; or
(d)intervened in any action in which the property is under
arrest.
(3) A person other than the bailiff may make an application
under this rule by summons or motion in the action in which the
property is under arrest and the summons or notice of motion
together with copies of any affidavits in support must be served upon
the bailiff and all persons referred to in paragraph (2) unless the
court otherwise orders on an application made ex parte.
(4) Unless otherwise directed by the Registrar, the bailiff shall
serve a copy of any notice of motion or summons on the property
under arrest.
Release of property under arrest (0. 75, r. 13)
13. (1) Except where property arrested in pursuance of a
warrant of arrest is sold under an order of the Court, property which
has been so arrested shall only be released under the authority of
an instrument of release (in this rule referred to as a 'release'), in
Form No. 7 in Appendix B, issued out of the Registry.
(3) A release shall not be issued with respect to property as to
which a caveat against release is in force, unless, either
(a)at the time of the issue of the release the property is under
arrest in one or more other actions, or
(b) the Court so orders.
(4) A release may be issued at the instance of any party to the
action in which the warrant of arrest was issued if the Court so
orders, or, subject to paragraph (3), if all the other parties, except
any defendant who has not acknowledged issue or service of the
writ, consent.
(6) Before a release is issued, the party applying for its issue
must, unless paragraph (3)(a) applies, give notice to any person at
whose instance a subsisting caveat against release has been entered,
or to his solicitor, requiring the caveat to be withdrawn.
(7) Before property under arrest is released in compliance
with a release issued under this rule, the party at whose instance
it was issued must, in accordance with the directions of the bailiff,
either-
(a)pay the fees of the bailiff already incurred and lodge in the
bailiff's office an undertaking to pay on demand the other
fees and expenses in connection with the arrest of the
property and the care and custody of it while under arrest
and of its release, or
(b)lodge in the bailiff's office an undertaking to pay on
demand all such fees and expenses, whether incurred or to
be incurred.
(8) The Court, on the application 'of any party who objects to
directions given to him by the bailiff under paragraph (7), may vary
or revoke the directions.
Caveat against release etc. (0. 75, r. 14)
14. (1) Where a person claiming to have a right of action in
rem against any property which is under arrest or the proceeds of
sale thereof wishes to be served with notice of any application to the
Court in respect of that property or those proceeds, he must file in
the Registry a praecipe in Form No. 9 in Appendix B and, on the
filing of the praecipe, a caveat shall be entered in the caveat book.
(2) Where the release of any property under arrest is delayed
by the entry of a caveat under this rule, any person having an
interest in that property may apply to the Court by motion for an
order requiring the person who procured the entry of the caveat to
pay to the applicant damages in respect of the loss suffered by the
applicant by reason of the delay, and the Court, unless it is satisfied
that the person procuring the entry of the caveat had a good and
sufficient reason for so doing, may make an order accordingly.
Duration of caveats (0. 75, r. 15)
15. (1) Every caveat entered in the caveat book is valid for
12 months beginning with the. date of its entry but the person at
whose instance a caveat was entered may withdraw it by filing a
praecipe in Form No. 10 in Appendix B.
(2) The period of validity of a caveat may not be extended, but
this provision shall not be taken as preventing the entry of successive
caveats.
Bail (0. 75, r. 16)
16. (1) Bail on behalf of a party to an action in rem must be
given by bond in Form No. 11 in Appendix B; and the sureties to the
bond must enter into the bond before a commissioner for oaths or a
solicitor exercising the powers of a commissioner for oaths under
section 7A of the Legal Practitioners Ordinance not being a solicitor
who, or whose partner, is acting as solicitor or agent for the party on
whose behalf the bail is to be given.
(2) Subject to paragraph (3), a surety to a bail bond must
make an affidavit stating that he is able to pay the sum for which the
bond is given.
(3) Where a corporation is a surety to a bail bond given on behalf
of a party, no affidavit shall be made under paragraph (2) on behalf of
the corporation unless the opposite party requires it, but where such an
affidavit is required it must be made by a director, manager, secretary or
other similar officer of the corporation.
(4) The party on whose behalf bail is given must serve on the
opposite party a notice of bail containing the names and addresses of
the persons who have given bail on his behalf and of the commissioner
before whom the bail bond was entered into; and after the expiration of
24 hours from the service of the notice (or sooner with the consent of
the opposite party) he may file the bond and must at the same time file
the affidavits (if any) made under paragraph (2) and an affidavit proving
due service of the notice of bail to which a copy of that notice must be
exhibited.
Interveners (0. 75, r. 17)
17. (1) Where property against which an action in rem is brought is
under arrest or money representing the proceeds of sale of that property
is in court, a person who has an interest in that property or money but
who is not a defendant to the action may, with the leave of the Court,
intervene in the action.
(2) An application for the grant of leave under this rule must be
made ex parte by affidavit showing the interest of the applicant in the
property against which the action is brought or in the money in court.
(3) A person to whom leave is granted under this rule shall
thereupon become a party to the action.
(4) The Court may order that a person to whom it grants leave to
intervene in an action shall, within such period or periods as may be
specified in the order, serve on any other party to the action such notice
of his intervention and such pleadings as may be so specified.
Preliminary acts (0. 75, r. 18)
18. (1) In an action to enforce a claim for damage, loss of life or
personal injury arising out of a collision between ships, unless the Court
otherwise orders, the plaintiff must, within 2 months after issue of the
writ, and the defendant must, within 2 months after acknowledging issue
or service of the writ, and before any pleading is served, lodge in the
Registry a document (in these rules referred to as a preliminary act)
containing a statement of the following particulars
(i)the names of the ships which came into collision and their
ports of registry;
(ii) the date and time of the collision;
(iii) the place of the collision;
(iv) the direction and force of the wind;
(v) the state of the weather;
(vi) the state, direction and force of the tidal or other current;
(vii) the course steered and speed through the water of the ship
when the other ship was first seen or immediately before
any measures were taken with reference to her presence,
whichever was the earlier;
(viii) the lights (if any) carried by the ship;
(ix) (a)the distance and bearing of the other ship if and when
her echo was first observed by radar;
(b)the distance, bearing and approximate heading of the
other ship when first seen;
(x) what light or combination of lights (if any) of the other
ship was first seen;
(xi) what other lights or combinations of lights (if any) of the
other ship were subsequently seen before the collision, and
when;
(xii) what alterations (if any) were made to the course and
speed of the ship after the earlier of the two times referred
to in article (vii) up to the time of collision, and when, and
what measures (if any), other than alterations of course or
speed, were taken to avoid the collision, and when;
(xiii) the heading of the ship, the parts of each ship which first
came into contact and the approximate angle between the
2 ships at the moment of contact;
(xiv) what sound signals (if any) were given, and when;
(xv) what sound signals (if any) were heard from the other ship,
and when.
(2) Every preliminary act shall be sealed by the Registrar and
shall be filed in a closed envelope (stamped with an official stamp
showing the date of filing) and, unless the Court otherwise orders,
no envelope shall be opened until the pleadings are closed and a
consent signed by each of the parties or his solicitor to the opening
of the preliminary acts is filed with the Registrar.
(2A) A defendant who has lodged a preliminary act must
within 7 days thereafter serve notice of such lodgment on all other
parties to the action.
(3) Where the Court orders the preliminary acts to be opened,
the Court may further order the action to be tried without pleadings
but, where the Court orders the action to be so tried, any party who
intends to rely on the defence of compulsory pilotage must give
notice of his intention to do so to the other parties within 7 days
after the opening of the preliminary acts.
(4) Where the Court orders the action to he tried without
pleadings, it may also order each party, within such period as may be
specified in the order, to file a statement of the grounds on which he
charges any other party with negligence in connection with the
collision and to serve a copy thereof on that other party.
(5) Order 18, rule 1, shall not apply to an action in which
preliminary acts are required but, unless the Court orders the action
to be tried without pleadings the plaintiff must serve a statement of
claim on each defendant within 14 days after the latest date on which
the preliminary act of any party to the action is filed.
Failure to lodge preliminary act: proceedings against party in default
(0. 75, r. 19)
19. (1) Where in such an action as is referred to in rule 18(1)
the plaintiff fails to lodge a preliminary act within the prescribed
period, any defendant who has lodged such an act may apply to the
Court by summons for an order to dismiss the action, and the Court
may by order dismiss the action or make such other order on such
terms as it thinks just.
(2) Where in such an action, being an action in personam, a
defendant fails to lodge a preliminary act within the prescribed period,
Order 19, rules 2 and 3, shall apply as if the defendant's failure to
lodge the preliminary act within that period were a failure by him to
serve a defence on the plaintiff within the period fixed by or under
these rules for service thereof, and the plaintiff, if he has lodged a
preliminary act may, subject to Order 77, rule 9, accordingly enter
judgment against that defendant in accordance with the said rule 2
or the said rule 3, as the circumstances of the case require.
(3) Where in such an action, being an action in rem, a
defendant fails to lodge a preliminary act within the prescribed
period, the plaintiff, if he has lodged such an act, may apply to the
Court by motion for judgment against that defendant, and it shall
not be necessary for the plaintiff to file or serve a statement of claim
or an affidavit before the hearing of the motion.
(4) On the hearing of a motion under paragraph (3) the Court
may make such order as it thinks just, and where the defendant does
not appear on the hearing and the Court is of opinion that judgment
should be given for the plaintiff provided he proves his case, it shall
order the plaintiff's preliminary act to be opened and require the
plaintiff to satisfy the Court that his claim is well founded.
The plaintiff's evidence may, unless the Court otherwise orders,
be given by affidavit without any order or direction in that behalf.
(5) Where the plaintiff in accordance with a requirement
under paragraph (4) satisfies the Court that his claim is well
founded, the Court may give judgment for the claim with or without
a reference to the Registrar and may at the same time order the
property against which the action is brought to be appraised and
sold and the proceeds to be paid into court or make such order as
it thinks just.
(6) The Court may, on such terms as it thinks just, set aside
any judgment entered in pursuance of this rule.
(7) In this rule references to the prescribed period shall be
construed as references to the period within which by virtue of rule
18(1) or of any order of the Court the plaintiff or defendant, as the
context of the reference requires, is required to lodge a preliminary act.
Special provisions as to pleadings in collision, etc. actions (0. 75, r. 20)
20. (1) Notwithstanding anything in Order 18, rule 3, the plaintiff in
any such action as is referred to in rule 4(1) may not serve a reply or a
defence to counterclaim on the defendant except with the leave of the
Court. (L.N. 356188)
(2) If in such an action there is a counterclaim and no defence to
counterclaim by the plaintiff, then, notwithstanding Order 18, rule 14(3),
but without prejudice to the other provisions of that rule, there is an
implied joinder of issue on the counterclaim, and the joinder of issue
operates as a denial of every material allegation of fact made in the
counterclaim.
Judgment by default (0. 75, r. 21)
21. (1) Where a writ is served under rule 8(4) on a party at whose
instance a caveat against arrest was issued, then if
(a)the sum claimed in the action begun by the writ does not
exceed the amount specified in the undertaking given by that
party or his solicitor to procure the entry of that caveat, and
(b)that party or his solicitor does not within 14 days after service
of the writ fulfil the undertaking given by him as aforesaid,
the plaintiff may, after filing an affidavit verifying the facts on which the
action is based, apply to the Court for judgment by default.
(2) Judgment given under paragraph (1) may be enforced by the
arrest of the property against which the action was brought and by
committal of the party at whose instance the caveat with respect to that
property was entered.
(3) Where a defendant to an action in rem fails to acknowledge
service of the writ within the time limited for doing so, then, on the
expiration of 14 days after service of the writ and upon filing an affidavit
proving due service of the writ, an affidavit verifying the facts on which
the action is based and, if a statement of claim was not indorsed on the
writ, a copy of the statement of claim, the plaintiff may apply to the
Court for judgment by default.
Where the writ is deemed to have been duly served on the
defendant by virtue of Order 10, rule 1(4), or was served by the bailiff or
his substitute under rule 8 of this Order, an affidavit proving due service
of the writ need not be filed under this paragraph, but the writ indorsed
as mentioned in the said rule 1(4) or indorsed as mentioned in rule 8(3A)
must be lodged with the affidavit verifying the facts on which the action
is based.
(4) Where a defendant to an action in rem fails to serve a
defence on the plaintiff, then, after the expiration of the period fixed
by or under these rules for service of the defence and upon filing an
affidavit stating that no defence was served on him by that defendant
during that period, an affidavit verifying the facts on which the
action is based and, if a statement of claim was not indorsed on the
writ, a copy of the statement of claim, the plaintiff may apply to the
Court for judgment by default.
(5) Where a defendant to a counterclaim in an action in rem
fails to serve a defence to counterclaim on the defendant making the
counterclaim, then, subject to paragraph (6), after the expiration of
the period fixed by or under these rules for service of the defence to
counterclaim and upon filing an affidavit stating that no defence to
counterclaim was served on him by the first-mentioned defendant
during that period, an affidavit verifying the facts on which the
counterclaim is based and a copy of the counterclaim, the defendant
making the counterclaim may apply to the Court for judgment by
default.
(6) No application may be made under paragraph (5) against
the plaintiff in any action to enforce a claim for damage, loss of life
or personal injury arising out of a collision between ships or the
carrying out of or omission to carry out a manoeuvre in the case of
one or more of two or more ships or non-compliance on the part
of one or more of two or more ships with the collision regulations.
(7) An application to the Court under this rule must be made
by motion and if, on the hearing of the motion, the Court is satisfied
that the applicant's claim is well founded it may give judgment for
the claim with or without a reference to the Registrar and may at the
same time order the property against which the action or, as the case
may be, counterclaim is brought to be appraised and sold and the
proceeds to be paid into court or may make such other order as
it thinks just.
(8) In default actions in rem evidence may, unless the Court
otherwise orders, be given by affidavit without any order or direc-
tion in that behalf.
(9) The Court may, on such terms as it thinks just, set aside or
vary any judgment entered in pursuance of this rule.
(10) Order 13 and Order 19 (except rule 1) shall not apply to
actions in rem.
Order for sale of ship: determination of priority of claims (0. 75, r. 22)
22. (1) Where in an action in rem against a ship the Court has
ordered the ship to be sold, any party who has obtained or obtains
judgment against the ship or proceeds of sale of the ship may-
(a)in a case where the order for sale contains the further order
referred to in paragraph (2), after the expiration of the
period specified in the order under paragraph (2)(a), or
(b) in any other case, after obtaining judgment,
apply to the Court by motion for an order determining the order of
priority of the claims against the proceeds of sale of the ship.
(2) Where in an action in rem against a ship the Court orders
the ship to be sold, it may further order-
(a)that the order of priority of the claims against the proceeds
of sale of the ship shall not be determined until after the
expiration of 90 days, or of such other period as the Court
may specify, beginning with the day on which the proceeds
of sale are paid into court;
(b)that any party to the action or to any other action in rem
against the ship or the proceeds of sale thereof may apply
to the Court in the action to which he is a party to extend
the period specified in the Order;
(c)that within 7 days after the date of payment into court of
the proceeds of sale the bailiff shall send for publication in
the Gazette and such other newspaper, if any, as the Court
may direct, a notice complying with paragraph (3).
(3) The notice referred to in paragraph (2)(c) must state-
(a)that the ship (naming her) has been sold by order of the
Court in an action in rem, identifying the action;
(b)that the gross proceeds of the sale, specifying the amount
thereof, have been paid into court;
(c)that the order of priority of the claims against the said
proceeds will not be determined until after the expiration
of the period (specifying it) specified in the order for sale;
and
(d)that any person with a claim against the ship or the
proceeds of sale thereof, on which he intends to proceed to
judgment should do so before the expiration of that
period.
(4) The bailiff must lodge in the Registry a copy of each
newspaper in which the notice referred to in paragraph (2)(c)
appeared.
(5) The expenses incurred by the bailiff in complying with an
order of the Court under this rule shall be included in his expenses
relating to the sale of the ship.
(6) An application to the Court to extend the period referred
to in paragraph (2)(a) must be made by motion, and a copy of the
notice of motion must, at least 3 days before the day fixed for the
hearing thereof, be served on each party who has begun an action in
rem against the ship or the proceeds of sale thereof.
(7) In this rule 'the Court' means the judge in person.
Appraisement and sale of property (0, 75, r, 23)
23. (1) A commission for the appraisement and sale of any property
under an order of the Court shall not be issued until the party applying
for it has filed a praecipe in Form No. 12 in Appendix B.
(2) Such a commission must, unless the Court otherwise orders, be
executed by the bailiff and must be in Form No. 13 in Appendix B.
(3) A commission for appraisement and sale shall not be executed
until an undertaking in writing satisfactory to the bailiff to pay the fees
and expenses of the bailiff on demand has been lodged in the bailiff's
office.
(4) The bailiff shall pay into court the gross proceeds of the sale of
any property sold by him under a commission for sale and shall bring
into court the account relating to the sale (with vouchers in support) for
taxation.
(5) On the taxation of the bailiff's account relating to a sale any
person interested in the proceeds of the sale shall be entitled to be
heard, and any decision of the Registrar made on the taxation to which
objection is taken may be reviewed in the same manner and by the same
persons as any decision of the Registrar made in taxation proceedings
under Order 62, and rules 33 to 35 of that Order shall apply accordingly
with the necessary modifications.
Undertaking as to expenses, etc. (0. 75, r. 23A)
23A. (1) Every undertaking under rule 8(3), 10(3), 13(7) or 23(3)
shall be given in writing to the satisfaction of the bailiff.
(2) Where a party is required by rule 8(3), 10(3), 13(7) or 23(3) to
give to the bailiff an undertaking to pay any fees or expenses, the bailiff
may require from time to time the deposit with him of such sum as he
considers reasonable to meet those fees and expenses.
(3) The Court may, on the application of any party who is
dissatisfied with a direction or determination of the bailiff under rule
13(7) or this rule, vary or revoke the direction or determination.
Payment into and out of court (0. 75, r. 24)
24. (1) Order 22 (except rules 3, 4 and 12) shall apply in relation to
an Admiralty action (other than a limitation action) as it applies to an
action for a debt or damages.
(2) Subject to paragraphs (3) and (4), money paid into court shall
not be paid out except in pursuance of an order of the judge in person.
(3) The Registrar may, with the consent of the parties interested in
money paid into court, order the money to be paid out to the person
entitled thereto in the following cases, that is to say
(a)where a claim has been referred to the Registrar for
decision and all the parties to the reference have agreed to
accept the Registrar's decision and to the payment out of
any money in court in accordance with that decision;
(b)where property has been sold and the proceeds of sale
thereof paid into court and the parties are agreed as to the
persons to whom the proceeds shall be paid and the
amount to be paid to each of those persons;
(c)where in any other case there is no dispute between the
parties.
(4) Where in an Admiralty action money has been paid into
court pursuant to an order made under Order 29, rule 12, the
Registrar may make an order under rule 13(1) of that Order for the
money to be paid out to the person entitled thereto.
Summons for directions (0. 75, r. 25)
25. (1) Order 25 shall apply to Admiralty actions (other than
limitation actions) as it applies to other actions, except that-
(a)the summons for directions shall be returnable in not less
than 7 weeks;
(b)any notice under Order 25, rule 7(1), must be served within
21 days after service of the summons for directions on the
party giving the notice; and
(c)unless ajudge in person otherwise directs, the summons for
directions shall be heard by ajudge in person.
On or before the day on which any party serves on any other party
a notice under Order 75, rule 7, he must lodge 2 copies of the notice
in the Registry.
(2) An order made on the summons for directions shall
determine whether the trial is to be without assessors or with one or
more assessors.
(3) The trial shall be before a judge without a jury unless, on
the ground that there are special reasons to the contrary, an order
made on the summons for directions otherwise provides.
(5) Any such order or direction as is referred to in paragraph
(2) or (3) (including an order made on appeal) may be varied or
revoked by a subsequent order or direction made or given at or
before the trial by the judge in person or, with the judge's consent by
the Registrar.
Fixing date for trial, etc. (0. 75, r. 26)
26. (1) Subject to paragraph (2), the date for trial of an
Admiralty action shall be fixed by the judge at the hearing of
the summons for directions, unless a judge in person otherwise
directs.
(2) Where an action is ordered to be tried without pleadings or a
summons for directions is directed to be heard by the Registrar the date
for trial shall be fixed by the Registrar.
(3) Order 34 shall apply to Admiralty actions subject to the
following and any other necessary modifications
(a)the bundles referred to in rule 3(1) shall include any
preliminary acts and any notice given under rule 18(3) or filed
under rule 18(4) of this Order, and where trial with one or more
assessors has been ordered an additional bundle shall be
lodged for the use of each assessor;
(b)'the proper officer' shall mean the chief judicial clerk of the
Registry; and
(e)in an action which has been ordered to be tried with an
assessor or assessors the solicitor to the party setting it down
must file in the Registry an undertaking to pay the proper fee
and expenses of such assessor or assessors.
(4) If all the parties to an action consent, the action may be
withdrawn without the leave of the Court at any time before trial by
filing in the Registry a written consent to the action being withdrawn
signed by all the parties.
Stay of proceedings in collision, etc. actions until security given (0. 75,
r. 27)
27. Where an action in rem, being an action to enforce any such
claim as is referred to in rule 2(1)(a), is begun and a cross action in rem
arising out of the same collision or other occurrence as the first
mentioned action is subsequently begun, or a counterclaim arising out
of that occurrence is made in the first mentioned action, then
(a)if the ship in respect of or against which the first mentioned
action is brought has been arrested or security given to
prevent her arrest, but
(b)the ship in respect of or against which the cross action is
brought or the counterclaim made cannot be arrested and
security has not been given to satisfy any judgment given in
favour of the party bringing the cross action or making the
counterclaim,
the Court may stay proceedings in the first mentioned action until
security is given to satisfy any judgment given in favour of that party.
Inspection of ship, etc. (0. 75, r. 28)
28. Without prejudice to its powers under Order 29, rules 2 and 3,
and Order 35, rule 8, the Court may, on the application of any party,
make an order for the inspection by the assessors (if the action is tried
with assessors), or by any party or witness, of any
ship or other property, whether real or personal, the inspection of which
may be necessary or desirable for the purpose of obtaining full
information or evidence in connection with any issue in the action.
Examination of witnesses and other persons (0. 75, r. 30)
30. (1) The power conferred by Order 39, rule 1, shall extend to the
making of an order authorizing the examination of a witness or person
on oath before ajudge sitting in court as if for the trial of the cause or
matter, without that cause or matter having been set down for trial or
called on for trial.
(2) The power conferred by the said rule 1 shall also extend to the
making of an order, with the consent of the parties, providing for the
evidence of a witness being taken as if before an examiner, but without
an examiner actually being appointed or being present.
(3) Where an order is made under paragraph (2), it may make
provision for any consequential matters and, subject to any provision
so made, the following provisions shall have effect
(a)the party whose witness is to be examined shall provide a
shorthand writer to take down the evidence of the witness;
(b)any representative, being counsel or solicitor, of either of the
parties shall have authority to administer the oath to the
witness;
(c)the shorthand writer need not himself be sworn but shall
certify in writing as correct a transcript of his notes of the
evidence and deliver it to the solicitor for the party whose
witness was examined, and that solicitor must file it in the
Registry;
(d)unless the parties otherwise agree or the Court otherwise
orders, the transcript or a copy thereof shall, before the
transcript is filed, be made available to the counsel or other
persons who acted as advocates at the examination, and if any
of those persons is of opinion that the transcript does not
accurately represent the evidence he shall make a certificate
specifying the corrections which in his opinion should be
made therein, and that certificate must be filed with the
transcript.
(4) In actions in which preliminary acts fall to be filed under rule 18,
an order shall not be made under Order 39, rule 1, authorizing any
examination of a witness before the preliminary acts have been filed,
unless for special reasons the Court thinks fit so to direct.
Trial without pleadings (0. 75, r. 3 1)
31. Order 18, rule 21 shall apply to Admiralty as it applies to other
actions except that the summons must be served on every other party
not less than 7 days before the day specified in the summons for the
hearing thereof.
Further provisions with respect to evidence (0. 75, r. 32)
32. (3) Unless the Court otherwise directs, Order 38, rule 21, shall
not apply in relation to any statement which is admissible in evidence
by virtue of section 47, 49 or 50 of the Evidence Ordinance and which
an applicant for judgment in default under rule 19 or 21 desires to give
in evidence at the hearing of the motion by which the application for
judgment is made.
(7) Unless the Court otherwise directs, an affidavit for the purposes
of rule 19(4), 21 or 38(2) may, except in so far as it relates to the service
of a writ, contain statements of information or belief with the sources
and grounds thereof.
Proceedings for apportionment of salvage (0. 75, r. 33)
33. (1) Proceedings for the apportionment of salvage the aggregate
amount of which has already been ascertained shall be begun by
originating motion.
(3) On the hearing of the motion the judge may exercise any of the
jurisdiction conferred by section 556 of the Merchant Shipping Act
1894.
Notice of motion in actions in rem (0. 75, r. 34)
34. (1) The affidavits, if any, in support of a motion in an action in
rem must be filed in the Registry before the notice of motion is issued,
unless the Court gives leave to the contrary.
(2) A notice of motion, except a motion for judgment in default,
must be served on all caveators together with copies of the affidavits, if
any, in support of the motion 2 clear days at least before the hearing,
unless the Court gives leave to the contrary.
Agreement between solicitors may he made order of court (0. 75, r. 35)
35. (1) Any agreement in writing between the solicitors of the
parties to a cause or matter, dated and signed by those solicitors, may, if
the Registrar thinks it reasonable and such as the judge would under
the circumstances allow, be filed in the Registry, and the agreement
shall thereupon become an order of court and have the same effect as if
such order had been made by the judge in person.
Limitation action: parties (0. 75, r. 37)
37. (1) In a limitation action the person seeking relief shall be the
plaintiff and shall be named in the writ by his name and not described
merely as the owner of, or as bearing some other relation to, a particular
ship or other property.
(2) The plaintiff must make one of the persons with claims against
him in respect of the casualty to which the action relates defendant to
the action and may make any or all of the others defendants also.
(3) At least one of the defendants to the action must be named in
the writ by his name but the other defendants may be described
generally and not named by their names.
(4) The writ must be served on one or more of the defendants who
are named by their names therein and need not be served on any other
defendant.
(5) In this rule and rules 38, 39 and 40 'name' includes a firm name
or the name under which a person carries on his business, and where
any person with a claim against the plaintiff in respect of the casualty to
which the action relates has described himself for the purposes of his
claim merely as the owner of, or as bearing some other relation to, a ship
or other property, he may be so described as defendant in the writ and,
if so described, shall be deemed for the purposes of the rules aforesaid
to have been named in the writ by his name.
Limitation action.. summons for decree or directions (0. 75, r. 38)
38. (1) Within 7 days after the acknowledgment of issue or service
of the writ by one of the defendants named therein by their names or, if
none of them acknowledges issue or service, within 7 days after the time
limited for acknowledging service, the plaintiff, without serving a
statement of claim, must take out a summons returnable in chambers
before the Registrar asking for a decree limiting his liability or, in default
of such a decree, for directions as to the further proceedings in the
action.
(2) The summons must be supported by an affidavit or affidavits
proving
(a) the plaintiff's case in the action, and
(b)if none of the defendants named in the writ by their names has
acknowledged service, service of the writ on at least one of
the defendants so named.
(3) The affidavit in support of the summons must state-
(a)the names of all the persons who, to the knowledge of the
plaintiff, have claims against him in respect of the casualty to
which the action relates, not being defendants to the action
who are named in the writ by their names, and
(b)the address of each of those persons, if known to the plaintiff.
(4) The summons and every affidavit in support thereof must, at
least 7 clear days before the hearing of the summons, be served on any
defendant who has acknowledged issue or service of the writ.
(5) On the hearing of the summons the Registrar, if it appears
to him that it is not disputed that the plaintiff has a right to limit his
liability, shall make a decree limiting the plaintiff's liability and fix
the amount to which the liability is to be limited.
(6) On the hearing of the summons the Registrar, if it appears
to him that any defendant has not sufficient information to enable
him to decide whether or not to dispute that the plaintiff has a right
to limit his liability, shall give such directions as appear to him to be
appropriate for enabling the defendant to obtain such information
and shall adjourn the hearing.
(7) If on the hearing or resumed hearing of the summons the
Registrar does not make a decree limiting the plaintiff's liability, he
shall give such directions as to the further proceedings in the action
as appear to him to be appropriate including, in particular, a
direction requiring the taking out of a summons for directions under
Order 25 and, if he gives no such direction, a direction fixing the
period within which any notice under Order 38, rule 21, must be
served.
(8) Any defendant who, after the Registrar has given direc-
tions under paragraph (7), ceases to dispute the plaintiff's right to
limit his liability must forthwith file a notice to that effect in the
Registry, and serve a copy on the plaintiff and on any other
defendant who has acknowledged issue or service of the writ.
(9) If every defendant who disputes the plaintiff's right to limit
his liability serves a notice on the plaintiff under paragraph (8), the
plaintiff may take out a summons returnable in chambers before the
Registrar, asking for a decree limiting his liability; and paragraphs
(4) and (5) shall apply to a summons under this paragraph as they
apply to a summons under paragraph (1).
Limitation action: proceedings under decree (0. 75, r. 39)
39. (1) Where the only defendants in a limitation action are
those named in the writ by their names and all the persons so named
have either been served with the writ or acknowledged the issue
thereof, any decree in the action limiting the plaintiff's liability
(whether made by the Registrar or on the trial of the action)---
(a) need not be advertised, but
(b)shall only operate to protect the plaintiff in respect of
claims by the persons so named or persons claiming
through or under them.
(2) In any case not falling within paragraph (1), any decree in
the action limiting the plaintiff's liability---
(a)shall be advertised by the plaintiff in such manner and
within such time as may be provided by the decree;
(b)shall fix a time within which persons with claims against the
plaintiff in respect of the casualty to which the action relates
may file their claims, and, in cases to which rule 40 applies,
take out a summons, if they think fit, to set the order aside.
(3) The advertisement to be required under paragraph (2)(a) shall,
unless for special reasons the Registrar thinks fit otherwise to provide,
be a single advertisement in each of 3 newspapers specified in the
decree, identifying the action, the casualty and the relation of the
plaintiff thereto (whether as owner of a ship involved in the casualty or
otherwise as the case may be), stating that the decree has been made
and specifying the amounts fixed thereby as the limits of the plaintiffs
liability and the time allowed thereby for the filing of claims and the
taking out of summonses to set the decree aside.
The plaintiff must within the time fixed under paragraph (2)(b) file
in the Registry a copy of each newspaper in which the advertisement
required under paragraph (2)(a) appears.
(4) The time to be allowed under paragraph (2)(b) shall, unless for
special reasons the Registrar thinks fit otherwise to provide, be not less
than 2 months from the latest date allowed for the appearance of the
advertisements; and after the expiration of the time so allowed no claim
may be filed or summons taken out to set aside the decree except with
the leave of the Registrar.
(5) Save as aforesaid, any decree limiting the plaintiff's liability
(whether made by the Registrar or on trial of the action) may make any
such provisions as is authorized by section 504 of the Merchant
Shipping Act, 1894.
Limitation action: proceedings to set aside decree (0. 75, r. 40)
40. (1) Where a decree limiting the plaintiff's liability (whether made
by Registrar or on trial of the action) fixes a time in accordance with rule
39(2), any person with a claim against the plaintiff in respect of the
casualty to which the action relates, who
(a)was not named by his name in the writ as a defendant to the
action, or
(b)if so named, neither was served with the writ nor has
acknowledged the issue thereof,
may, within that time, after acknowledging issue of the writ, take out a
summons returnable in chambers before the Registrar, asking that the
decree be set aside.
(2) The summons must be supported by an affidavit or affidavits
showing that the defendant in question has a bona fide claim against the
plaintiff in respect of the casualty in question and that he has sufficient
prima facie grounds for the contention that the plaintiff is not entitled to
the relief given him by the decree.
(3) The summons and every affidavit in support thereof must, at
least 7 clear days before the hearing of the summons, be served on the
plaintiff and any defendant who has acknowledged issue or service of
the writ.
(4) On the hearing of the summons the Registrar, if he is satisfied
that the defendant in question has a bona fide claim against the plaintiff
and sufficient prima facie grounds for the contention that the plaintiff is
not entitled to the relief given him by the decree, shall set the decree
aside and give such directions as to the further proceedings in the
action as appear to him to be appropriate including, in particular, a
direction requiring the taking out of a summons for directions under
Order 25.
References to Registrar (0. 75, r. 41)
41. (1) Any party (hereafter in this rule referred to as the
'claimant') making a claim which is referred to the Registrar for decision
must within 2 months after the order is made, or, in a limitation action,
within such other period as the Court may direct, file his claim and,
unless the reference is in such an action, serve a copy of the claim on
every other party.
(2) At any time after the claimant's claim has been filed or, where
the reference is in a limitation action, after the expiration of the time
limited by the Court for the filing of claims but, in any case, not less than
28 days before the day appointed for the hearing of the reference, any
party to the cause or matter may apply to the Registrar by summons for
directions as to the proceedings on the reference, and the Registrar shall
give such directions, if any, as he thinks fit including, without prejudice
to the generality of the foregoing words, a direction requiring any party
to serve on any claimant, within such period as the Registrar may
specify, a defence to that claimant's claim.
(3) The reference shall be heard on a day appointed by the
Registrar and, unless the reference is in a limitation action or the parties
to the reference consent to the appointment of a particular day, the
appointment must be made by order on an application by summons
made by any party to the cause or matter.
(4) An appointment for the hearing of a reference shall not be made
until after the claimant has filed his claim or, where the reference is in a
limitation action, until after the expiration of the time limited by the Court
for the filing of claims.
(5) Not later than 7 days after an appointment for the hearing of a
reference has been made the claimant or, where the reference is in a
limitation action, the plaintiff must enter the reference for hearing by
lodging in the Registry a praecipe requesting the entry of the reference
in the list for hearing on the day appointed.
(6) Not less than 14 days before the day appointed for the hearing
of the reference the claimant must file
(a)a list, signed by him and every other party, of the items
(if any) of his claim which are not disputed, stating the
amount (if any) which he and the other parties agree
should be allowed in respect of each such item, and
(b)such affidavits or other documentary evidence as is
required to support the items of his claim which are
disputed;
and, unless the reference is in a limitation action, he must at the
same time serve on every other party a copy of every document filed
under this paragraph.
(7) If the claimant fails to comply with paragraph (1) or (6)(b),
the Court may, on the application of any other party to the cause or
matter, dismiss the claim.
Hearing of reference (0. 75, r. 42)
42. (1) Unless ajudge in person otherwise orders, a reference
shall be heard in public.
(2) The Registrar may adjourn the hearing of a reference from
time to time as he thinks fit.
(3) Subject to paragraph (2), evidence may be given orally or
by affidavit or in such other manner as may be agreed upon.
(4) When the hearing of the reference has been concluded, the
Registrar shall-
(a)reduce to writing his decision on the question arising in the
reference (including any order as to costs) and cause it to
be filed;
(b)cause to be filed either with his decision or subsequently
such statement (if any) of the grounds of the decision as he
thinks fit; and
(c)send to the parties to the reference notice that he has done
so.
(5) Where no statement of the grounds of the Registrar's
decision is filed with his decision and no intimation has been given
by the Registrar that he intends to file such a statement later, any
party to the reference may, within 14 days after the filing of the
decision, make a written request to the Registrar to file such a
statement.
Objection to decision on reference (0. 75, r. 43)
43. (1) Any party to a reference to the Registrar may, by
motion in objection, apply to set aside or vary the decision of the
Registrar on the reference, but notice of the motion, specifying the
points of objection to the decision, must be filed within 28 days after
the date on which notice of the filing of the decision was sent to that
party under rule 42(4) or, if a notice of the filing of a statement of the
grounds of the decision was subsequently sent to him thereunder,
within 28 days after the date on which the notice was sent.
(2) The decision of the Registrar shall be deemed to be given
on the date on which it is filed, but, unless he or the judge otherwise
directs, the decision shall not be acted upon until the time has
elapsed for filing notice of a motion in objection thereto.
(3) A direction shall not be given under paragraph (2) without
the parties being given an opportunity of being heard but may, if the
Registrar announces his intended decision at the conclusion of the
hearing of the reference, be incorporated in his decision as reduced
to writing under rule 42(4).
Drawing up and entry of judgments and orders (0. 75, r. 45)
45. Every judgment given or order made in an Admiralty
cause or matter, except an order which by virtue of Order 42, rule 4,
is not required to be drawn up, shall be drawn up in the Registry and
shall be entered by an officer of the Registry in the book kept for the
purpose.
Inspection of documents filed in Registry (0. 75, r. 46)
46. (1) Order 63, rule 4, shall apply in relation to documents
filed in the Registry.
(2) For the purpose of Order 63, rule 4, a decree made by the
Registrar in a limitation action and a decision and any statement of
the grounds of that decision filed under rule 42 shall be deemed to
have been made or given in court.
ORDER 76
CONTENTIOUS PROBATE PROCEEDINGS
Application and interpretation (0. 76, r. 1)
1. (1) This Order applies to probate causes and matters, and
the other provisions of these rules apply to those causes and matters
including applications for the rectification of a will subject to the
provisions of this Order.
(2) In these rules 'probate action' means an action for the
grant of probate of the will, or letters of administration of the estate,
of a deceased person or for the revocation of such a grant or for a
decree pronouncing for or against the validity of an alleged will, not
being an action which is non-contentious or common form probate
business.
(3) In this Order, 'will' includes a codicil.
Requirements in connection with issue of writ (0. 76, r. 2)
2. (1) A probate action must be begun by writ.
(2) Before a writ beginning a probate action is issued it must be
indorsed with a statement of the nature of the interest of the plaintiff
and of the defendant in the estate of the deceased to which the action
relates.
Parties to action for revocation of grant (0. 76, r. 3)
3. Every person who is entitled or claims to be entitled to administer
the estate of a deceased person under or by virtue of an unrevoked
grant of probate of his will or letters of administration of his estate shall
be made a party to any action for revocation of the grant.
Lodgment of grant in action for revocation (0. 76, r. 4)
4. (1) Where, at the commencement of an action for the revocation
of a grant of probate of the will or letters of administration of the estate
of a deceased person, the probate or letters of administration, as the
case may be, have not been lodged in court, then
(a)if the action is commenced by a person to whom the grant was
made, he shall lodge the probate or letters of administration in
the Registry within 7 days after the issue of the writ;
(b)if any defendant to the action has the probate or letters of
administration in his possession or under his control, he shall
lodge it or them in the Registry within 14 days after the service
of the writ upon him.
(2) Any person who fails to comply with paragraph (1) may, on the
application of any party to the action, be ordered by the Court to lodge
the probate or letters of administration in the Registry within a specified
time; and any person against whom such an order is made shall not be
entitled to take any step in the action without the leave of the Court
until he has complied with the order.
Affidavit of testamentary scripts (0. 76, r. 5)
5. (1) Unless the Court otherwise directs, the plaintiff and every
defendant who has acknowledged service of the writ in a probate action
must swear an affidavit
(a)describing any testamentary script of the deceased person,
whose estate is the subject of the action, of which he has any
knowledge or, if such be the case, stating that he knows of no
such script; and
(b)if any such script of which he has knowledge is not in his
possession or under his control, giving the name and
address of the person in whose possession or under whose
control it is or, if such be the case, stating that he does not
know the name or address of that person.
(2) Any affidavit required by this rule must be filed, and an
office copy thereof and any testamentary script referred to therein
which is in the possession or under the control of the deponent, must
be lodged in the Registry within 14 days after the acknowledgment
of service by a defendant to the action or, if no defendant acknowl-
edges service and the Court does not otherwise direct, before an
order is made for the trial of the action.
(3) 'ere any testamentary script required by this rule to be
lodged in the Registry or any part thereof is written in pencil, then,
unless the Court otherwise directs, a facsimile copy of that script, or
of the page or pages thereof containing the part written in pencil,
must also be lodged in the Registry and the words which appear in
pencil in the original must be underlined in red ink in the copy.
(4) Except with the leave of the Court, a party to a probate
action shall not be allowed to inspect an affidavit filed, or any
testamentary script lodged, by any other party to the action under
this rule, unless and until an affidavit sworn by him containing the
information referred to in paragraph (1) has been filed.
(5) In this rule 'testamentary script' means a will or draft
thereof, written instructions for a will made by or at the request or
under the instructions of the testator and any document purporting
to be evidence of the contents, or to be a copy, of a will which is
alleged to have been lost or destroyed.
Failure to acknowledge service (0. 76, r. 6)
6. (1) Order 13 shall not apply in relation to a probate action.
(2) Where any of several defendants to a probate action fails
to acknowledge service of the writ, the plaintiff may, after the
time for acknowledging service has expired and upon filing an
affidavit proving due service of the writ, or notice of the writ, on
that defendant proceed with the action as if that defendant had
acknowledged service.
(3) Where the defendant, or all the defendants, to a probate
action, fails or fail to acknowledge service of the writ, then, unless on
the application of the plaintiff the Court orders the action to be
discontinued, the plaintiff may after the time limited for acknowl-
edging service by the defendant apply to the Court for an order for
trial of the action.
(4) Before applying for an order under paragraph (3) the
plaintiff must file an affidavit proving due service of the writ, or
notice of the writ, on the defendant and, if no statement of claim is
indorsed on the writ, he must lodge a statement of claim in the
judge's chambers.
(5) Where the Court grants an order under paragraph (3), it
may direct the action to be tried on affidavit evidence:
Service of statement of claim (0. 76, r. 7)
7. The plaintiff in a probate action must, unless the Court
gives leave to the contrary or unless a statement of claim is indorsed
on the writ, serve a statement of claim on every defendant who
acknowledges service of the writ in the action and must do so before
the expiration of 6 weeks after acknowledgment of service by that
defendant or of 8 days after the filing by that defendant of an
affidavit under rule 5, whichever is the later.
Counterclaim (0. 76, r. 8)
8. (1) Notwithstanding anything in Order 15, rule 2(1), a
defendant to a probate action who alleges that he has any claim or is
entitled to any relief or remedy in respect of any matter relating to
the grant of probate of the will, or letters of administration of the
estate, of the deceased person which is the subject of the action must
add to his defence a counterclaim in respect of that matter.
(2) If the plaintiff fails to serve a statement of claim, any such
defendant may, with the leave of the Court, serve a counterclaim
and the action shall then proceed as if the counterclaim were the
statement of claim.
Contents of pleadings (0. 76, r. 9)
9. (1) Where the plaintiff in a probate action disputes the
interest of a defendant he must allege in his statement of claim that
he denies the interest of that defendant.
(2) In a probate action in which the interest by virtue of which
a party claims to be entitled to a grant of letters of administration is
disputed, the party disputing that interest must show in his pleading
that if the allegations made therein are proved he would be entitled
to an interest in the estate.
(3) Without prejudice to Order 18, rule 7, any party who
pleads that at the time when a will, the subject of the action, was
alleged to have been executed the testator did not know and approve
of its contents must specify the nature of the case on which he
intends to rely, and no allegation in support of that plea which
would be relevant in support of any of the following other pleas,
that is to say-
(a) that the will was not duly executed;
(b)that at the time of the execution of the will the testator was
not of sound mind, memory and understanding; and
(c)that the execution of the will was obtained by undue
influence or fraud,
shall be made by that party unless that other plea is also pleaded.
Default of pleadings (0. 76, r. 10)
10. (1) Order 19 shall not apply in relation to a probate
action.
(2) Where any party to a probate action fails to serve on any
other party a pleading which he is required by these rules to serve
on that other party, then, unless the Court orders the action to be
discontinued or dismissed, that other party may, after the expiration
of the period fixed by or under these rules for service of the pleading
in question, apply to the Court for an order for trial of the action;
and if an order is made the Court may direct the action to be tried on
affidavit evidence.
Discontinuance and dismissal (0. 76, r. 11)
11. (1) Order 21 shall not apply in relation to a probate
action.
(2) At any stage of the proceedings in a probate action the
Court may, on the application of the plaintiff or of any party to the
action who has acknowledged service of the writ therein, order the
action to be discontinued or dismissed on such terms as to costs or
otherwise as it thinks just, and may further order that a grant of
probate of the will, or letters of administration of the estate, of the
deceased person, as the case may be, which is the subject of the
action, be made to the person entitled thereto.
(3) An application for an order under this rule may be made
by motion or summons or by notice under Order 25, rule 7.
Compromise of action: trial on affidavit evidence (0. 76, r. 12)
12. Where, whether before or after the service of the defence in
a probate action, the parties to the action agree to a compromise,
the Court may order the trial of the action on affidavit evidence.
Application for order to bring in will, etc. (0. 76, r. 13)
13. (1) Any application in a probate action for an order
under section 7(1) of the Probate and Administration Ordinance
shall be for an order requiring a person to bring a will or other
testamentary paper into the Registry or to attend in court for
examination.
(2) An application under paragraph (1) shall be made by
summons in the action, which must be served on the person against
whom the order is sought.
(3) Any application in a probate action for the issue of a
subpoena under section 7(3) of the Probate and Administration
Ordinance shall be for the issue of a subpoena requiring a person to
bring into the Registry a will or other testamentary paper.
(4) An application under paragraph (3) maybe made ex parte
and must be supported by an affidavit setting out the grounds of the
application.
(5) An application under paragraph (3) shall be made to a
master who may, if the application is granted, authorize the issue of
a subpoena accordingly.
(6) Any person against whom a subpoena is issued under
section 7(3) of the Probate and Administration Ordinance and who
denies that the will or other testamentary paper referred to in the
subpoena is in his possession or under his control may file an
affidavit to that effect.
Administration pendente lite (0. 76, r. 14)
14. (1) An application under section 40 of the Probate and
Administration Ordinance for an order for the grant of administra-
tion may be made by summons.
(2) Where an order for a grant of administration is made
under the said section 40, Order 30, rules 2, 4 and 6 and (subject
to section 60 of the Probate and Administration Ordinance) rule 3
shall apply as if the administrator were a receiver appointed by
the Court.
Probate counterclaim in other proceedings (0. 76, r. 15)
15. (1) In this rule 'probate counterclaim' means a counter-
claim in any action other than a probate action by which the
defendant claims any such relief as is mentioned in rule 1(2).
(2) Subject to the following paragraphs, this Order shall apply
with the necessary modifications to a probate counterclaim as it
applies to a probate action.
(3) A probate counterclaim must contain a statement of the
nature of the interest of the defendant and of the plaintiff` in the
estate of the deceased to which the counterclaim relates.
(4) Before it is served a probate counterclaim must be indorsed
with a memorandum signed by a master showing that the counter-
claim has been produced to him for examination and that three
copies of it have been lodged with him.
Rectification of wills (0. 76, r. 16)
16. (1) Where an application is made for rectification of a
will, and the grant has not been lodged in court, rule 4 shall apply,
with the necessary modifications, as if the proceedings were a
probate action.
(2) A copy of every order made for the rectification of a will
shall be sent to the principal Registry for filing, and a memorandum
of the order shall be endorsed on, or permanently annexed to, the
grant under which the estate is administered.
ORDER 77
PROCEEDINGS BY AND AGAINST THE
CROWN
Application and interpretation (0. 77, r. 1)
1. (1) These rules apply to civil proceedings to which the Crown is
a party subject to the following rules of this Order.
(2) In this Order-
civil proceedings by the Crown' and 'civil proceedings against the
Crown' have the same respective meanings as in Part 111 of the
Crown Proceedings Ordinance, and do not include any of the
proceedings specified in section 19(3) of that Ordinance;
civil proceedings to which the Crown is a party' has the same meaning
as it has for the purposes of Part V of the Crown Proceedings
Ordinance, by virtue of section 2(4) of that Ordinance;
order against the Crown' means any order (including an order for
costs) made in any civil proceedings by or against the Crown, or in
connection with any arbitration to which the Crown is a party, in
favour of any person against the Crown or against a government
department or against an officer of the Crown as such;
'order' includes a judgment, decree, rule, award or declaration.
Particulars to he included in indorsement of claim (0. 77, r. 3)
3. (1) In the case of a writ which begins proceedings against the
Crown the indorsement of claim required by Order 6, rule 2, shall include
a statement of the circumstances in which the Crown's liability is alleged
to have arisen and as to the government department and officers of the
Crown concerned.
(2) If in civil proceedings against the Crown a defendant considers
that the writ does not contain a sufficient statement as required by this
rule, he may, before the expiration of the time limited for acknowledging
service of the writ, apply to the plaintiff by notice for a further and better
statement containing such information as may be specified in the notice.
(3) Where a defendant gives a notice under this rule, the time
limited for acknowledging service of the writ shall not expire until 4 days
after the defendant has notified the plaintiff in writing that the defendant
is satisfied with the statement supplied in compliance with the notice, or
4 days after the Court has, on the application of the plaintiff by
summons served on the defendant not less than 7 days before the
return day, decided that no further information as to the matters referred
to in paragraph (1) is reasonably required.
Service on the Crown (0. 77, r. 4)
4. (1) Order 10, Order 11 and any other provision of these rules
relating to service out of the jurisdiction shall not apply in relation to
the service of any process by which civil proceedings against the
Crown are begun.
(HK)(2) Personal service of any document required to be served on the
Crown for the purpose of or in connection with any civil proceedings is
not requisite; but where the proceedings are by or against the Crown
service on the Crown must be effected by service on the Attorney
General.
(3) In relation to the service of any document required to be served
on the Crown for the purpose of or in connection with any civil
proceedings by or against the Crown, Order 65, rules 5 and 9, shall not
apply, and Order 65, rule 7, shall apply as if the reference therein to rules
2 and 5(1)(a) of that Order were a reference to paragraph (2) of this rule.
Counterclaim and set-off (0. 77, r. 6)
6. (1) Notwithstanding Order 15, rule 2, and Order 18, rules 17 and
18, a person may not in any proceedings by the Crown make any
counterclaim or plead a set-off if the proceedings are for the recovery of,
or the counterclaim or set-off arises out of a right or claim to repayment
in respect of, any taxes, duties or penalties.
(2) Notwithstanding Order 15, rule 2, and Order 18, rules 17 and 18,
no counterclaim may be made, or set-off pleaded, without the leave of
the Court, by the Crown in proceedings against the Crown, or by any
person in proceedings by the Crown
(a)if the Crown is sued or sues in the name of a government
department and the subject-matter of the counterclaim or set-
off does not relate to that department; or
(b)if the Crown is sued or sues in the name of the Attorney
General.
(3) Any application for leave under this rule must be made by
summons.
Summary judgment (0. 77, r. 7)
7. (1) No application against the Crown shall be made under Order
14, rule 1, or Order 86, rule 1, in any proceedings against the Crown nor
under Order 14, rule 5, in any proceedings by the Crown.
(2) Where an application is made by the Crown under Order 14, rule
1, Order 14, rule 5, or Order 86, rule 1, the affidavit required in support of
the application must be made by
(a) the solicitor acting for the Crown, or
(b)an officer duly authorized by the solicitor so acting or by the
department concerned;
and the affidavit shall be sufficient if it states that in the deponent's
belief the applicant is entitled to the relief claimed and there is no
defence to the claim or part of a claim to which the application relates or
no defence except as to the amount of any damages claimed.
Judgment in default (0. 77, r. 9)
9. (1) Except with the leave of the Court, no judgment in default of
notice of intention to defend or of pleading shall be entered against the
Crown in civil proceedings against the Crown or in third party
proceedings against the Crown.
(2) Except with the leave of the Court, Order 16, rule 5(1)(a), shall
not apply in the case of third party proceedings against the Crown.
(3) An application for leave under this rule may be made by
summons or, except in the case of an application relating to Order 16,
rule 5, by motion; and the summons or, as the case may be, notice of the
motion must be served not less than 7 days before the return day.
Third party notices (0. 77, r. 10)
10. (1) Notwithstanding anything in Order 16, a third party notice
(including a notice issuable by virtue of Order 16, rule 9) for service on
the Crown shall not be issued without the leave of the Court, and the
application for the grant of such leave must be made by summons, and
the summons must be served on the plaintiff and the Crown.
(2) Leave to issue such a notice for service on the Crown shall not
be granted unless the Court is satisfied that the Crown is in possession
of all such information as it reasonably requires as to the circumstances
in which it is alleged that the liability of the Crown has arisen and as to
the departments and officers of the Crown concerned.
Interpleader: application for order against Crown (0. 77, r. 11)
11. No order shall be made against the Crown under Order 17, rule
5(3), except upon an application by summons served not less than 7
days before the return day.
Discovery and interrogatories (0. 77, r. 12)
12. (1) Order 24, rules 1 and 2, shall not apply in civil proceedings to
which the Crown is a party.
(2) In any civil proceedings to which the Crown is a party any
order of the Court made under the power conferred by section 24(1)
of the Crown Proceedings Ordinance, shall be construed as not
requiring the disclosure of the existence of any document the
existence of which it would, in the opinion of the Chief Secretary, be
injurious to the public interest to disclose.
(3) Where in any such proceedings an order of the Court
directs that a list of documents made in answer to an order for
discovery against the Crown shall be verified by affidavit, the
affidavit shall be made by such officer of the Crown as the Court may
direct.
(4) Where in any such proceedings an order is made under the
said section 24 for interrogatories to be answered by the Crown, the
Court shall direct by what officer of the Crown the interrogatories
are to be answered.
(5) In any proceedings by the Crown for the enforcement of
any right for the enforcement of which proceedings by way of
English information might have been taken if the Crown Proceed-
ings Ordinance had not passed, the Crown may serve interrogatories
or further interrogatories (except any third or subsequent set of
interrogatories) under Order 26 without the leave of the Court.
Evidence (0. 77, r. 14)
14. (1) Civil proceedings against the Crown may be instituted
under Order 39, rule 15, in any case in which the Crown is alleged to
have an interest or estate in the honour, title, dignity or office or
property in question.
(2) For the avoidance of doubt it is hereby declared that any
powers exercisable by the Court in regard to the taking of evidence
are exercisable in proceedings between subjects.
Execution and satisfaction of orders (0. 77, r. 15)
15. (1) Nothing in Orders 45 to 52 shall apply in respect of
any order against the Crown.
(2) An application under the proviso to subsection (1) of
section 21 of the Crown Proceedings Ordinance, for a direction that
a separate certificate shall be issued under that subsection with
respect to the costs (if any) ordered to be paid to the applicant, may
be made to the Court ex parte without summons.
(3) Any such certificate must be in Form No. 95 or 96 in
Appendix A, whichever is appropriate.
Attachment of debts, etc. (0. 77, r. 16)
16. (1) No order-
(a) for the attachment of debts under Order 49, or
(b) for the appointment of a sequestrator under Order 45, or
(c) for the appointment of a receiver under Order 30 or 51,
shall be made or have effect in respect of any money due or accruing
due, or alleged to be due or accruing due, from the Crown.
(IA) No application shall be made under paragraph (2) unless
the order of the Court to be enforced is for a sum of money
amounting in value to at least $5,000.
(2) Every application to the Court for an order under section
23(1) of the Crown Proceedings Ordinance, restraining any person
from receiving money payable to him by the Crown and directing
payment of the money to the applicant or some other person must be
made by summons and, unless the Court otherwise directs, served-
(a) on the Crown at least 15 days before the return day, and
(b)on the person to be restrained or his solicitor at least 7 days
after the summons has been served on the Crown and at
least 7 days before the return day.
(2A) An application under paragraph (2) must be supported
by an affidavit-
(a) setting out the facts giving rise to the application;
(b)stating the name and last known address of the person to
be restrained;
(e)identifying the order to be enforced and stating the amount
of such order and the amount remaining unpaid under it at
the time of the application, and
(d)identifying the particular debt from the Crown in respect
of which the application is made.
(3) Order 49, rules 5 and 6, shall apply in relation to such an
application as is mentioned in paragraph (2) for an order restraining
a person from receiving money payable to him by the Crown as
those rules apply to an application under Order 49, rule 1, for an
order for the attachment of a debt owing to any person from a
garnishee, except that the Court shall not have power to order
execution to issue against the Crown.
Proceedings relating to postal packets (0. 77, r. 17)
17. (1) An application by any person under section 7(3) of the
Crown Proceedings Ordinance, for leave to bring proceedings in the
name of the sender or addressee of a postal packet or his personal
representatives must be made by originating summons.
(2) The Crown and the person in whose name the applicant
seeks to bring proceedings must be made defendants to a summons
under this rule.
(3) A summons under this rule shall be in Form No. 10 in
Appendix A.
Applications under section 25 of Crown Proceedings Ordinance (0. 77,
r. 18)
18. (2) An application such as is referred to in section 25(2) of
the Crown Proceedings Ordinance may be made to the Court at any
time before trial by motion or summons, or may be made at the trial
of the proceedings.
ORDER 78
DISTRICT COURT PROCEEDINGS TRANSFERRED OR REMOVED TO
HIGH COURT
Application and interpretation (0. 78, r. 1)
1. (1) This Order applies where an order has been made
under section 38 or 39 of the District Court Ordinance, for the
transfer, or under section 15 of the Crown Proceedings Ordinance,
for the removal, of proceedings from a district court to the High
Court.
(2) Where only the proceedings on a counterclaim are trans-
ferred, this Order shall apply as if the party setting up the counter-
claim were the plaintiff and the party resisting it the defendant, and
references in this Order to the plaintiff and the defendant shall be
construed accordingly.
(3) References in the following provisions of this Order to the
plaintiff and the defendant shall, in relation to proceedings begun in
the district court otherwise than by writ, be construed as references
to the applicant and the respondent respectively.
Duties of officer (0. 78, r. 2)
2. On receipt by the Registrar of the documents referred to in
section 44 of the District Court Ordinance, the Registrar must
forthwith- (L.N. 356188)
(a)file the said documents and make an entry of the filing
thereof in the cause book,
(c)give notice to all parties to the proceedings in the district
court that the action is proceeding in the High Court and
that the defendant is required to acknowledge service of
the notice.
Acknowledgment of service (0. 78, r. 3)
3. (1) The defendant must, within 7 days after receipt of the
notice referred to in rule 2, acknowledge service thereof in accord-
ance with Order 12, rules 1 to 4, and Order 12, rules 1 and 4, shall
apply as if the proceedings transferred or removed were an action
begun by writ.
Judgment on failure to give notice of intention to defend (0. 78, r. 4)
4. (1) If the defendant fails, or all the defendants (if more than one)
fail, to give notice of intention to defend within the period prescribed by
rule 3, the plaintiff, after having caused an address for service to be
entered in the cause book, may, with the leave of the Court, enter
judgment against the defendant or defendants, as the case may be, with
costs.
(2) An application for leave under this rule must be made by
summons which must, notwithstanding anything in Order 65, rule 9, be
served on the defendant, and the address for service of the defendant
shall be his address for service in the proceedings in the district court.
Summons for directions or summary judgment (0. 78, r. 5)
5. (1) Where a defendant gives notice of intention to defend in the
action the plaintiff must, within 7 days after such notice is given, cause
an address for service to be entered in the cause book and either
(a)take out and serve on the defendant a summons for directions
returnable in not less than 21 days, or
(b)except where the defendant is the Crown, make an application
under Order 14, rule 1, for judgment against the defendant;
and where a summons is served on the defendant under subparagraph
(a) Order 25, rules 2 to 71 shall, with any necessary modifications, apply
as if that summons were a summons for directions under that Order.
(2) If the plaintiff fails either to take out such a summons, or make
such an application, as is referred to in paragraph (1) within the period
prescribed thereby the defendant or any defendant may take out such a
summons or may apply for an order dismissing the action.
(3) On the hearing of an application to dismiss the action the Court
may either dismiss the action on such terms as may be just or may deal
with the application as if it were a summons for directions.
ORDER 79
TRIBUNAL PROCEEDINGS TRANSFER OR REMOVAL To THE HIGH COURT
Tribunal proceedings; transfer or removal to the High Court (0. 79,
r. 1)
(HK)1. Save as is otherwise provided by Ordinance or rules of court
when a matter is transferred or removed from a tribunal to the High Court
it shall be set down before a master who shall make such directions as
he sees fit for the further conduct of the proceedings.
ORDER 80
DISABILITY
Interpretation (0. 80, r. 1)
1. In this Order
'the Act means the Mental Health Act 1983;
'the Ordinance' means the Mental Health Ordinance;
'patient' means a person who, by reason of mental disorder within the
meaning of the Ordinance, is incapable of managing and
administering his property and affairs;
'person under disability' means a person who is a minor or a patient.
Person under disability must sue, etc. by next friend or guardian ad
litem (0. 80, r. 2)
2. (1) A person under disability may not bring, or make a claim in,
any proceedings except by his next friend and may not acknowledge
service, defend, make a counterclaim or intervene in any proceedings, or
appear in any proceedings under a judgment or order notice of which
has been served on him, except by his guardian ad litem
(2) Subject to the provision of these rules, anything which in the
ordinary conduct of any proceedings is required or authorized by a
provision of these rules to be done by a party to the proceedings shall
or may, if the party is a person under disability, be done by his next
friend or guardian ad litem
(3) A next friend or guardian ad litem of a person under disability
must act by a solicitor.
Appointment of next friend or guardian ad litem (0. 80, r. 3)
3. (2) Except as provided by paragraph (4) or (5) or by rule 6, an
order appointing a person next friend or guardian ad litem of a person
under disability is not necessary.
(3) Where a person is authorized under Part VII of the Act to
conduct legal proceedings in the name of a patient or on his behalf, that
person shall be entitled to be next friend or guardian ad litem, as the
case may be, of the patient in any proceedings to which his authority
extends unless, in a case to which paragraph (4) or (5) or rule 6 applies,
some other person is appointed by the Court under that paragraph or
rule to be next friend or guardian ad litem, as the case may be, of the
patient in those proceedings.
(4) Where a person has been or is next friend or guardian ad litem
of a person under disability in any proceedings, no other person shall
be entitled to act as such friend or guardian, as the case
may be, of the person under disability in those proceedings unless the
Court makes an order appointing him such friend or guardian in
substitution for the person previously acting in that capacity.
(5) Where, after any proceedings have been begun, a party to the
proceedings becomes a patient, an application must be made to the
Court for the appointment of a person to be next friend or guardian ad
litem, as the case may be, of that party.
(6) Except where the next friend or guardian ad litem, as the case
may be, of a person under disability has been appointed by the Court
(a)the name of any person shall not be used in a cause or matter
as next friend of a person under disability,
(b)service shall not be acknowledged in a cause or matter for a
person under disability, and
(c)a person under disability shall not be entitled to appear by his
guardian ad litem on the hearing of a petition, summons or
motion which, or notice of which, has been served on him,
unless and until the documents listed in paragraph (8) have been filed
in the Registry.
(8) The documents referred to in paragraph (6) are the following--
(a)a written consent to be next friend or guardian ad litem, as the
case may be, of the person under disability in the cause or
matter in question given by the person proposing to be such
friend or guardian; and
(b)where the person proposing to be such friend or guardian of
the person under disability, being a patient, is authorized
under Part VII of the Act to conduct the proceedings in the
cause or matter in question in the name of the patient or on
his behalf, an office copy, sealed with the seal of the Supreme
Court, of the order or other authorization made or given under
the said Part VII by virtue of which he is so authorized; and
(c)except where the person proposing to be such friend or
guardian of the person under disability, being a patient, is
authorized as mentioned in sub-paragraph (b) a certificate
made by the solicitor for the person under disability certifying
(i) that he knows or believes, as the case may be, that the
person to whom the certificate relates is a minor or a patient,
giving (in the case of a patient) the grounds of his knowledge
or belief; and
(ii) where the person under disability is a patient, that there
is no person authorized as aforesaid; and
(iii) except where the person named in the certificate as
next friend or guardian ad litem, as the case may be, is
the Registrar General, that the person so named has no
interest in the cause or matter in question adverse to that
of the person under disability.
Appointment of guardian where person under disability does not
acknowledge service (0. 80, r. 6)
6. (1) Where-
(a)in an action against a person under disability begun by
writ, or by originating summons, no acknowledgment of
service is given in the action for that person, or
(b)the defendant to an action serves a defence and counter-
claim on a person under disability who is not already a
party to the action, and no acknowledgment of service is
given for that person,
an application for the appointment by the Court of a guardian ad
litem of that person must be made by the plaintiff or defendant, as
the case may be, after the time limited (as respects that person) for
acknowledging service and before proceeding further with the action
or counterclaim.
(2) Where a party to an action has served on a person under
disability who is not already a party to the action a third party notice
within the meaning of Order 16 and no acknowledgment of service is
given for that person to the notice, an application for the appoint-
ment by the Court of a guardian ad litem of that person must be
made by that party after the time limited (as respects that person) for
acknowledging service and before proceeding further with the third
party proceedings.
(3) Where in any proceedings against a person under disability
begun by petition or motion, that person does not appear by a
guardian ad litem at the bearing of the petition or motion, as the case
may be, the Court hearing it may appoint a guardian ad litem of that
person in the proceedings or direct that an application be made by
the petitioner or applicant, as the case may be, for the appointment
of such a guardian.
(5) An application under paragraph (1) or (2) must be sup-
ported by evidence proving-
(a)that the person to whom the application relates is a person
under disability,
(b)that the person proposed as guardian ad litem is willing
and a proper person to act as such and has no interest in
the proceedings adverse to that of the person under disabil-
ity,
(c)that the writ, originating summons, defence and counter-
claim or third party notice, as the case may be, was duly
served on the person under disability, and
(d)subject to paragraph (6), that notice of the application was,
after the expiration of the time limited for acknowledging
service and at least 7 days before the day named in the notice
for hearing of the application, so served on him.
(6) If the Court so directs, notice of an application under paragraph
(1) or (2) need not be served on a person under disability.
(7) An application for the appointment of a guardian ad litem made
in compliance with a direction of the Court given under paragraph (3)
must be supported by evidence proving the matters referred to in
paragraph (5)(b).
Application to discharge or vary certain orders (0. 80, r. 7)
7. An application to the Court on behalf of a person under
disability served with an order made ex parte under Order 15, rule 7, for
the discharge or variation of the order must be made
(a)if a next friend or guardian ad litem is acting for that person in
the cause or matter in which the order is made, within 14 days
after the service of the order on that person;
(b)if there is no next friend or guardian ad litem acting for that
person in that cause or matter, within 14 days after the
appointment of such a friend or guardian to act for him.
Admission not to be implied from pleading of person under disability
(0. 80, r. 8)
8. Notwithstanding anything in Order 18, rule 13(1), a person under
disability shall not be taken to admit the truth of any allegation of fact
made in the pleading of the opposite party by reason only that he has
not traversed it in his pleadings.
Discovery and interrogatories (0. 80, r. 9)
9. Orders 24 and 26 shall apply to a person under disability and to
his next friend or guardian ad litem
Compromise, etc., by person under disability (0. 80, r. 10)
10. Where in any proceedings money is claimed by or on behalf of
a person under disability, no settlement, compromise or payment and no
acceptance of money paid into court, whenever entered into or made,
shall so far as it relates to that person's claim be valid without the
approval of the Court.
Approval of settlement (0. 80, r. 11)
11. (1) Where, before proceedings in which a claim for money is
made by or on behalf of a person under disability (whether alone or in
conjunction with any other person) are begun, an agreement is reached
for the settlement of the claim, and it is desired to obtain the Court's
approval to the settlement, then, notwithstanding anything
in Order 5, rule 2, the claim may be made in proceedings begun by
originating summons, and in the summons an application may also
be made for-
(a)the approval of the Court to the settlement and such orders
or directions as may be necessary to give effect to it or as
may be necessary or expedient under rule 12, or
(b)alternatively, directions as to the further prosecution of the
claim.
(2) Where in proceedings under this rule a claim is made under
the Fatal Accidents Ordinance, the originating summons must
include the particulars mentioned in section 5(4) of the Fatal
Accidents Ordinance.
(4) An originating summons under this rule shall be in Form
No. 10 in Appendix A.
(5) In this rule 'settlement' includes a compromise.
Control of money recovered by person under disability (0. 80, r. 12)
12. (1) Where in any proceedings-
(a)money is recovered by or on behalf of, or adjudged or
ordered or agreed to be paid to, or for the benefit of, a
person under disability, or
(b)money paid into court is accepted by or on behalf of a
plaintiff who is a person under disability,
the money shall be dealt with in accordance with directions given by
the Court, under this rule and not otherwise.
(2) Directions given under this rule may provide that the
money shall, as to the whole or any part thereof, be paid into the
Court and invested or otherwise dealt with there.
(3) Without prejudice to the foregoing provisions of this rule,
directions given under this rule may include any general or special
directions that the Court thinks fit to give and, in particular,
directions as to how the money is to be applied or dealt with and as
to any payment to be made, either directly or out of the amount paid
into court and whether before or after the money is transferred to or
paid into a District Court, to the plaintiff, or to the next friend in
respect of moneys paid or expenses incurred for or on behalf or for
the benefit of the person under disability or for his maintenance or
otherwise for his benefit or to the plaintiff's solicitor in respect of
costs.
(4) Where in pursuance of directions given under this rule
money is paid into the High Court to be invested or otherwise dealt
with there, the money (including any interest thereon) shall not be
paid out, nor shall any securities in which the money is invested, or
the dividends thereon, be sold, transferred or paid out of court,
except in accordance with an order of the Court.
(5) The foregoing provisions of this rule shall apply in relation to a
counterclaim by or on behalf of a person under disability, (and a claim
made by or on behalf of such a person in an action by any other person
for relief under section 504 of the Merchant Shipping Act, 1894), as if for
references to a plaintiff and a next friend there were substituted
references to a defendant and to a guardian ad litem respectively.
Provisions supplementary to rule 12 (0. 80, r. 13)
(HK)13. (3) Where money is ordered to be transferred to or paid into a
District Court, the Registrar shall send a sealed copy of the judgment or
order to the Registrar of the District Court.
Proceedings under Fatal Accidents Ordinance: apportionment by
Court (0. 80, r. 15)
15. (1) Where a single sum of money is paid into court under Order
22, rule 1, in satisfaction of causes of action arising under the Fatal
Accidents Ordinance and sections 20 to 25 of the Law Amendment and
Reform (Consolidation) Ordinance, and that sum is accepted, the money
shall be apportioned between the different causes of action by the Court
either when giving directions for dealing with it under rule 12 (if that rule
applies) or when authorizing its payment out of court.
(2) Where, in an action in which a claim under the Fatal Accidents
Ordinance is made by or on behalf of more than one person, a sum in
respect of damages is adjudged or ordered or agreed to be paid in
satisfaction of the claim, or a sum of money paid into court under Order
22, rule 1, is accepted in satisfaction of the cause of action under the
said Ordinance, then, unless the sum has been apportioned between the
persons entitled thereto by a jury, it shall be apportioned between those
persons by the Court.
The reference in this paragraph to a sum of money paid into court
shall be construed as including a reference to part of a sum so paid,
being the part apportioned by the Court under paragraph (1) to the
cause of action under the said Ordinances.
Service of certain documents on person under disability (0. 80, r. 16)
16. (1) Where in any proceedings a document is required to be
served personally or in accordance with Order 10, rule 1(2) on any
person and that person is a person under disability this rule shall apply.
(2) Subject to the following provisions of this rule and to Order 24,
rule 16(3) and Order 26, rule 6(3) the document must be served
(a)in the case of a minor who is not also a patient, on his father or
guardian or, if he has no father or guardian, on the person with
whom he resides or in whose care he is;
(b)in the case of a patient, on the person (if any) who is
authorized under Part VII of the Act to conduct in the
name of the patient or on his behalf the proceedings in
connection with which the document is to be served or, if
there is no person so authorized, on the person with whom
he resides or in whose care he is;
and must be served in the manner required by these rules with
respect to the document in question.
(3) Notwithstanding anything in paragraph (2), the Court
may order that a document which has been, or is to be, served on the
person under disability or on a person other than a person men-
tioned in that paragraph shall be deemed to be duly served on the
person under disability.
(4) A judgment or order requiring a person to do, or refrain
from doing, any act, a notice of motion or summons for the
committal of any person, and a writ of subpoena against any person,
must. if that person is a person under disability, be served personally
on him unless the Court otherwise orders.
This paragraph shall not apply to an order for interrogatories
or for discovery or inspection of documents.
ORDER 81
PARTNERS
Actions by and against firms within jurisdiction (0. 8 1, r. 1)
1. Subject to the provisions of any written law, any 2 or more
persons claiming to be entitled, or alleged to be liable, as partners in
respect of a cause of action and carrying on business within the
jurisdiction may sue, or be sued, in the name of the firm (if any) of
which they were partners at the time when the cause of action
accrued.
Disclosure of partners' names (0. 8 1, r. 2)
2. (1) Any defendant to an action brought by partners in the
name of a firm may serve on the plaintiffs or their solicitor a notice
requiring them or him forthwith to furnish the defendant with a
written statement of the names and places of residence of all the
persons who were partners in the firm at the time when the cause of
action accrued; and if the notice is not complied with the Court may
order the plaintiffs or their solicitor to furnish the defendant with
such a statement and to verify it on oath or otherwise as may be
specified in the order, or may order that further proceedings in the
action be stayed on such terms as the Court may direct.
(2) When the names of the partners have been declared in
compliance with a notice or order given or made under paragraph
(1), the proceedings shall continue in the name of the firm but with
the same consequences as would have ensued if the persons whose
names have been so declared had been named as plaintiffs in the
writ.
(3) Paragraph (1) shall have effect in relation to an action
brought against partners in the name of a firm as it has effect in
relation to an action brought by partners in the name of a firm but
with the substitution, for references to the defendant and the
plaintiffs, of references to the plaintiff and the defendants respective-
ly, and with the omission of the words 'or may order' to the end.
Service of writ (0. 8 1, r. 3)
3. (1) Where by virtue of rule 1 partners are sued in the
name of a firm, the writ may, except in the case mentioned in
paragraph (3), be served-
(a) on any one or more of the partners, or
(b)at the principal place of business of the partnership within
the jurisdiction, on any person having at the time of service
the control or management of the partnership business
there, or
(c)by sending a copy of the writ by ordinary post (in accord-
ance with Order 10, rule 1(2)) to the firm at the principal
place of business of the partnership within the jurisdiction;
and, subject to paragraph (2), where service of the writ is effected in
accordance with this paragraph, the writ shall be deemed to have
been duly served on the firm, whether or not any member of the firm
is out of the jurisdiction.
(2) Where a writ is served on a firm in accordance with
paragraph (1)(c)--
(a)the date of service shall, unless the contrary is shown, be
deemed to be the seventh day (ignoring Order 3, rule 2(5))
after the date on which the copy was sent to the firm, and
(b)any affidavit proving due service of the writ must contain a
statement to the effect that-
(i) in the opinion of the deponent (or, if the deponent is
the plaintiff's solicitor or an employee of that solicitor, in
the opinion of the plaintiff) the copy of the writ, if sent to
the firm at the address in question, will have come to the
knowledge of one of the persons mentioned in paragraph
(1)(a) or (b) within 7 days thereafter, and
(H) the copy of the writ has not been returned to the
plaintiff through the post undelivered to the addressee.
(3) Where a partnership has, to the knowledge of the plaintiff,
been dissolved before an action against the firm is begun, the writ by
which the action is begun must be served on every person within the
jurisdiction sought to be made liable in the action.
(4) Every person on whom a writ is served under paragraph
(1)(a) or (b) must at the time of service be given a written notice
stating whether he is served as a partner or as a person having the
control or management of the partnership business or both as a
partner and as such a person; and any person on whom a writ is so
served but to whom no such notice is given shall be deemed to be
served as a partner.
Acknowledgment of service in an action against firm (0. 8 1, r. 4)
4. (1) Where persons are sued as partners in the name of
their firm, service may not be acknowledged in the name of the firm
but only by the partners thereof in their own names, but the action
shall nevertheless continue in the name of the firm.
(2) Where in an action against a firm the writ by which the
action is begun is served on a person as a partner, that person, if he
denies that he was a partner or liable as such at any material time,
may acknowledge service of the writ and state in his acknowledg-
ment that he does so as a person served as a partner in the defendant
firm but who denies that he was a partner at any material time.
An acknowledgment of service given in accordance with this
paragraph shall, unless and until it is set aside, be treated as an
acknowledgment by the defendant firm.
(3) Where an acknowledgment of service has been given by a
defendant in accordance with paragraph (2), then-
(a)the plaintiff may either apply to the Court to set it aside on
the ground that the defendant was a partner or liable as
such at a material time or may leave that question to be
determined at a later stage of the proceedings;
(b)the defendant may either apply to the Court to set aside the
service of the writ on him on the ground that he was not a
partner or liable as such at a material time or may at the
proper time serve a defence on the plaintiff denying in
respect of the plaintiff's claim either his liability as a
partner or the liability of the defendant firm or both.
(4) The Court may at any stage of the proceedings in an action
in which a defendant has acknowledged service in accordance with
paragraph (2), on the application of the plaintiff or of that defend-
ant, order that any question as to the liability of that defendant or as
to the liability of the defendant firm be tried in such manner and at
such time as the Court directs.
(5) Where in an action against a firm the writ by which the
action is begun is served on a person as a person having the control
or management of the partnership business, that person may not
acknowledge service of the writ unless he is a member of the firm
sued.
Enforcing judgment or order against firm (0. 8 1, r. 5)
5. (1) Where a judgment is given or order made against a firm,
execution to enforce the judgment or order may, subject to rule 6, issue
against any property of the firm within the jurisdiction.
(2) Where a judgment is given or order made against a firm,
execution to enforce the judgment or order may, subject to rule 6 and to
the next following paragraph, issue against any person who
(a)acknowledged service of the writ in the action as a partner, or
(b)having been served as a partner with the writ of summons,
failed to acknowledge service of it in the action, or
(c) admitted in his pleading that he is a partner, or
(d) was adjudged to be a partner.
(3) Execution to enforce a judgment or order given or made against
a firm may not issue against a member of the firm who was out of the
jurisdiction when the writ of summons was issued unless he
(a)acknowledged service of the writ in the action as a partner, or
(b)was served within the jurisdiction with the writ as a partner, or
(c)was, with the leave of the Court given under Order 11, served
out of the jurisdiction with the writ as a partner;
and, except as provided by paragraph (1) and by the foregoing
provisions of this paragraph, a judgment or order given or made against
a firm shall not render liable, release or otherwise affect a member of the
firm who was out of the jurisdiction when the writ was issued.
(4) Where a party who has obtained a judgment or order against a
firm claims that a person is liable to satisfy the judgment or order as
being a member of the firm, and the foregoing provisions of this rule do
not apply in relation to that person, that party may apply to the Court
for leave to issue execution against that person, the application to be
made by summons which must be served personally on that person.
(5) Where the person against whom an application under
paragraph (4) is made does not dispute his liability, the Court hearing
the application may, subject to paragraph (3), give leave to issue
execution against that person, and, where that person disputes his
liability, the Court may order that the liability of that person be tried and
determined in any manner in which any issue or question in an action
may be tried and determined.
Enforcing judgment or order in actions between partners, etc. (0. 8 1,
r. 6)
6. (1) Execution to enforce a judgment or order given or
made in-
(a)an action by or against a firm in the name of the firm
against or by a member of the firm, or
(b)an action by a firm in the name of the firm against a firm in
the name of the firm where those firms have one or more
members in common,
shall not issue except with the leave of the Court.
(2) The Court hearing an application under this rule may give
such directions, including directions as to the taking of accounts and
the making of inquiries, as may be just.
Attachment of debts owed by firm (0. 8 1, r. 7)
7. (1) An order may be made under Order 49, rule 1, in
relation to debts due or accruing due from a firm carrying on
business within the jurisdiction notwithstanding that one or more
members of the firm is resident out of the jurisdiction.
(2) An order to show cause under the said rule 1 relating to
such debts as aforesaid must be served on a member of the firm
within the jurisdiction or on some other person having the control or
management of the partnership business.
(3) Where an order made under the said rule 1 requires a firm
to appear before the Court, an appearance by a member of the firm
constitutes a sufficient compliance with the order.
Actions begun by originating summons (0. 8 1, r. 8)
8. Rules 2 to 7 shall, with the necessary modifications, apply
in relation to an action by or against partners in the name of their
firm begun by originating summons as they apply in relation to such
an action begun by writ.
Application to person carrying on business in another name (0. 81,
9)
9. An individual carrying on business within the jurisdiction
in a name or style other than his own name, may, whether or not he
is within the jurisdiction, be sued in that name or style as if it were
the name of a firm, and rules 2 to 8 shall, so far as applicable, apply
as if he were a partner and the name in which he carries on business
were the name of his firm.
Applications for orders charging partner's interest in partnership
property, etc. (0. 8 1, r. 10)
10. (1) Every application to the Court by a judgment creditor
of a partner for an order under section 25 of the Partnership
Ordinance (which authorizes the High Court or a judge thereof to make
certain orders on the application of a judgment creditor of a partner,
including an order charging the partner's interest in the partnership
property), and every application to the Court by a partner of the
judgment debtor made in consequence of the firstmentioned
application, must be made by summons.
(2) A master may exercise the powers conferred on a judge by the
said section 25.
(3) Every summons issued by a judgment creditor under this rule,
and every order made on such a summons, must be served on the
judgment debtor and on such of his partners as are within the
jurisdiction.
(4) Every summons issued by a partner of a judgment debtor under
this rule, and every order made on such a summons, must be served
(a) on the judgment creditor, and
(b) on the judgment debtor, and
(c)on such of the other partners of the judgment debtor as do
not join in the application and are within the jurisdiction.
(5) A summons or order served in accordance with this rule on
some only of the partners shall be deemed to have been served on all
the partners of the partnership.
ORDER 82
DEFAMATION ACTIONS
Application (0. 82, r. 1)
1. These rules apply to actions for libel or slander subject to the
following rules of this Order.
Indorsement of claim in libel action (0. 82, r. 2)
2. Before a writ in an action for libel is issued it must be indorsed
with a statement giving sufficient particulars of the publications in
respect of which the action is brought to enable them to be identified.
Obligation to give particulars (0. 82, r. 3)
3. (1) Where in an action for libel or slander the plaintiff alleges that
the words or matters complained of were used in a defamatory sense
other than their ordinary meaning, he must give particulars of the facts
and matters on which he relies in support of such sense.
(2) Where in an action for libel or slander the defendant alleges
that, in so far as the words complained of consist of
statements of fact, they are true in substance and in fact, and in so far as
they consist of expressions of opinion, they are fair comment on a
matter of public interest, or pleads to the like effect, he must give
particulars stating which of the words complained of he alleges are
statements of fact and of the facts and matters he relies on in support of
the allegation that the words are true.
(3) Where in an action for libel or slander the plaintiff alleges that
the defendant maliciously published the words or matters complained
of, he need not in his statement of claim give particulars of the facts on
which he relies in support of the allegation of malice, but if the
defendant pleads that any of those words or matters are fair comment on
a matter of public interest or were published on a privileged occasion
and the plaintiff intends to allege that the defendant was actuated by
express malice, he must serve a reply giving particulars of the facts and
matters from which the malice is to be inferred.
(4) This rule shall apply in relation to a counterclaim for libel or
slander as if the party making the counterclaim were the plaintiff and the
party against whom it is made the defendant.
Provisions as to payment into court (0. 82, r. 4)
4. (1) Where in an action for libel or slander against several
defendants sued jointly the plaintiff, in accordance with Order 22, rule
3(1), accepts money paid into court by any of those defendants in
satisfaction of his cause of action against that defendant, then,
notwithstanding anything in rule 3(4) of that Order, the action shall be
stayed as against that defendant only, but
(a)the sum recoverable under any judgment given in the
plaintiffs favour against any other defendant in the action by
way of damages shall not exceed the amount (if any) by which
the amount of the damages exceeds the amount paid into
court by the defendant as against whom the action has been
stayed, and
(b)the plaintiff shall not be entitled to his costs of the action
against the other defendant after the date of the payment into
court unless either the amount of the damages awarded to him
is greater than the amount paid into court and accepted by
him or the judge is of opinion that there was reasonable
ground for him to proceed with the action against the other
defendant.
(2) Where in an action for libel a party pleads the defence for which
section 4 of the Defamation Ordinance provides, Order 22, rule 7, shall
not apply in relation to that pleading.
Statement in open court (0. 82, r. 5)
5. (1) Where a party accepts money paid into court in satisfaction
of a cause of action for libel or slander, the plaintiff or
defendant, as the case may be, may apply to ajudge in chambers by
summons for leave to make in open court a statement in terms approved
by the judge.
(2) Where a party to an action for libel or slander which is settled
before trial desires to make a statement in open court, an application
must be made to the Court for an order that the action be set down for
trial, and before the date fixed for the trial the statement must be
submitted for the approval of the judge before whom it is to be made.
Interrogatories not allowed in certain cases (0. 82, r. 6)
6. In an action for libel or slander where the defendant pleads that
the words or matters complained of are fair comment on a matter of
public interest or were published on a privileged occasion, no
interrogatories as to the defendant's sources of information or grounds
of belief shall be allowed.
Evidence in mitigation of damages (0. 82, r. 7)
7. In an action for libel or slander in which the defendant does not
by his defence assert the truth of the statement complained of, the
defendant shall not be entitled on the trial to give evidence in chief, with
a view to mitigation of damages, as to the circumstances under which
the libel or slander was published, or as to the character of the plaintiff,
without the leave of the judge, unless 7 days at least before the trial he
furnishes particulars to the plaintiff of the matters as to which he
intends to give evidence.
Fulfilment of offer of amends under section 25 of the Defamation
Ordinance (0. 82, r. 8)
8. (1) An application to the Court under section 25 of the
Defamation Ordinance to determine any question as to the steps to be
taken in fulfilment of an offer of amends made under that section must,
unless the application is made in the course of proceedings for libel or
slander in respect of the publication to which the offer relates, be made
before a judge in chambers.
(2) An originating summons by which such an application is made
shall be in Form No. 10 in Appendix A.
(HK) ORDER 83A
MONEY LENDER'S ACTIONS
Application and interpretation (0. 83A, r. 1)
1. (1) These rules apply to a money lender's action subject to the
following rules of this Order.
(2) In these rules
'money lender' has the meaning assigned to it by section 2 of the
Money Lenders Ordinance;
'money lender's action' means an action for the recovery of money
lent by a money lender or for the enforcement of any agreement
or security relating to money so lent, being an action brought
by the lender or an assignee.
Commencement of money lender's action (0. 83A, r. 2)
2. (1) Every money lender's action shall be begun by writ.
(2) Before a writ beginning a money lender's action is issued it
must be indorsed with a statement that at the time of the making of
the loan or contract or the giving of the security in question the
lender was licensed as a money lender.
Particulars to he included in statement of claim (0. 83A, r. 3)
3. Every statement of claim in a money lender's action
(whether indorsed on the writ or not) must state-
(a) the date on which the loan was made;
(b) the amount actually lent to the borrower;
(c) the rate per cent per annum of interest charged;
(d) the date when the contract for repayment was made;
(g) the amount repaid;
(h) the amount due but unpaid;
(i)the date upon which such unpaid sum or sums became due;
and
(j)the amount of interest accrued due and unpaid on every
such sum.
Judgment on failure to give notice of intention to defend or in default
of defence (0. 83A, r. 4)
4. (1) In a moneylender's action judgment on failure to give
notice of intention to defend or in default of defence shall not be
entered except with the leave of the Court.
(2)(a) An application for the grant of leave under this rule
must be made by summons supported by an affidavit
which must-
(i) prove that the money is due and payable;
(ii) give the particulars required by rules 2 and 3; and
(iii) exhibit a true copy of any agreement or security
relating to the money lent,
and the original agreement or security must be produced at
the hearing of the summons.
(b)The summons and a copy of the affidavit in support and of
any exhibits referred to therein must, notwithstanding
anything in Order 65, rule 9 be served on the defendant not
less than 4 clear days before the day fixed for the hearing of
the summons.
(3) If the application is for leave to enter judgment on failure to give
notice of intention to defend, the summons shall not be issued until
after the time limited for acknowledgment of service of the writ.
(4) On the hearing of such application, whether the defendant
appears or not, the Court
(a)may exercise the powers of the court under section 25 of the
Money Lenders Ordinance;
(b)where it refuses leave under this rule to enter judgment on a
claim or any part of a claim, may make or give any such order
or directions as it might have made or given had the
application been an application under Order 14, rule 1, for
judgment on the claim.
Particulars to he included in originating summons (0. 83A, r. 5)
5. Where a money lender's action is begun by originating
summons, the summons must contain a statement of the matters
specified in rules 2 and 3.
(HK) ORDER 84A
ACTIONS ARISING OUT OF HIRE-
PURCHASE OR
CONDITIONAL SALE AGREEMENTS
Application and interpretation (0. 84A, r. 1)
1. (1) These rules apply to actions to which this Order applies
subject to the following Order.
(2) This Order applies to any action arising out of a hirepurchase
agreement or a conditional sale agreement brought against the hirer or
buyer of the goods to which the agreement relates or a guarantor, if the
writ beginning the action is indorsed with a claim for money, not being
(a) a claim for unliquidated damages, or
(b)a claim for no more than the amount of any instalment or
instalments of the hire-purchase price or total purchase price,
as the case may be, which is due and unpaid.
(3) (a) In this Order-
'hire-purchase agreement' means an agreement for the
bailment of goods under which the bailee may buy the
goods, or under which the property in the goods will or
may pass to the bailee;
'conditional sale agreement' means an agreement for the sale
of goods under which the purchase price or part of it is
payable by instalments, and the property in the goods is
to remain in the seller (notwithstanding that
the buyer is to be in possession of the goods) until such
conditions as to the payment of instalments or otherwise
as may be specified in the agreement are fulfilled;
'contract of guarantee', in relation to a hire-purchase
agreement, credit-sale agreement or conditional sale
agreement, means a contract, made at the request
(express or implied) of the hirer or buyer, either to
guarantee the performance of the hirer's or buyer's
obligations under the hire-purchase agreement,
creditsale agreement or conditional sale agreement, or to
indemnify the owner or seller against any loss which he
may incur in respect of that agreement, and 'guarantee'
shall be considered accordingly;
'buyer' in relation to a conditional sale agreement, means the
person who agrees to purchase goods under the
agreement and includes a person to whom the rights or
liabilities of that person under the agreement have
passed by assignment or by operation of law;
'hire-purchase price' (subject to sub-paragraph (b)) means
the total sum payable by the hirer under a hirepurchase
agreement in order to complete the purchase of goods to
which the agreement relates, exclusive of any sum
payable as a penalty or as compensation or damages for a
breach of the agreement;
'total purchase price' (subject to sub-paragraph (b)) means
the total sum payable by the buyer under a credit-sale
agreement or a conditional sale agreement, exclusive of
any sum payable as a penalty or as compensation or
damages for a breach of the agreement;
'hirer' means the person who takes or has taken goods from
an owner under a hire-purchase agreement and includes
a person to whom the hirer's rights or liabilities under the
agreement have passed by assignment or by operation
of law; and
'goods', 'buyer' (except in relation to a conditional sale
agreement) have the meanings assigned to them
respectively by the Sale of Goods Ordinance.
(b)For the purposes of this Order, any sum payable by the hirer
under a hire-purchase agreement, or by the buyer under a
conditional sale agreement, by way of a deposit or other initial
payment, or credited or to be credited to him under the
agreement on account of any such deposit or payment,
whether that sum is to be or has been paid to the owner or
seller or to any other person or is to be or has been
discharged by a payment of money or by the transfer
or delivery of goods or by any other means, shall form part of
the hire-purchase price or total purchase price, as the case
may be.
Particulars to he included in statement of claim (0. 84A, r. 2)
2. Every statement of claim in an action to which this Order applies
(whether indorsed on the writ or not) must state the circumstances in
which the claim mentioned in rule 1(2) arises.
Judgment on failure to give notice of intention to defend or in default of
defence (0. 84A, r. 3)
3. (1) In an action to which this Order applies judgment on failure to
give notice of intention to defend or in default of defence shall not be
entered except with the leave of the Court.
(2)(a) An application for the grant of leave under this rule must
be made by summons supported by an affidavit which must
(i) give the particulars required by rule 2; and
(ii) exhibit a true copy of the hire-purchase or conditional
sale agreement, the original of which must be produced at the
hearing of the summons.
(b)The summons and a copy of the affidavit in support and of
any exhibits referred to therein must, notwithstanding
anything in Order 65, rule 9, be served on the defendant not
less than 4 clear days before the day fixed for the hearing of
the summons.
(3) If the application is for leave to enter judgment on failure to give
notice of intention to defend, the summons shall not be issued until
after the time limited for acknowledgment of service of the writ.
(4) The plaintiff must produce to the Court hearing an application
for the grant of leave under this rule the hire-purchase or conditional
sale agreement to which the action relates.
(5) Unless the Court hearing such application grants leave to enter
judgment for the amount claimed or, having power to do so, transfers
the action to a District Court, it shall (whether or not the defendant
appears on the hearing) try the action.
ORDER 85
ADMINISTRATION AND SIMILAR
ACTIONS
Interpretation (0. 85, r. 1)
1. In this Order 'administration action' means an action for the
administration under the direction of the Court of the estate of a
deceased person or for the execution under the direction of the Court of
a trust.
Determination of questions, etc., without administration (0. 85, r. 2)
2. (1) An action may be brought for the determination of any
question or for any relief which could be determined or granted, as the
case may be, in an administration action and a claim need not be made in
the action for the administration or execution under the direction of the
Court of the estate or trust in connection with which the question arises
or the relief is sought.
(2) Without prejudice to the generality of paragraph (1), an action
may be brought for the determination of any of the following questions
(a)any question arising in the administration of the estate of a
deceased person or in the execution of a trust;
(b)any question as to the composition of any class of persons
having a claim against the estate of a deceased person or a
beneficial interest in the estate of such a person or in any
property subject to a trust;
(c)any question as to the rights or interests of a person claiming
to be a creditor of the estate of a deceased person or to be
entitled under a will or on the intestacy of a deceased person
or to be beneficially entitled under a trust.
(3) Without prejudice to the generality of paragraph (1), an action
may be brought for any of the following reliefs
(a)an order requiring an executor, administrator or trustee to
furnish and, if necessary, verify accounts;
(b)an order requiring the payment into court of money held by a
person in his capacity as executor, administrator or trustee;
(c)an order directing a person to do or abstain from doing a
particular act in his capacity as executor, administrator or
trustee;
(d)an order approving any sale, purchase, compromise or other
transaction by a person in his capacity as executor,
administrator or trustee;
(e)an order directing any act to be done in the administration of
the estate of a deceased person or in the execution of a trust
which the Court could order to be done if the estate or trust
were being administered or executed, as the case may be,
under the direction of the Court.
Parties (0. 85, r. 3)
3. (1) All the executors or administrators of the estate or trustees of
the trust, as the case may be, to which an administration action or such
an action as is referred to in rule 2 relates must be parties to the action,
and where the action is brought by executors, administrators or
trustees, any of them who does not consent to being joined as a
plaintiff must be made a defendant.
(2) Notwithstanding anything in Order 15, rule 4(2), and
without prejudice to the powers of the Court under that Order, all
the persons having a beneficial interest in or claim against the estate
or having a beneficial interest under the trust, as the case may be, to
which such an action as is mentioned in paragraph (1) relates need
not be parties to the action; but the plaintiff may make such of those
persons, whether all or any one or more of them, parties as, having
regard to the nature of the relief or remedy claimed in the action, he
thinks fit.
(3) Where, in proceedings under a judgment or order given or
made in an action for the administration under the direction of the
Court of the estate of a deceased person, a claim in respect of a debt
or other liability is made against the estate by a person not a party to
the action, no party other than the executors or administrators of
the estate shall be entitled to appear in any proceedings relating to
that claim without the leave of the Court, and the Court may direct
or allow any other party to appear either in addition to, or in
substitution for, the executors or administrators on such terms as to
costs or otherwise as it thinks fit.
Grant of relief in action begun by originating summons (0. 85, r. 4)
4. In an administration action or such an action as is referred
to in rule 2, the Court may make any certificate or order and grant
any relief to which the plaintiff may be entitled by reason of any
breach of trust, wilful default or other misconduct of the defendant
notwithstanding that the action was begun by originating summons,
but the foregoing provision is without prejudice to the power of the
Court to make an order under Order 28, rule 8, in relation to the
action.
Judgments and orders in administration actions (0. 85, r. 5)
5. (1) A judgment or order for the administration or execu-
tion under the direction of the Court of an estate or trust need not be
given or made unless in the opinion of the Court the questions at
issue between the parties cannot properly be determined otherwise
than under such a judgment or order.
(2) Where an administration action is brought by a creditor of
the estate of a deceased person or by a person claiming to be entitled
under a will or on the intestacy of a deceased person or to be
beneficially entitled under a trust, and the plaintiff alleges that no or
insufficient accounts have been furnished by the executors, adminis-
trators or trustees, as the case may be, then, without prejudice to its
other powers, the Court may-
(a)order that proceedings in the action be stayed for a period
specified in the order and that the executors, administra-
tors or trustees, as the case may be, shall within that period
furnish the plaintiff with proper accounts;
(b)if necessary to prevent proceedings by other creditors or by
other persons claiming to be entitled as aforesaid, give
judgment or make an order for the administration of the
estate to which the action relates and include therein an
order that no proceedings are to be taken under the
judgment or order, or under any particular account or
inquiry directed, without the leave of the judge in person.
Conduct of sale of trust property (0. 85, r. 6)
6. Where in an administration action an order is made for the
sale of any property vested in executors, administrators or trustees,
those executors, administrators or trustees, as the case may be, shall
have the conduct of the sale unless the Court otherwise directs.
ORDER 86
ACTIONS FOR SPECIFIC PERFORMANCE, ETC.: SUMMARY JUDGMENT
Application by plaintiff for summary judgment (0. 86, r. 1)
1. (1) In any action begun by writ indorsed with a claim-
(a)for specific performance of an agreement (whether in
writing or not) for the sale, purchase, exchange, mortgage
or charge of any property, or for the grant or assignment
of a lease of any property, with or without an alternative
claim for damages, or
(b) for rescission of such an agreement, or
(e)for the forfeiture or return of any deposit made under such
an agreement,
the plaintiff may, on the ground that the defendant has no defence to
the action, apply to the Court for judgment.
(2) An application may be made against a defendant under
this rule whether or not he has acknowledged service of the writ.
Manner in which application under rule 1 must he made (0. 86, r. 2)
2. (1) An application under rule 1 shall be made by sum-
mons supported by an affidavit verifying the facts on which the
cause of action is based and stating that in the deponent's belief
there is no defence to the action.
Unless the Court otherwise directs, an affidavit for the purposes
of this paragraph may contain statements of information or belief
with the sources and grounds thereof.
(2) The summons must set out or have attached thereto
minutes of the judgment sought by the plaintiff.
(3) The summons, a copy of the affidavit in support and of any
exhibit referred to therein must be served on the defendant not less
than 4 clear days before the return day.
Judgment for plaintiff (0. 86, r. 3)
3. (1) Unless on the hearing of an application under rule 1
either the Court dismisses the application or the defendant satisfies
the Court that there is an issue or question in dispute which ought to
be tried or that there ought for some other reason to be a trial of the
action, the Court may give judgment for the plaintiff in the action.
(2) The Court may by order, and subject to such conditions, if
any, as may be just, stay execution of any judgment given against the
defendant under this rule until after the trial of any counterclaim
made or raised by the defendant in the action. (L.N. 356188)
Leave to defend (0. 86, r. 4)
4. (1) A defendant may show cause against an application
under rule 1 by affidavit or otherwise to the satisfaction of the Court.
(2) The Court may give a defendant against whom such an
application is made leave to defend the action either unconditionally
or on such terms as to giving security or time or mode of trial or
otherwise as it thinks fit.
(3) On the hearing of such an application the Court may order
a defendant showing cause or, where that defendant is a body
corporate, any director, manager, secretary or other similar officer
thereof, or any person purporting to act in any such capacity---
(a) to produce any document;
(b)if it appears to the Court that there are special circum-
stances which make it desirable that he should do so, to
attend and be examined on oath.
Directions (0. 86, r. 5)
5. Where the Court orders that a defendant have leave to
defend the action, the Court shall give directions as to the further
conduct of the action, and Order 25, rules 2 to 7, shall, with the
omission of so much of rule 7(1) as requires parties to serve a notice
specifying the orders and directions which they require and with any
other necessary modifications, apply as if the application under rule
1 were a summons for directions.
Costs (0. 86, r. 6)
6. If the plaintiff makes an application under rule 1 where the
case is not within this Order, or if it appears to the Court that the
plaintiff knew that the defendant relied on a contention which would
entitle him to unconditional leave to defend, then, without prejudice
to Order 62, and, in particular, to rule 4(1) thereof, the Court may
dismiss the application with costs and may, if the plaintiff is not an
aided person, require the costs to be paid by him forthwith.
Setting aside judgment (0. 86, r. 7)
7. Any judgment given against a defendant who does not
appear at the hearing of an application under rule 1 may be set aside
or varied by the Court on such terms as it thinks just.
(HK) Application for summary judgment on counterclaim (0. 86, r. 8)
8. (1) Where a defendant to an action begun by writ has served a
counterclaim claiming against the plaintiff such relief as appears in rule
1(1) the defendant may, on the ground that the plaintiff has no defence
to a claim made in the counterclaim or to a particular part of such a claim,
apply to the court for judgment against the plaintiff on that claim or that
part.
(2) Rules 2, 3, 4, 5, 6 and 7 shall apply in relation to an application
under this rule as they apply in relation to an application under rule 1
but with the following modifications
(a)references to the plaintiff and defendant shall be construed as
references to the defendant and plaintiff respectively;
(b)the words in rule 3(2) 'any counterclaim made or raised by the
defendant in' shall be omitted;
(c)the reference in rule 4(2) to the action shall be construed as a
reference to the counterclaim to which the application under
this rule relates.
(L.N. 356188)
(HK) Right to proceed with residue of action or counterclaim
(0. 86, r. 9)
9. (1) Where on an application under rule 1 the plaintiff obtains
judgment on a claim or a part of a claim against any defendant, he may
proceed with the action as respects any other claim or as respects the
remainder of the claim or against any other defendant.
(2) Where on an application under rule 8 a defendant obtains
judgment on a claim or part of a claim made in a counterclaim against the
plaintiff, he may proceed with the counterclaim as respects any other
claim or against any other defendant to the counterclaim.
(L.N. 356188)
ORDER 87
DEBENTURE HOLDER'S ACTIONS: RECEIVERS REGISTER
Receiver's register (0. 87, r. 1)
1. Every receiver appointed by the Court in an action to enforce
registered debentures or registered debenture stock shall, if so directed
by the Court, keep a register of transfers of, and other transmissions of
title to, such debentures or stock (in this Order referred to as 'the
receiver's register').
Registration of transfers, etc. (0. 87, r. 2)
2. (1) Where a receiver is required by rule 1 to keep a receiver's
register, then, on the application of any person entitled to
any debentures or debenture stock by virtue of any transfer or other
transmission of title, and on production of such evidence of identity
and title as the receiver may reasonably require, the receiver shall,
subject to the following provisions of this rule, register the transfer
or other transmissions of title in that register.
(2) Before registering a transfer the receiver must, unless the
due execution of the transfer is proved by affidavit, send by post to
the registered holder of the debentures or debenture stock trans-
ferred at his registered address a notice stating---
(a)that an application for the registration of the transfer has
been made, and
(b)that the transfer will be registered unless within the period
specified in the notice the holder informs the receiver that
he objects to the registration,
and no transfer shall be registered until the period so specified has
elapsed.
The period to be specified in the notice shall in no case be less
than 7 days after a reply from the registered holder would in the
ordinary course of post reach the receiver if the holder had replied to
the notice on the day following the day when in the ordinary course
of post the notice would have been delivered at the place to which it
was addressed.
(3) On registering a transfer or other transmission of title
under this rule the receiver must indorse a memorandum thereof on
the debenture or certificate of debenture stock, as the case may be,
transferred or transmitted, containing a reference to the action and
to the order appointing him receiver.
Application for rectification of receiver's register (0. 87, r. 3)
3. (1) Any person aggrieved by any thing done or omission
made by a receiver under rule 2 may apply to the Court for
rectification of the receiver's register, the application to be made by
summons in the action in which the receiver was appointed.
(2) The summons shall in the first instance be served only on
the plaintiff or other party having the conduct of the action but the
Court may direct the summons or notice of the application to be
served on any other person appearing to be interested.
(3) The Court hearing an application under this rule may
decide any question relating to the title of any person who is party to
the application to have his name entered in or omitted from the
receiver's register and generally may decide any question necessary
or expedient to be decided for the rectification of that register.
Receiver's register evidence of transfers, etc. (0. 87, r. 4)
4. Any entry made in the receiver's register, if verified by an
affidavit made by the receiver or by such other person as the Court
may direct, shall in all proceedings in the action in which the receiver
was appointed be evidence of the transfer or transmission of title to
which the entry relates and, in particular, shall be accepted as
evidence thereof for the purpose of any distribution of assets,
notwithstanding that the transfer or transmission has taken place
after the making of a certificate in the action certifying the holders of
the debentures or debenture stock certificates.
Proof of title of holder of bearer debenture, etc. (0. 87, r. 5)
5. (1) This rule applies in relation to an action to enforce
bearer debentures or to enforce debenture stock in respect of which
the company has issued debenture stock bearer certificates.
(2) Notwithstanding that judgment has been given in the
action and that a certificate has been made therein certifying the
holders of such debentures or certificates as are referred to in
paragraph (1), the title of any person claiming to be such a holder
shall (in the absence of notice of any defect in the title) be sufficiently
proved by the production of the debenture or debenture stock
certificate, as the case may be, together with a certificate of identifi-
cation signed by the person producing the debenture or certificate
identifying the debenture or certificate produced and certifying the
person (giving his name and address) who is the holder thereof.
(3) Where such a debenture or certificate as is referred to in
paragraph (1) is produced in the Registry, the solicitor of the
plaintiff in the action must cause to be indorsed thereon a notice
stating-
(a)that the person whose name and address is specified in the
notice (being the person named as the holder of the
debenture or certificate in the certificate of identification
produced under paragraph (2)) has been recorded in the
Registry as the holder of the debenture or debenture stock
certificate, as the case may be, and
(b)that that person will, on producing the debenture or
debenture stock certificate, as the case may be, be entitled
to receive payment of any dividend in respect of that
debenture or stock unless before payment a new holder
proves his title in accordance with paragraph (2), and
(c)that if a new holder neglects to prove his title as aforesaid
he may incur additional delay, trouble and expense in
obtaining payment.
(4) The solicitor of the plaintiff in the action must preserve any
certificates of identification produced under paragraph (2) and must
keep a record of the debentures and debenture stock certificates so
produced and of the names and addresses of the persons producing
them and of the holders thereof, and, if the Court requires it, must
verify the record by affidavit.
Requirements in connection with payments (0. 87, r. 6)
6. (1) Where in an action to enforce any debentures or
debenture stock an order is made for payment in respect of the
debentures or stock, the Registrar shall not make a payment in respect
of any such debenture or stock unless either there is produced to him
the certificate for which paragraph (2) provides or the Court has in the
case in question for special reason dispensed with the need for the
certificate and directed payment to be made without it.
(2) For the purpose of obtaining any such payment the debenture
or debenture stock certificate must be produced to the solicitor of the
plaintiff in the action or to such other person as the Court may direct,
and that solicitor or other person must indorse thereon a memorandum
of payment and must make and sign a certificate certifying that the
statement set out in the certificate has been indorsed on the debenture
or debenture stock certificate, as the case may be, and send the
certificate to the Registrar.
ORDER 88
MORTGAGE ACTIONS
Application and interpretation (0. 88, r. 1)
1. (1) This Order applies to any action (whether begun by writ or
originating summons) by a mortgagee or mortgagor or by any person
having the right to foreclose or redeem any mortgage, being an action
(other than an action to which rule 5A applies) in which there is a claim
for any of the following reliefs, namely
(a) payment of moneys secured by the mortgage,
(b) sale of the mortgaged property,
(c) foreclosure,
(d)delivery of possession (whether before or after foreclosure or
without foreclosure) to the mortgagee by the mortgagor or by
any other person who is or is alleged to be in possession of
the property,
(e) redemption,
reconveyance of the property or its release from the security,
(g) delivery of possession by the mortgagee.
(2) In this Order 'mortgage' includes a legal and an equitable
mortgage and a legal and an equitable charge, and references to a
mortgagor, a mortgagee and mortgaged property shall be construed
accordingly.
(3) An action to which this Order applies is referred to in this Order
as a mortgage action.
(4) These rules apply to mortgage actions subject to the following
provisions of this Order.
Claim for possession: failure by a defendant to acknowledge service
(0. 88, r. 4)
4. (1) Where in a mortgage action begun by originating
summons, being an action in which the plaintiff is the mortgagee and
claims delivery of possession or payment of moneys secured by the
mortgage or both, any defendant fails to acknowledge service of the
originating summons, the following provisions of this rule shall
apply, and references in those provisions to the defendant shall be
construed as references to any such defendant.
This rule shall not be taken as affecting Order 28, rule 3, or rule
5(2), in so far as it requires any document to be served on, or notice
given to, a defendant who has acknowledged service of the originat-
ing summons in the action.
(2) Not less than 4 clear days before the day fixed for the first
hearing of the originating summons the plaintiff must serve on the
defendant a notice of appointment for the hearing and a copy of the
affidavit in support of the summons.
(3) Where the plaintiff claims delivery of possession there must
be indorsed on the outside fold of the copy of the affidavit served on
the defendant a notice informing the defendant that the plaintiff
intends at the hearing to apply for an order to the defendant to
deliver up to the plaintiff possession of the mortgaged property and
for such other relief (if any) claimed by the originating summons as
the plaintiff intends to apply for at the hearing.
(4) Where the hearing is adjourned, then, subject to any
directions given by the Court, the plaintiff must serve notice of the
appointment for the adjourned hearing, together with a copy of any
further affidavit intended to be used at that hearing, on the defend-
ant not less than 2 clear days before the day fixed for the hearing.
A copy of any affidavit served under this paragraph must be
indorsed in accordance with paragraph (3).
(5) Service under paragraph (2) or (4), and the manner in
which it was effected, may be proved by a certificate signed by the
plaintiff, if he sues in person, and otherwise by his solicitor.
The certificate may be indorsed on the affidavit in support of
the summons or, as the case may be, on any further affidavit
intended to be used at an adjourned hearing.
(6) A copy of any exhibit to an affidavit need not accompany
the copy of the affidavit served under paragraph (2) or (4).
(7) Where the plaintiff gives notice to the defendant under
Order 3, rule 6, of his intention to proceed, service of the notice, and
the manner in which it was effected, may be proved by a certificate
signed as mentioned in paragraph (5).
Action for possession or payment: evidence (0. 88, r. 5)
5. (1) The affidavit in support of the originating summons
by which an action to which this rule applies is begun must comply
with the following provisions of this rule.
This rule applies to a mortgage action begun by originating
summons in which the plaintiff is the mortgagee and claims delivery
of possession or payment of moneys secured by the mortgage or
both.
(2) The affidavit must exhibit a true copy of the mortgage and
the original mortgage must be produced at the hearing of the
summons.
(3) Where the plaintiff claims delivery of possession the
affidavit must show the circumstances under which the right to
possession arises and except where the Court in any case or class
of case otherwise directs, the state of the account between the
mortgagor and mortgagee with particulars of-
(a) the amount of the advance,
(b) the amount of the periodic payments required to be made,
(c)the amount of any interest or instalments in arrear at the
date of the originating summons and at the date of the
affidavit, and
(d) the amount remaining due under the mortgage.
(4) Where the plaintiff claims delivery of possession, the
affidavit must give particulars of every person who to the best of the
plaintiff's knowledge is in possession of the mortgaged property.
(5) If the mortgage creates a tenancy other than a tenancy at
will between the mortgagor and mortgagee, the affidavit must show
how and when the tenancy was determined and if by service of notice
when the notice was duly served.
(6) Where the plaintiff claims payment of moneys secured by
the mortgage, the affidavit must prove that the money is due and
payable and give the particulars mentioned in paragraph (3).
(7) Where the plaintiff's claim includes a claim for interest to
judgment, the affidavit must state the amount of a day's interest.
Action for the enforcement of charging order by sale (0. 88, r. 5A)
SA. (1) This rule applies to -a mortgage action to enforce a
charging order by sale of the property charged.
(2) The affidavit in support of the originating summons
must-
(a)identify the charging sought to be enforced and the subject-
matter of the charge;
(b)specify the amount in respect of which the charge was
imposed and the balance outstanding at the date of the
affidavit;
(c)verify, so far as is known, the debtor's title to the property
charged;
(d)identify any other incumbrances on the property charged
stating, so far as is known, the names and addresses of the
incumbrancers and the amounts owing to them;
(e)set out the plaintiff's proposals as to the manner of sale of the
property charged together with estimates of the gross price
which would be obtained on a sale in that manner and of the
costs of such sale;
where the property charged consists of land in respect of
which the plaintiff claims delivery of possession, give
particulars of every person who to the best of the plaintiff's
knowledge is in possession of the property charged or any
part of it.
Action by writ. judgment in default (0. 88, r. 6)
6. (1) Notwithstanding anything in Order 13 or Order 19, in a
mortgage action begun by writ judgment on failure to give notice of
intention to defend or in default of defence shall not be entered except
with the leave of the Court.
(2) An application for the grant of leave under this rule must be
made by summons and the summons must, notwithstanding anything in
Order 65, rule 9, be served on the defendant.
(3) Where a summons for leave under this rule is issued, rule 4(2)
to (7) shall apply in relation to the action subject to the modification that
for references therein to the originating summons, and for the reference
in paragraph (2) to the notice of appointment, there shall be substituted
references to the summons.
(4) Where a summons for leave under this rule is issued in an
action to which rule 5 would apply had the action been begun by
originating summons, the affidavit in support of the summons must
contain the information required by that rule.
Foreclosure in redemption action (0. 88, r. 7)
7. Where foreclosure has taken place by reason of the failure of the
plaintiff in a mortgage action for redemption to redeem, the defendant in
whose favour the foreclosure has taken place may apply by motion or
summons for an order for delivery to him of possession of the
mortgaged property, and the Court may make such order thereon as it
thinks fit.
ORDER 89
PROCEEDINGS BETWEEN HUSBAND AND WIFE
Determination of questions as to property (0. 89, r. 1)
(HK)l1 (1) Proceedings under section 6 of the Married Persons Status
Ordinance must be begun by originating summons.
Provisions as to actions in tort (0. 89, r. 2)
2. (1) This rule applies to any action in tort brought by one
of the parties to a marriage against the other during the subsistence
of the marriage.
(2) On the first application by summons or motion in an
action to which this rule applies, the Court shall consider, if
necessary of its own motion, whether the power to stay the action
under section 5(2) of the Married Persons Status Ordinance should
or should not be exercised.
(3) Notwithstanding anything in Order 13 or Order 19, judg-
ment on failure to give notice of intention to defend or in default of
defence shall not be entered in an action to which this rule applies
except with the leave of the Court.
(4) An application for grant of leave under paragraph (3) must
be made by summons and the summons must, notwithstanding
anything in Order 65, rule 9, be served on the defendant.
(5) If the summons is for leave to enter judgment on failure to
give notice of intention to defend, the summons shall not be issued
before the time limited for acknowledging service of the writ.
ORDER 90
PROCEEDINGS CONCERNING MINORS
Application to make a minor a ward of court (0. 90, r. 3)
3. (1) Where an action to which a minor is a party is
proceeding, an application to make that minor a ward of court may
be made by summons in the action; but except in that case an
application to make a minor a ward of court must be made by
originating summons.
(2) Where there is no person other than the minor who is a
suitable defendant, an application may be made ex parte to the
Registrar for leave to issue either an ex parte originating summons
or an originating summons with the infant as defendant thereto;
and, except where such leave is granted, the minor shall not be made
a defendant to an originating summons under this rule in the first
instance.
(3) Particulars of any summons under this rule shall be re-
corded in the register of wards.
(3A) The date of the minor's birth shall, unless otherwise
directed, be stated in the summons and the plaintiff shall-
(a)on issuing the summons or before or at the first hearing
thereof lodge in the Registry a certified copy of the entry in
the birth register book kept under the Births and Deaths
Registration Ordinance or, as the case may be, in the
Adopted Children Register maintained under the Adop-
tion Ordinance, relating to the minor, or
(b)at the first hearing of the summons apply for directions as to
proof of birth of the minor in some other manner.
(3B) The name of each party to the proceedings shall be qualified
by a brief description in the body of the summons, of his interest in, or
relationship to, the minor.
(4) Unless the Court otherwise directs, the summons shall state the
whereabouts of the minor or, as the case may be, that the plaintiff is
unaware of his whereabouts.
(5) Every defendant other than the minor shall, forthwith after
being served with the summons
(a)lodge in the Registry a notice stating the address of the
defendant and the whereabouts of the minor or, as the case
may be, that the defendant is unaware of his whereabouts, and
(b)unless the Court otherwise directs, serve a copy of the notice
on the plaintiff.
(6) Where any party other than the minor changes his address or
becomes aware of any change in the whereabouts of the minor after the
issue of, as the case may be, service of the summons, he shall, unless
the Court otherwise directs, forthwith lodge notice of the change in the
Registry and serve a copy of the notice on every other party.
(7) The summons shall contain a notice to the defendant informing
him of the requirements of paragraphs (5) and (6).
(8) In this rule any reference to the whereabouts of a minor is a
reference to the address at which and the person with whom he is living
and any other information relevant to the question where he may be
found.
Enforcement of order by bailiff (0. 90, r. 3A)
3A. The power of the High Court to secure, through an officer
attending upon the Court, compliance with any direction relating to a
ward of court may be exercised by an order addressed to the bailiff.
When minor ceases to he ward of court (0. 90, r. 4)
4. (1) A minor who, by virtue of section 26(2) of the Supreme Court
Ordinance, becomes a ward of court on the issue of a summons under
rule 3 shall cease to be a ward of court
(a)if an application for an appointment for the hearing of the
summons is not made within the period of 21 days after the
issue of the summons, at the expiration of that period;
(b)if an application for such an appointment is made within that
period, on the determination of the application made by the
summons unless the judge hearing it orders that the minor be
made a ward of court.
(2) Nothing in paragraph (1) shall be taken as affecting the power
of the Court under section 26(3) of the said Ordinance to order that any
minor who is for the time being a ward of court shall cease to be a ward
of court.
(3) If no application for an appointment for the hearing of a
summons under rule 3 is made within the period of 21 days after the
issue of the summons, a notice stating whether the applicant intends to
proceed with the application made by the summons must be left at the
Registry immediately after the expiration of that period.
Hearing of an application to make a minor a ward of Court (0. 90, r. 4B
(HK)4B. An application to make a minor a ward of court may be
disposed of in chambers and shall be heard by ajudge.
Applications under the Guardianship of Minors Ordinance (0. 90, r. 5)
5. Where there is pending any action or other proceeding by reason
of which a minor is a ward of court, any application under the
Guardianship of Minors Ordinance with respect to that minor may be
made by summons in the proceedings, but except in that case any such
application must be made by originating summons.
Defendants to summons (0. 90, r. 6)
6. (1) Where the minor with respect to whom an application under
the Guardianship of Minors Ordinance is made is not the plaintiff he
shall not, unless the Court otherwise directs, be made a defendant to the
summons or, if the application is made by ordinary summons, be served
with the summons, but, subject to paragraph (2), any other person
appearing to be interested in, or affected by, the application shall be
made a defendant or be served with the summons, as the case may be.
(2) The Court may dispense with service of the summons (whether
originating or ordinary) on any person and may order it to be served on
any person not originally served.
Hearing of applications as to guardianship, maintenance, etc. (0. 90, r.
7)
7. (1) Applications as to the guardianship of minors may be
disposed of in chambers and shall be heard by a judge.
(2) Applications as to the maintenance and advancement of any
minor may be disposed of in chambers.
Verification and passing of guardians accounts (0. 90, r. 8)
(HK)8. A guardian's account must be verified and passed in the same
manner as that provided by Order 30 in relation to a receiver's account
or in such other manner as the Court may direct.
Removal of guardianship proceedings from the District Court (0. 90,
10)
10. (1) An application for an order under section 24 of the
Guardianship of Minors Ordinance for the removal of an application
from a District Court into the Court shall be made by an originating
summons and, unless the Court otherwise directs, the summons need
not be served on any person.
(2) The application may be heard by a master, but, if an order is
made for the removal to the Court of the application to the District
Court, that application shall be heard by a judge.
(HK)(3A) Section 44, subsections (1), (2) (except the proviso) and (4), of
the District Court Ordinance shall apply to an application ordered to be
transferred to the Court under this rule.
(5) The application so removed shall proceed in the Court as if it
had been made by originating summons.
Application of Matrimonial Causes Rules (0. 90, r. 11)
11. (1) The provisions of the Matrimonial Causes Rules relating to
proceedings under section 48 of the Matrimonial Causes Ordinance
shall apply, with the necessary modifications, to proceedings under
sections 13(1), 14 and 15 of the Guardianship of Minors Ordinance.
(2) The provisions of the Matrimonial Causes Rules relating to the
drawing up and service of orders shall apply to proceedings under this
Order as if they were proceedings under those rules.
ORDER 92
LODGMENT, INVESTMENT, ETC. OF FUNDS IN COURT
Payment into court under the Trustee Ordinance (0. 92, r. 2)
2. (1) Subject to paragraph (2), any trustee wishing to make a
payment into court under section 62 of the Trustee Ordinance must
make and file an affidavit setting out
(a)a short description of the trust and of the instrument creating
it or, as the case may be, of the circumstances in which the
trust arose,
(b)the names of the persons interested in or entitled to the
money or securities to be paid into court with their addresses
so far as known to him,
(e)his submission to answer all such inquiries relating to the
application of such money or securities as the Court may
make or direct, and
(d)an address where he may be served with any summons or
order, or notice of any proceedings, relating to the money or
securities paid into court.
(2) Where the money or securities represents a legacy, or
residue or any share thereof, to which a minor or a person resident
outside Hong Kong is absolutely entitled, no affidavit need be filed
under paragraph (1) and the money or securities may be paid into
court in the manner prescribed by the Supreme Court Suitors'
Funds Rules for the time being in force.
Notice of lodgment (0. 92, r. 4)
4. Any person who has lodged money or securities in court in
accordance with rule 2 must forthwith send notice of the lodgment
to every person appearing from the affidavit on which the lodgment
was made to be entitled to, or to have an interest in, the money or
securities lodged.
Applications with respect to funds in court (0. 92, r. 5)
5. (1) Where an application to the Court-
(a)for the payment or transfer to any person of any funds in
court standing to the credit of any cause or matter or for
the transfer of any such funds to a separate account or for
the payment to any person of any dividend of or interest
on any securities or money comprised in such funds;
(b)for the investment, or change of investment, of any funds
in court;
(e)for payment of the dividends of or interest on any funds in
court representing or comprising money or securities
lodged in court under any enactment; or
(d)for the payment or transfer out of court of any such funds
as are mentioned in sub-paragraph (c),
is made the application may be disposed of in chambers.
(2) Subject to paragraph (3), any such application must be
made by summons and, unless the application is made in a pending
cause or matter or an application for the same purpose has pre-
viously been made by petition or originating summons, the sum-
mons must be an originating summons.
(3) Where an application under paragraph (1)(d) is required
to be made by originating summons, then, if the funds to which the
application relates do not exceed $50,000 in value, the application
may be made ex parte to a master and the master may dispose of the
application or may direct it to be made by originating summons.
Unless otherwise directed, an ex parte application under this para-
graph shall be made by affidavit.
(5) This rule does not apply to any application for an order
under Order 22.
ORDER 93
APPLICATIONS AND APPEALS UNDER VARIOUS ENACTMENTS
Application under Variation of Trusts Ordinance (0. 93, r. 6)
6. (2) In addition to any other persons who are necessary and
proper defendants to the originating summons by which an application
under section 3 of the Variation of Trusts Ordinance, is made, the settlor
and any other person who provided property for the purposes of the
trusts to which the application relates must, if still alive and not the
plaintiff, be made a defendant unless the Court for some special reason
otherwise directs.
Case stated under section 30 of the Copyright Act, 1956 (0. 93, r. 14)
14. (1) Where the Court of Appeal makes an order directing the
Performing Right Tribunal to refer a question of law to the Court of
Appeal under section 30 of the Copyright Act, 1956, as extended to
Hong Kong by the Copyright (Hong Kong) Orders 1972 and 1979, by
way of case stated it may by the order suspend the operation of an
order made by the Tribunal in the proceedings in which the question
arose.
(2) The Registrar shall notify the clerk of the Tribunal of the
decision of the Court of Appeal on any application for an order directing
the Tribunal to refer a question of law to the Court of Appeal under the
said section 30 and of any directions given by the Court of Appeal
thereon.
(HK)(3) The provisions of Order 61 shall apply to cases stated by the
Performing Right Tribunal.
ORDER 95
THE BILLS OF SALE ORDINANCE AND BANKRUPTCY ORDINANCE
Rectification of register (0. 95, r. 1)
1. (1) Every application to the Court under section 20 of the Bills of
Sale Ordinance for an order
(a)that any omission to register a bill of sale or an affidavit of
renewal thereof within the time prescribed by that Ordinance
be rectified by extending the time for such registration, or
(b)that any omission or mis-statement of the name, residence or
occupation of any person be rectified by the insertion in the
register of his true name, residence or occupation,
must be made by affidavit ex parte to a master.
(2) Every application for such an order as is described in paragraph
(1) shall be supported by an affidavit setting out particulars of the bill of
sale and of the omission or mis-statement in question and stating the
grounds on which the application is made.
Entry of satisfaction (0. 95, r. 2)
2. (1) Every application under section 21 of the Bills of Sale
Ordinance to a master for an order that a memorandum of satisfac-
tion be written on a registered copy of a bill of sale must-
(a)if a consent to the satisfaction signed by the person entitled
to the benefit of the bill of sale can be obtained, be made ex
parte;
(b) in all other cases, be made by originating summons.
(2) An ex parte application under paragraph (1)(a) must be
supported by-
(a)particulars of the consent referred to in that paragraph;
and
(b)an affidavit by a witness who attested the consent verifying
the signature on it.
(3) An originating summons under paragraph (1)(b) must be
served on the person entitled to the benefit of the bill of sale and
must be supported by evidence that the debt (if any) for which the
bill of sale was made has been satisfied or discharged.
(4) An originating summons under paragraph (1)(b) shall be in
Form No. 10 in Appendix A.
Restraining removal on sale of goods seized (0. 95, r. 3)
3. An originating summons by which an application to the
Court under the proviso to section 14 of the Bills of Sale Ordinance
must be made shall be in Form No. 10 in Appendix A.
Search of register (0. 95, r. 4)
4. The Registrar shall, on a request in writing giving sufficient
particulars, and on payment of the prescribed fee, cause a search to
be made in the register of bills of sale and issue a certificate of the
result of the search.
Assignment of book debts (0. 95, r. 6)
6. (1) There shall continue to be kept in the Registry a
register of assignment of book debts.
(2) Every application for registration of an assignment of a
book debt under section 48 of the Bankruptcy Ordinance shall be
made by producing at the Registry-
(a)a true copy of the assignment, and of every schedule
thereto, and
(b)an affidavit verifying the date and the time, and the due
execution of the assignment in the presence of the depo-
nent, and setting out the particulars of the assignment, and
of the parties thereto.
(3) On an application being made in accordance with the preceding
paragraph, the documents there referred to shall be filed and the
particulars of the assignment and the parties to it, shall be entered in the
register.
ORDER 100
THE TRADE MARKS ORDINANCE
Appeals and applications under the Trade Marks Ordinance (0. 100, r.
2)
2. (1) Every appeal to the Court under the Trade Marks Ordinance,
shall be heard and determined by a single judge.
(2) Subject to rule 3, every application to the Court under the said
Ordinance must be begun by originating motion.
(3) Notice of the motion by which any such application is made
must be served on the Registrar of Trade Marks.
(4) Where the Registrar of Trade Marks refers to the Court an
application under the said Ordinance made to him, then, unless within
one month after receiving notification of the decision to refer, the
applicant makes to the Court the application referred, he shall be deemed
to have abandoned it.
(5) The period prescribed in relation to an appeal to which
paragraph (1) applies or the period prescribed by paragraph (4) in
relation to an application or appeal to which that paragraph applies may
be extended by the Registrar of Trade Marks on the application of any
party interested and may be so extended although the application is not
made until after the expiration of that period, but the foregoing provision
shall not be taken to affect the power of the Court under Order 3, rule 5,
to extend that period.
(6) Where under subsection (6) of section 13, or subsection (8) of
section 15, of the said Ordinance an appellant becomes entitled and
intends to withdraw his application which is the subject-matter of the
appeal, he must give notice of his intention to the Registrar of Trade
Marks and to any other party to the appeal within one month after the
Court has given leave under the said subsection (6) or the said
subsection (8), as the case may be, for further grounds of objection to
be taken.
Proceedings for infringement of registered trade mark: validity of
registration disputed (0. 100, r. 3)
3. (1) Where in any proceedings a claim is made for relief for
infringement of the right to the use of a registered trade mark, the party
against whom the claim is made may in his defence put in issue the
validity of the registration of that trade mark or may counterclaim for an
order that the register of trade marks be rectified by cancelling or
varying the relevant entry or may do both those things.
(2) A party to any such proceedings who in his pleading (whether
a defence or counterclaim) disputes the validity of the registration of a
registered trade mark must serve with the pleading particulars of the
objections to the validity of the registration on which he relies in
support of the allegation of invalidity.
(3) A party to any such proceedings who counterclaims for an
order that the register of trade marks be rectified must serve on the
Registrar of Trade Marks a copy of the counterclaim together with a
copy of the particulars mentioned in paragraph (2); and the Registrar of
Trade Marks shall be entitled to take such part in the proceedings as he
may think fit but need not serve a defence or other pleading unless
ordered to do so by the Court.
ORDER 102
THE COMPANIES
ORDINANCE
Definitions (0. 102, r. 1)
1. In this Order-
'the Ordinance' means the Companies Ordinance.
Applications to he made by originating summons (0. 102, r. 2)
2. (1) Except in the case of the applications mentioned in rules 3, 4
and 5 and applications made in proceedings relating to the winding up
of companies, every application under the Ordinance must, in
accordance with Order 5, rule 3, be made by originating summons.
(2) An originating summons under this rule shall be in Form No. 10
in Appendix A unless the application made by the summons is
(a)an application under section 167 of the Ordinance for an order
to make provision for all or any of the matters mentioned in
subsection (1) of that section where an order sanctioning the
compromise or arrangement to which the application relates
has previously been made, or
(b)an application under section 302 of the Ordinance for an order
directing a receiver or manager of a company to make good
any such default as is mentioned in subsection (1) of that
section, or
(c)an application under section 306 of the Ordinance for an order
directing a company and any officer thereof to make good any
such default as is mentioned in that section.
(3) An application under section 145(4) of the Ordinance may be
made by ex parte originating summons.
Application to be made by originating summons or motion (0. 102, r. 3)
3. (1) An application under section 100 of the Ordinance for
rectification of the register of members of a company may be made by
originating summons or originating motion.
(2) An originating summons under this rule shall be in Form No. 10
in Appendix A.
Applications to be made by originating motion (0. 102, r. 4)
4. (1) The following applications under the Ordinance must be
made by originating motion, namely, applications
(a)under section 30 for an order that a company be relieved from
the consequences of default in complying with conditions
constituting the company a private company,
(b)under section 45(3) for an order extending the time for delivery
to the Registrar of Companies of any document required by
that section to be delivered,
(e)under section 143 for an order declaring that the affairs of a
company ought to be investigated by an inspector appointed
by the Financial Secretary,
(d)under section 145(3) for an inquiry into any such case as is
therein mentioned, and
under section 290 for an order declaring a dissolution of a
company which has not been wound up to have been void.
Applications to he made by petition (0. 102, r. 5)
5. (1) The following applications under the Ordinance must be
made by petition, namely applications
(a)under section 8 to cancel the alteration of a company's
objects,
(b)under section 25A to cancel the alteration of a condition
contained in a company's memorandum,
(c)under section 48B to confirm a reduction of the share premium
account of a company,
(d)under section 50 to sanction the issue by a company of
shares at a discount,
(e)under section 49 to confirm a reduction of the capital
redemption reserve fund of a company,
(f)under section 59 to confirm a reduction of the share capital of
a company,
(g)under section 64 to cancel any variation or abrogation of the
rights attached to any class of shares in a company,
(h)under section 166 to sanction a compromise or arrangement
between a company and its creditors or any class of them or
between a company and its members or any class of them,
(i)under section 291(7) for an order restoring the name of a
company to the register, where the application is made in
conjunction with an application for the winding up of the
company,
(j)under section 323 to cancel the alteration of the form of a
company's constitution, and
(k)under section 358(2) for relief from liability of an officer of a
company or a person employed by a company as auditor.
Entitlement of proceedings (0. 102, r. 6)
6. (2) Every originating summons, notice of originating motion and
petition by which any such proceedings are begun and all affidavits,
notices and other documents in those proceedings must be entitled in
the matter of the company in question and in the matter of the
Ordinance.
(3) The originating summons by which an application for leave
under section 157E(1) of the Ordinance is made must be entitled in the
matter of the company or one of the companies in connection with
which an order under that subsection was made against the plaintiff and
in the matter of the Ordinance.
Summons for directions (0. 102, r. 7)
7. (1) After presentation of a petition by which any such
application as is mentioned in rule 5 is made, the petitioner, except
where his application is one of those mentioned in paragraph (2), must
take out a summons for directions under this rule.
(2) The applications referred to in paragraph (1) are-
(a)an application under section 50 of the Ordinance to sanction
the issue by a company of shares at a discount,
(b)an application under section 166 of the Ordinance to sanction
a compromise or arrangement unless there is included in the
petition for such sanction an application for an order under
section 167 of the Ordinance, and
(c)an application under section 291(7) of the Ordinance for an
order restoring the name of a company to the register.
(3) On the hearing of the summons the Court may by order give
such directions as to the proceedings to be taken before the hearing of
the petition as it thinks fit including, in particular, directions for the
publication of notices and the making of any inquiry.
(4) Where the application made by the petition is to confirm a
reduction of the share capital, the share premium account or the capital
redemption reserve fund, of a company, then, without prejudice to the
generality of paragraph (3), the Court may give directions
(a)for an inquiry to be made as to the debts of, and claims
against, the company or as to any class or classes of such
debts or claims;
(b)as to the proceedings to be taken for settling the list of
creditors entitled to object to the reduction and fixing the
date by reference to which the fist is to be made;
and the power of the Court under section 59(3) of the Ordinance
to direct that section 59(2) thereof shall not apply as regards any
class or classes of creditors may be exercised on any hearing of the
summons.
(5) Rules 8 to 13 shall have effect subject to any directions
given by the Court under this rule.
Inquiry as to debts: company to make list of creditors (0. 102, r. 8)
8. (1) Where under rule 7 the Court orders such an inquiry
as is mentioned in paragraph (4) thereof, the company in question
must, within 7 days after the making of the order, file in the Registry
an affidavit made by an officer of the company competent to make it
verifying a list containing-
(a)the name and address of every creditor entitled to any debt
or claim to which the inquiry extends,
(b)the amount due to each creditor in respect of such debt or
claim or, in the case of a debt or claim which is subject to
any contingency or sounds only in damages or for some
other reason does not bear a certain value, a just estimate
of the value thereof, and
(c) the total of those amounts and values.
(2) The deponent must state in the affidavit his belief that at
the date fixed by the Court as the date by reference to which the
list is to be made there is no debt or claim which, if that date were
the commencement of the winding up of the company, would be
admissible in proof against the company, other than the debts or
claims set out in the list and any debts or claims to which the inquiry
does not extend, and must also state his means of knowledge of the
matters deposed to.
(3) The list must be left at the office mentioned in paragraph
(1) not later than one day after the affidavit is filed.
Inspection of list of creditors (0. 102, r. 9)
9. (1) Copies of the list made under rule 8 with the omission,
unless the Court otherwise directs, of the amount due to each
creditor and the estimated value of any debt or claim to which any
creditor is entitled, shall be kept at the registered office of the
company and at the office of that company's solicitor.
(2) Any person shall be entitled during ordinary business
hours, on payment of a fee of one dollar, to inspect the said list at
any such office and to take extracts therefrom.
Notice to creditors (0. 102, r. 10)
10. Within 7 days after filing the affidavit required by rule 8
the company must send by post to each creditor named in the
list exhibited to the affidavit, at his last known address, a notice
stating-
(a) the amount of the reduction sought to be confirmed,
(b)the effect of the order directing an inquiry as to debts and
claims,
(c)the amount or value specified in the list as due or estimated
to be due to that creditor, and
(d)the time fixed by the Court within which, if he claims to be
entitled to a larger amount, he must send particulars of his
debt or claim and the name and address of his solicitor, if
any, to the company's solicitor.
Advertisement of petition and list of creditors (0. 102, r. 11)
11. After filing the affidavit required by rule 8 the company
must insert, in such newspapers and at such times as the Court
directs, a notice stating-
(a)the date of presentation of the petition and the amount of
the reduction thereby sought to be confirmed,
(b) the inquiry ordered by the Court under rule 7,
(c)the places where the list of creditors may be inspected in
accordance with rule 9, and
(d)the time within which any creditor not named in the list
who claims to be entitled to any debt or claim to which the
inquiry extends must send his name and address, the name
and address of his solicitor, if any, and particulars of his
debt or claim to the company's solicitor.
Affidavit as to claims made by creditors (0. 102, r. 12)
12. Within such time as the Court directs the company must
file in the Registry an affidavit made by the company's solicitor and
an officer of the company competent to make it-
(a)proving service of the notices mentioned in rule 10 and
advertisement of the notice mentioned in rule 11,
(b)verifying a list containing the names and addresses of the
persons (if any) who in pursuance of such notices sent in
particulars of debts or claims, specifying the amount of
each debt or claim,
(c)distinguishing in such list those debts or claims which are
wholly, or as to any and what part thereof, admitted by
the company, disputed by the company or alleged by the
company to be outside the scope of the inquiry, and
(d)stating which of the persons named in the list made under rule
8, and which of the persons named in the list made under this
rule, have been paid or consent to the reduction sought to be
confirmed.
Adjudication of disputed claims (0. 102, r. 13)
13. If the company contends that a person is not entitled to be
entered in the list of creditors in respect of any debt or claim or in
respect of the full amount claimed by him in respect of any debt or claim,
then, unless the company is willing to secure payment of that debt or
claim by appropriating the full amount of the debt or claim, the company
must, if the Court so directs, send to that person by post at his last
known address a notice requiring him
(a)within such time as may be specified in the notice, being not
less than 4 clear days after service thereof, to file an affidavit
proving his debt or claim or, as the case may be, so much
thereof as is not admitted by the company, and
(b)to attend the adjudication of his debt or claim at the place and
time specified in the notice, being the time appointed by the
Court for the adjudication of debts and claims.
Certifying lists of creditors entitled to object to reduction (0. 102, r. 14)
14. The list of creditors entitled to object to such reduction as is
mentioned in rule 7(4), as settled by the Court under section 59(2) of the
Ordinance shall be certified and filed by the Registrar and his certificate
shall
(a) specify the debts or claims (if any) disallowed by the Court,
(b)distinguish the debts or claims (if any) the full amount of
which is admitted by the company, the debts or claims (if any)
the full amount of which, though not admitted by the
company, the company is willing to appropriate, the debts or
claims (if any) the amount of which has been fixed by
adjudication of the Court under section 59(2) of the Ordinance
and other debts or claims
(c)specify the total amount of the debts or claims payment of
which has been secured by appropriation under the said
section 59(2);
(d)show which creditors consent to the reduction and the total
amount of their debts or claims;
(e)specify the creditors who sought to prove their debts or
claims under rule 13 and state which of such debts or claims
were allowed.
Evidence of consent of creditor (0. 102, r. 15)
15. The consent of a creditor to such reduction as is mentioned in
rule 7(4) may be proved in such manner as the Court thinks sufficient.
Time, etc. of bearing of petition for confirmation of reduction (0. 102, r.
16)
16. (1) A petition for the confirmation of any such reduction as is
mentioned in rule 7(4) shall not, where the Court has directed an inquiry
pursuant to that rule, be heard before the expiration of at least 8 clear
days after the filing of the certificate mentioned in rule 14.
(2) Before the hearing of such a petition, a notice specifying the
day appointed for the hearing must be published at such times and in
such newspapers as the Court may direct.
Restriction on taking effect of order under section 50 (0. 102, r. 17)
17. Unless the Court otherwise directs, an order under section 50 of
the Ordinance sanctioning the issue of shares at a discount shall direct
that an office copy of the order be delivered to the Registrar of
Companies within 10 days after the making of the order or such
extended time as the Court may allow and that the order shall not take
effect until such copy has been so delivered.
ORDER 103
THE REGISTRATION OF PATENTS
ORDINANCE: THE PATENTS ACTS 1949 To
1961 AND 1977
Definitions (0. 103, r. 1)
1. In this Order
'existing patent' means a patent mentioned in section 127(2)(a) or (e) of
the Act;
'the Act' means the Patents Act 1977;
'the Ordinance' means the Registration of Patents Ordinance.
Actions for infringement: particulars of pleading (0. 103, r. 19)
19. (1) The plaintiff in an action for infringement of a patent must
serve with his statement of claim particulars of the infringements relied
on.
(2) If a defendant in such an action disputes the validity of the
patent, he must serve with his defence particulars of the objections to
the validity of the patent on which he relies in support of the allegation
of invalidity.
(3) If a defendant in such an action alleges, as a defence to the
action, that at the time of the infringement there was in force a contract
or licence relating to the patent made by or with the consent of the
plaintiff and containing a condition or term void by virtue of section 44
of the Act, he must serve on the plaintiff particulars of the date of, and
parties to, each such contract or licence and particulars of each such
condition or term.
(4) A defendant to such an action who applies by counter-
claim in the action for a declaration under section 8(1) of the
Ordinance must, with his counterclaim, serve particulars of the
grounds on which he relies in support of his counterclaim.
Particulars of infringements (0. 103, r. 20)
20. Particulars of infringements of a patent must specify which
of the claims in the specification of the patent are alleged to be
infringed and must give at least one instance of each type of
infringement alleged.
Particulars of objections (0. 103, r. 21)
21. (1) Particulars of objections to the validity of a patent
must state every ground on which the validity of the patent is
disputed and must include such particulars as will clearly define
every issue which it is intended to raise.
(2) If the grounds stated in the particulars of objections
include want of novelty or want of any inventive step, the particulars
must state the manner, time and place of every prior publication or
user relied upon and, if prior user is alleged, must-
(a)specify the name of every person alleged to have made such
user,
(b)state whether such user is alleged to have continued until
the priority date of the claim in question or of the inven-
tion, as may be appropriate, and, if not, the earliest and
latest date on which such user is alleged to have taken
place,
(e)contain a description, accompanied by drawings, if neces-
sary, sufficient to identify such user, and
(d)if such user relates to machinery or apparatus, state
whether the machinery or apparatus is in existence and
where it can be inspected.
(3) If in the case of an existing patent-
(a)one of the grounds stated in the particulars of objection is
that the invention, so far as claimed in any claim of the
complete specification, is not useful, and
(b)it is intended, in connection with that ground, to rely on
the fact that an example of the invention which is the
subject of any such claim cannot be made to work, either at
all or as described in the specification,
the particulars must state the fact and identify each such claim and
must include particulars of each such example, specifying the
respects in which it is alleged that it does not work or does not work
as described.
Amendment of particulars (0. 103, r. 22)
22. Without prejudice to Order 20, rule 5, the Court may at any
stage of the proceedings allow a party to amend any particulars served
by him under the foregoing provisions of this Order on such terms as to
costs or otherwise as may be just.
Further particulars (0. 103, r. 23)
23. The Court may at any stage of the proceedings order a party to
serve on any other party further or better particulars of infringements or
of objections.
Restrictions on admission of evidence (0. 103, r. 24)
24. (1) Except with the leave of the judge hearing any action or
other proceeding relating to a patent, no evidence shall be admissible in
proof of any alleged infringement, or of any objection to the validity, of
the patent, if the infringement or objection was not raised in the
particulars of infringements or objections, as the case may be.
(2) In any action or other proceeding relating to a patent, evidence
which is not in accordance with a statement contained in particulars of
objections to the validity of the patent shall not be admissible in
support of such an objection unless the judge hearing the proceeding
allows the evidence to be admitted.
(3) If any machinery or apparatus alleged to have been used before
the priority date mentioned in rule 21(2)(b) is in existence at the date of
service of the particulars of objections, no evidence of its user before
that date shall be admissible unless it is proved that the party relying on
such user offered, where the machinery or apparatus is in his
possession, inspection of it to the other parties to the proceedings, or,
where it is not, did his best to obtain inspection of it for those parties.
Proceedings for infringement: admissions must he requested (0. 103, r.
25)
25. (1) In an action for infringement of a patent (whether or not any
other relief is claimed) each party must, within 14 days after service of a
reply or answer or after the expiration of the period fixed for service
thereof, write to each other party from whom he requires an admission
for the purpose of the action or proceedings requesting him to make the
admission, and the party receiving the request must within 14 days after
the receipt thereof reply in writing making the admission or stating that
he refuses to make it.
(2) No order shall be made authorizing a party to any such action or
proceedings to serve any interrogatory on any other party unless the
first-mentioned party requested that other party in accordance with
paragraph (1) to admit the facts sought to be proved by the answer to
the interrogatory and the other party refused or failed to comply with
the request.
Proceedings for infringement: summons for directions (0. 103, r. 26)
26. (1) In such an action, and in such proceedings, as are referred
to in rule 25(1), the plaintiff or petitioner must
(a)within one month after the date on which the last reply to a
request made under rule 25(1) is received or after the date on
which the period fixed for making such a reply expires,
whichever first occurs, or
(b)if no request for an admission is made by any party to the
action or proceedings, within one month after service of a
reply or answer or after the expiration of the period fixed for
service thereof,
take out a summons for directions as to the place and mode of trial
returnable in not les than 21 days, and if the plaintiff or petitioner does
not take out such a summons in accordance with this paragraph, the
defendant or respondent, as the case may be, may do so.
The summons may be heard in chambers. or in court as the Court
thinks fit.
(2) The Court hearing a summons under this rule may give such
directions
(a) for the service of further pleadings or particulars,
(b) for the discovery of documents,
(c)(subject to rule 25(2)) for the service of interrogatories and of
answers thereto,
(d)for the taking by affidavit of evidence relating to matters
requiring expert knowledge, and for the filing of such
affidavits and the service of copies thereof on the other
parties,
(e)for the service on the other parties, by any party desiring to
submit experimental proof, of full and precise particulars of the
experiments proposed and of the facts which he claims to be
able to establish thereby,
(f) for the making of experiments, tests, inspections or reports,
(g)for the hearing, as a preliminary issue, of any question that
may arise (including any question as to the construction of
the specification or other documents),
and otherwise as the Court thinks necessary or expedient for the
purpose of defining and limiting the issues to be tried, restricting the
number of witnesses to be called at the trial of any particular issue and
otherwise securing that the case shall be disposed of, consistently with
adequate hearing, in the most expeditious manner.
Where evidence is directed to be given by affidavit, the deponents
must attend at the trial for cross-examination unless, with the
concurrence of the Court, the parties otherwise agree.
(3) Order 24, rules 1 and 2, shall not apply in an action for
infringement of a patent.
(4) No action for a declaration under section 8(1) of the Ordinance
shall be set down for trial unless and until a summons under this rule in
the action or proceedings has been taken out and the directions given
on the summons have been carried out or the time fixed by the Court for
carrying them out has expired.
(5) An action for a declaration under section 8(1) of the Ordinance
shall not be tried sooner than 21 days after the action has been set
down for trial.
Appointment of scientific adviser (0. 103, r. 27)
27. (1) In an action for infringement of a patent and in any
proceedings under the Ordinance, the Court may at any time, and on or
without the application of any party, appoint an independent scientific
adviser to assist the Court or to inquire and report on any question of
fact or of opinion not involving questions of law or construction.
(2) The Court may nominate the scientific adviser and shall settle
the question or instructions to be submitted or given to him.
(3) The remuneration of any adviser appointed under this rule shall
be fixed by the Court and shall include the costs of making any report
and a proper daily fee for any day on which he is required to attend
before the Court.
(4) Order 40, rules 2, 3, 4 and 6, shall apply in relation to an adviser
appointed under this rule and any report made by him as they apply in
relation to a Court expert and a report made by him.
Application for rectification of register of patents in Hong Kong (0.
103, r. 29)
29. An application to the Court for an order that the register of
patents be rectified must be made by originating motion, except where it
is made by way of counterclaim in proceedings for infringement or by
originating summons in proceedings for an order under section 52 of the
Trustee Ordinance.
ORDER 106
PROCEEDINGS RELATING TO SOLICITORS: THE
LEGAL
PRACTITIONERS ORDINANCE
Definitions (0. 106, r. 1)
1. In this Order
'the Ordinance' means the Legal Practitioners Ordinance;
'appeal' means an appeal against any order made by the disciplinary
committee on an application or complaint under the Ordinance;
'the disciplinary committee' means the committee appointed under
section 9 of the Ordinance;
'Society' means The Law Society of Hong Kong.
Jurisdiction under Part VI of the Ordinance exercisable by judge in
chambers, etc. (0. 106, r. 2)
2. (1) Any application to the Court under Part VI of the
Ordinance may be disposed of in chambers.
(2) The jurisdiction of the Court under Part VI of the Ordin-
ance may be exercised by a judge in chambers.
Power to order solicitor to deliver cash account, etc. (0. 106, r. 3)
3. (1) Where the relationship of solicitor and client exists or
has existed, the Court may, on the application of the client or his
personal representative, make an order for-
(a) the delivery by the solicitor of a cash account;
(b)the payment or delivery up by the solicitor of money or
securities;
(c)the delivery to the plaintiff of a list of the moneys or
securities which the solicitor has in his possession or
control on behalf of the plaintiff,
(d)the payment into or lodging in court of any such moneys or
securities.
(2) An application for an order under this rule must be made
by originating summons.
(3) If the defendant alleges that he has a claim for costs, the
Court may make such order for the taxation and payment, or
securing the payment, thereof and the protection of the defendant's
lien, if any, as the Court thinks fit.
Form of originating summons (0. 106, r. 5)
5. An originating summons by which an application under
the Ordinance, or any application for an order under rule 3, is made
shall he in Form No. 10 in Appendix A.
Service of documents (0. 106, r. 10)
10. (1) Any document required to be served on the Society in
proceedings under this Order shall be served by sending it by prepaid
post to the secretary of the Society.
(2) Subject to paragraph (1), any document not required to be
served personally which is to be served on a defendant to proceed-
ings under this Order shall, unless the Court otherwise directs, be
deemed to be properly served by sending it by prepaid post to the
defendant at his last known address.
Constitution of the Court of Appeal to bear appeals (0. 106, r. 11)
11. Every appeal shall be heard by the Court of Appeal
consisting, unless the Chief Justice otherwise directs, of not less
than 3 judges.
Title, service, etc. of notice of motion (0. 106, r. 12)
12. (1) The notice of the originating motion by which an
appeal is brought must be entitled in the matter of a solicitor, or, as
the case may be, a solicitor's clerk, without naming him, and in the
matter of the Ordinance.
(2) Unless the Court otherwise orders, the persons to be served
with such notice are every party to the proceedings before the
disciplinary committee and the Society.
(3) Order 55, rule 4(2), shall apply in relation to the appeal as
if for the period of 28 days therein specified there were substituted
a period of 14 days.
(4) Order 55, rule 4(4), shall not apply and the said period of
14 days shall begin with the day on which the order appealed against
was pronounced.
Society to produce certain documents (0. 106, r. 13)
13. (1) Within 7 days after being served with notice of the
originating motion by which an appeal is brought the Society must
lodge in the Registry 3 copies of each of the following documents-
(a)the order appealed against, prefaced by the statement of
the disciplinary committee's findings required by section 12
of the Ordinance,
(b)any document lodged by a party with the disciplinary
committee which is relevant to a matter in issue on the
appeal, and
(c)the transcript of the shorthand note, or, as the case may
be, the note taken by the chairman of the disciplinary
committee, of the evidence in the proceedings before the
committee.
(2) At the hearing of the appeal the Court shall direct by
whom the costs incurred in complying with paragraph (1) are to be
borne and may order them to be paid to the Society by one of the
parties notwithstanding that the Society does not appear at the
hearing.
Restriction on requiring security for costs (0. 106, r. 14)
14. No person other than an appellant who was the applicant
in the proceedings before the disciplinary committee or, in the case
of an application to that committee by a solicitor to procure his
name to be removed from the roll, was an objector, shall be ordered
to give security for the costs of an appeal.
Disciplinary committee's opinion may he required (0. 106, r. 15)
15. The Court may direct the disciplinary committee to furnish
the Court with a written statement of their opinion on the case which
is the subject-matter of an appeal or on any question arising therein, and
where such a direction is given, the clerk to the disciplinary committee
must as soon as may be lodge 3 copies of such statement in the
Registry and at the same time send a copy to each of the parties to the
appeal.
Persons entitled to he beard on appeal (0. 106, r. 16)
16. A person who has not been served with notice of the
originating motion by which an appeal is brought but who desires to be
heard in opposition to the appeal shall, if he appears to the Court to he a
proper person to be so heard, be entitled to be so heard.
Discontinuance of appeal (0. 106, r. 17)
17. (1) An appellant may at any time discontinue his appeal by
serving notice of discontinuance on the clerk to the disciplinary
committee and every other party to the appeal and, if the appeal has
been entered, by lodging a copy of the notice in the Registry.
(2) Where an appeal has been discontinued in accordance with
paragraph (1), it shall be treated as having been dismissed with an order
for payment by the appellant of the costs of and incidental to the appeal,
including any costs incurred by the Society in complying with rule 13(1).
ORDER 113
SUMMARY PROCEEDINGS FOR POSSESSION OF LAND
1. Where a person claims possession of land which he alleges is
occupied solely by a person or persons (not being a tenant or tenants
holding over after the termination of the tenancy) who entered into or
remained in occupation without his licence or consent or that of any
predecessor in title of his, the proceedings may be brought by
originating summons in accordance with the provisions of this Order.
Form of originating summons (0. 113, r. 2)
2. The originating summons shall be in Form No. IIA in Appendix
A and no acknowledgment of service of it shall be required.
Affidavit in support (0. 113, r. 3)
3. The plaintiff shall file in support of the originating summons an
affidavit stating--
(a) his interest in the land;
(b)the circumstances in which the land has been occupied
without licence or consent and in which his claim to
possession arises; and
(c)that he does not know the name of any person occupying the
land who is not named in the summons.
Service of originating summons (0. 113, r. 4)
4. (1) Where any person in occupation of the land is named in the
originating summons, the summons together with a copy of the affidavit
in support shall be served on him
(a) personally, or
(HK)(aa) by sending a copy of the summons and of the affidavit by
ordinary post to him at the premises, or
(b)by leaving a copy of the summons and of the affidavit, or
sending them to him, at the premises, or
(c) in such other manner as the Court may direct.
(2) The summons shall, in addition to being served on the named
defendants (if any) in accordance with paragraph (1), be served, unless
the Court otherwise directs, by
(a)affixing a copy of the summons and a copy of the affidavit to
the main door or other conspicuous part of the premises, and
(b)if practicable, inserting through the letter-box at the premises a
copy of the summons and a copy of the affidavit enclosed in a
sealed envelope addressed to 'the occupiers'.
(M) Every copy of an originating summons for service under
paragraph (1) or (2) shall be sealed with the seal of the Supreme Court.
(3) Order 28, rule 3, shall not apply to proceedings under this Order.
Application by occupier to he made a party (0. 113, r. 5)
5. Without prejudice to Order 15, rules 6 and 10, any person not
named as a defendant who is in occupation of the land and wishes to be
heard on the question whether an order for possession should be made
may apply at any stage of the proceedings to be joined as a defendant.
Order for possession (0. 113, r. 6)
6. (1) A final order shall not be made on the originating summons
except by a judge in person and shall, except in case of urgency and by
leave of the Court, not be made less than 5 clear days after the date of
service.
(2) An order for possession in proceedings under this Order shall
be in Form No. 42A in Appendix A.
(3) Nothing in this Order shall prevent the Court from ordering
possession to be given on a specified date, in exercise of any power
which could have been exercised if possession had been claimed in an
action begun by writ.
Writ of possession (0. 113, r. 7)
7. (1) Order 45, rule 3(2), shall not apply in relation to an order for
possession under this Order but no writ of possession to enforce such
an order shall be issued after the expiry of 3 months from the date of the
order without the leave of the Court.
An application for leave may be made ex parte unless the Court
otherwise directs.
(2) The writ of possession shall be in Form No. 66A in Appendix
A.
Setting aside order (0. 113, r. 8)
8. The judge may, on such terms as he thinks just, set aside or
vary any order made in proceedings under this Order.
ORDER 114
(HK) COMMISSIONERS FOR OATHS
Appointment of commissioners for oaths (0. 114, r. 1)
(HK)1. (1) The Chief Justice may, by a commission signed by him,
appoint fit and proper persons to be commissioners to administer oaths
and take declarations, affirmations, and attestations of honour, and may
revoke any such appointment.
(2) Every person so appointed shall be styled a commissioner for
oaths and shall have all the powers and discharge all the duties which
now belong to the office of a commissioner to administer oaths.
Officers of the court to administer oaths (0. 114, r. 2)
(HK)2. Every person who, being an officer of or performing duties in
relation to the Court, is for the time being so authorized by the Court or
by or in pursuance of any rules or orders regulating the procedure of
the Court, and every person directed to take an examination in any
cause or matter in the Court, shall have authority to administer any oath
or take any affidavit required for any purpose connected with his duties.
ORDER +1-5-120
(HK) CHARITABLE TRUSTS
12o
Appointment or removal of trustee (0.115, r. 1)
(HK)1. Where the appointment or removal of any trustee or any other
relief, order or direction relating to any charity is deemed desirable, any
person mentioned in rule 3 of this Order may make
application by summons (without any information, action or petition) to
the Court in chambers for such relief, order or direction as the nature of
the case may require.
120
Powers of Court (0. 115, r. 2)
(HK)2. The Court may proceed upon and dispose of such application in
chambers, unless it thinks fit otherwise to direct, and shall and may
have and exercise thereupon all jurisdiction, power and authority, and
may make such orders and give such directions relating to the matter of
such application, as might now be exercised, made or given by the
Court in an action regularly instituted, or upon petition as the case may
require:
Provided that the Court may, where in the circumstances of any
such application it sees fit, direct that, for obtaining the relief, order or
direction sought for by such application, an information, action or
petition, as the case may require, shall be brought or presented and
prosecuted, and abstain from further proceeding on such application.
115
Applications (0. r. 3)
(HK)3. An application under rule 1 of this Order may be made by the
Attorney General, or by all or any one or more of the trustees or persons
administering or claiming to administer, or interested in the charity
which is the subject of the application, or by 2 or more inhabitants of
any city, town, village or place within which the charity is administered
or applicable.
120
Applications by Attorney General (0. ++S, r. 4)
(HK)4. The Attorney General may, acting ex officio, make application by
petition to the Court with respect to any charity under the provisions of
the Charities Procedure Act 1812.
LIST OF FORMS
Page
Acknowledgment of service
of writ of summons . A 391
of writ of summons in Action in rem or Limitation Action ...... A 517
of originating summons....... ...... A 395
Admiralty forms. See separate list on p. A378
Affidavit
under 0. 50, r. 11....... ........ A 482
verifying list of documents................. 1............... A 406
Bond in case of foreign attachment................................A 528
Certificate of
order against the Crown.... ................ A 501
for costs.. .. .............. ...... A 502
Judgment
after decision of preliminary issue......... ............ A 437
trial before judge:
with jury........... 1 . ........ A 435
without jury........... ........ .... A 433
against personal representative, liquidated sum ......................... A 439
costs after acceptance of payment into court ......................... A 443
on discontinuance....................... . .......... . A 441
default judgment:
detention of goods.............. .. ..... .......... A 423
liquidated demand........................... ..... . ........ A419
possession of land.......................... ..... . ........ A 425
unliquidated damages..... ........ A 421
final judgment after assessment of damages, etc . ................ A 429
under 0. 14...... 1 . .... . 1. A 431
Letter of request..... ......... ........ .............A 414
List of documents.... .................. A 405
Notice
of acceptance of money paid into court... .. ........ . A 405
acceptance of money paid into court in connection with arbitration proceedings A 503
payment into court in connection with arbitration proceedings............... A 503
Page
adjourned application for writ of habeas corpus......................A 498
application for leave to apply for Judicial Review......................A 496
appointment to hear originating summons......................... A 387
judgment or order.... .............. A 445
motion.. .. .................. A 417
for order of mandamus, prohibition, certiorari......................A 495
for writ of habeas corpus................... ..... .............. A 498
originating motion................. A 389
payment into court................. A 403
renewal of writ of execution........................ .............. A 471
under 0. 50, r. 11..................... A 482
to be indorsed on copy of counterclaim...........................A 397
to consular officer of intention to apply for warrant of arrest............... A 527
with writ of habeas corpus ad subjiciendum............................ A 499
Order
Application for imprisonment in default of payment......................A 510 charging order,
notice to show cause.............................. A 477
absolute.............. A 478
directing summons for appointment of receiver, etc ..................... .. A 487
for appointment of examiner out of jurisdiction......................... A 416
receiver by way of equitable execution................. .. A 489
examination of witness within jurisdiction......................... A 412
for imprisonment for debt................................ A 508
issue of letter of request................................... A 414
possession of land................................... .. A 427
production of documents, marine insurance action................. .. A 500
garnishee order to show cause.. ..... ............ A 471
order absolute.. ..... .......... A 473, 475
of committal.. ..... .............. A 491
of imprisonment pending further examination........ ................ A 506
of issue of warrant of arrest for examination .. .................. A 504
prohibiting departure from Hong Kong......... .. .............. A 512
restraining transfer of stock, etc . 1............. .............. A 483
stop order, funds in court.. ..... .............. A 480
to admit prisoner to bail:
Court of Appeal............... A 502
Order 49A
special forms under................................. .............. A 528
Originating summons
General form.. ..... ................ A 381
expedited form........................... ..... .................. A 383
Page
ex parte summons................... A 385
for possession.................. A 385
Summons
for appointment of examiner out of jurisdiction .......... A415
receiver.. ..... .......... A 485
examination of witness within jurisdiction........ ................ A 411
issue of letter of request.. ..... .......... A 414
Third party notice
claiming contribution or indemnity, etc. A 399
question or issue to be determined A 401
Warrant for bailiff to call upon defendant to give security to produce property.......... A 527
Warrant for committal................ A 493
Writ of assistance..........................................A 469
Writ of delivery.. ..... .............. A 457, 459
Writ of fieri facias.. ..... ................ A 447
after levy of part.. ..... .............. A 451
against personal representative.............. ..... ................ A 453
for costs.. ..... .............. A 449
to enforce foreign registered judgment.............................. A 455
Writ of foreign attachment.....................................A 528
Writ of habeas corpus..................... A 498
ad respondendum................... A 500
ad subjiciendum................... A 499
ad testificandum................... A 500
Writ of possession..... .............. A 461, 463
Writ of restitution ........................................ A 467
Writ of sequestration........................................ A 465
Writ of subpoena.................. A 407
proceedings in chambers................................... A 409
Writ of summons..........................................A 379
Page
ADMIRALTY FORMS
Bail bond.. .................. A 525
Commission for appraisement and sale.............................. A 526
Praecipe for:
caveat against arrest.. .............. A 523
release and payment................... .. .............. A 524
commission for appraisement and sale.............................. A 525
issue of release.. ........ ........ A 524
service of writ in rem by Bailiff.......... .. .................. A 523
warrant of arrest.. ..... .............. A 523
withdrawal of caveat.. ............ A 525
Release
and warrant of possession.......................... ................ A 526
Warrant of arrest..........................................A 521
Writ of summons
acknowledgment of service A 517
in limitation action.. .. . .... A 515
in rem.. ................ A 514
notice to be served out of jurisdiction A 516
APPENDIX A
FORMS
No. 1
Writ of Summons
(0. 6 r. 1)
(Hong Kong Coat of Arms)
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
19 No . ..............
Between A.B. Plaintiff
AND
C.D. Defendant
TO THE DEFENDANT (name) ...............
........
of (address)
..................................................................................................
...............
THIS WRIT OF SUMMONS has been issued against you by the above-named Plaintiff in
respect of the claim set out on the back.
Within (14 days) after the service of this Writ on you, counting the day of service, you must
either satisfy the claim or return to the Registry of the Supreme Court the accompanying
ACKNOWLEDGMENT OF SERVICE stating therein whether you intend to contest these
proceedings.
If you fail to satisfy the claim or to return the Acknowledgment within the time stated, or if you
return the Acknowledgment without stating therein an intention to contest the proceedings, the
Plaintiff may proceed with the action and judgment may
be entered against you forthwith without further notice.
Issued from the Registry of the Supreme Court this day of
...........1 19
.
Note.---ThisWrit may not be served later than 12 calendar months beginning with that date
unless renewed by order of the Court.
IMPORTANT
Directions for Acknowledgment of Service are given with the accompanying form.
(Back of No. 1)
*[Statement of Claim]
The Plaintiff's claim is for ...................................................................................
*Where words appear between square brackets delete if inapplicable.
*(Signed if statement of claim indorsed.)
(Where the Plaintiff's claim is for a debt or liquidated demand only:
If, within the time for returning the Acknowledgment of Service, the Defendant pays
the amount claimed and for costs and, if the Plaintiff obtains an order
for substituted service, the additional sum of . further proceedings
will be stayed. The money must be paid to the Plaintiff or his Solicitor.)
THIS WRIT was issued by
..of
................................................................................................
..Solicitors for the said Plaintiff whose address is
.........................................................
*(or where the Plaintiff sues in person.
THIS WRIT was issued by the said Plaintiff who resides at ...............................
.. 1 1
and (if the Plaintiff does not reside within the jurisdiction) whose address for service is
..
1988
No. 8
Originating summons-general
form
(0. 7 r. 2)
IN THE SUPREME COURT OF HONG
KONG
HIGH COURT
19 No .
..............
(IN THE MATTER OF
Between A.B. Plaintiff
AND
C.D. Defendant
To C.D. of
Let the defendant, within (14 days) after service of this summons on him,
counting the day of service, return the accompanying Acknowledgment of Service
to the Registry of the Supreme Court
By this summons, which is issued on the application of the plaintiff
A.B. of ...............................the plaintiff claims against the defendant
.......................................(or seeks the determination of the Court on the
following.. ..questions, namely, .............................................................................
..
or as may be).
If the defendant does not acknowledge service, such judgment may be given or
order made against or in relation to him as the Court may think just and expedient.
Dated the ............day of 19
Note:-This summons may not be served later than 12 calendar months
beginning with the above date unless renewed by order of the Court.
.This summons was taken out by .......of
.. solicitors for the said
plaintiff .............................whose address is as stated above
(or where the plaintiff sues in person. This summons was taken out by the
said plaintiff who resides at the above-named address or as may be and (if
the plaintiff does not reside within the jurisdiction) whose address for service
is..
IMPORTANT
Directions for Acknowledgment of Service are given with the accompanying
form.
1988
No. 10
summons-expedited form
(0. 7 r. 2)
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
19 No .
(IN THE MATTER OF
Between A.B. Plaintiff
AND
C.D. Defendant
Let C.D. of.. attend before the Registrar (or Judge)
in
Chambers, at the Supreme Court, Hong Kong, on day, the
........................day of.. 19
at ..o'clock, (or, if
no application has yet been made for a day to be fixed, on a day to be fixed)
on the hearing of an application by the plaintiff A.B. of that
..
And let the defendant within (14 days) after service of this summons on him
counting the day of service, return the accompanying Acknowledgment of Service
to the Registry of the Supreme Court
Dated the ............day of 19
Note.~This summons may not be served later than 12 calendar months
beginning with the above date unless renewed by order of the Court.
.This summons was taken out by ......of solicitors for the
said plaintiff whose address is as stated above (or where the plaintiff sues in person.
This summons was taken out by the said plaintiff who resides at
..and (if the plaintiff does not reside within the jurisdiction) whose
address for service is
..
Note:-If a defendant does not attend personally or by his counsel or solicitor at
the time and place above-mentioned such order will be made as the Court may
think just and expedient.
IMPORTANT
Directions for Acknowledgment of Service are given with the accompanying
form.
1988
No. 11
Ex parte originating
summons
(0. 7 r. 2)
19 No .
..............
IN THE SUPREME COURT OF HONG
KONG
In the matter of ...........................................................................................
Let all parties concerned attend before the Judge in Chambers (or the master)
at the Supreme Court in Victoria, Hong Kong, on day, the
day of ....19 .....at o'clock, on the hearing of an
application
by A.B. that ........................................................
Dated the ............day of 19
This summons was taken out by ...of solicitor
for the applicant whose address is .................
No. IIA
Originating summons for
possession
(0. 113 r. 2)
19 No .
..............
IN THE HIGH COURT OF HONG
KONG
(IN THE MATTER OF
Between A.B. Plaintiff
AND
C.D. Defendant (if any)
whose name is known
To [C.D. and) every [other] person in occupation of
...........................................
Let all persons concemed attend before
..............................................................
High Court .......of
HONG KONG g** in--- in Victoria, Hong Kong a**,' on
day,the ........day
of .........19 .at o'clock, on the hearing of an application
by A.B. for an order that he do recover possession of on the
ground that he is entitled to possession and that the person(s) in occupation is (are)
in occupation without licence or consent.
Dated the .............day of 19
This summons was taken out by of
solicitor for the said plaintiff whose address is ...........................................................
[or when the plaintiff acts in person]
This summons was taken out by the said plaintiff who resides at..
.. .. .. .. and is (state occupation) and (if the plaintiff does not reside within
the jurisdiction) whose address for service is
..............................................................
by counsel or solicitor to be joined as a defendant. If a person occupying
the premises does not attend personally or by counsel or solicitor at the
time and place above-mentioned, such order will be made as the Court may
think just and expedient.
1988
No. 12
Notice of appointment to bear originating
summons
(0. 28 r. 2)
(Heading as in
summons)
To (name of defendant) of
..................................................................................
Take notice that the originating summons issued herein on the .. day
of .........19 .will be heard by the Judge in Chambers (or the
master) at the Supreme Court in Victoria, Hong Kong, on day, the
day of ...........19 .at o'clock. You may attend in
person, or by your solicitor or counsel. If you fail to attend, such order will be made
as the Court may think just and expedient.
Dated the ............day of 19
(Signed)
....................................................
Solicitor for the
plaintiff.
1988
No. 13
Notice of originating
motion
(0. 8 r. 3)
19 No .
IN THE SUPREME COURT OF HONG KONG
In the matter of
............................................
and
In the matter of
............................................
Take notice that the Supreme Court of Hong Kong in Victoria, Hong Kong
will
be moved (before his Lordship, Mr. Justice at the expiration of
.............................days from the service
upon you of this notice (or on day, the
.. day of 19 at the sitting of the Court) or so
soon
thereafter as counsel can be heard, by counsel on behalf of A.B. for an order that
.....................(or for the following
relief, namely..
And that the costs of and incidental to this (application) (appeal) may be paid
by
..
(And further take notice that the grounds of this (application) (appeal) are:
..
Dated the ............day of 19
(Signed) ....................................................
C.D. of ..............................solicitor for the above named (applicant)
(appellant) A.B. whose address is ....or
A.B. whose address for service is ....(applicant) (appellant)
in person
.....................................................................................................................
TO........................................ of
1988
No. 14
Acknowledgment of Service of Writ of
Summons
(0, 12 r. 3)
Directions for Acknowledgment of Service
1. The accompanying form of ACKNOWLEDGMENT OF SERVICE
should be detached and completed by a Solicitor acting on behalf of the
Defendant or by the Defendant if acting in person. After completion it
must be delivered or sent by post to the Registry of the Supreme Court at
the following address:
2. A Defendant who states in his Acknowledgment of Service that he
intends to contest the proceedings MUST ALSO file a DEFENCE which
must be written in the English language with the registry and serve a copy
thereof on the Solicitor for the Plaintiff (or on the Plaintiff if acting in
person).
If a Statement of Claim is indorsed on the Writ (i.e. the words
'Statement of Claim' appear at the top of the back), the Defence must be
filed and served within 14 days after the time for acknowledging service of
the Writ, unless in the meantime a summons for judgment is served on the
Defendant.
If a Statement of Claim is not indorsed on the Writ, the Defence need
not be filed and served until 14 days after a Statement of Claim has been
served on the Defendant.
If the Defendant fails to file and serve his defence within the
appropriate time, the Plaintiff may enter judgment against him without
further notice.
3. A STAY OF EXECUTION against the Defendants goods may be
applied for where the Defendant is unable to pay the money for which any
judgment is entered. If a Defendant to an action for a debt or liquidated
demand (i.e. a fixed sum) who does not intend to contest the proceedings
states, in answer to Question 3 in the Acknowledgment of Service, that he
intends to apply for a stay, execution will be stayed for 14 days after his
Acknowledgment, but he must within that time, ISSUE A SUMMONS for a
stay of execution, supported by an affidavit of his means. The affidavit
should state any offer which the Defendant desires to make for payment of
the money by instalments or otherwise.
See attached Notes for Guidance
Notes for Guidance
1. Each Defendant (if there are more than one) is required to complete
an Acknowledgment of Service and return it to the Registry of the Supreme
Court.
[2. For the purpose of calculating the period of 14 days for
acknowledging service, a writ served on the Defendant personally is treated
as having been served on the day it was delivered to him and a writ served by
post or by insertion through the Defendant's letter box is treated as having
been served on the seventh day after the date of posting or insertion.]
3. Where the Defendant is sued in a name different from his own, the
form must be completed by him with the addition in paragraph 1 of the
words 'sued as (the name stated on the Writ of Summons)'.
4. Where the Defendant is a FIRM and a Solicitor is not instructed, the
form must be completed by a PARTNER by name, with the addition in
paragraph 1 of the description 'partner in the firm of after
his name.
5. Where the Defendant is sued as an individual TRADING IN A
NAME OTHER THAN HIS OWN, the form must be completed by him
with the addition in paragraph 1 of the description 'trading as ..............
.. after his name.
6. Where the Defendant is a LIMITED COMPANY the form must be
completed by a Solicitor or by someone authorized to act on behalf of the
Company, but the Company can take no further step in the proceedings
without a Solicitor acting on its behalf.
7. Where the Defendant is a MINOR or a MENTAL Patient, the form
must be completed by a Solicitor acting for a guardian ad litem.
8. A Defendant acting in person may obtain help in completing the
form at the Registry of the Supreme Court.
9. These notes deal only with the more usual cases. In case of difficulty
a Defendant in person should refer to paragraph 8 above.
(Heading as in No. 1 to be completed by plaintiff
ACKNOWLEDGMENT OF SERVICE
OF WRIT OF SUMMONS
If you intend to instruct a Solicitor to act for you, give him this form
IMMEDIATELY.
Important. Read the accompanying directions and notes for guidance
carefully before completing this form. If any information required is
omitted or given wrongly, THIS FORM MAY HAVE TO BE RETURNED.
Delay may result in judgment being entered against a Defendant
whereby he or his Solicitor may have to pay the costs of applying to set it
aside.
See Notes 1, 1 State the full name of the Defendant by whom or on whose
3, 4 and 5.behalf the service of the Writ is being acknowledged.
2.State whether the Defendant intends to contest the
proceedings (tick appropriate be.)
yes no
See Direction 3. 3. If the claim against the Defendant is for a debt or
liquidated demand, AND he does not intend to contest the
proceedings, state if the Defendant intends to apply for a
stay of execution against any judgment entered by the
Plaintiff (tick box)
Where words Service of the Writ is acknowledged accordingly.
appear between
square brackets,
delete if (Signed) [Solicitor]
inapplicable.
[Defendant in person]
Address for service
Notes as to Address for Service
Solicitor. Where the Defendant is represented by a Solicitor, state the
Solicitor's place of business in Hong Kong.
Defendant in person. Where the Defendant is acting in person, he must
give his residence OR, if he does not reside in Hong Kong, he must give an
address in Hong Kong where communications for him should be sent. In the
case of a limited company, 'residence' means its registered or principal
office.
(Back of page (1)
Indorsement by plaintiff's solicitor (or by plaintiff if suing in person) of
his name, address and reference, if any.
1988
1988
No. 15
Acknowledgment of Service of Originating
Summons
(0. 10 r. 5)
Directions for Acknowledgment of Service
The accompanying form of ACKNOWLEDGMENT OF SERVICE
should be detached and completed by a Solicitor acting on behalf of the
Defendant or by the Defendant if acting in person. After completion it
must be delivered or sent by post to the Registry of the Supreme Court of
the following address:
See over for Notes for Guidance
[Back of page (1)]
Notes for Guidance
[As in No. 14 substituting 'originating summons- for 'writ of summons'.]
(Heading as in No. 8 or 10 to be completed by plaintiff)
ACKNOWLEDGMENT OF SERVICE
OF ORIGINATING SUMMONS
If you intend to instruct a Solicitor to act for you, give him this form
IMMEDIATELY.
Important. Read the accompanying directions and notes for guidance
carefully before completing this form. If any information required is
omitted or given wrongly, THIS FORM MAY HAVE TO BE RETURNED.
See Notes 1, 1 State the full name of the Defendant by whom or on
3, 4 and 5. whose behalf the service of the Originating Summons is
being acknowledged.
2. State whether the Defendant intends to contest the
proceedings (tick appropriate box)
yes no
Where words Service of the Originating Summons is acknowledged
accordingly.
appear between
square brackets,
delete if
inapplicable.
(Signed) [Solicitor]
[Defendant in person]
Address for service
Notes as to Address for Service
Solicitor. Where the Defendant is represented by a Solicitor, state the
Solicitor's place of business in Hong Kong.
Defendant in person. Where the Defendant is acting in person, he must
give his residence OR, if he does not reside in Hong Kong, he must give an
address in Hong Kong where communications for him should be sent. In the
case of a limited company, 'residence' means its registered or principal
office.
(Back of page
Indorsement by plaintiffs Solicitors (or by plaintiff if suing in person)
of his name, address and reference, if any.
1988
No. 17
Notice to he indorsed on copy of
counterclaim
(0. 15 r. 3(6))
To X. Y.
Take notice that, within [14 days] after service of this defence and
counterclaim
on you, counting the day of service, you must acknowledge service and state in your
acknowledgment whether you intend to contest the proceedings. If you fail to do so
or
if your acknowledgment does not state your intention to contest the proceedings,
judgment may be given against you without further notice.
IMPORTANT
Directions for Acknowledgment of Service are given with the accompanying
form.
1988
No. 20
Third party notice claiming contribution or
indemnity
or other relief or remedy
(0.16)
19 No .
..............
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
BETWEEN A.B. Plaintiff
AND
C.D. Defendant
AND
T.P. Third Party
Third Party Notice
[Issued pursuant to the order of ..dated the day
of .......1.
To T.P. of ........in the
of
................................................................................................................................
Take notice that this action has been brought by the plaintiff against the
defendant. In it the plaintiff claims against the defendant [here state the nature of
the plaintiffs claim] as appears from the writ of summons [or originating
summons] a copy whereof is served herewith [together with a copy of the
statement of claim].
The defendant claims against you [here state the nature of the claim against
the third party as for instance] to be indemnified against the plaintiff's claim and
the costs of this action or contribution to the extent of [one half] of the plaintiff's
claim or
the following relief or remedy namely .on the grounds that (state the
grounds of the claim).
And take notice that within [14 days] after service of this notice on you,
counting the day of service, you must acknowledge service and state in your
acknowledgment whether you intend to contest the proceedings. If you fail to do
so, or if your acknowledgment does not state your intention to contest the
proceedings, you will be deemed to admit the plaintiffs claim against the defendant
and the defendant's claim against you and your liability to [indemnify the
defendant or to contribute to the
extent claimed or to ..................stating the relief or remedy
sought] and will be bound by any judgment or decision given in the action, and the
judgment may be enforced against you in accordance with Order 16 of the Rules of
the Supreme Court Chapter 4.
Dated the .........day of 19
(Signed) ....................................................
Solicitor for the defendant.
IMPORTANT
Directions for Acknowledgment of Service are given with the accompanying
form.
1988
Coverage
party notice where question or issue to be
determined
(0.16)
[Title etc. as in No. 20 down to end of first
paragraph]
The defendant requires that the following question or issue, viz. [here state the
question or issue required to be determined] should be determined not only as
between the plaintiff and the defendant but also as between either or both of them
and yourself.
And take notice that [as in No. 20 down to the words 'intention to contest the
proceedings'] you 'I be bound by any judgment or decision in the action so far as it
is relevant to the said question or issue, and the judgment may be enforced against
you in accordance with Order 16 of the Rules of the Supreme Court Chapter 4.
Dated the ............day of 19
(Signed)
....................................................
Solicitor for the
defendant.
IMPORTANT
Directions for Acknowledgment of Service are given with the accompanying
form.
1988
No. 23
Notice of payment into
court
(0. 6 r. 2; 0. 22 rr. 1, 2)
(Heading as in action)
Take notice that-
The defendant ..has paid into court.
.The said 5 is in satisfaction of (the cause of action) (all
the causes of action) in respect of which the plaintiff claims (and after taking into
account and satisfying the above-named defendant's cause of action for ...................
.. in respect of which he counterclaims).
or
The said .....is in satisfaction of the following causes of
action in respect of which the plaintiff claims, namely . (and
after taking into account as above).
or
Of the said .. ...is in satisfaction
of the plaintiffs cause(s) of action for (and after taking into
account as above) and is in satisfaction of the plaintiff's
cause(s) of action for (and after taking into account as
above).
Dated the ............day of 19
1988
No. 24
Notice of acceptance of money paid into
court
(0. 22 r. 3)
(Heading as in action)
Take notice that the plaintiff accepts the sum of paid in
by the defendant C.D. in satisfaction of the cause(s) of action in respect of which it
was paid in and in respect of which the plaintiff claims (against that defendant) (and
abandons the other causes of action in respect of which he claims in this action).
Dated the ............day of 19
No. 26
list of Documents
(0. 24 r. 5)
(Heading as in cause or matter)
List of documents
The following is a list of the documents relating to the matters in question in
this action which are or have been in the possession, custody or power of the above-
named plaintiff (or defendant) A.B. and which is served in compliance
with Order 24, rule 2 (or the order herein dated the day of
.. 19 .
1. The plaintiff (or defendant) has in his possession, custody or power the
documents relating to the matters in question in this action enumerated in schedule
1 hereto.
2. The plaintiff (or defendant) objects to produce the documents enumerated
in part 2 of the said schedule 1 on the ground that (stating the ground of
objection).
3. The plaintiff (or defendant) has had, but has not now, in his possession,
custody or power the documents relating to the matters in question in this action
enumerated in schedule 2 hereto.
4. Of the documents in the said schedule 2, those numbered in
that schedule were last in the plaintiff's (or defendant's) possession, custody or
power on (stating when) and the remainder on (stating
when).
(Here state what has become of the said documents and in whose possession
they now are.)
5. Neither the plaintiff (or defendant), nor his solicitor nor any other person
on his behalf, has now, or ever had, in his possession, custody or power any
document of any description whatever relating to any matter in question in this
action, other than the documents enumerated in schedules 1 and 2 hereto.
SCHEDULE 1 1
Part 1
(Here enumerate in a convenient order the documents (or bundles of
documents, if of the same nature, such as invoices) in the possession, custody or
power of the party in question which he does not object to produce, with a short
description of each document or bundle sufficient to identify it.)
Part 2
(Here enumerate as aforesaid the documents in the possession, custody or
power of the party in question which he objects to produce.)
SCHEDULE 2 2
(Here enumerate as aforesaid the documents which have been, but at the date
of service of the list are not, in the possession, custody or power of the party in
question.)
Dated the ............day of 19
Notice to inspect
Take notice that the documents in the above fist, other than those listed in
part 2 of schedule 1 (and schedule 2), may be inspected at (the office of the
solicitor of the above-named (plaintiff (defendant) (insert address) or as may be)
on the .day of ..........19 .between the hours of
.. and ......1
To the defendant (or plaintiff) C.D. and his solicitor.
Served the .....................day of 19 by
of ..................solicitor for the
plantiff) (defendant).
No. 27
Affidavit verifying list of
documents
(0. 24 r. 5)
(Heading as in cause or
matter)
1, the above-named plaintiff (or defendant) A.B., make oath and say as
follows:
1. The statements made by me in paragraphs 1, 3 and 4 of the list of documents
now produced and shown to me marked are true.
2. The statements of fact made by me in paragraph 2 of the said list are true.
3. The statements made by me in paragraph 5 of the said list are true to the
best of my knowledge, information and belief.
Sworn, etc.
This affidavit is filed on behalf of the plaintiff (or
defendant).
No. 28
Writ of subpoena
(0. 38 r. 14)
(Heading as in cause or
matter)
ELIZABENTH THE SECOND by the Grace of God, of the United Kingdom of Great
Britain and Northern Ireland and of Our other realms and territories Queen, Head
of the Commonwealth, Defender of the Faith:
To (names of witnesses).
We command you to attend (at the Supreme Court in Victoria, Hong Kong at
the sittings of our Supreme Court of Justice) on the day fixed for the trial of the
above-named cause, notice of which will be given to you, and from day to day
thereafter until the end of the trial, to give evidence on behalf of the (plaintiff) or
(defendant)*.
Witness.. Chief Justice of Hong Kong
the
.......................day of 19
Issued on the ...................day of 19
by ............solicitor for the
*If duces tecum add: And we also command you to bring with you and produce
at the place aforesaid on the day notified to you (here describe the documents or
things to be produced).
1988
No. 29
Writ of subpoena: proceedings in
chambers
(0. 38 r. 14)
(Heading as in cause or
matter)
ELIZABETH THE SECOND (as in No. 28).
To (names of witnesses).
We command you to attend before (Mr. Justice in
chambers, at the Supreme Court in Victoria, Hong Kong on day
the ...day of ....................19 at
.. and so from day to day until your evidence shall have been
taken, to give evidence on behalf of the (plaintiff) or (defendant) in the above-
named
cause (and we also command you to bring with you and produce at the time and place
aforesaid describe the documents or things to be produced.)
Witness (as in No. 28).
Issued (as in No. 28).
1988
No. 31
summons for examination within jurisdiction of witness
before trial
(0. 39 r. 1)
(Heading as in cause or matter)
Let all parties concemed attend the Judge (or Registrar) in chambers at the
Supreme Court in Victoria, Hong Kong on .. the
day of
.. .. 19 at o'clock on the
hearing of an
application on the part of ...........that A.B. a witness on
behalf of the ........................be examined forthwith before a Judge, [the
Registrar] or one of the examiners of the Court (or an examiner to be agreed upon)
upon the usual terms, and that the costs of this application be (costs in the cause).
Dated the .......day of 19
This summons was taken out by.. of
.. solicitor for the.. .........
To the above-named ..................(and his
solicitor).
No. 32
Order for examination within jurisdiction of withness
before trial
(0. 39 r. 1)
(Heading as in cause or
matter)
On hearing (the solicitors on both sides) and on reading the affidavit of
.. filed herein the day of
19
.It is ordered that a witness on behalf of the
.. be examined viva voce on oath or affirmation before a
Judge, the Registrar or one of the examiners of the Court (or ...................................
Esq., the examiner agreed upon or an examiner to be agreed upon), the plaintiffs (or
defendant's) solicitor giving to the defendant's (or plaintiffs) solicitor .....................
days' notice in writing of the time and place where the examination is to take place
(or
state the time and place if fixed by the order). And it is ordered that the depositions
taken at the examination be filed in the Registry of the Supreme Court, and that
office
copies thereof may be read and given in evidence on the trial of this cause, saying all
just exceptions, without any further proof of the absence of the said witness than the
affidavit of the solicitor of the party using the same, as to his belief, and that the
costs
of this application (and of the examination) be (costs in the cause).
Dated the...................... day of
19
1988
No. 33
Summons for issue of letter of request to judicial
authority
out of jurisdiction
(0. 39 r. 2)
(Heading as in cause or matter)
Let all parties (as in No. 31) on the hearing of an application on the part of
.. judicial for an order that a letter of request
shall issue to
proper authority of for the examination of
E.F. and G.H. and other witnesses on the plaintiffs (or the defendant's) behalf at
(name of country), and that the action be stayed
until the return 'of of the said letter s. of request and examination, and that the
costs of and
incidental to this application and the said letter of request and examination be costs
in
the cause.
Dated, etc. (conclude as in No. 37).
No. 34
Order for issue of letter of request to judicial
authority
out of jurisdiction
(0. 39 r. 2)
(Heading as in cause or matter)
On hearing (as in No. 32).
It is ordered that a letter of request do issue directed to the proper judicial
authority for the examination of the following witnesses, namely:
E.F. of.. ........
G.H . ..................................................
And it is ordered that the depositions taken pursuant thereto when received be
filed in the Registry of the Supreme Court and that office copies thereof may be
read and given in evidence on the trial of this action, saving all just exceptions,
without any further proof of the absence of the said witnesses than the affidavit of
the solicitor of the party using the same as to his belief.
And it is ordered that (the trial of this action be stayed until the said
depositions have been filed and that) the costs of and incidental to the application
for this order and the said letter of request and examination be (costs in the cause).
Dated the ......day of 19
No. 35
Letter of request for examination of witness out of
jurisdiction
(0. 39 r. 3)
To the Competent Judicial Authority of
.............................................................
in the.. of
WHEREAS an action is now pending in the Supreme Court of Hong Kong in
which ............is plaintiff and ...is
defendant and in which the plaintiff claims ................................................................
AND WHEREAS it has been represented to the said Court that it is necessary for
the purposes of justice and for the due determination of the matters in dispute
between the parties that the following persons should be examined as witnesses
upon
oath touching such matters, namely of
and .........of and it appears that such
witnesses are resident within your jurisdiction.
Now I ........the Registrar of the Supreme Court of Justice in
Hong Kong hereby request that for the reasons aforesaid and for the assistance of
the
said Court you will be pleased to summon the said witnesses (and such other witnesses
as the agents of the said plaintiff and defendant shall humbly request you in writing
so
to summon) to attend at such time and place as you shall appoint before you, or such
other person as according to your procedure is competent to take the examination
of
witnesses, and that you will cause such witnesses to be examined viva voce (or upon
the interrogatories which accompany this letter of request) touching the said matters
in question in the presence of the agents of the plaintiff and defendant or such of
them
as shall, on due notice given, attend the examination.
And I further request that you will permit the agents of both the plaintiff and
defendant or such of them as shall be present to examine (upon interrogatories and
viva voce upon the subject-matter thereof or arising out of the answers thereto)
such witnesses as may, after due notice in writing, be produced on their behalf, and
the other party to cross-examine the said witnesses (upon cross-interrogatories and
viva voce) and the party producing the witness for examination to re-examine him
viva voce.
And 1 further request that you will be pleased to cause the evidence of the said
witnesses (or the answers of the said witnesses and all additional viva voce
questions, whether on examination, cross-examination or re-examination) to be
reduced into writing and all books, letters, papers and documents produced on such
examination to be duly marked for identification, and that you will be further
pleased to authenticate such examination by the seal of your tribunal or in such
other way as is in accordance with your procedure and to return it together with
(the interrogatories and cross-interrogatories and) a note of the charges and
expenses payable in respect of the execution of this request through the British
Consul from whom the same was
received (or one of Her Majesty's Secretaries of State) for transmission to the
Supreme Court of Justice, Hong Kong.
And I further request that you will cause me, or the agents of the parties if
appointed, to be informed of the date and place where the examination is to take
place.
Dated the .............day of 19
....................No. 36
....................Summons for appointment of examiner to take evidence
....................of witness out of jurisdiction
....................(0. 39 r. 2)
....................(Heading as in cause or matter)
....................Let all parties (as in No. 31) on the hearing of an application on the part
of .................for an order that (the British Consul
at .................in (name of country) or his deputy)
Esq.) be appointed as special examiner for the purpose of taking the examination,
cross-examination, and re-examination, viva voce, on oath or affirmation of
...................................****** and
. witnesses on
of the ............................at in (name of country)
on the usual terms and that the costs of and incidental to this application and the
said
examination be costs in the cause.
Dated, etc. (conclude as in No. 31).
No. 37
Order for appointment of examiner to take
evidence
of witness out of jurisdiction
(0. 39 r. 2)
(Heading as in cause or matter)
On hearing the solicitors on both sides and on reading the affidavit of
.. filed the ............day of 19
It is ordered that the British Consul or his deputy at (or
.. Esq.) be appointed as special examiner for the purpose
of taking the examination, cross-examination and re-examination viva voce, on
oath
or affirmation, of witnesses on the part of
at ................in (name of country). The examiner shall be at
liberty to
invite the attendance of the witnesses and the production of documents, but shall
not
exercise any compulsory powers. Otherwise such examination shall be taken in
accordance with the English procedure. The solicitors to give to the
.. solicitors days' notice in writing of the date on
which they propose to send out this order to for
execution, and that ...................days after the service of such notice the
solicitors for the plaintiff and defendant respectively do exchange the names of their
agents at .........to whom notice relating to the examina-
tion of the said witnesses may be sent. And that days (exclusive of
Sunday) before the examination of any witness hereunder notice of such
examination
shall be given by the agent of the party on whose behalf such witness is to be
examined
to the agent of the other party, unless such notice be dispensed with. And that the
depositions when taken, together with any documents referred to therein, or
certified
copies of such documents, or of extracts therefrom, be sent by the examiner, under
seal, to the Registrar of the Supreme Court in Victoria, Hong Kong, on or before the
.. day of next, or such further or other
day as may
be ordered, there to be filed in the proper office. And that either party be at liberty
to
read and give such depositions in evidence on the trial of this action, saving all just
exceptions. And that the trial of this action be stayed until the filing of such
depositions. And that the costs of and incidental to the application for this order
and
such examination be costs in the cause.
Dated the...................... day of
19
No. 38
Notice of Motion
(0. 8 r. 3)
(Heading as in cause or
matter)
Take notice that (pursuant to the leave of .........................................
given
on the .day of ...........19 the Court (or Mr.
justice.. will be moved the day of
.. 1 .19 ..at ..o'clock, or so soon thereafter as
counsel can be heard, by (Mr . of counsel for the
above-named plaintiff (or defendant) that ..and that the costs
of the application be .......................
Dated the ............day of 19
(Signed) ....................................................
Of ...........................................
Solicitor for ..............................................
TO
Solicitor for ......................................
1988
No. 39
Default judgment in action for liquidated
demand
(0. 13 r. 1; 0. 19 r. 2; 0. 42 r. 1)
(Heading as in action)
The ...day of .....19
No notice of intention to defend having been given (or no defence having
been served) by the defendant herein, it is this day adjudged that the defendant do
pay the
plaintiff ......and ...........costs
(or costs to be taxed).
(The above costs have been taxed and allowed at .. as
appears by a taxing officer's certificate date the day of
....19 ..
1988
No. 40
Default judgment in action for unliquidated
damages
(0. 13 r. 2; 0. 19 r. 3; 0. 42 r. 1)
(Heading as in action)
The ...day of .....19
No notice of intention to defend having been given (or no defence having
been served) by the defendant herein, it is this day adjudged that the defendant do
pay the plaintiff damages to be assessed.
......................................The amount found due to the plaintiff under this judgment having been certified
at .................................as appears by the (Judge's or Registrar's certificate or as may
be) filed the ........day of 19
It is adjudged that the defendant do pay the plaintiff and costs to be
taxed.
The above costs, etc. (as in No. 39).
(Note:-This form is a combined form of interlocutory and final judgment. The
plaintiff may at his option enter interlocutory judgment by omitting the words
below the line in the form and enter a separate final judgment in Form No. 43)
1988
No. 41
Default judgment in action relating to detention
of goods
(0. 13 r. 3; 0. 19 r. 4; 0. 42 r. 1)
(Heading as in action)
The ...day of .....19
No notice of intention to defend having been given (or no defence having
been served) by the defendant herein.
It is this day adjudged that the defendant do deliver to the plaintiff the goods
described in the writ of summons (or statement of claim) as (description of goods)
or pay the plaintiff the value of the said goods to be assessed (and also damages for
their detention to be assessed).
or
It is this day adjudged that the defendant do pay the plaintiff the value of the
goods described in the writ of summons (or statement of claim) to be assessed (and
also damages for their detention to be assessed).
The value of the said goods having been assessed at (and damages at
.. as appears by the (Judge's or Registrar's certificate or as may be) filed
the ...day of .....19 ..
It is adjudged that the defendant do pay the plaintiff and costs to be
taxed.
The above costs, etc. (as in No. 39).
(Note:-See the note to No. 40.)
1988
No. 42
Default judgment in action for possession
of land
(0. 13 r. 4; 0. 19 r, 5; 0. 42 r. 1)
(Heading as in action)
The ..day of ......19
No notice of intention to defend having been given (or no defence having
been served) by the defendant herein, it is this day adjudged that the defendant do
give the plaintiff possession of the land described in the writ of summons (or
statement of claim)
as ......and pay the plaintiff$ costs (or costs to be taxed).
The above costs, etc. (as in No. 39).
1988
No. 42A
Order for
possession
(0. 113 r. 6)
[Heading as in summons]
Upon hearing .................and upon reading the affidavit of filed
the ...day of ...19 .it is ordered that the plaintiff A.B. do
recover possession of the land described in the originating summons as ....................
[and that the defendant ........do pay the plaintiff costs
[or costs to be taxed]
The above costs have been taxed and allowed at as appears by
a taxing master's certificate dated the day of 19
Dated the...................... day of
19
1988
No. 43
Find judgment after assessment of
damages, etc.
(0. 42 r. 1)
(Heading as in action)
The ...day of ....19
The plaintiff having on the .....day of 19
obtained interlocutory judgment herein against the defendant for damages (or as
may be) to be assessed, and the amount found due to the plaintiff having been
certified at as appears by the (Judge's or Registrar's certificate or as may
be) filed the ......day of 19
It is this day adjudged that the defendant do pay the plaintiff and
costs to be taxed.
The above costs, etc. (as in No. 39).
1988
No. 44
Judgment under Order
14
(0. 14 r. 3; 0. 42 r. 1)
(Heading as in action)
The ...day of .....19
The defendant having given notice of intention to defend herein and the
Court having under Order 14, rule 3 ordered that judgment as hereinafter provided
be entered for the plaintiff against the defendant.
It is this day adjudged that the defendant do pay the plaintiff and
..costs (or costs to be taxed)
or
pay the plaintiff damages to be assessed and costs to be taxed
or
deliver to the plaintiff the goods described in the writ of summons (or
statement
of claim) as ..(or pay the plaintiff the value of the said goods
to be assessed) (and also damages for their detention to be assessed) and costs to be
taxed
or
give the plaintiff possession of the land described in the writ of summons (or
statement of claim) as and costs to be taxed.
The above costs, etc. (as in No. 39).
1988
No. 45
Judgment after trial before judge
without jury
(0. 42 r. 1)
(Heading as in action)
Dated and entered the .....day of 19
This action having been tried before the Honourable Mr. Justice
.......................
..without a jury, at the Supreme Court of Justice, Hong Kong, and the
said
Mr. Justice ...having on the day of
19 ordered that judgment as hereinafter provided be entered for the plaintiff
(or defendant) (and directed that execution be stayed for the period and on the
terms hereinafter provided).
It is adjudged that the defendant do pay the plaintiff$ and his
costs of action to be taxed (or that the plaintiff do pay the defendant his costs of
defence to be taxed or as maybe according to the judge's order).
(It is further adjudged that execution be stayed for days and
if within that time the gives notice of appeal and sets down the
appeal, execution be further stayed until the determination of the appeal or as may
be according to the judge's direction).
The above costs, etc. (as in No. 39).
1988
No. 46
Judgment after trial before judge with jury
(0. 42 r. 1)
(Heading as in action)
Dated and entered the ...........day of 19
This action having been tried before the Honourable Mr. Justice .......
with a jury and the jury having found (state findings) and the said Mr. Justice
...................................having on the day of 19
ordered that judgment as hereinafter provided be entered for (etc. as in No. 45).
1988
No. 48
Judgment after decision of
preliminary issue
(0. 33 r. 7; 0. 42 r. 1)
(Heading as in cause or
matter)
Dated and entered the ...........day of 19
The issue (or question) arising in this cause (or matter) by the order
dated the ....................day of 19 ordered to
be tried before having on the
day of ...19 .been tried before the said
and the said .having found and
having ordered that judgment as hereinafter provided be entered for the ..................
.. (or having dismissed the cause or matter).
It is adjudged that (the defendant do pay the plaintiff and
his costs of action to be taxed) (the plaintiff do pay the defendant his costs of
defence
to be taxed) or as may be according to the order made.
1988
No. 49
Judgment for liquidated sum against personal
representative
(0. 42 r. 1)
(Heading as in action)
Dated and entered the ...........day of 19
(Recital as in No. 39, 43-48 according to the circumstances in which judgment was
obtained).
It is adjudged that the defendant as executor (or administrator) of the above
named .....deceased do pay the plaintiff and
costs to be taxed, the said sum and costs to be levied of the real and personal estate of
the deceased at the time of his death conic to the hands of the defendant as such
executor (or administrator) to be administered, if he has or shall hereafter have so
much thereof in his hands to be administered, and if he has not so much thereof in
his hands to be administered, then, as to the costs aforesaid, to be levied of the
goods,
chattels and other property of the defendant authorized by law to be seized in
execution (or as may be according to the order made).
The above costs, etc. (as in No. 39).
1988
No. 50
Judgment for defendant's costs on
discontinuance
(0. 62 r. 10(1))
(Heading as in action)
The ...day of .....19
The plaintiff having by a notice in writing dated the day of
.. 19 discontinued this action (or withdrawn his claim
in this action for.. and the defendant's costs of the action
(or of the claim withdrawn) having been taxed and allowed at ..............................
as appears by a taxing officer's certificate dated the day of
.. 19
and the plaintiff not having paid the sum within 4 days
after taxation.
It is this day adjudged that the plaintiff do pay the defendant the said
taxed costs.
1988
No. 51
Judgment for costs after acceptance of money paid
into court
(0. 62 r. 10(2), (3))
(Heading as in action)
The ...day of .....19
The defendant having paid into court in this action the sum of in
satisfaction of the plaintiff's cause(s) of action (or in satisfaction of the plaintiff's
cause of action for and the plaintiff having by his notice dated
the ...day of ...........19 .accepted that sum in
satisfaction of his cause(s) of action (or in satisfaction of his cause of action for
.. and abandoned his other cause(s) of action), and the plaintiff's
costs herein having been taxed and allowed at as appears by a
taxing officer's certificate dated the day of
19 and the defendant not having paid the sum within 48 hours after taxation.
It is this day adjudged that the defendant do pay the plaintiff the said
taxed costs.
1988
No. 52
Notice of judgment or
order
(0. 44 r. 3)
(Heading as in cause or
matter)
Take notice that a judgment (or order) of this Court was given (or made) on
the ...day of ......19 ................by which it was (state substance
of judgment or order).
And also take notice that from the time of the service of this notice you (or
the
infant .............or the patient..as may be) will be bound
by the said judgment (or order) to the same extent as you (or he) would have been
if you (or he) had originally been made a party.
And also take notice that you (or the said infant or patient) may within one
month after the service of this notice apply to the Court to discharge, vary or add
to the said judgment (or order) and that after acknowledging service of this notice
at the Registry of the Supreme Court in Victoria, Hong Kong, you (or the said
infant of patient) may attend the proceedings under the said judgment (or order).
Dated the ............day of 19.
To ............................................................
(Signed) ....................................................
1988
No. 53
Writ of facias
(0. 45 r. 12)
(Heading as in action)
ELIZABETH THE SECOND by the Grace of God, of the United Kingdom of Great
Britain and Northern Ireland and of Our other realms and territories Queen, Head
of the Commonwealth, Defender of the Faith.
To the bailiff greeting:
Whereas in the above named action it was on the day of
.. 1 19. adjudged (or ordered) that the defendant
C.D. do
pay the plaintiff A.B. ..........(and costs or
costs to be taxed, which costs have been taxed and allowed at .............................
as appears by the certificate of the taxing officer dated the day of
..19.
We command you that of the goods, chattels and other property of C.D.
authorized by taw to be seized in execution you cause to be made the sums of
.....and ..for costs of execution and also interest
on ..at the rate of $4 per cent per annum from the .. day
of.. 19 until payment (together with bailiff's fees,
costs of
levying and all other legal, incidental expenses) and that immediately after
execution
of this writ you pay A.B. in pursuance of the said judgment (or order) the amount
levied in respect of the said sums and interest.
And we also command you that you indorse on this writ immediately after
execution thereof a statement of the manner in which you have executed it and
send a copy of the statement to A.B.
And the court has fixed support and maintenance allowance at the rate of
.. 1 a day,
Witness ...........Chief Justice of Hong Kong, the
day of ............19
This writ was issued by of solicitor for
.....................................the (or this writ was issued by
A.B.
(the plaintiff) in person who resides at
1988
No. 54
Writ of fled facias on order for
costs
(0. 45 r. 12)
(Heading as in cause or matter)
ELIZABETH THE SECOND (as in No.
53).
To the bailiff ...greeting.
Whereas in the above named cause (or matter) it was on the day of
.. 19 ordered that
the ....C.D. do pay the
.. .. A.B. costs to be taxed, which costs have been
taxed and allowed
at .. as appears by the taxing officer's certificate
dated the
.. .. day of 19
We command you that of the goods, chattels and other property of C.D.
authorized by law to be seized in execution you cause to be made the sum of
1
...and ..for cause of execution, and also interest
on .. at the rate of $4 per cent per annum from the
day of .. 19. until payment together Mth bailiff's fees, cost of
levying and all other legal incidental expenses and that immediately after execution
of
this writ you pay A.B. in pursuance of the said order the amount levied in respect of
the said sum and interest.
And we also (as in No. 53).
And the court (as in No. 53).
Witness (as in No. 53).
This writ (as in No. 53).
1988
No. 56
Writ of fieri facias after levy of
part
(0. 45 r. 12)
(Heading as in action)
ELIZABETH THE SECOND (as in No. 53).
To the bailiff ...greeting:
Whereas (as in No. 53).
And whereas by our writ issued the day of
19 we commanded you that of the goods, chattels and other property of C.D.
should cause to be made the sums of and for costs of
execution and also interest on at $4 per cent per annum from the
.. day of 19 until payment and should
pay
A.B. in pursuance of the said judgment (or order) the amount levied in respect of the
said sums and interest and should indorse on the writ a statement of the manner in
which you, had executed it and send a copy of the statement to A.B.
And whereas the indorsement on the said writ states that by virture thereof
you (or he) caused to be made of the property aforesaid the sum of
............................
We 1 command you that of the goods, chattels and other property of C.D.
authorized by law to be seized in execution you cause to be made the sum of
.........................the residue of the said
1 and ..for
costs of execution and also interest on at the rate of $4 per cent per
annum from the ............day of 19 until payment
(continue as in No. 53).
And we also (as in No. 53).
And the court (as in No. 53).
Witness (as in No. 53).
This writ (as in No. 53).
1988
No. 57
Writ of fieri facias against personal
representative
(0. 45 r. 12)
(Heading as in action)
ELIZABETH THE SECOND (as in No. 53).
To the bailiff .greeting:
Whereas in the above named action it was on the day of
.. 1 19 adjudged (or ordered) that the
defendant
C.D. as executor (or administrator) of E.F. deceased do pay the plaintiff A.B.
....and ...costs (or costs to be taxed which costs have been
taxed and allowed at as appears by the certificate of the taxing officer
dated the ................day of 19 the said sums and
interest to be levied of the real and personal estate of the said E.F. at the time of his
death in the hands of the defendant C.D. as his executor (or administrator) to be
administered, if he had or should thereafter have so much thereof in his hands to be
administered, (and if he had not, then the said costs to he levied of the goods,
chattels
and other property of the defendant C.D. authorized by law to be seized in
execution):
We command you that of the real and personal estate of E.F. deceased, at the
time of his death, which is in the hands of C.D. as his executor (or administrator)
to be
administered you cause to be made the sums of and
for costs of execution and also interest on at the rate of $4 per
cent
per annum from the .........day of 19 until payment
(together with bailiff's fees, cost of levying and all other legal incidental expenses)
(and if the said C.D. has not so much thereof in his hands to be administered that
you
cause to be made of the goods, chattels and other property of C.D. authorized by law
to be seized in execution the sum of for costs) and that immediately
after execution of this writ you pay A.B. in pursuance of the said judgment (or
order)
the amount levied in respect of the said sums and interest.
And we also command you (remainder as in No. 53).
Witness (as in No. 53).
This writ (as in No. 53).
1988
No. 63
Writ of fieri facias to enforce foreign registered
judgment
(0. 45 r. 12; 0. 71)
IN THE SUPREME COURT OF HONG KONG
In the matter of the Foreign Judgments (Reciprocal Enforcement) Ordinance
(Cap. 319).
and
In the matter of a judgment of (describe the court) obtained in (describe the
cause
or matter) and dated the .........day of 19
ELIZABETH THE SECOND (as in No. 53)
To the bailiff .greeting:
Whereas by a judgment dated the day of 19
of (describe the court) registered in our Supreme Court of Justice, Hong Kong
pursuant to the Foreign Judgments (Reciprocal Enforcement) Ordinance it was
adjudged that C.D. do pay A.B . dollars (or as may be) and the
amount now due and owing under the said judgment is equivalent to the sum of
.....................
We command you that of the goods, chattels and other property of C.D.
authorized by law to be seized in execution you cause to be made the sums, of
.....and .....for costs of execution together with bailiff,
officers' fees (remainder as in No. 53).
And we also (as in No. 53).
Witness (as in No. 53).
This writ (as in No. 53).
1988
No. 64
Writ of delivery. delivery of goods, damages and
costs
(0. 45 r. 12)
(Heading as in action)
ELIZABETH THE SECOND (as in No. 53).
To the bailiff greeting:
Whereas in the above named action it was on the day of
.. 19 adjudged (or ordered) that the
defendant C.D. do
deliver to the plaintiff A.B. the following goods, namely (describe the goods delivery
of which has been adjudged or ordered) (and damages) and
....................................costs (or costs to be taxed, which costs have been taxed and
allowed at .........................as appears by the certificate of the taxing officer dated
the ...day of .....19
We command you that you cause the said goods to be delivered to A.B. and
that of the goods, chattels and other property of C.D. authorized by law to be
seized in
execution you cause to be made the sums of and for
costs of execution and also interest on at the rate of $4 per cent per
annum from the.. day of 19 until
payment
together with bailiff's fees, costs of levying and all other legal incidental expenses
and
that immediately after execution of this writ you pay A.B. in pursuance of the said
judgment (or order) the amount levied in respect of the said sums and interest.
And we also command you that you indorse (remainder as in No. 53).
Witness (as in No. 53).
This writ (as in No. 53).
1988
No. 65
Writ of delivery: delivery of goods or value,
damages, costs
(0. 45 r. 12)
(Heading as in action)
THE SECOND (as in No. 53).
To the bailiff .......................................................
greeting:
Whereas in the above named action it was on the day of
.. 19 adjudged (or ordered) that the
defendant C.D. do
deliver to the plaintiff A.B. the following goods, namely (describe the goods delivery
of which has been adjudged or ordered) or do pay him being the
assessed value of the said goods, (and damages)
and
costs (or costs to be taxed, which costs have been taxed and allowed at ................
as appears by the certificate of the taxing officer dated the 1 day of
.. 1 19
We command you that you cause the said goods to be delivered to A.B. and
that if possession of the said goods cannot be obtained by you you cause to be made
of the goods, chattels and other property of C.D. authorized by law to be seized in
execution
....the assessed value of the said goods and pay it to A.B.
And we also command you that of the said property of C.D. you cause to be
made the sums of .............for (damages and) costs and for costs
of execution and also interest on at the rate of $4 per cent per annum
from the ...................day of 19 until payment
together with bailiff's fees, costs of levying and all other legal incidental expenses
and
that immediately after execution of this writ you pay A.B. in pursuance of the said
judgment (or order) the amount levied in respect of the said sums and interest.
And we also command you that you indorse (remainder as in No. 53).
Witness (as in No. 53).
This writ (as in No. 53).
1988
No. 66
Writ of
possession
(0. 45 r. 12)
(Heading as in action)
ELIZABETH THE SECOND (as in No. 53).
To the bailiff greeting:
Whereas in the above named action it was on the .. day of
.. 19 adjudged (or ordered) that the defendant C.D. do
give
the plaintiff A.B. possession of (describe the land delivery of which has been
adjudged
or ordered) and do pay him and) costs (or costs to
be taxed, which costs have been taxed and allowed at as appears by
the taxing officer's certificate dated the .. day of
19
We command you that you enter the said land and cause A.B. to have
possession
of it.
And we also command you that of the goods, chattels and other property
(remainder as in No.
53).
And we also command you that you indorse (as in No. 53).
Witness (as in No. 53).
This writ (as in No. 53).
1988
No. 66A
Writ of
Possession
(0. 113 r. 7)
[Heading as in
summons]
ELIZABETH THE SECOND (as in No. 53).
To the bailiff .....greeting:
Whereas it was on the ...........day of 19
ordered that the plaintiff A.B. do recover possession of [describe the land recovery
of
which has been ordered] [and that the defendant C.D. do pay him
...........................
costs [or costs to be taxed, which costs have been taxed and allowed at S ................
as appears by the taxing master's certificate dated the day of
..19
]1:
We command you that you enter the said land and cause A.B. to have
possession
of it.
[And we also command you that of the goods, chattels and other property
[remainder as in No. 53]]
Witness (as in No. 53).
This writ (as in No. 53).
Dated this ..day of
..................19 ..
1988
No. 67
Writ of
sequestration
(0. 45 r. 12)
(Heading as in cause or
matter)
ELIZABETH THE SECOND (as in No. 53).
To (names of not less than four commissioners) greeting:
Whereas in the above named action (or matter) in our Supreme Court of
Justice, Hong Kong it was on the day of
19 ...adjudged (or ordered) that C.D. should (pay into Court the sum of
.. or as may be):
Know ye, therefore, that we, in confidence of your prudence and fidelity, do
by this writ authorize and command you, or any two or three of you, to enter upon
and take possession of all the real and personal estate of the said C.D. and to
collect, receive and get into your hands the rents and profits of his real estate and
all his personal estate and keep the same under sequestration in your hands until the
said C.D. shall (pay into Court to the credit of the said action or matter the sum of
...or as may be) and clear his contempt and our said Court make other
order to the contrary.
Witness (as in No. 53).
This writ was issued (as in No. 53).
1988
No. 68
Writ of
restitution
(0. 46 r. 1)
(Heading as in action)
ELIZABETH THE SECOND (as in No. 53).
To the bailiff greeting:
Whereas in the above named action it was on the day of
.. 1 19 adjudged (or ordered) that the defendant C.D. do
give
the plaintiff A.B. possession of (describe the land delivery of which was adjudged or
ordere
d):
And whereas on the .............day of 19 a
writ of possession was issued pursuant to the said judgment (or order) directing you
to give possession of the said land to the said A.B., but it appearing to our Supreme
Court of Justice, Hong Kong that certain other persons have wrongfully taken
possession of the said land and our said Court having on the day
of .........19 .ordered that a writ of restitution should issue in
respect of the said land:
We command you that you enter the said land and cause A.B. to have
restitution thereof.
And we also command you that you indorse (remainder as in No. 53).
Witness (as in No. 53).
This writ (as in No. 53).
1988
No. 69
Writ of
assistance
(0. 46 r. 1)
(Heading as in action)
ELIZABETH THE SECOND (as in No. 53).
To the present and any future bailiff greeting:
Whereas by an order dated the ..day of
19 made in an action in the Supreme Court of Justice, Hong Kong between
A.B., plaintiff, and C.D., defendant, the said C.D. was ordered to give to the said A.B.
possession of the land (or goods) therein described, namely (describe the land or
goods), but he the said C.D. and other persons have refused to obey the order and
keep the possession of the land (or goods) in contempt of us and our said Court:
And whereas by an order made in the said action dated the .....................
day of ......19 .it was ordered that a writ of assistance should
issue to give the said A.B. possession of the said land (or goods):
We command you that you (enter the said land and eject the said C.D., his
tenants, servants and accomplices, each and every of them, from the said land and
every Part thereof and put the said A.B. and his assigns into full, peaceable and
quiet possession thereof) (or put the said A.B. and his assigns into full peaceable and
quiet possession of the said goods) and defend and keep him and his assigns in such
peaceable and quiet possession, when and as often as any interruption thereof is at
any time effected, according to the intent of the said orders. And herein you are
not in any wise to fail
Witness (as in No. 53).
This writ (as in No. 53).
1988
No. 71
Notice of renewal of writ of
execution
(0. 46 r. 8)
(Heading as in cause or matter)
Take notice that the writ of.. .. issued in this cause (or
matter) directed to the bailiff and bearing date the day of
.. 19 has by
order dated the ................day of
19 been renewed for one year beginning with the date of
the
To the bailiff
................(Signed)
Solicitor for ...................................
No. 72
Garnishee order to show
cause
(0. 49 r. 1)
IN THE SUP~ COURT OF HONG KONG
19 No .
(Mr. Justice Judge in chambers)
Between A.B. Judgment creditor
AND
C.D. Judgment debtor
F. G. Garnishee
Upon reading the affidavit of .....filed the day
of .......19
It is ordered by (Mr. Justice that all debts due or accruing
due from the above-mentioned garnishee to the above-mentioned judgment debtor
(in the sum of be attached to answer a judgment recovered against
the said judgment debtor by the above-named judgment creditor in the Supreme
Court of Justice on the .........day of 19 for
the sum (or to answer an order made in the Supreme Court of Justice on the
.......................day of 19 ordering
payment by the
said judgment debtor to the above-named judgment creditor of the sum) of
...(debt and ...costs) (together with the costs of the
garnishee proceedings) on which judgment (or order) the sum of ..........................
remains due and unpaid.
And it is ordered that the said garnishee attend Mr. Justice ............................
................in Chambers, at the Supreme Court of Justice, in Victoria, Hong Kong
on
the .day of ............19 .at .o'clock, on an
application by the said judgment creditor that the garnishee do pay to the said
judgment creditor the debt due from the said garnishee to the said judgment debtor,
or so much thereof as may be sufficient to satisfy the said judgment (or order),
together with the costs of the garnishee proceedings.
Dated the ............day of 19
To the above-named garnishee
and judgment debtor.
1988
No. 73
Garnishee order absolute where garnishee owes more than
judgment debt
(0. 49 rr. 1, 4)
(Heading as in No. 72)
Upon hearing the solicitors for the judgment creditor and the garnishee, and
upon reading the affidavit of filed herein, and the order to
show cause made herein dated the day of
19 .whereby it was ordered that all debts due or accruing due from the
above-named garnishee to the above-named judgment debtor should be attached to
answer a judgment recovered against the said judgment debtor by the above-named
judgment creditor in the Supreme Court of Justice on the day of
.. 19 for the sum (or to answer an order made in the
Supreme
Court of Justice dated the ........day of 19
ordering payment by the said judgment debtor to the above-named judgment creditor
of the sum) of ............(debt and costs) (together with
the costs of the garnishee proceedings) on which judgment (or order) the sum of
5
remained due and unpaid:
It is ordered that the said garnishee do forthwith pay to the said judgment
creditor ...........................being so much of the debt from the said garnishee to the said
judgment debtor as is sufficient to satisfy the said judgment debt and costs, together
with ...............................the costs of the garnishee proceedings, and that the said
garnishee be at liberty to retain for his costs of this application out of
the balance of the debt due from him to the judgment debtor.
Dated the...................... day of
19
1988
No. 74
Garnishee order absolute where garnishee owes less than
judgment debt
(0. 49 rr. 1, 4)
(Heading as in No. 72)
Upon hearing (as in No. 73).
It is ordered that the said garnishee (after deducting therefrom
..for his costs of this application) do forthwith pay to the said
judgment creditor
...the debt due from the said garnishee to the said judgment debtor. And
that the sum of the costs or the judgment creditor of this application
be added to the judgment debt and be retained out of the money recovered by the
said
judgment creditor under this order and in priority to the amount of the judgment
debt.
Dated the...................... day of
19.
1988
No. 75
Charging order: notice to show
cause
(0. 50, r. 1)
(Heading as in cause or matter)
Upon hearing the ..............and upon reading the affidavit of ...................
filed herein the ..day of 19 whereby it appears that by a ajudg
ment (or order) made in the High Court of Justice on the .. day of
19 the defendant was ordered to pay to the plaintiff the sum of and
costs on which judgment (or order) the sum of remains due
and unpaid and that the defendant has a beneficial interest in the asset specified in
the schedule hereto:
It is ordered by (Mr. Justice/Master.. that unless sufficient cause
to the contrary be shown before (Mr. Justice/Master at the Supreme
Court of Hong Kong, 38 Queensway, Hong Kong) on the day of
19 ......at o'clock, the defendant's interest in the said asset shall, and it is
ordered that in the meantime it do, stand charged with the payment of
....................
due on the said judgment (or order) and (interest thereon at the statutory rate)
together with the costs of this application.
Dated the ........day of 19
SCHEDULE
(Describe with full particulars the relevant land, securities, funds or trust, stating, in
relation to securities, their full title, the amount of them and the name in which
they stand and whether the beneficial interest charged is in the securities only or in
dividends or interest as well, and stating, in relation to funds in court, the number
of the account).
No. 76
Charging order
absolute
(0. 50, r. 3)
(Heading as in cause or matter)
Upon hearing the and upon reading the affidavits of
and ...filed herein the .......day of 19 and the
order to show cause made herein on the day of .... 19
It is ordered that the interest of the defendant C.D. in the asset specified in the
schedule hereto stand charged with the payment of the amount due
from the defendant to the plaintiff A.B. on a judgment (or order) of the High Court
of Justice dated the ......day of 19 and (interest thereon at
the statutory rate) together with .. the costs of this application, the
said
costs to be added to the judgment debt.
Dated the .......day of 19
SCHEDULE
(Describe with full particulars the relevant land, securities, funds or trust, stating, in
relation to securities, their full title, the amount of them and the name in which
they stand and whether the beneficial interest charged is in the securities only or in
dividends or interest as well, and stating, in relation to funds in court, the number
of the account).
STOP NOTICE
To the (describe the person having custody of the security)
Take notice that, in relation to the securities specified in the schedule to this
order, you may not, without notice to (name of the plaintiff) at (his address for
service) register any transfer, or make any redemption payment, or, in the case of
a unit trust, deal with the units, or, where dividends or interest are included in the
order, pay any dividend or interest.
SCHEDULE
1988
No. 77
(L.N. 356188)
No. 78
(L.N. 356188)
No. 79
Stop order on capital and income of funds
in court
(0. 50 r. 10)
(Heading as in cause or matter)
Upon hearing .....for the A.B. and
for the defendant C.D. and upon reading the affidavit of filed
herein the ...........day of 19
It is ordered that no part of the capital of (describe funds) in court to the
credit of this action (or matter) (state title of action or matter), the account of
C.D., and of the
sum of ..cash (being income) in court to the same credit, and of any
interest or dividends to accrue due on the said funds in court, to which the said C.D.
is
(or may become) entitled, be transferred, sold, paid or otherwise dealt with without
notice to the said A.B.
Dated the...................... day of
19
1988
No. 80
Affidavit and notice under 0. 50
r. 11
(0. 50 r. 11)
IN THE SUPREME COURT OF HONG KONG
In the matter of (state the settlement or other document under which the deponent's
interest arises giving the date and other particulars sufficient to identify the document).
and
In the matter of Order 50, rule 11, of the Rules of the Supreme Court-
I, A.B. (or C.D. the solicitor of A.B. of .. made oath and
say that according to the best of my knowledge, information and belief 1 am (or the
said A.B. is) beneficially entitled under the above-mentioned settlement (or as may
be) to an interest in the securities specified in the notice hereto annexed.
Sworn, etc . ..............
This affidavit is filed on behalf of A.B. whose address is .....................................
Notice to he annexed to
affidavit
To ..........Co. Ltd.
Take notice that the securities comprised in and subject to the trusts of the
settlement (or as may be) referred to in the affidavit to which this notice is annexed
consist of the following, namely (specify the stock, shares, etc. stating the names in which it
stands).
This notice is intended to stop the transfer of the said securities and not the
payment of any dividend thereof or interest thereon (or and also the payment of
any dividend thereof or interest thereon).
(Signed) A.B. (or C.D. if affidavit
sworn by him).
No. 81
Order on originating motion restraining transfer of
stock, etc.
(0. 50 r. 15)
IN THE SUPREME COURT OF HONG
KONG
19 No .
..............
In the matter of the trusts of
..
and
In the matter of Order 50, rule 15, of the Rules of the Supreme Court.
Upon the hearing of the originating motion for an injunction this day made
unto this Court by counsel for the applicant A.B.:
And the applicant by his counsel undertaking to abide by any order the Court
may hereafter make should it decide that the respondents (the
..................................
..................Co. Ltd.) have sustained damage by reason of this order and are
entitled
to damages which the applicant ought to pay:
It is ordered that (the Co. Ltd.) be restrained until the
.........................day of 19 or further order
from
permitting the transfer of (describe stock) standing in the name of (state name of
holder of stock) in their books, or any part thereof, and from paying any dividend or
interest due or to become due thereon.
Dated the...................... day of
19
1988
No. 82
summons for appointment of
receiver
(0. 51 r. 3)
(Heading as in action)
Let the defendant C.D. attend the (Judge in chambers, at the Supreme
Court of Justice in Victoria, Hong Kong) on the
......................day of 19 at o'clock
on the
hearing of an application on the part of the plaintiff for an order that a receiver be
appointed (or that P.R. be appointed receiver) in this action to receive the rents,
profits and moneys receivable in respect of the interest of the defendant C.D. in the
following property, namely (describe the property) in or towards satisfaction of the
moneys and interest due to the plaintiff under the judgment (or order) in this action
dated the ..............day of 19 and for an order as
to the costs of this application.
Dated the ............day of 19
This summons was taken out by of
To the above-named ......(and his
solicitor).
1988
No. 83
Order directing summons for appointment of
receiver and
granting injunction meanwhile
(0. 51 r. 3)
(Heading as in action)
Upon reading the affidavit of.. filed
the .........day
of ......R .
Let the defendant C.D. attend the (Judge in chambers, at the Supreme Court of
Justice in Victoria, Hong Kong) on the .. day of
19 ......at o'clock on the hearing of an application on the part of the
plaintiff for the appointment of P.R. as receiver in this action, on the usual terms,
to
receive the rents, profits and moneys receivable in respect of the said defendant's
interest in the following property, namely (describe the property) in or towards
satisfaction of the sum of .debt and costs, and interest
on the said sums at the rate of $4 per cent per annum from the day
of .......19 ..due under the judgment (or order) in this action
dated the .....day of 19
And the plaintiff (by his solicitor) hereby undertaking to abide by any order
the Court may hereafter make should it decide that the said defendant has sustained
damage by reason of this order and is entitled to damages which the plaintiff ought
to pay, it is ordered that the said defendant by himself, his agents or servants, or
otherwise, be restrained, and an injunction is hereby granted restraining him, until
after the hearing of the above application, from assigning, charging or otherwise
dealing with the said property.
Dated the...................... day of
19
1988
No. 84
Order appointing receiver by way of equitable
execution
(0. 51 r. 1)
(Heading as in action)
Upon hearing ........and upon reading the affidavit of
.. filed the day of
19
(if security ordered) It is ordered that P.R. of on first
giving security to the satisfaction of the Court, be and is hereby appointed to receive
the rents, profits and moneys receivable in respect of the above-named defendant's
interest in the following property, namely (describe the property).
(If no security ordered and receiver is not the plaintiff) The plaintiff being
answerable for the acts and defaults of the receiver, it is ordered that P.R. of
.. be and is hereby appointed to receive (continue as above)
but
he shall not receive more than the amount of the judgment debt and allowed costs of
obtaining this order without leave of the Court or first giving (at the plaintiff's cost
unless otherwise ordered) the usual security to the satisfaction of the Court-
(If no security ordered and receiver is the plaintiff.. as above omitting plaintiff
being answerable for the acts and defaults ol' the receiver' and the words after 'the
Court
(In all cases continue as follows:-)
That this appointment shall be without prejudice to the rights of any prior
incumbrances upon the said property who may think proper to take possession of
or receive the same by virtue of their respective securities or, if any prior
incumbrances is in possession, then without prejudice to such possession.
And that the tenants of premises comprised in the said property do attorn and
pay their rents in arrear and growing rents to the receiver.
And that the receiver have liberty, if he shall think proper (but not
otherwise), out of the rents, profits and moneys to be received by him to keep
down the interest upon the prior incumbrances, according to their priorities, and be
allowed such payments, if any, in passing his accounts.
And that the receiver shall on the day of
(3 months after the date of order), and at such further and other times as may
be ordered by the Court leave and pass his accounts, and shall on the ......................
day of ...(4 months after the date of order) and at such further
and other times as may be hereafter ordered by the Court pay the balance or
balances appearing due on the accounts so left, or such part thereof as shall
be certified as proper to be so paid, such sums to be paid in or towards satisfaction
of what shall for the time being be due in respect of the judgment signed on
the ...day of for the sum of
debt and costs, making together the sum of
And that the costs of the receiver (including his remuneration), the costs of
obtaining his appointment, of completing his security (if any), of passing his
accounts and of obtaining his discharge shall not exceed ten per cent of the amount
due under the said judgment or the amount recovered by the receiver, whichever is
the less,
provided that not less than be allowed unless otherwise ordered.
Such costs shall be taxed unless assessed by the Court and shall be primarily payable
out of the sums received by the receiver, but if there shall be no sums received or the
amount shall be insufficient, then upon the certificate of the Court being given
stating
the amount of the deficiency, such certificate to be given after passing the final
account, the amount of the deficiency so certified shall be paid by the defendant to
the
plaintiff.
It is also ordered that the balance (if any) remaining in the hands of the
receiver, after making the several payments aforesaid, shall unless otherwise
directed by the Court forthwith be paid by the receiver into Court to the credit of
this action, subject to further order.
And that any of the parties be at liberty to apply to the Judge in chambers as
there may be occasion.
Dated the...................... day of
19
1988
No. 85
Order of
committal
(0. 52 r. 1)
(Heading as in action)
Upon motion this day made unto this Court by counsel for the plaintiff and
upon
reading (an affidavit of ..........filed the day of
.. 19 of service on the defendant C.D. of a copy of the order
of the Court dated the .........day of 19 and of
notice this motion):
And it appearing to the satisfaction of the Court that the defendant C.D. has
been guilty of contempt of court in (state the contempt):
It is ordered that for his said contempt the defendant do stand committed to
............................Prison to be there imprisoned (until further
order).
(It is further ordered that this order shall not be executed if the defendant C.D.
complies with the following terms, namely .
................................................................
.. 11..
Dated the...................... day of
19
1988
No. 85A
Warrant for
committal
(0. 52 r. 1)
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
Between A.B. Plaintiff
AND
C.D. Defendant
To: The Chief Bailiff and his assistants and the Commissioner of Correctional
Services.
WHEREAS by an order of this Court pronounced this day it was ordered that
the above-named [here insert name of defendant], do stand committed to Prison
for his/her contempt in the said order mentioned.
These are therefore to command you and every one of you in Her Majesty's
name to apprehend the said [here insert name of defendant], and him/her safely
convey to Prison there to be detained and kept in safe custody until such time as
the said
Order granted by the Honourable Mr. Justice on the day
of ........19 .shall have been complied with and obeyed or until
such time as the said [here insert name of defendant] may he discharged by the
Court
on his/her application.
Dated the ............day of 19
..
A Judge of the High Court
1988
No. 86
Notice of motion for an order of mandamus, prohibition or
certiorari
(0. 53 r. 3)
19 No .
IN THE SUPREME COURT OF HONG
KONG
In the matter of an application by
..........................................
for an order of mandamus (or prohibition or certiorari)
and
In the matter of (particulars of decision of inferior court)
Take notice that pursuant to the leave of the
......................................................
given on the ......day of.. 19
the
.. will be moved on the day of
19 ..................................or so soon thereafter as counsel can be heard on behalf of (for
an order of mandamus that.. (or for an order of certiorari to
remove.. (in terms of the relief sought in the statement
accompanying the affidavit in support of the application for leave to apply for the
order) on the grounds set out in the copy statement served herewith used on the
application for leave to apply for such order.
And that the costs of and occasioned by this motion be
.....................................
And take notice that on the hearing of this motion the said will
use the affidavit of ..................and the exhibits
therein referred to.
(And also take notice that the by order dated
............................directed that all proceedings in (or on) the said
be stayed until after the hearing of this motion or further order.)
Dated the ............day of 19 .
(Signed) ....................................................
Solicitor for ..............................................
Solicitor for ......................................
No. 86A
Notice of application for leave to apply for Judicial Review
(0. 53 r. 3)
No . ..............
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
Applicant
Notice of Application for leave to
apply for Judicial Review (0. 53, r. 3)
This form must be read together with Notes for Guidance obtainable from the Registry.
To the Registrar, Supreme Court, Hong Kong.
Name, address and
description of
applicant
Judgment, order,
decision or other
proceeding in
respect of which
relief is sought
Relief Sought
Name and address of
applicant's solicitors, or, if
no solicitors acting, the
address for service of the
applicant
Signed Dated
Grounds On Which Relief is Sought
(If there has been any delay, include reasons here)
Note:-Grounds must be supported by an affidavit which verifies the facts relied on.
1988
No. 87
Notice of motion for writ of habeas corpus ad
subjiciendum
(0. 54 r. 2)
19 No .
..............
IN THE SUPREME COURT OF HONG
KONG
HIGH COURT
In the matter of A.B.
and
In the matter of an application for a writ
of habeas corpus ad subjiciendum
Take notice that pursuant to the direction of the the
.. will be moved on the clay of
...................................19 or so
soon thereafter as counsel can be heard on behalf
of A.B. for an order that a writ of habeas corpus do issue directed to
.......................
..............to have A.B. before the Honourable Mr. Justice
at such time as the judge ............may direct upon the grounds set out
in the affidavits of the said A.B. and and the exhibits therein
respectively referred to used on the application to the
................................................
for such order, copies of which affidavits and exhibits are served herewith.
And that the costs of and occasioned by this motion be the applicant's to be
taxed and paid by the respondents to the applicant.
And take notice that on the hearing of this motion the said A.B. will use the
affidavits of himself and the said ...and the exhibits therein
referred to.
Dated the ..day of 19
...................(Signed)
...................of
...................Solicitor for
TO
Solicitor for
......................................
No. 88
Notice directed by Court of adjourned
application for
writ of habeas corpus
(0. 54 r. 2)
(Heading as in No. 87)
Take notice that an application for the above writ was made to the
.. in the above matter on the day of
.. 19 when the said application was
adjourned so that notice
could be given to you.
Notice is hereby given to you that the said application will be made to
the ......on .........the .........day of
...................................19 at
o'clock.
...................................(Signed)
...................................of
...................................Solicitor
for
TO................................................
............
No. 89
Writ of habeas corpus ad
subjiciendum
(0. 54 r. 10)
ELIZABETH THE SECOND (as in No. 53).
To the Commissioner of Correctional Services greeting:
We command you that you have in our Supreme Court of Justice at the
Supreme Court in Victoria, Hong Kong, on the day at the time specified in the
notice served with this writ, A.B. being taken and detained under your custody as is
said, together with the day and cause of his being taken and detained, by
whatsoever name he may be called therein, that Our Court may then and there
examine and determine whether such cause is legal, and have you there then this
writ.
Witness ............................Chief Justice of Hong Kong the
..day of
19
Indorsement
By order of (Mr. Justice .....................
This writ was issued by ............of solicitor for
............................
No. 90
Notice to he served with writ of habeas corpus ad
subjiciendum
(0. 54 r. 6)
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
(If in a cause already begun, here insert the title, not
otherwise)
The Honourable Mr. Justice.. has
granted a writ of habeas corpus directed to (or other person
having the custody of if so) commanding him to have A.B.
before a judge at the Supreme Court in Victoria, Hong Kong on the day and at the
time specified in the notice together with the day and cause of his being taken and
detained.
Take notice that you are required by the said writ to have the said A.B. before
the Honourable Mr. Justice ...on ..........................
the
......................day of ...19 at
o'clock and to
make a return to the said writ. In default thereof the said Court will then, or so soon
thereafter as counsel can be heard, be moved to commit you to prison for your
contempt in not obeying the said writ.
Dated the ............day of 19
(Signed)
....................................................
of ..............................................
Solicitor for
..............................................
TO .............................................................
No. 91
Writ of habeas corpus ad
testificandum
(0. 54 r. 10)
ELIZABETH TEE SECOND (as in
No. 53).
To the Commissioner of Correctional Services greeting:
We command you that you have before (description of court) on the
.. day of 19 at
.. being committed and detained in Our prison under your
custody, as is said, then and there to testify the truth and give evidence (on Our
behalf against A.B. for (describe the offence) or otherwise describing the
proceedings),
and so from day to day until the said .........................................................................
shall have given his evidence as aforesaid. And when he shall have given his
evidence,
then you take him back without delay to Our said prison under your custody, and
cause him to be detained therein under safe custody, until he shall be from thence
discharged by due course of law.
Witness (as in No. 89).
Indorsement
By order of Mr. Justice .......................................
This writ was issued by .............of solicitor
for
No. 92
Writ of habeas corpus ad
respondendum
(0. 54 r. 10)
ELIZABETH THE SECOND (as in
No. 53).
To the Commissioner of Correctional Services greeting:
We command you that you have before (description of court) on the
.. day of 19 at
.. being committed and detained in Our prison under your
custody, as is said, together with the day and cause of his being taken and detained,
by whatsoever name he may be called, then and there to answer to a charge of
.....to be then and there made against him, and so from
day to
day Y** until he..shall..have.. answered the said charge, and to be dealt with
according to
law. And have you then and there this writ.
Witness (as in No. 89).
Indorsement
(As in No. 91)
No. 94
Order for production of documents in marine insurance
action
(0. 72 r. 10)
(Heading as in action)
Upon hearing (and upon reading the affidavit of
filed the ...........day of 19
It is ordered that the plaintiff and all other persons interested in this action,
and in the insurance the subject of this action, do produce and show to the
defendant, his solicitors or agents on oath (or by oath of their proper officer) all
insurance slips, policies, letters of instruction or other orders for effecting such
slips or policies, or relating to the insurance or the subject-matter of the insurance
on the ship ...............
.......or the cargo on board thereof, or the freight thereby, and also all
documents relating to the sailing or alleged loss of the said ship, cargo or freight, and
all correspondence with any person relating in any manner to the effecting of the
insurance on the said ship, cargo or freight, or any other insurance whatsoever
effected on the said ship, cargo or freight, on the voyage insured by the policy sued
on
in this action, or any other policy whatsoever effected on the said ship, or the cargo
on board thereof, or the freight thereby on the same voyage. Also all
correspondence
between the captain or agent of the ship and any other person with the owner or
any
person before the commencement of or during the voyage on which the alleged
loss happened. Also all books and documents, whatever their nature and whether
originals, duplicates or copies, which in any way relate or refer to any matter in
question in this action and which are now in the custody, possession or power of the
plaintiff or any other person on his behalf, his or their, or any of their brokers,
solicitors or agents, with liberty for the defendant, his solicitors or agents to inspect
and take copies of, or extracts from, any of those books or documents. And that in
the like manner the plaintiff and every other person interested as aforesaid do
account
for all other books and documents relating or referring to any matter in question in
this action which were once but are not now in his custody, possession and power.
And that (in the meantime all further proceedings be stayed and that) the
costs of and occasioned by this application be costs in the action.
Dated the ............day of 19
No. 95
Certificate of order against the
Crown
(0. 77 r. 15(3))
(Heading as in cause or
matter)
By a judgment (or order) of this Court dated the day of
.. 1 19 it was adjudged (or ordered) that (give particulars
of
the judgment or order).
I hereby certify that the amount payable to by in
pursuance of the said judgment (or order) is (together with interest
thereon at the rate of per cent per annum until payment and together
with costs which have been taxed and certified by the taxing officer at ....................
Interest is payable on the said costs at the rate of per cent per
annum from the .................day of 19 until
payment).
(This certificate does not include the amount payable under the said judgment
or order in respect of costs).
Dated the ............day of 19
(Signed)
.................................................
...
(Note:-The final paragraph is to be included where a separate certificate with
respect to costs has been directed to be issued).
No. 96
Certificate of order for costs against the
Crown
(0. 77 r. 15)
(Heading as in cause or
matter)
By ajudgment (or order of this Court dated the day of
or order). 19 it was adjudged (or ordered) that (give particulars of the
I hereby certify that the costs payable to by
in pursuance of the said judgment (or order) have been taxed and certified by
the taxing officer at (and interest is payable thereon at the
rate of ............................per cent per annum from the day
of ......19 .........................until
payment).
Dated the ...........................day of 19
(Signed) ....................................................
No. 99
Order of Court of Appeal to admit prisoner
to bail
(0. 59 r. 20)
IN THE COURT OF APPEAL
On appeal from the court
Dated the ............day of .19 ..
Whereas on the .......day of.. 19 A.B.
was ordered by (description of court) to be imprisoned for for
contempt of court and the said A.B. has appealed to this Honourable Court against
the said order-
And whereas the said A.B. has applied to this Honourable Court to be admitted
to bail:
Upon reading the notice of motion on behalf of the said A.B. and upon hearing
Mr. . .................................of
counsel for the said A.B.
It is ordered that upon the said A.B. giving security (by his own recognizance)
in
the sum of ...........................with (two) sufficient sureties in the sum of
......................................each before a justice of the peace (or the Registrar) for the personal
appearance of the said A.B. before the court within ten days
after the judgment of this Honourable Court on his said appeal shall have been given
unless the order of the said court is reversed by that judgment, he, the said A.B. be
discharged out of the custody of the Commissioner of Prisons ..................................
in respect of his commitment as aforesaid.
By the Court
No. 100
Notice of payment into court in connection with arbitration
proceedings
(0. 73 r. 11)
In the matter of arbitration proceedings
commenced between A.B. . .......I st party
C.D. . .........................2nd party
EF . ...........................3rd party
etc.
Take notice that-
The ...party ....................has paid
into court.
The said ....is in satisfaction of (the matter in dispute) (All
the matters in dispute) in respect of which the party claims
(and after taking into account and satisfying the above-named party's claim for
.... in respect of which he
counterclaims).
or
The said .. is in satisfaction of the following matters in
dispute in respect of which the party claims (and after
taking into account as above).
or
Of the said ..............is in satisfaction
of the following matter in dispute in respect of which the
..........................................
party claims (and after taking into account as above) and ......................................
is in satisfaction of the following matter in dispute in respect of which the
................
party claim (and after taking into account as above).
Dated the ........day of 19
No. 101
Notice of acceptance of money paid into court in
connection with
arbitration proceedings
(0. 73 r. 11)
In the matter of arbitration proceedings
commenced between A.B ...I st party
C.D . ......................2nd party
E.F . ......................3rd party
Take notice that the .........party..
accepts
the sum of .........paid in by the
party in satisfaction of the matter(s) in dispute in respect of which it was paid in and
in respect of which the .....party claims (against
that party) (and abandons his claim(s) against that party in respect of the other
matter(s) in dispute in the arbitration proceedings).
Dated the...................... day of
19
No. 102
Order of issue of warrant of arrest for
examination
(0. 49B r. 1)
IN TIE SUPREME COURT OF HONG KONG
HIGH COURT
Between A.B. Judgment Creditor
AND
C.D. Judgment Debtor
Upon the application of the Judgment Creditor A.B. and upon hearing the
solicitor for the said Judgment Creditor, and upon reading the affidavit of
...............
filed the ...........day of 19
It is ordered that a warrant do issue to the bailiff enjoining him to arrest the
Judgment Debtor C.D. and to bring him before the Court before the expiry of the
day after the day of arrest for examination; and it is further ordered that the bailiff
be authorized to release the Judgment Debtor
1.upon payment to him of the sum of being the
amount of the judgment debt, together with the sum of ............................
for costs of this action and such costs as may be due for the obtaining and
execution of this warrant;
2.upon payment to him of the sum of as security or the
provision of bail in that sum by a surety or sureties;
3. upon the surrender to him of the judgment debtor's travel documents.
[Delete, amend or substitute conditions in accordance with the order of the Court.]
Dated the ............day of 19
NOTE. The Judgment Debtor may apply to the Court to discharge this order,
1988
No. 103
Order of imprisonment pending further
examination
(0. 49B r. 1A)
IN THE SUPREME C011JRT OF HONG
KONG
HIGH COURT
Between A.B. Judgment Creditor
AND
C.D. Judgment Debtor
Whereas the examination being conducted under Order 49B rule 1A has been
adjourned until .........day of 19
It is ordered that a warrant do issue to the bailiff enjoining him to deliver the
Judgment Debtor into the custody of the Commissioner of Correctional Services to
he kept in a prison as a prisoner for debt until the day of
..19 .and then to bring the Judgment Debtor before the
Court for further examination. The Court has fixed the support and maintenance
allowance at the rate of a day.
It is further ordered that the bailiff be authorized to release the Judgment
Debtor
1.upon payment to him of the sum of . being the
amount of the judgment debt, together with the sum of ............................
for costs of this action and such costs as may be due for the obtaining and
execution of this warrant;
2.upon payment to him of the sum of as security or the
provision of bail in that sum by a surety or sureties.
[Delete, amend or substitute conditions in accordance with the order of the
Court.]
Dated the ............day of 19
NOTE: The Judgment Debtor may apply to the Court to discharge this order.
1988
No. 104
Order for imprisonment for
debt
(0. 49B r. 1B)
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
Between A.B. Judgment Creditor
AND
C.D. Judgment Debtor
[Following examination of the Judgment Debtor under Order 49B rule 1A and
upon the Court being satisfied as required by Order 49B rule I R] or [Upon the
Court being satisfied that the Judgment Debtor has failed to comply with an order
made under Order 49B rule I B(3):]
It is ordered that the bailiff do take the Judgment Debtor and deliver him into
the custody of the Commissioner of Correctional Services to be kept in prison as a
prisoner for debt for a period of unless he shall be sooner
discharged in due course of law.
.The Court has fixed the support and maintenance allowance at the rate of
a day.
Dated the...................... day of
19
1988
No. 105
Application for order for imprisonment in default of
payment
(0. 49B r. 1B)
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
Between A.B. Judgment Creditor
AND
C.D. Judgment Debtor
TAKE NOTICE that the Judgment Creditor will apply to the Court on
......................day of .. 19 for an order for the
imprisonment
of the Judgment Debtor on the ground that the Judgment Debtor has failed to make
payment of the sum of as ordered by the Court on
day of ............19
Dated the...................... day of
19
1988
No. 106
Order prohibiting departure from Hong
Kong
(0. 44A r. 3)
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
Between A.B. Judgment Creditor/
Plaintiff/Claimant
AND
C.D. Judgment Debtor/
Defendant/Person
against whom
claim is made
Upon the application of A.B. and upon hearing the solicitor for A.B., and
upon
reading the affidavit of ..........filed the day of 19
It is ordered that C.D. is prohibited from leaving Hong Kong.
This order shall lapse after the expiry of one month (unless extended or
renewed) and shall have no effect if
1..C.D. makes payment of the sum of being the
amount claimed by A.B., [together with the sum of ...................................
for costs of this action] and such costs as may be due for the obtaining and
execution of this order;
2..C.D. makes payment of the sum of as security or
provides bail in that sum by a surety or sureties.
[Delete, amend or substitute conditions in accordance with the order of the
Court.]
Dated the ............day of 19
NOTE. C.D. may apply to the Court to discharge this order.
1988
APPENDIX B
SPECIAL ADMIRALTY FORMS
No. 1
Writ of summons in action in
rem
(0. 75 r. 3)
[Hong Kong Coat of Arms]
19 Folio No .
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
Admiralty action in rem against:
[The ship 'X' or as may be describing the property against which the action is
brought]
Between [The owners of the ship 'A' or as may Plaintiffs
be describing the plaintiffs]
for name]
and
[The owners of the ship 'X' or as may Defendants
be describing the property against which
the action is brought]
TO THE DEFENDANTS and other persons interested in the ship ')C'
..registered at the port of
....
.................................................................................................
.....................................[or as
may be]
THE WRIT OF SUMMONS has been issued by the Plaintiffs against the
property described above in respect of the claim set out on the back. Within 14
days] after the service of this Writ, counting the day of service, you must either
satisfy the claim or lodge in\ the Registry of the Supreme Court mentioned below
an ACKNOWLEDGMENT OF SERVICE.
If you fail to satisfy the claim or to lodge an Acknowledgment within the time
stated, the Plaintiffs may proceed with the action and judgment may be given
without further notice to you and if the property described in this Writ is under the
arrest of the Court it may be sold by order of the Court.
Issued from the Registry of the Supreme Court this day
of..19
Note:-This Writ may not be served later than 12 calendar months beginning
with that date unless renewed by order of the Court.
IMPORTANT
Directions for Acknowledgment of Service are given with the accompanying
form.
[Back of No. 11
*[STATEMENT OF CLAIM]
The Plaintiffs'claim is for
*[Signed if statement of claim indorsed]
THIS WRIT was issued by
..of
................................................................................................
................................
Solicitor for the said Plaintiff whose address is
...............................................
*[or where the Plaintiff sues in person
THIS WRIT was issued by the said Plaintiff who resides at ...............................
and (if the Plaintiff does not reside within the jurisdiction) whose address for
service is
......................................
[Indorsement as to service
(To be completed only when the Writ has been served by the bailiff)
THIS WRIT was served by me at
.......................................................................
on ...on ....day, the .day of .....19
by (state the manner of service)
Signed
Name of bailiff
No. 2
Writ of summons in limitation
action
(0. 75 r. 3(3))
[Hong Kong Coat of Arms]
19 Folio No .
IN THE SUPREME COURT OF HONG
KONG
HIGH COURT
Admiralty Jurisdiction
Between Plaintiff
AND
Defendant
TO THE DEFENDANT [name]
..of [address]
.................................................................................................................
THIS WRIT OF SUMMONS has been issued against you by the abovenamed
Plaintiff in respect of the claim set out on the back.
Unless you admit the claim you must within [14 days] after service of this writ
on you, counting the day of service, return to the Registry of the Supreme Court
mentioned below the accompanying ACKNOWLEDGMENT OF SERVICE.
If you fail to return the Acknowledgment within the time stated, the Plaintiff
may proceed with the action without further notice to you.
Issued from the Registry of the Supreme Court this .. day of
..19
Note.~This Writ may not be served later than 12 calendar months beginning
with that date unless renewed by order of the Court.
IMPORTANT
Directions for Acknowledgment of Service are given with the accompanying
form.
[Back of No. 21
The Plaintiff claims
THIS WRIT was issued by
..Of
...............................................................................................................................
Solicitor for the said Plaintiff whose address is
..*[or where the Plaintiff sues in person
THIS WRIT was issued by the said Plaintiff who resides at
..and (if the Plaintiff` does not reside within the jurisdiction)
whose address for service is
..1
No. 2A
Notice of writ of summons in limitation
action
to he served out of jurisdiction
(0. 75 r. 3(3))
[Heading as in
action]
To C.D. of
Take notice that A.B. of ..has begun an
action against you, C.D., in the High Court of Justice in Hong Kong by writ of
summons dated the .................day of 19
which writ is indorsed as follows [copy the indorsement of claim] and unless you
admit the Plaintiffs claim you are required within days after receipt of
this notice, counting the day of receipt, to return to the Registry of the Supreme
Court
the accompanying Acknowledgment of Service.
And take notice that if you do not return the Acknowledgment within the
time stated, the Plaintiff may proceed with the action without further notice to
you.
(Signed) A.B .
..or X. Y. of
Solicitors for A.B.
IMPORTANT
Directions for Acknowledgment of Service are given with the accompanying
form.
No. 2B
Acknowledgment of Service of Writ of
Summons in
Action in rem or Limitation Action
(0. 75 r. 3(5))
Directions for Acknowledgment of Service
1. The accompanying form of ACKNOWLEDGMENT OF SERVICE
should be detached and completed by, a Solicitor acting on behalf of the
Defendant or by the Defendant if acting in person. After completion it must
be delivered or sent by post to the Registry of the Supreme Court at the
following address:
2. If in an action in rem a Statement of Claim is indorsed on the Writ
(i.e. the words 'Statement of Claim appear at the top of the back), a
Defence must be served within 14 days after the time for acknowledging
service of the Writ.
If a Statement of Claim is not indorsed on the Writ, a Defence need
not be served until 14 days after a Statement of Claim has been served on
the Defendant.
If a Defendant fails to serve a defence within the appropriate time, the
Plaintiff may apply to the Court for judgment against him and, if the
property described in the Writ is under the arrest of the Court, for an order
for the sale of that property.
(1)
[Back of page (1) 1
Notes for Guidance
1. Each Defendant (if there is more than one) is required to complete
an Acknowledgment of Service and return it to the Registry of the Supreme
Court.
2. For the purpose of calculating the period of 14 days for
acknowledging service, a writ served on the Defendant personally is treated
as having been served on the day it was delivered to him and a writ served by
post or by insertion through the Defendant's letter box is treated as having
been served on the seventh day after the date of posting or insertion.
3. Where the Defendant is a FIRM and a Solicitor is not instructed, the
form must be completed by a PARTNER by name, with the addition of the
description 'partner in the firm of after his name.
4. Where the Defendant is sued as an individual TRADING IN A
NAME OTHER THAN HIS OWN, the form must be completed by him
with
the addition of the description 'trading as after
his name.
5. Where the Defendant is a LIMITED COMPANY the form must be
completed by a Solicitor or by someone authorised to act on behalf of the
Company, but the Company can take no further step in the proceedings
without a Solicitor acting on its behalf.
6. Where the Defendant is a MINOR or a MENTAL PATIENT, the
form must be completed by a Solicitor acting for a guardian ad litem.
7. A Defendant acting in person may obtain help in completing the
form at the Registry of the Supreme Court.
8. These notes deal only with the more usual cases. In case of difficulty
a Defendant in person should refer to paragraph 7 above.
(2)
[Heading as in No. 1 or 2 to be completed by plaintiff]
ACKNOWLEDGMENT OF SERVICE
OR WRIT OF SUMMONS IN
ACTION IN REM OR LIMITATION ACTION
If you intend to instruct a Solicitor to act for you, give him this form
IMMEDIATELY
Important. Read the accom-Delay may result in judgment being
panying directions and notes for given against a defendant whereby
guidance carefully before complet- he or his Solicitor may have to pay
ing this form. If any information the costs of applying to set it aside.
required is omitted or given wrong- Furthermore, the property describ-
ly, THIS FORM MAY HAVE TO ed in the Writ of Summons, if under
BE RETURNED. arrest of the Court, may be sold by
order of the Court.
*Where words 1. *[In an action in rem
appear between
square brackets, State the description of the Defendant, as stated in the
Writ
delete if
inapplicable of Summons, by whom or on whose behalf the service of
the Writ is being acknowledged.]
*[In a limitation action
(a) If the Defendant by whom or on whose behalf
service of the Writ is being acknowledged is named in the
Writ, state his full name. If he is sued in a name difrerent
from his own, add 'sued as (the name stated on the Writ of
Summons)'.
(b) If the Defendant by whom or on whose behalf
service of the Writ is being acknowledged is one of a class
of persons described in the Writ, state his full name.
The Defendant should complete (a) or (b), whichever is
appropriate, and delete the other.)
Service of the Writ is acknowledged accordingly
*(Signed) [Solicitor)
(Defendant in person]
Address for Service
(3)
Notes as to Address for Service
Solicitor. Where the Defendant is represented by a Solicitor, state the
Solicitor's place of business in Hong Kong.
Defendant in person. Where the Defendant is acting in person, he must
give his residence OR, if he does not reside in Hong Kong, he must give an
address in Hong Kong where communications for him should be sent. In the
case of a limited company 'residence' means its registered or principal
office.
[Back ofpage (3)]
Indorsement by plaintiff's solicitor (or by plaintiff if suing in person) of
his name, address and reference, if any.
1988 1988
No. 3
Warrant of
arrest
(0. 75 r. 5(1))
(Heading as in action)
ELIZABETH THE SECOND, by the Grace of God, of the United Kingdom of
Great Britain and Northern Ireland and of Our other realms and territories Queen.
Head of the Commonwealth, Defender of the Faith:
To the Bailiff, Greeting:
We hereby command you to arrest the ship
........................................................
of the port of .............(and the cargo now or
lately laden therein, together with the freight due for the transportation thereof,) or
(and the freight due for the transportation of the cargo now or lately laden therein,)
and to keep the same under safe arrest until you shall receive further orders from Us.
The plaintiff's claim is for (copy from the writ)
Taken out by ......(solicitors for) the
Bailiff's indorsement as to service
1988
No. 4
Praccipe for warrant of
arrest
(0. 75 r. 5(4))
(Heading as in action)
We .............of .........(solicitors for) the
plaintiffs request a warrant to arrest (description of property giving name, if a ship).
Dated the ............day of 19
(Signed)
No. 5
Praccipe for caveat against
arrest
(0. 75 r. 6)
(Description of property giving name, if a ship)
We
of
(solicitors for ....................of request a caveat against the
arrest of (description of property giving name, if a ship) and hereby undertake to
enter an appearance in any action that may be begun in the Supreme Court against
the said .....and, within 3 days after receiving notice that
such an action has been begun, to give bail in the action in a sum not exceeding
.. dollars or to pay that sum into court. We consent
that
the summons and any other document in the action may be left for us at
....1
Dated the. ...................day of
19
(Signed)
....................................................
No. 6
Praccipe for service of writ in rem by
Bailiff
(0. 75 r, 8(3))
(Heading as in action)
We ..........of ..............(solicitors for)
the plaintiffs request that the writ of summons left herewith be duly served on
.. 1
Dated the ...day of 19
(Signed)...............................................
............
No. 7
Release
(0. 75 r. 13(1))
(Heading as in action)
ELIZABETH THE SECOND, etc. (as in Form No. 3).
To the Bailiff, Greeting:
Whereas in this action We did command you to arrest the and
to keep the same under safe arrest until you should receive further orders from Us.
Now We do hereby command you to release the said from the arrest
effected by virtue of Our warrant in this action.
Taken out by ...(solicitors for)
Bailiff's indorsement
On ......the ...day of
19 ................the was released from arrest pursuant to this
Instrument.
(Signed) ................................................
Bailiff.
No. 8
Praccipe for issue of release
(0. 75 r. 13(6))
(Heading as in action)
We ...........of ...........(solicitors for) the
plaintiffs (or defendants) in this action against (description of property giving name,
if a ship). now under arrest, request the issue of a release with respect to the said
...................
Dated the ............day of 19
(Signed)
....................................................
No. 9
Praccipe for caveat against release and payment
(0. 75 r. 14(1))
(Description of property giving name, if a ship)
we ...........of..(solicitors for)
.. of request a caveat against the
issue
of a..re-iease with respect to (description of property giving name, if a ship) now
under
arrest and, should the said property be sold by order of the Court, a caveat against
payment out of court of the proceeds of sale.
......................................The intending caveator claims to have an interest [to the extent of approximately
.....................................if known] in the above-mentioned property in respect of [state
nature of claim, eg. salvage, collision damage, etc.].
Dated the ............day of 19
(Signed)....................................................
No. 10
Praccipe for withdrawal of caveat
(0. 75 r. 15(1))
(Description of property giving name, if a ship)
We ..........of ..............(solicitors for)
..Of ......1 ....request that the caveat (state
nature of caveat) entered on the day of
19 .....................on behalf of.. be withdrawn.
Dated the ............day of
19
(Signed)
....................................................
No. 11
Bail bond
(0. 75 r. 16(1))
(Heading as in action)
WHEREAS this Admiralty action in rem against the above-mentioned
property is pending in the Supreme Court and the parties to the said action are the
abovementioned plaintiffs and defendants:
Now, THEREFORE, WE, A.B. of
.............................................................................
and C.D. of.. hereby jointly and severally
submit
ourselves to the jurisdiction of the said Court and consent that if they, the
above-mentioned defendants, (or plaintiffs, in the case of a counterclaim) do not
pay
what may be adjudged against them in this action, with costs, or do not pay any sum
due to be paid by them in consequence of any admission of liability therein or under
any agreement by which this action is settled before judgment and which is filed in
the
said Court, execution may issue against us, our executors or administrators, goods
and chattels, for the amount unpaid or an amount of ................................................
dollars whichever is the less.
A.B.
(Signed) .....................
...............
C.D.
(Signed)
....................................................
This bail bond was signed by the said A.B. and C.D., the sureties,
the .day of .....19
Before me
a Commissioner for Oaths.
No. 12
Praccipe for commission for appraisement and
sale
(0. 75 r. 23(1))
(Heading as in action)
.we .........of.. (solicitors for)
the plaintiffs (or defendants) request a commission for the appraisement and sale of
(description of property giving name, if a ship) which was ordered by the Court on
the ..day of .........19
Dated the ............day of 19
(Signed)
....................................................
No. 13
Commission for Appraisement and
Sale
(O. 75 r. 23(2))
(Heading as in action)
ELIZABETH THE SECOND, etc. (as in Form No. 3).
To the Bailiff, Greeting:
WHEREAS in this action the Court has ordered (description of property
giving name, if a ship) to be appraised and sold.
WE hereby authorize and command you to choose one or more experienced
persons and to swear him or them to appraise the said
..according to the true value thereof, and such value
having been certified in writing by
him or them to cause the said to be sold by
(private treaty) (public auction) for the highest price that can be obtained for it, but
not for less than the appraised value unless the Court on your application allows it
to
be sold for less.
AND WE further command you, immediately upon the sale being completed,
to pay the proceeds thereof into court and to tile the certificate of appraisement
signed by you and the appraiser or appraisers, and an account of the sale signed by
you, together with this commission.
.Taken out by .............(solicitors for) the
No. 14
Release and Warrant of
Possession
(0.75)
(Heading as in action)
ELIZABETH THE SECOND, etc. (as in Form No. 3).
To the Bailiff, Greeting:
WHEREAS in this action the Court has ordered possession of the ship (name
to be stated), her tackle, apparel and furniture to be delivered up to
..or to his solicitor for his use . 1
WE hereby command you to release the said ship, her tackle, apparel and
furniture from the arrest made by virtue of Our warrant in that behalf and to
deliver
possession thereof to the said or to his solicitor for his use.
Taken out by.. (solicitors for) the
Bailiff's Indorsement
On the ..day of .............19 .the ship
....................................was released from arrest pursuant to this warrant.
(Signed)
.............................
......................
Bailiff.
Receipt
Received from the Bailiff on the day of
19 ..............the ship.. and everything on board
belonging
to her.
(Signed)
.. ..............
No. 15
Notice to Consular Officer of Intention to Apply for Warrant of
Arrest
(0. 75 r. 5(7))
(Heading as in action)
To the Consular Officer of (name of State) The (state nationality) ship
(name)
TAKE NOTICE that as solicitors for (name or description of plaintiff as in
writ) we did on the day of 19 (or we intend to) institute
proceedings in the Supreme Court of Hong Kong against the above-
mentioned ship in respect of a claim by (name or description of plaintiff) for (state
nature of claim as indorsed on writ) and that we intend to apply to the Court to
arrest
the said ship.
Dated this ......day of 19
.................(Signed)
.................Solicitors for the Plaintiff.
APPENDIX C
No. 5
Warrant for bailiff to call upon defendant to give security to
produce property
(0. 44A r. 8)
Action No . of 19
IN THE SUPREME COURT OF HONG
KONG,
HIGH COURT
Between A.B. Plaintiff
AND
C.D. Defendant
ELIZABETH THE SECOND, etc. (as in Form No. 3).
To the Bailiff of Our said Court, greeting:
We command you forthwith to call upon the defendant C.D. either by
...................................day, the day of 19
to furnish security in the sum of ....to produce and place at the disposal of
Our said Court, when required, his property or the value of the same, or such portion
thereof as may be sufficient to answer any judgment that may be given against him
in
this action, or by the said day to appear before Our said Court and show cause why
he
should not furnish such security; and We further command you, in default of such
security being given, to attach all the movable and immovable property of the said
defendant within Hong Kong until the further order of Our said Court.
Witness The Honourable ..............Chief Justice of Our said Court,
the .day of ....19
(Signed)
........................
........................
..Registrar.
Note:-This warrant is to be returned into the Registry immediately after the
execution thereof, with a memorandum indorsed thereon of the date and mode of
execution.
No 6
Writ of foreign
attachment
(0. r. 2)
Action No . of 19
IN THE SUPREME COURT OF HONG
KONG,
HIGH C
Between A.B.
AND
C. Defendant
Garnishee
THE SECOND, etc. (as in Form No. 3).
To the of Our said Court, greeting
We command you forthwith to attach all the property, movable and immovable,
of the defendant C.D. which shall be found within Hong Kong, and to return this writ
into Our said Court on the.. of 19
Witness His Honourable Chief Justice of Our said Court, the
.....................day of
19 .......
Indorsements to be made on the writ
1 hereby certify that this writ reached my hands for execution at o'clock
........m. on ....day, the ....day of 19
(Signed)
...................................................
Bailiff.
This writ was served on E.F., of garnishee, at o'clock
..................m. on .......day, the of 19
(Signed) ...........................
Bailiff.
A memorial of this writ was registered the Land Office at o'clock m.
on ............day, the ...day of 19
....................................................
No. 7
Bond in case of for .ign
attachment
(0. 49A r. 4)
Action No . of 19
IN THE SUPREME OF HONG KONG,
COURT
Between A.B
AND
C.D Defendant
Know all men by these presents that A.B., of and E.F., of
.. 1 are held and
firmly bound unto C.D., of .......in the
penal sum of .dollars, to c paid to the said C.D., or his executors,
administrators or assigns; for which to be made we jointly and severally bind
ourselves, and each and every of us, and our and every of our respective heirs,
executors and administrators, firmly by these In witness whereof we have
hereto set our hands and seals this.. day of .................
1 ......................1
in the Year of Our Lord Nineteen Hundred and .. Whereas an
action
has lately been instituted in the Supreme Court of Hong Kong by the above-bounden
A.B., as plaintiff against the said C.D., as defenant; and whereas, under the
provisions of Order a writ of foreign attachment has been issued [or is about
to issue] in the said action, on the application of the plaintiff, against all the property,
movable and immovable, of the defendant within the Colony: Now the condition of
this obligation is that if the defendant shall, at any time within the period limited
by the said provisions of Order 49A, in that behalf cause the said writ, or any other
writ of foreign attachment issued in the said action on the application of the plaintiff,
to be set aside, or any judgment which may be given in the said action to be reversed
or varied, and if the plaintiff, his executors or administrators shall thereupon
forthwith pay or cause to be paid to the defendant, or his executors, administrators or
assigns, all such sums of money, damages, costs and charges as the said court may
order and award on account of or in relation to the said action and the said writ of
foreign attachment, or either of them, then this obligation shall be void otherwise it is
to remain in full force.
Signed, scaled and delivered
in the presence of (Signed) A.B. (L.S.)
E.F. (L.S.)
INDEX
Abatement of
action
certificate of, 0. 34, r. 9(1) more than one
year, striking out, 0. 34, r. 9(2) originating
summons action, 0. 28, r. 11
Abuse of process, 0. 18, r. 19
Acceptance of money
by person under disability, 0. 80, r. 10
paid into court. See Payment into and out of court (0. 22)
Accidental slip or
omission
correction of judgment or order, 0. 20, r. 11
Account
books of, as evidence, 0. 43, r. 3(2)
Accounts
affidavit verifying, 0. 43, r. 4
allowances to be made in taking, 0. 43, r. 6
application for, 0. 43, r. 1
bill of costs comprised in, taxation of, 0. 62, r. 19
Crown Solicitor, conduct of matter by, 0. 43, r. 7(2)
delay in prosecution of, 0. 43, r. 7(1)
distribution of fund pending inquiry, 0. 43, r. 8
interest on debts, 0. 44, r. 9
notice of, alleged omissions, etc., in, 0. 43, r. 5
of debts and liabilities of estate:
advertisement for creditors, etc., 0. 44, rr. 5, 6, 7, 8, 9
order for payment, 0. 43, r. 1(3)
proceedings in chambers under judgment, see under Chambers
receivers' accounts, 0. 30, r. 5
summary order, 0. 43, r. 1
taking of, 0. 43, rr. 2, 3
by taxing master, 0. 62, r. 14
verification of, 0. 43, r. 4
Acknowledgment of service (0.
12)
amendment, 0. 20, r. 2 before service of writ, 0. 10, r. 1(5)
by corporations, 0. 12, r. 1(2) by partners, action against
firm, 0. 8 1, r. 4 date of, 0. 12, r. 1 (5) dispute as to
jurisdiction, 0. 12, r. 8 failure to give notice of intention to
defend, 0. 13, rr. 1-9 in probate action, See under Probate
proceedings judgment on, See under Judgment
'prescribed time', meaning of, 0. 13, r. 6A proceeding with
claim on, 0. 13, r. 7 proof of service of writ, 0. 13, r. 7
form and contents of, 0. 12, r. 3 of counterclaim, 0. 15, r.
3 third party notice, 0. 16, r. 3 person added as defendant,
0. 15, r. 8(4) in action in rem, See Admiralty
proceedings late, 0. 12, r. 6 mode of, 0. 12, r. 1 not to
constitute waiver of irregularities, 0. 12, r. 7 notice to
defend after judgment, 0. 12, r. 6(1) of counterclaim, 0. 15,
r. 3(4) originating summons, 0. 12, r. 9 third party notice,
0. 16, r. 3 writ amended on change, etc., of parties, 0. 15,
r. 8(3) procedure on receipt of, duties of Registry officer,
0. 12, r. 4 setting aside and direction as to effect of, 0. 12,
r. 3(4) address for service, non-genuine, 0. 12, r. 3(4)
Acknowledgment of service (0. 12)--continued
time for, 0. 12, r. 5
writ served out of jurisdiction, 0. 11, r. 4(4), 0. 12, r. 5(b)
treated as appearance, 0. 12, r. 10
withdrawal of, 0. 21, r. 1
Adjournmen
t
of motion, 0. 8, r. 5 originating summons,
0. 28, r. 5 summons, 0. 32, r. 4 from court
into chambers, 0. 32, r. 18 into court, 0. 32,
r. 18 trial, 0. 35, r. 3
Administration of estates (see also Personal representative)
accounts:
order for, 0. 85, rr. 2(3), 5(2)
taking of, 0. 44, r. 3
action for (0. 85):
determination of questions without administration, 0. 85, r. 2
judgment and orders in, 0. 85, r. 5
proceedings under, 0. 44, rr. 1-12
service of notice, 0. 44, r. 2
originating summons, action begun by, 0. 85, r. 4
parties to 0. 85, r. 3
relief, order for, 0. 85, r. 4
sale of trust property, 0. 85, r. 6
administrator:
costs of, on taxation, 0. 62, r. 31
proceedings against, 0. 15, r. 14
sale of trust property, conduct, 0. 85, r. 6
binding of estate, where representative appointed, 0. 15, r. 15
claims against estate, examination and adjudication, 0. 44, rr. 6, 7 and 8
execution, against assets acquired after judgment, 0. 46, r. 2c
inquiry for next of kin, etc., 0. 44, r. 6(2)
interest on debts, etc., 0. 44, r. 9
representation of.
beneficiary, 0. 15, r. 14
deceased person, 0. 15. r. 15
unascertainable interested persons, 0. 15, r. 13
approval of compromise, 0. 15, r. 13(4)
judgment binding on, 0. 15, r. 13(4)
sale of trust property, 0. 85, rr. 2(3), 6
under direction of court. See under Chambers (0. 32)
Admiralty proceedings (0.
75)
actions in rem: acknowledgment of service, 0. 75, r.
3, 0. 12, r. 1 form of, 0. 75, r. 3 arrest of property:
caveat against, 0. 75, r. 6 duration of, 0. 75, r. 15
praccipe for, 0. 75, r. 6 withdrawal of, 0. 75, r. 15(1)
warrant for, 0. 75, r. 5 affidavit, contents of, 0. 75, r.
5 convention or treaty ships, 0. 75, r. 5 discharge of,
where caveat in force, 0. 75, r. 7 execution of, 0. 75,
r. 10 praecipe for, 0. 75, r. 5(4) service of, 0. 75, r.
11 arrested property: applications as to, 0. 75, r. 12
appraisement and sale, 0. 75, r. 23 claim in rem,
definition of, 0. 75, r. 5(10) notice of motion in, 0.
75, r. 34 protection by caveat, remedy against, 0. 75,
r. 7 release of, 0. 75, r. 13 caveat against and
payment, 0. 75, r. 14 duration of, 0. 75, r. 15
withdrawal of, 0. 75, r. 15
Admiralty proceedings (0. 75)-continued
sale, 0. 75, r. 23
bail, 0. 75, r. 16
beginning of, by writ, 0. 75, r. 3
Crown, against, 0. 77, r. 18
default action, evidence by affidavit, 0. 75, r. 19(4)
interveners, 0. 75, r. 17
judgment by default, 0. 75, r. 21
payment into and out of court, 0. 75, r. 24
priority of claims, 0. 75, r. 22
sale of ship, priority of claims, 0. 75, r. 22
short causes:
pleadings, 0. 75, r. 31
summons for directions, 0. 25, r. 1, 0. 75, r. 31
writ of summons, 0. 75, r. 31
summons for directions, 0. 75, r. 25
writ:
form, 0. 75, r. 3
issue, 0. 75, r. 3
service, 0. 75, r. 8
by Bailiff, form of praecipe, 0. 75, r. 8(3)
or substitute, indorsement on, 0. 75, r. 8(3A)
on ship, etc., 0. 75, r. 11
agreement between solicitors as order of Court, 0. 75, r. 35
assessors, attendance of, at trial, 0. 75, r. 26(3)
collision, etc., actions:
defence of compulsory pilotage, notice of intention to rely on, 0. 75, r.
18(3)
filing of preliminary act, 0. 75, r. 18
failure to file, 0. 75, r. 19
regulations, defined, 0. 75, r. 1
reply or defence to counterclaim, 0. 75, r. 20
service out of jurisdiction, 0. 75, r. 4
stay of proceedings pending security, 0. 75, r. 27
further provisions with respect to, 0. 75, r. 32
examination of witnesses, etc., before trial, 0. 75, r. 30
inspection
of documents, 0. 75, r. 46
of ships, etc., 0. 75. r. 28
International Oil Pollution Compensation Fund proceedings
judgment, drawing up and entry, 0. 75, r. 45
limitation actions:
decree:
proceedings under, 0. 75, r. 39
to set aside, 0. 75, r. 40
defence under Merchant Shipping Acts, 0. 18, r. 22
parties, 0. 75, r. 37
summons for decree or directions, 0. 75, r. 38
notice of motion, filing and service, 0. 75, r. 34
orders, drawing up and entry, 0. 75, r. 45
Registrar,
reference to, 0. 75, r. 41
hearing of reference, 0. 75, r. 42
objection to decision on reference, 0. 75, r. 43
salvage, proceedings for apportionment, 0. 75, r. 33
filing and service of notice of motion, 0. 75, r. 34
settled or withdrawn action, notice of, 0. 75, r. 26(4)
trial, fixing date of, etc., 0. 75, r. 26
assessors, praecipe for attendance at, 0. 75, r. 26(3)
setting down for, 0. 75, r. 26(2)
witnesses:
examination of, 0. 75, r. 30
writ of summons:
in limitation action, form of, 0. 75, r. 3(3)
personam, form of, 0. 75, r. 3(2)
rem. See 'actions in rem' above
service of, outside jurisdiction, 0. 75, r. 4
Admission (0. 27) by person under
disability, 0. 80, r. 8 of case of other
party, notice of, 0. 27, r. 1
Admission (0. 27)--continued
documents:
notice to admit, 0. 27, r. 5
cost of proving document not admitted, 0. 62, r. 3(6)
specified in list or affidavit, 0. 27, r. 4
facts:
amendment or withdrawal, 0. 27, r. 2(2)
judgment on, 0. 27, r. 3
not traversed by pleading, 0. 18, r. 13
notice to admit, 0. 27, r. 2
recording in order for directions, 0. 25, r. 4
Advertisemen
t
for creditor, etc., 0. 44, r. 5
Affidavit (0. 41)
alterations in, 0. 41, r. 7 blind person, of, 0. 41, r. 3 Commonwealth
country, admission of affidavit taken in, 0. 41, r. 12(1), (3) contents of,
0. 41, r. 5 proving due service of writ, 0. 10, r. 1(3) cross-examination of
deponent, 0. 38, r. 2 before examiner, 0. 39, r. 4 defective, use of, 0. 41,
r. 4 evidence by, at trial, 0. 38, r. 2 exhibits, 0. 4 1, r. 11 fee stamp, 0.
41, r. 10(2) filing, 0. 41, r. 10(3) form of, 0. 41, r. 1 illiterate person, of,
0. 41, r. 3 notice of filing, proceedings in chambers, 0. 32, r. 17 Registrar
etc. empowered to take, 0. 32, r. 8 scandalous. etc., matter, striking out,
0. 41, r. 6 solicitor of party, swearing before, 0. 41, r. 8 two or more
deponents, by, 0. 41, r. 2 use of.. at trial, 0. 38, r. 2 on summons for
directions, 0. 25, r. 6 original or copy, 0. 41, r. 10
Amendment (0. 20)
costs of. See Costs
disallowance of, 0. 20, r. 4
failure to amend, 0. 20, r. 9
indorsement as to, 0. 20, r. 10(2)
mode of, 0. 20, r. 10
of admission as to fact, 0. 20, r. 5(3), (4), (5)
acknowledgment of service, 0. 20, r. 2
documents, 0. 20, r. 8
name of party, 0. 20, r. 5(3)
notice of-
appeal, etc., 0. 59, r. 7
motion in appeal cases, 0. 55, r. 6
payment into court, 0. 22, r. 1(5)
pleadings, 0. 18, r. 19, 0. 20, rr. 1-11
order on summons for directions, 0. 25, r. 2(2)
to plead in alternative, 0. 18, r. 10(2)
writ, 0. 20, rr. 1-11
on change, etc., of parties, 0. 15, r. 8
order on summons for directions, 0. 25, r. 2
time for, 0. 20, r. 9
Appeals (0. 55-61)
from
judge in interpleader proceedings, 0. 58, r. 7
Registrar, 0. 58, r. 1
limitation of right of appeal, 0. 25, r. 5
to Court of Appeal. See Court of Appeal (0. 59, 0. 61)
Appeals (0. 55-61)-continued to High Court (0. 55): court,
from, 0. 55, r. 1 entry of appeal, 0. 55, r. 4 government
department, right to be heard, 0. 55, r. 8 hearing of, 0. 55, r. 5
amendment of grounds of, 0. 55, r. 6 date of hearing, 0. 55, r.
5 evidence at, 0. 55, r. 7 powers of Court, 0. 55, r. 7 inferior
court, from, 0. 55, rr. 1-8 judgments and orders on, 0. 55, r.
7(5) magistrates court, from, 0. 55, r. 1(2) mode of bringing
appeal, 0. 55, r. 3 note of proceedings in court below, 0. 55, r.
7(4) notice of motion: amendment, 0. 55, r. 6 contents, 0. 55,
r. 3 service, 0. 55, r. 4 under particular Ordinances. See under
title of the Ordinance.
Applications (see also under Chambers; Interlocutory applications) affecting party in
default of appearance, 0. 28, r. 6 beginning of proceedings, 0. 5, r. 1 for leave to institute
proceedings, under the Mental Health Ordinance, (Cap. 136), 0. 32, r. 9 under particular
Ordinances. See under the title of the Ordinance under s. 41 or 42 of Supreme Court
Ordinance, 0. 24, r. 7A
Apportionment
money paid into Court under Fatal Accidents Ordinance, (Cap. 22), 0. 80, r. 15
salvage. See Admiralty proceedings
Arbitration Ordinance, (Cap. 341)
arbitrator or umpire:
application for statement of case by, 0. 73, r. 3(2)
to remove, 0. 73, r 2(1)
awards:
declaration that award not binding. 0. 73, r. 2(3)
enforcement of, under s. 28 of, 73, r. 10
remission, 0. 73, r. 2(1)
setting aside, 0. 73, r. 2(1)
payment in, 0. 73, r. 11
acceptance of, 0. 73, r. 13
counterclaim, 0. 73, rr. 12, 16
investment of, 0. 73, r. 18
money remaining in count, 0. 73, r. 15
non-disclosure of, 0. 73, r. 17
order for payment out, 0. 73, r. 14
proceedings:
application for-
case stated by arbitrator, 0. 73, r. 3(2)
declaration that award not binding, 0. 73, r. 2(3)
remission of award, 0. 73, r.'2(1)
removal of arbitrator, etc., 0. 73, r. 2(1)
setting aside of award, 0. 73, r. 2(1)
statement of case by arbitrator, etc., 0. 73, r. 3(2)
before-
judge in chambers, 0. 73, r. 3
in court, 0. 73, r. 2
service out of the jurisdiction, 0. 73, r. 7
time limits, 0. 73, r. 5
transfer to particular list, 0. 73, r. 6
registration of foreign awards, 0. 73, r. 8
statement of case:
by arbitrator, 0. 73, r. 2(2)
taxation of costs, 0. 62, r. 12
Arbitration, foreign
awards
registration, 0. 73, r. 8
Arrest of ship, etc. See Admiralty
proceedings
Assessment of damages (0.
37)
at trial, 0. 37, r. 4
Registrar, 0. 37, r. 1 certificate
of Registrar, 0. 37, r. 2 form of
judgment after, 0. 42, r. 1 order
for, 0. 37, r. 4 to time of
assessment, 0. 37, r. 6
Assessors
trial of action with, 0. 33, rr. 2, 6
admiralty action, 0. 75, r. 26(3)
Attachment ofdebt due to judgment debtor. See Garnishee proceedings;
Foreign Attachment from Crown, 0. 77, r. 16 interim, of property, 0.
44A, r. 7 compensation for unjustiflable, 0. 44A, r. 12 defendant to furnish
security, 0. 44A, r. 7 procedure for showing cause, 0. 44A, r. 9 rights of
others, 0. 44A, r. 10 warrant, 0. 44A, r. 8
Bail action in rem. See Admiralty
proceedings in contempt cases, 0. 59, r.
20(2)
Bailiff
undertaking to pay expenses and fees to, in admiralty proceedings, 0. 75, rr. 8(3), 10(3), 13(7), 23(3),
23A
Bankruptcy
appeal:
against order, etc., time for, 0. 59, r. 4
book debt, registration of assignment, 0. 95, r. 6
of party. See Party
R.S.C., applicability of, to bankruptcy proceedings, 0. 1, r. 2
Bills of Sale Ordinance,
(Cap. 20)
entry of satisfaction, 0. 95, r. 2 rectification of
register, 0. 95, r. 1 restraining removal on sale of
goods seized, 0. 95, r. 3 search of register, 0. 95, r. 4
Body corporate. See
Corporations
Books
business books, production for inspection, 0. 24, r. 14
of account as evidence, 0. 43, r. 3(2)
proof of entry in, 0. 38, r. 3(2)
Breach of contract. See
Contract
Breach of duty,
etc
proceedings to be begun by writ, 0. 5, r. 2
British consul. See
Consul
Business books. See
Books
Business name
persons carrying on business in other name, 0. 81, r. 9
Carriage by Air Act 1932
service of notice of writ on High Contracting Party, 0. 11, r. 7
Case stated appeal by way offrom
tribunals, 0. 61, rr. 2, 3
Cause book definition, 0. 1, r. 4(1) entry of
acknowledgment of service in, 0. 12, r. 4
Cause of action (0. 15)
joinder of causes, 0. 15, r. 1
separate trials of, 0. 15, r. 5
Certiorari. See Judicial review
Chambers (0. 32) (See also Interlocutory applications) absence of party
at, 0. 32, r. 5 applications, mode of making, 0. 32, r. 1
adjournment into and from Court, 0. 32, r. 18 affidavit, notice of
filing, 0. 32, r. 17 disposal of matter in chambers, 0. 32, r. 19
documentary evidence, production of original, 0. 32, r. 21 expert,
assistance of, 0. 32, r. 16 jurisdiction of Registrar, 0. 32, r. 11 note
of proceedings, 0. 32, r. 22 papers for use of court, 0. 32, r. 21
proceedings under judgment (0. 44) binding of person not a party,
0. 44, r. 2(2) directions by court, 0. 44, r. 3 discharge, variation or
addition to judgment, 0. 44, r. 2(4) for administration of estate or
trust: advertisement for creditors, etc., 0. 44, r. 5 examination and
adjudication of claims, etc., 0. 44, rr. 6. 7 interest on debts, 0. 44,
r. 9 notice of adjudication, 0. 44, r. 8 master's order, 0. 44, r. 11
appeal from, 0. 44, r. 12 notice of judgment: acknowledgment of
service of, 0. 44, r. 2(3) memorandum indorsed on, 0. 44, r. 2(3)
subpoena for attendance of witness, 0. 32, r. 7 summons, issue of,
0. 32, r. 2 adjournment, 0. 32, r. 4 amendment, 0. 32, r. 2(2)
restoration to list, 0. 32, r. 4(2)
Charging order (0. 50) discharge of, 0. 50, r. 7
enforcement of judgment generally by, 0. 45, r. 1(1)
sale by, 0. 50, r. 9A injunction, may be granted by
master, 0. 50, r. 9 on beneficial interest order nisi, 0.
50, r. 1 order absolute, 0. 50, Y. 3 trustee interests, 0.
50. r. 4 securities, out of court, 0. 50, r. 5
(including funds) in court, 0. 50, r. 6
stop notice, effect of, 0. 50, r. 12 amendment
of, 0. 50, r. 13
Charities Procedures Act
1812
application by Attorney General, 0. 115, r. 4
Charitable Trusts
application,
by Attorney General under Charities Procedure Act 1812, 0. 115, r. 4
hearing of, in chambers, 0. 115, r. 1
may be made by Attorney General, trustees, interested persons or two or more
inhabitants, 0. 115, r. 3
to be made by summons, 0. 115, r. 1
Chattels, delivery up of. See
Detinue and see Interpleader
Christmas Vacation
exclusion of, 0. 3, r.
3
collision
between ships. See Admiralty proceedings
on land, discovery of documents in actions arising out of, 0. 24, r. 2(2)
Commencement of
proceedings mode of, 0.
5, r. 1
Commissioners for oaths (0. 115)
appointment of, 0. 115, r. 1 authority to
administer oaths, 0. 115, r. 2
Committal (0. 52) for contempt of court, 0. 52, rr. 1-9 application for
leave, 0. 52, r. 2 discharge of person committed, 0. 52, r. 8 form, 0.
52, r. 1 hearing in private, 0. 52, r. 6 powers of court, 0. 52, rr. 3-9
suspension of order, 0. 52, r. 7 for non-compliance with order
fordiscovery or production of documents, 0. 24, r. 16 of solicitor, non-
compliance with undertaking, action in rem, 0. 75, r. 9 to enforce
judgment, 0. 45, rr. 1, 3, 4 against officer of body corporate, 0. 45, r.
5 for delivery of goods, discharge of person committed, 0. 52, r. 8
Common knowledge
proof of, 0. 38, r.
3(2)
Companies
acknowledgment of service and notice of intention to defend by solicitor or by person authorized by
defendant, 0. 12, r. 1(2)
address for service, 0. 65, r. 5(2)
committal order against officer of, 0. 45, r. 5
Companies Ordinance, proceedings under. See Companies Ordinance
debenture holders' actions. See Debenture Holders' Actions
firm, proceedings by and against. See Partners
interrogatories, order for, 0. 26, r. 2
proceedings of, bringing by solicitor, 0. 5, r. 6(2)
sequestration, against officer of, 0. 45, r. 5(1)(ii)
service on, 0. 65, r. 2(d)
solicitor, representation by, 0. 5, r. 6(2), 0. 12, r. 1(2)
winding-up:
appeal against order, etc., time for, 0. 59, r. 4(1)(b)
R.S.C., applicability of, to proceedings, 0. 1, r. 2(2)
Companies Ordinance, proceedings under (0. 102):
applications, mode of making, 0. 102, rr. 2-5
claims:
adjudication of, 0. 102, r. 13
affidavit as to, 0. 102, r. 12
creditors:
consent of, 0. 102, r, 15
list of, 0. 102, r. 8
objecting, 0. 102, r. 14
inquiry as to debts, 0. 102, rr. 8-16
petition:
advertisement of, 0. 102, r. 11
application by, 0. 102, r. 5
time for hearing, 0. 102, r. 16
shares at a discount, order sanctioning, 0. 102, r. 17
summons for directions, 0. 102, r. 7
title of proceedings, 0. 102, r. 6(2)
Compromise. See Construction proceedings; Disability, person under
Concurrent writ See Writ of summons
Conditional sale agreements, actions arising from. See under Hire-purchase agreements
Consolidation of proceedings, 0. 4, r. 9
Construction proceedings
approval of compromise, 0. 15, r. 13(4)
beginning of proceedings, 0. 5, rr. 1-6
unascertainable persons, 0. 15, r. 13 judgment
binding on, 0. 15, r. 13(4)
Consul
taking of evidence before, 0. 39, r. 2(2)
Contempt of court
appeals and applications: to Court of Appeal. See Court
of Appeal committal for (0. 52), 0. 52, rr. 1-9 form of order,
0. 52, r. 1 other punishments, 0. 52, r. 9 release of appellant
pending appeal, 0. 59, r. 20
Contract
action in respect of, service of writ: in pursuance of, 0. 10, r. 3 on agent
of oversea principal, 0. 10, r. 2 breach of, proceedings to be begun by
writ, 0. 5, r. 2 construction of, commencement of proceedings, 0. 5, r. 4(2)
joinder of parties jointly liable under, 0. 15, r. 4(3)
Contribution
claim of, by defendant: against other
party, 0. 16, r. 8 third party, 0. 16, r. 1 offer
of.. effect on costs, 0. 62, r. 5 non-
disclosure, 0. 16, r. 10
Convictions
evidence, as, 0. 18, r. 7A matters to be pleaded,
0. 18, r. 7A contesting, when 0. 18, r. 7A(3)
Copyright Act 1956
case stated under s. 30, 0. 93, r. 14
Corporations
address for service, 0. 65, r. 5(2)(d)
committal order against officer of, 0. 45, r. 5(1)(iii)
interrogatories, order for, 0. 26, r. 2
proceedings of, bringing by director or solicitor, 0. 5, r. 6(2)
acknowledgment of service and notice of intention to defend by solicitor or by person authorized by
defendant, 0. 12, r. 1(2)
sequestration, against officer of, 0. 45, r. 5(1)(ii)
service on, 0. 10, r. 1(7), 0. 65, r. 3
Costs (0. 62) amendment of documents, 0. 20, r. 8 writ or
pleadings, 0. 20, r. 5 appeal cases, 0. 62, r. 4(2), (3)
application for summary judgment, 0. 14, r. 7
Costs (0. 62)--continued
assessment of costs:
discretionary costs, 0- 62, r. 32, First Sch., Pt. 11, para. 1
of solicitor payable by own client, 0. 62, r. 29
payable by infant plaintiff, etc., 0. 62, r. 30
on common fund basis, 0. 62, r. 28
party and party basis, 0. 62, r. 28
scale of costs, 0. 62, r. 32, 0. 62, r. 32, First Second Schs.
bill of costs, solicitor's, 0. 62, r. 25
comprised in account, taxation of, 0. 62, r. 19
filing of, 0. 62, r. 21
delay in, 0. 62, r. 22
claim for debt or liquidated demand, 0. 62, r. 9(3)
contribution, effect of offer of, 0. 62, r. 5
creditor proving claim, 0. 62, r. 3(9)
delay in proceeding, 0. 62, r. 7
disallowance of costs:
arising from misconduct or neglect, 0. 62, r. 7
for acting unreasonably, 0. 62, r. 6
unnecessary attendance on taxation, 0. 62, r. 27(1)
discontinuance, etc., 0. 21, r. 3
discontinued action, 0. 62, r. 10(3)
discretion of court, 0. 62, r. 3(2), (3)
matters to be taken into account, 0. 62, r. 5
restriction of discretion, 0. 62, r. 6
discretionary costs, 0. 62, r. 32, First Sch., Pt. 11, para. 1
dismissed summons to set aside proceedings, 0. 62, r. 11
entitlement to costs, 0. 62, rr. 3-11
arising from misconduct or neglect, 0. 62, r. 7
following the event, 0. 62, r. 3
to fractional or gross sum in lieu of taxation, 0. 62, r. 9
taxed costs, 0. 62, r. 9(4)
extension of time, 0. 62, r. 3(5)
fixed costs, 0. 62, r. 32, Second Sch.
of creditor proving claim against estate, 0. 62, r. 3(8), (9)
garnishee proceedings, 0. 49, r. 10
infant plaintiff, 0. 62, r. 30
interpleader proceedings, 0. 17, r. 8
judgment for, in default of appearance, 0. 13, r. 6(2)
without trial, fixed costs on, 0. 62, r. 32, Second Sch.
litigant in person, 0. 62, r. 28A
misconduct, 0. 62, r. 7
mortgagee, 0. 62, r. 6(2)
neglect, 0. 62, r. 7
offer of contribution, effect of, 0. 62, r. 5
payment of, forthwith, 0. 62, r. 4(1)
payment into court, effect of, 0. 62, r. 5
personal representative, 0. 62, rr. 6(2), 31
plaintiff under disability, 0. 62, r. 30
probate in solemn form, 0. 62, r. 6(1)
proving fact or document not admitted, 0. 62, rr. 3(6), (7), 7
review-
by judge, 0. 62, r. 3 5
taxing master, 0. 62, r. 34
scale of costs, 0. 62, r. 32, First Second Schs.
security for costs, 0. 23, rr. 1-3
simultaneous trials, 0. 4, r. 9
solicitor's-
costs order for taxation. See Legal Practitioners Ordinance, (Cap.
159)
payable by own client, 0. 62, r. 29
infant plaintiff, etc., 0. 62, r. 30
liability for, 0. 62, r. 8
taxation of costs:
adjournment of taxation proceedings, 0. 62, r. 26
assessment of costs on. See 'assessment of costs' above
by taxing master, 0. 62, r. 9(2)
commencement of proceedings for, 0. 62, r. 21
comprised in account, 0. 62, r. 19
deposit of papers and vouchers, 0. 62, r. 23
disallowance of unnecessary attendance, 0. 62, r. 27(1)
9(3) extension of time, 0. 62, r. 16 interim
certificates, 0. 62, r. 17 notice of
appointment, 0. 62, r. 21 of party liable to
pay costs, 0. 62, r. 18 powers of taxing
officers, 0. 62, rr. 12-19 certain judicial
clerks, 0. 62, r. 13 costs payable out of
fund, 0. 62, rr. 27, 29 without order, 0. 62,
r. 11 time for dealing with costs, 0. 62, r. 4
trustee, 0. 62, rr. 6(2), 31 writ of fi. fa.,
separate, for costs, 0. 62, r. 3(2)
counsel
allowance of fees of counsel, 0. 62, r. 32, First Sch., Pt. para. 2
Counterclaim (0. 15) (see also Pleadings; Service)
against additional party, 0. 15, r. 3
acknowledgment of service of.
judgment, etc., in default, 0. 15, r. 3(5), (6)
adding party to title of action, 0. 15, r. 3(2)
joining of party, 0. 15, r. 4
notice to be indorsed on copy for service, 0. 15, r. 3(6)
right of party to defend, 0. 15, r. 3(5)
against plaintiff, 0- 15, r. 2
addition of, to defence, 0. 15, r. 2
joinder of causes, 0. 15, r, 1
proceeding with after judgment, etc., 0. 15, r, 2(3)
Crown proceedings, 0. 77, r. 6
discontinuance of, 0. 21, r. 2(2)(b)
dismissal on failure to take out summons for directions, 0. 25, r. 1(4)
to give information, etc., 0. 25, r. 6(3)
effect on third party proceedings, 0. 16, r. 11
matters to be pleaded, 0. 18, r. 18
originating summons action, 0. 28, r. 7
payment into court, with, acceptance of..
effect on costs, 0. 62, r. 3
stay of proceedings, 0. 22, r. 3(5)
separate trial of, 0. 15, r. 5
stay of execution pending trial of action, 0. 14, r. 3(2)
proceedings on acceptance of money paid into court, 0. 22, r. 3(5)
striking out of, 0. 15, r. 5, 0. 18, r. 19
after death of party, 0. 15, r- 9
summary judgment on, 0. 14, r. 5
Court
documents
use of, in evidence, 0. 38, r. 10
Court expert (0. 40)
accident cases, 0. 38, r. 37 appointment of, 0.
40, r. 1 cross-examination of, 0. 40, r. 4
evidence of, expert, 0. 38, r. 35 et seq,
statement contained in, 0. 38, r. 41 experiments
and tests, 0. 40, r. 3 limitation of expert
evidence, 0. 38, r. 4 medical evidence, 0. 38, r.
37 non-medical evidence, 0. 38, r. 38
remuneration, 0. 40, r. 5 report of, 0. 40, r. 2
another party, use of in evidence, 0. 38, r. 42
time for putting in evidence, 0. 38, r. 43 fee for,
0. 40, r. 5(1) setting question for, 0. 40, r. 1(3)
statement in, evidence by, 0. 38, r. 41 witnesses,
expert, 0. 38, r. 35 et seq. number of, 0. 38, r. 4
Court of Appeal (0. 59, 0. 61)
appeals to,
against decree nisi, 0. 59, r. 16
contempt of court cases, 0. 59, r. 20
documents to be lodged, 0. 59, r. 9
evidence on appeal, 0. 59, r. 12
admission of additional evidence, 0. 59, r. 10(2)
from District Court, 0. 59, r. 19
in interpleader proceedings, 0. 58, r. 7
Registrar, 0. 58, r. 1
tribunals, 0. 61, rr. 2, 3
from tribunal,
by case stated, 0. 61, r. 2
other than by case stated on point of law, 0. 60A, rr. 1-6
impounding documents, custody and inspection of, 0. 59, r. 10(7), (8)
interest on Supreme Court judgment pending, 0. 59, r. 13(2)
new trial, order for, 0. 59, r. 11
notice of appeal, 0. 59, r. 3
against decree nisi, 0. 59, r. 16
amendment, 0. 59, r. 7
service:
contempt of court cases, 0. 59, r. 20
District Court appeals, 0. 59, r. 19
directions as to, 0. 59, r. 8
extension of time, 0. 59, r. 15
payment into court, non-disclosure of to, 0. 59, r. 12A
respondent's notice, 0. 59, r. 6
amendment, 0. 59, r. 7
direction as to service, 0. 59, r. 8
setting down appeal, 0. 59, r. 5
against decree nisi, 0. 59, r. 16
from District Court, 0. 59, r. 19
stay of execution pending, 0. 59, r. 13
time for appealing, 0. 59, r. 4
against decree nisi, 0. 59, r. 16
extension of time for, 0. 59, r. 15
from District Court, 0. 59, r. 19
application to, 0. 59, r. 14
for new trial, 0. 59, r. 2
to set aside trial and verdict, 0. 59, r. 2
judgments and orders of, 0. 59, r. 10(3)
powers of, 0. 59, rr. 10, 11
as to new trials, 0. 59, r. 11
free copies, 0. 68, r. 4
Crown privilege, 0. 77, r.
12
Crown proceedings (0.
77)
certificate of order against Crown, 0. 77, r. 15 for costs, 0.
77, r. 15 claim, indorsement of, 0. 77, r. 3 further and better
particulars of, 0. 77, r. 3(2) counterclaim, 0. 77, r. 6
discovery, 0. 77, r. 12 Crown privilege, 0. 77, r. 12(2)
evidence, taking of, 0. 77, r. 14 execution against Crown, 0.
77, rr. 15, 16 in rem actions against Crown, 0. 75, r. 1, 0.
77, rr. 1, 18 interpleader, application for order barring
Crown, 0. 77, r. 11 interrogatories, 0. 77, r. 12 judgment in
default by Crown, 0. 77, r. 9 money payable by Crown:
attachment, 0. 77, r. 16 payment to receiver, sequestrator,
etc., 0. 77, r. 16 perpetuation of testimony, 0. 77, r. 14
possession of land, proceedings for, 0. 1, r. 6 postal packet,
proceedings concerning, 0. 77, r. 17 service on Crown, 0. 77,
r. 4 set-off, 0. 77, r. 6 summary judgment, 0. 77, r. 7
Crown proceedings (0. 77)-continued third party proceedings:
default by Crown, 0. 77, r. 9 third party notice, against
Crown, 0. 77, r. 10
Crown Solicitor
conduct of accounts and inquiries by, 0. 43, r. 7
D-age to property
proceedings to he begun by writ, 0. 5, r. 2
Damages
exemplary, pleading of, 0. 18, r. 8(3)
personal injuries, provisional, 0. 37, rr. 7, 8, 9, 10
provisional, pleading, 0. 18, r. 8(3)
variation by Court of Appeal of sum awarded, 0. 59, r. 11(4)
and see Assessment of damages; Unliquidated damages
Death
claim in respect of, mode of beginning proceedings, 0. 5, r. 2
of party. See Party
person entitled to fund in court, 0. 22, r. 11
representation of interested deceased person, 0. 15, r. 15
Debenture holders' actions (0. 87)
evidence of transfer of debenture or stock, 0. 87, r. 4 payment by Registrar, 0.
87, r. 6 proceedings in chambers under judgment. See under Chambers proof
of title, holder of bearer debenture, 0. 87, r. 5 receiver's register, 0. 87, r. 1
rectification, 0. 87, r. 3
Debt (see also Liquidated demand) attachment of See
Garnishee proceedings imprisonment for, 0. 49B,
r. I B interest on debt of deceased, 0. 44, r. 9
Declaration of right, 0. 15, r. 16
Deeds
construction of, beginning of proceedings for, 0. 5, r. 4
enrolment, 0. 63, r. 10
settling by court, directions as to, 0. 44, r. 3
Defamation actions (0. 82)
evidence in mitigation of damages, 0. 82, r. 7 indorsement of
writ, 0. 82, r. 2 interrogatories, 0. 82, r. 6 offer of amends,
fulfilment, 0. 82, r. 8 form of application, 0. 82, r. 8(2) particulars
to be given, 0. 82, r. 3 payment into court by some of defendants,
acceptance of, 0. 82, r. 4 disclosure of, 0. 82, r. 5 statement in
open court, 0. 82, r. 5
Defence (see also Pleadings)
joinder of issue on, 0. 18, r. 14
judgment in default. See under Judgment
jus tertii, plea of, 0. 15, r. 1 0A
leave to defend on application for summary judgment, 0. 14, r. 4
directions, 0. 14, r. 6
of set-off 0. 18, rr. 17, 18
tender, 0. 18, r. 16
payment out of court of money paid with, 0. 22, r. 4
Defence (see also Pleadings)-continued striking out: on
failure to answer interrogatories, 0. 26, r. 6(1) to
give discovery, 0. 24, r. 16(1) time for service, 0.
18, r. 2 to counterclaim, 0. 18, r. 18 service of, 0.
18, r. 3 under Merchant Shipping Acts, 0. 18, r. 22
withdrawal of, 0. 21, r. 2(2)
Defendant (see also Party) acceptance of service by
solicitor, 0. 10, r. 1(4) in person: acknowledgment of
service, 0. 12, r. 3 defence of action by, 0. 12, r. 1(1)
overseas, service of writ on agent, 0. 10, r. 2
representative capacity, indorsement on writ, 0. 6, r.
3 within the jurisdiction, service of writ, 0. 10, r. 1(2)
Definition of terms, 0. 1, rr.
3, 4
Delay in proceeding costs occasioned by,
0. 62, r. 7 notice of intention to
proceed, 0. 3, r. 6
Delivery of goods (see also Writ of delivery)
enforcement of judgment for, means of, 0. 45, r.
4 order limiting time for, 0. 45, r. 5(3)
Denial
by joinder of issue, 0. 18, r. 14
pleading, 0. 18, r. 13
Deposition, evidence by. See
Evidence
Detinue
enforcement of judgment, means of, 0. 45, r. 4
judgment:
in default of defence, 0. 19, r. 4
on failure to give notice of intention to defend, 0. 13, r.
3
order to deliver up chattels, 0. 14, r. 9
summary judgment, 0. 14, r. 9
Directions in admiralty actions. See Admiralty
proceedings particular proceedings, 0. 72, r. 8
on hearing of originating summons, 0. 28, r. 4
interlocutory applications, 0. 29, r. 7 summons
for. See Summons for directions
Disability, person under (0. 80) (see also
Minors) approval of court to settlement, etc., 0.
80, Y. 11 change of party on death, etc., 0. 80, r.
7 compromise by, 0. 80, r. 10 discovery by, 0.
80, r. 9 guardian ad litem, proceeding by, 0. 80, r.
2 appointment of, 0. 80, r. 3 in probate action,
0. 80, r. 3 where service not acknowledged, 0. 80,
r. 6 representation by solicitor, 0. 80, r. 2(3)
interrogatories by, 0. 80, r. 9 meaning of, 0. 80,
r. 1 money recovered by, control of, 0. 80, r. 12
next friend, proceeding by, 0. 80, r. 2
appointment of, 0. 80, r. 3 in probate action, 0.
80, r. 3 representation by solicitor, 0. 80, r. 2(3)
Disability, person under (0. 80) (see also Minors)--continued
payment into court: acceptance of, by, 0. 80, r. 12 transfer to
District Court, 0. 80, r. 12(3) payment out of court to, 0. 22,
r. 4 pleading of, admissions not to be implied, 0. 80, r. 8
probate action: appointment of next friend or guardian ad
litem, 0. 80, r. 3 service shall not be acknowledged, 0. 80, r. 3
writ, issue of, 0. 80, r. 3 service on, 0. 80, r. 16 settlement by,
0. 80, r. 11
Discontinuance (0. 21) effect of, 0. 21 r. 4 of
action etc., 0. 21, rr. 2, 3 costs of, 0. 21, r. 5
counterclaim, 0. 21, rr. 2, 3 proceeding with
counterclaim after, 0. 15, r. 2(3) stay of subsequent
action until costs paid, 0. 21, r. 5
Discovery of documents (0.
24)
by person under disability, 0. 80, r. 9 Crown
proceedings, 0. 77, r. 12 determination of issue before,
0. 24, r. 4 dispensing with, 0. 24, r. 1(2) failure to give
discovery, 0. 24, r. 16 in action for recovery of
penalty, 0. 24, r. 2(3) collision cases, 0. 24, r. 2(2)
limitation of, 0. 24, r. 2(5), (6) list of documents:
affidavit verifying. 0. 24, r. 2(7) by Crown, 0. 77, r.
12(3) form of, 0. 24, r. 5(3) form of, 0. 24, r. 5
service, 0. 24, r. 2(7) mutual discovery, 0. 24, r. 1
Crown proceedings, 0. 77, r. 12(1) non-disclosure on
ground of public interest, 0. 24, r. 15 order for, 0. 24,
r. 3 for discovery of particular document, 0. 24, r. 7
for provision of copies of documents, 0. 24, r. 11 A
privilege from production, 0. 24, r. 5(2) to co-
defendant, etc., 0. 24, r. 6 use of document, 0. 24, r.
14A without order, 0. 24, r. 2 Crown proceedings, 0.
77, r. 12(1)
Dismissal of
action
after decision of preliminary issue, 0. 33, r. 7 for
want of prosecution, 0. 34, r. 2(2) originating
summons action, 0. 28, r. 10 in default of. answer
to interrogatories, 0. 26, r. 6(1) discovery, etc., 0.
24, r. 16(1) service of statement of claim, 0. 19,
r. 1 setting down, 0. 34, r. 2(2) summons for
directions, etc., 0. 25, r. 1(4), (5) on failure to
give information, etc., 0. 25, r. 6(3) on striking
out of pleading, etc., 0. 18, r. 19 proceeding with
counterclaim after, 0. 15, r. 2(3) taxation of costs
without order, 0. 62, r. 11
Distribution of
fund
before all entitled persons ascertained, 0. 43, r. 8
District Court, transfer of proceedings from
(0. 78)
acknowledgment of service, 0. 78, r.
3 notice of intention to defend,
judgment on, 0. 78, r. 4
District Court, transfer of proceedings from (0. 78)-continued
Registrar, duties of, 0. 78, r. 2 summary judgment, 0. 78, r. 5 summons
for directions, 0. 78, r. 5
Divorce. See Matrimonial proceedings
Documents (see also Court documents, and under name of particular document) admission.
See Admission amendment of, 0. 20, rr. 1-11 bundle of, treatment as one exhibit, 0. 35, r.
11(4) copies offor other party, 0. 66, r. 3 indorsement of, 0. 66, r. 4 deposit in court, 0. 63, r.
5 discovery. See Discovery of documents documentary evidence. See Evidence exhibited
to affidavit, 0. 41, r. 11 impounded documents, 0. 35, r. 13 by Court of Appeal, 0. 59. r.
10(7), (8) indorsement as to amendment, 0. 20, r. 10(2) inspection. See Inspection of
documents irregularity in, setting aside for, 0. 21, r. 2 lodging, on appeal to Court of
Appeal, 0. 59, r. 9 under order of court, 0. 63, r. 5 notice to admit, 0. 27, r. 5 and see under
Admission notice to produce at trial, 0. 27, r. 5(4) printed, etc. documents, 0. 66, r. 2
production of.. at trial, 0. 38, r. 3(2) before Registrar on assessment of damages, 0. 37, r. 1(3)
in marine insurance action, 0. 72, r. 10 on entry of judgment, 0. 42, r. 5 summons for
directions, 0. 25, r. 6 taxation of costs, 0. 62, r. 14 original in chambers, 0. 32, r. 21
otherwise than at trial, 0. 38, r. 13 to court, 0. 24, r. 12 examiner, 0. 39, r. 4 proof of
document not admitted, costs of, 0. 62, r. 3(7) quality of paper, 0. 66, r. 1 service of. See
Service
Easter Vacation
exclusion of, 0. 3, r. 3
Enforcement of judgments (0. 45) (see also Charging orders; Committal; Execution; Garnishee proceedings;
Possession of land; Receiver; Sequestration; Writ of delivery; Writ of fieri facias)
against firm, 0. 81, r. 5
judgment debtor residing abroad, 0. 71, r. 7
by and against person not a party, 0. 45, r. 9
in action between partners, 0. 81, r, 6
possession action against several defendants, 0. 13, r. 4(5)
mandatory order, injunction, etc.:
doing act at expense of disobedient party, 0. 45, r. 8
indorsement of order, 0. 45, r. 7(4)
means of, 0. 45, r. 5
order fixing time, 0. 45, r. 6
service of copy order, 0. 45, r. 7
means of, 0. 45, rr. 1-7
of foreign court. See Foreign proceedings
order for sale, 0. 47, r. 6
possession of land, 0. 13, r. 4
stay of execution for matter occurring after judgment, 0. 45, r. 11
Enrolment of deeds, etc., 0. 63, r. 10
Evidence (0. 38, 0. 39) admission of statements in documents, order
for, 0. 25, r. 4 before Court of Appeal, 0. 59, rr. 10, 12 books of
account, 0. 43, r. 3(2) by affidavit. See Affidavit commission, order
for examination of witnesses, etc., 0. 70, r. 2 deposition:
taking of before examiner of court, etc., 0. 39, rr. 1- 15 before
judge as examiner (Admiralty proceedings), 0. 75, r. 30 before
special examiner, British consul, etc., 0. 39, r. 2 use of, at trial,
0. 38, r. 9 oral examination, 0. 38, r. 1 production of
documents, etc., 0. 38, r. 3(2)
copy documents, etc., 0. 38, r. 3(2)
newspaper, 0. 38, r. 3(2)
statement on oath of information or belief, 0. 38, r. 3(2)
court documents, 0. 38, r. 10
documentary evidence:
proceedings in chambers, papers for use of court, 0. 32, r. 21
production. See Documents
exhibits:
custody after trial, 0. 35, r. 12
listing, numbering, etc., 0. 35, Y. 11
expert, 0. 38, r. 35, 0. 40, r. 1 See also COURT EXPERT.
appointment of Court, 0. 40, r. 1
disclosure of part of, 0. 38, r. 39
limitation of, 0. 38, r. 4
medical, 0. 38, r. 37
meeting of, 0. 38, r. 38
non-medical, 0. 38, r. 38
number of witnesses, 0. 38, r. 4, 0. 40, r. 1
other, 0. 38, r. 38
report of. See also COURT EXPERT.
another party, disclosed by, used in, 0. 38, r. 42
direction for disclosure of, 0. 38, r. 37
time for putting in, 0. 38, r. 43
restrictions on adducing, 0. 38, r. 36
statement, contained in, 0. 38, r, 41
facts, common knowledge, of, 0. 318, r. 3
for foreign court, obtaining of. See Foreign proceedings
hearsay,
Admiralty, 0. 75, r. 32
trial as a short cause, 0. 75, r. 31
determining questions on giving, 0. 38, rr. 3, 27, 28
jurisdiction of the court, 0. 38, r:. 33
statements 1 evidence,
adducing evidence as to credibility of maker, 0. 38, r. 30
document, contained in, 0! 38, r.
23 made in previous ious proceedings,
directions! with respect to, 0. 38, r. 28
made orally summons to admit, 0. 38,
r. 23 notice of intention to give, 0. 38,
r. 21 computers produced by, 0. 38, r.
24
contents of notice, 0. 38, r. 24 counter-notice, 0. 38, r. 26
credibility of witness to be attacked, where, 0. 38, rr. 26, 30
previous legal proceedings, 0. 38, rr. 26, 28 risk as to costs, 0.
38, r. 32 service of, 0. 38, r. 26 credibility of maker, affecting,
0. 38, r. 30 inconsistent statements, 0. 38, r. 31
contenls of notice, 0. 38, r.
22 orally, made, 0. 38, rr. 21,
22 out of court 0. 38, r. 21
contents of notice, 0. 38, r. 22 previous
legal proceedings, 0. 38, rr. 21, 28 records,
contained in, 0. 38, r. 21
contents of notice, 0. 38, r.
23 opinion, of 0. 38, r. 34
Evidence (0. 38,0.39)--continued hearsay-continued out of
court, attacking credibility of maker, 0. 38, r. 30 power of
the court to allow, 0. 38, r. 29 discretion, exercising, 0. 38,
r. 29 transcript, in criminal proceedings, evidence, of, 0.
38, rr. 22, 23, 24 witness, person as a, counternotice
requiring, 0. 38, r. 26 determining whether, should be
called, 0. 38, r. 27 reasons for not calling, 0. 38, r. 25 in
Admiralty proceedings, further provisions with respect to,
in open court, 0. 38, r. 1 manner of giving, of particular
fact, 0. 38, r. 3 revocation or variation of order as to, 0.
38, r. 6 of particular fact, 0. 38, r. 3 of witness out of
jurisdiction, taking of, 0. 39, rr. 2, 3 order of adducing, at
trial, 0. 35, r. 7 originating summons procedure, 0. 28, r.
4(3), (4) plans, etc., limitation as to, 0. 38, r. 5 recording
of. See Recording of proceedings taking of, in Crown
proceedings, 0. 77, r. 14 transcript of. See Recording of
proceedings trustee's written consent to act, 0. 38, r. 11
use of, in subsequent proceedings, 0. 38, r. 12 witness
statement, exchange of, 0. 38, r. 2A
Examination of judgment debtor, etc. (0. 48), 0. 48,
rr. 1-3
Examiner of the
Court
forms of summons and order for, 0. 39, r. 2 cross-
examination of court expert before, 0. 40, r. 4
order for payment, 0. 39, r. 14 special report, 0.
39, r. 13 taking of evidence before, 0. 39, rr. 1- 11
Exchange of
land
by order of court, 0. 3 1, r. 4
Execution (see also Delivery of goods; Enforcement of judgments; Interpleader, Possession of
land; Sequestration; Writ of fieri facias) of judgment against third party, 0. 16, r. 7 of
judgment for money by imprisonment (0. 49B), 0. 49B, rr. 1-7 stay of, on default judgment, 0. 13,
r. 8 pending trial of counterclaim, 0. 14, r. 3(2) writs of (0. 46), 0. 46, rr. 1-9
Executor. See also Personal representative accounts, order for, 0. 85, r.
5(2) execution of trust under direction of court. See Administration
of estates representation of beneficiary by, 0. 15, r. 14
Exhibits. See also Affidavit
custody of, after trial, 0. 35. r. 12
listing, numbering, etc., 0. 3 5, r.
11
Experiments and
tests
by court expert, 0. 40, r. 3
Expert (see also Court expert) assistance of, in
chambers, 0. 32, r. 16 cost of, 0. 62, r. 32, First Sch.,
Pt. H, para. 4 expert witness: calling of, where court
expert appointed, 0. 40, r. 6 limitation as to, 0. 38, r.
4
Extension of time. ,ee under Time; Costs; Writ,
etc.
Fatal Accidents
Ordinance
control of money ecovered, 0. 80, rr. 12,
13 costs, taxation of, D. 62, r. 30(2)
payment into court: 1:
apportionment of money, 0. 80, r. 15
notice of, 0. 22, r.
3 out of court 0. 22, r.
4
Filing. See under mime of particular document
Folio
defined, 0. 1, r. 4
Foreclosure. See Mortgage actions
Foreign country. See Foreign proceedings; Service out of the
jurisdiction
Foreign proceedings
evidence for foreign court, etc., obtaining of (0. 70), 0. 70, rr. 2-5
.certification of deposition, etc., 0. 70, r. 5
claim to priviege 0. 70, r. 6
manner of taking examination, 0. 70, r. 4
application for r order, 0. 70, r. 2
by Crown Solicitor. 0. 70, r. 3
foreign judgments registration and enforcement of (0. 71), 0. 71, rr. 2-13
execution, del delermination of questions as to, 0. 7 1, r. 11
setting aside registration, 0. 7 1, r. 9
writ of fieri facias to enforce, 0. 45, r. 12, 0. 71
merchant shipping (Liner Conferences) Act 1982
recommendations, enforcement of, 0. 71, rr. 41-44
service of foreign process (0. 69), 0. 69, rr. 1-4
Forfeiture (see Possession of
land)
Forms
list of prescribed forms, see list after 0. 115
use of, 0. 1, r. 9
Fraud
allegation of, proceedings to begin by writ, 0. 5, r. 2
Funds in court
application for payment, investment, etc., in, 0. 92, r. 5
charging order on, 0. 50, r. 6
investment, 0 22 r 13
stop order as to, 50, r. 10
to credit of judgment debtor, 0. 49, r. 9
Garnishee proceedings (0. 49), 0. 49, rr. 1
10 against firm, 0. 81 r. 7 claims of third
persons 0. 49, r. 6 costs, 0. 49, r. 10
determination of 1 issues in dispute, 0. 49, rr.
5, 6 discharge of garnshee 0. 49, r. 8 dispute
of liability by garnishee, 0. 49, r. 5
enforcement of judgment by, 0. 45, r. 1
v#
takin
g
fixed costs, 0. 62, r. 32, Second Sch. and item 2 in Pt. 111
thereof money in court to credit of judgment debtor, 0. 49, r. 9
order absolute, 0 49, r. 1 enforcement A, 0. 49, r. 4(2) form
of, 0. 4 rr. 1, 4 order to show cause application for 0. 49, r. 2
form of order 0. 49, r. 1 service and effect of order, 0. 49, r. 3
General
Holiday
exclusion of, 0. 3, r. 2(5)
time expiring on, 0. 3, r.
4
Goods (see also Delivery of goods; Detinue;
Interpleader) assessment of value after judgment,
0. 37, r. 5 sale under execution, 0. 47, r. 7
Government department. See Crown
proceedings
Guardian ad litem. See Disability, person
under
Habeas corpus, writs of (0.
54)
ad respondendum: application for, 0. 54, r.
9 form of, 0. 54, r. 10 ad subjiciendum:
application for, 0. 54, rr. 1, 2 notice of
motion, 0. 54, r. 2 form, 0. 54, r. 2 form
of writ and notice, 0. 54, rr. 6, 10 hearing
of, 0. 54, r. 8 return to writ, 0. 54, r. 7
directions as to, 0. 54, r. 5 service of writ
and notice, 0. 54, r. 6 ad testificandurn:
application for, 0. 54, r. 9 form of, 0. 54,
r. 10
Hire-purchase agreements, actions arising
from: judgment in default, 0. 84A, r. 3
statement of claim, 0. 84A, r. 2
Husband and wife (0. 89)
action between,
tort, in, 0. 89, r. 2
judgment in default of appearance or defence, 0. 89, r. 2(3)
property,
determination of questions of, s. 6 of Cap. 182, 0. 89, r. 1
Imprisonment for debt (0.
49B)
application for discharge by prisoner, 0. 49B, r. 6
duration, 0. 49B, r. 1(2) effect of discharge, 0. 49B,
r. 7 enforcement, 0. 49B, r. 1 examination of
debtor, 0. 49B, r. 1A imprisonment not to satisfy
debt, 0. 49B, r. I C judgment creditor, meaning of,
0. 49B, r. 8 power of court following examination,
0. 49B, r. 1B prohibition order, 0. 49B, rr. 1, 1B
removal to hospital, 0. 49B, r. 3 support and
maintenance, 0. 49B, r. 2
Indemnity, claim of against
other party, 0. 16, r. 8
against third party, 0. 16, r. 1
Inferior
Court
issue of subpoena in aid of, 0. 38, r. 19
and see under Magistrates? Court
Injunction
application for, 0. 29, r. 1 directions as to further proceedings, 0.
29, r. 7 joined with application for receiver, 0. 30, r. 1
disobedient party, act to be done at expense of, 0. 45, r. 8
enforcement of, 0. 45, rr. 5-9 powers of Registrar, 0. 32, r. 11
restraining person from acting in office, application for, 0. 53, r.
1
Inquiries (0. 43) application for, 0. 43, r. 1 delay in prosecution
of, 0. 43, r. 7 directions as to, 0. 43, r. 3 distribution of fund
pending, 0. 43, r. 8 evidence at, 0. 38, r. 8 making of, at
direction of court, 0. 43, r. 2 by other party or Crown
Solicitor, 0. 43, r. 7(2) numbering of, 0. 43, r. 2(2) proceedings
in chambers under judgment. See under Chambers
Inspection (see also Inspection of
documents) by judge or jury 0. 3 5, r. 8
Inspection of documents (0. 24) Admiralty
proceedings, 0. 75, r. 46 failure to give inspection,
0. 24, r. 16 impounded documents, 0. 35, r. 13 of
documents referred to in list, 0. 24, r. 9 in pleadings
and affidavits, 0. 24, r. 10 order for production for,
0. 24, rr. 12-14 non-compliance with, 0. 24, r. 16
of business books, 0. 24, r. 14 to Court, 0. 24, r. 8
withholding on ground of public interest, 0. 24, r. 15
Inspection of property
under ss. 42 and 44(1) of the Supreme Court Ordinance, 0. 29, r. 7A
Interest
on Supreme Court judgment pending appeal, 0. 59, r. 13(2)
liquidated demand, rate of, accruing after date of writ, 0. 13, r. 1(2)
money due from receiver, 0. 30, r. 6
Interim
payment
action, discontinuance of, 0. 29, r. 17 application for, 0.
29, r. 10 directions, summons for, 0. 29, r. 14 summons
by, 0. 29, r. 10 damages, actions for, 0. 29, r. 11
definition of, 0. 29, r. 9 directions on, 0. 29, r. 14
discontinuance of action, 0. 29, r. 17 land, actions for
possession, 0. 29, r. 12 manner of payment, 0. 29, r. 13
non-disclosure of, 0. 29, r. 15 order for, 0. 29, rr. 11, 12
discharge of, 0. 29, r. 17 varying, 0. 29, r. 17 personal
injury actions, adjustment, final, 0. 29, r. 17 admiralty
action, 0. 75, r. 24 application for, 0. 29, r. 10 affidavit
in support, 0. 29, r. 10 directions thereafter, 0. 29, r. 14
joined with, judgment on admissions, 0. 29, r. 11
assessment of damages, 0. 29, r. 11 counterclaim, interim
order on, 0. 29, r. 18 order for, instalments, 0. 29, r. 13
interim payment, 0. 29, r. 13 payment into court after,
0. 29, r. 16 summons for directions, 0. 29, r. 14
summons, applications by, 0. 29, r. 10 service of, 0. 29,
r. 10 possession of land actions, 0. 29, r. 12 application
for, directions on, 0. 29, r. 14
Interim payment-continued
counterclaim, in respect of, 0. 29, r. 18
order for, 0. 29, r. 12
payment into court, 0. 29, r. 16
periodic payment, 0. 29, r. 13
summons for directions, 0. 29, r. 14
summons,
application by, 0. 29, r. 10
service of, 0. 29, r. 10
Interlocutory applications (0. 29) 0. 29, rr. 1-17
application for receiver, 0. 30, r. 1
directions as to further proceedings, 0. 29, r. 7
time for making, 0. 25, r. 7
and See under Applications; Chambers; Summons
Interlocutory judgment. See Judgment
Interlocutory order (see also Order)
appeal against. See Appeals; Court of Appeal
time for, 0. 59, r. 4
service out of the jurisdiction, 0. 11, r. 9
Interpleader (0. 17)
relief by way of, 0. 17, rr. 1-11
appeal from judge, 0. 58, r. 7
application for order against Crown, 0. 77, r. 11
Interrogatories (0. 26), 0. 26, rr. 1-8
application for, 0. 26, r. 1
by person under disability, 0. 80, r. 9
Crown proceedings, 0. 77, r. 12
failure to comply with order, 0. 26, r. 6
insufficient answer, 0. 26, r. 5
objection to answer on ground of privilege, 0. 26, r. 4
order for service on officer, etc., of body of persons, 0. 26, r. 2
party, etc., required to answer, statement as to, 0. 26, r. 3
revocation and variation of orders, 0. 26, r. 8
use of answers at trial, 0. 26, r. 7
Irregularity in proceedings
setting aside for, 0. 2, r. 2
Joinder of party. See Party
Judge
in chambers:
appeal to, 0. 58, r. 1
inspection by, or jury, 0. 35, r. 8
naming of, in order, 0. 42, r. 1(3)
trial mode of, 0. 33, r. 2
Judgment (0. 42)
after death of party, 0. 35, r. 9
form of, 0. 42, r. 1
trial of preliminary issue, form of, 0. 33, r. 7, 0. 42, r. 1
against a State, 0. 13, r. 7A
against Crown, satisfaction, etc., 0. 77, r. 15
personal representative, form of, 0. 42, r. 1
acknowledgment of service, after, 0. 12, r. 6
amendment of clerical mistakes, etc., 0. 20, r. 11
arrest and attachment before, 0. 44A, rr. 1-12
assessment of damages after. See Assessment of damages
certificate of, against Crown, 0. 77, r. 15
conditional judgment;
execution, 0. 46, r. 4
waiver, 0. 45, r. 10
Judgment (0. 42)-continued
consent, 0. 42, r. 5A
costs on discontinuance, form of judgment for, 0. 62, r. 10(1)
after acceptance of money in court, form of, 0. 62, r. 10(2),
(3)
date of effect 0. 42, r. 3
dating of, 0. 42, r. 3
declaratory judgment,. 0. 15, r. 16
delivery of, 0. 42, r. 5B
directions on, 0. 44, r. 3
drawing up and entry:
documents to be produced, 0. 42, r. 5
in Admiralty proceedings, 0. 75, r. 45
enforcement of. See Enforcement of judgments- Execution
filing of, 0. 42, r. 5
for disposal of matter in chambers, 0. 32, r. 19
foreign judgment. See Foreign proceedings
form of, 0. 42, r. 1
given in absence of party at trial, setting aside, 0. 35, r. 2
in default of
acknowledgment of service of
writ in action in rem, 0. 75, r. 21
counterclaim, 0. 15, r. 3
notice of intention to defend
against Crown, 0. 77, r. 9
third party, 0. 16, r. 5
in claim for
detention of goods, 0. 13, r. 3
liquidated demand, 0. 13, r. 1
fixed costs, 0. 62, r. 32, Second Sch.
mixed claims, 0. 13, r. 5
possession of land, 0. 13, r. 4
unliquidated damages, 0. 13, r. 2
hire purchase action, 0. 84A, rr. 1-3
money lenders' actions, 0. 83A, rr. 1-5
mortgage actions, 0. 88, r. 7 1
proof of service of writ required before, 0. 13, r. 7
forms of, 0. 13, rr. 1-4, 0. 19, rr. 2-5, 0. 42, r. 1
setting aside of, 0. 13, r. 9
in default of defence, 0. 195 rr. 2-7
against Crown, 0. 77, r. 9
third party, 0. 16, r. 5
form of, 0. 13, rr. 1-4, 0. 19, rr 2-5, 0. 42, r. 1
in action in rem, 0. 75, r. 21
claim for-
detinue, 0. 19, r. 4
liquidated demand, 0. 19, r. 2
fixed costs, 0. 62, r. 32, Second Sch.
mixed claims, 0. 19, r. 6
possession of land, 0. 19, r. 5
unliquidated damages, 0. 19, r. 3
hire purchase action, 0. 84, r.! 3
money lenders' actions, 0. 83A, r. 4
mortgage actions, 0. 88, r. 7
indorsement as to service, need for, 0. 10, r. 1(4)
motion for, on setting down, 0. 19, r. 7
setting aside, 0. 19, r. 9
to counterclaim, 0. 19, r. 8
in default of undertaking, action in rem, 0. 75, r. 21
mandatory judgment:
specification of time for doing act, 0. 42, r. 2
order fixing time, 0. 45, r. 6
matters occurring after, stay of execution, 0. 45, r. 11
notice of. See under Chambers
numbering of directions, 0. 43, r. 2(2)
official shorthand note all evidence of, 0. 68, r. 1
on admissions of fact, 0. 26, r. 3
application for third party directions, 0. 16, r. 4
failure to discovery, etc., 0. 24, r. 16
answer interrogatories, 0. 26, r. 6
striking out of pleading, etc., 0. 18, r. 19
Judgment (0. 42)--
continued
proceedings under. See under Chambers recording of. See
Recording of proceedings representative proceedings. See
Representative proceedings setting aside, after trial. See Setting
aside summary judgment (0. 14), 0. 14, rr. 1-11 appeal against.
See Court of Appeal time for, 0. 59, r. 4 application for, 0. 14,
r. 1 directions, 0. 14, r. 6 dismissal of, with costs, 0. 14, r. 7 in
action for specific performance, 0. 86, r. 1 manner of making,
0. 14, r. 2 on counterclaim, 0. 14, r. 5 Crown proceedings, 0.
77, r. 7 fixed costs, 0. 62, r. 32, Second Sch. for delivery up of
chattels, 0. 14, r. 9 possession of land, relief against forfeiture,
0. 14, r. 10 form of judgment, 0. 14, r. 3, 0. 42, r. 1 right to
proceed with residue of action, etc., 0. 14, r. 8 setting aside, 0.
14, r. 11 action for specific performance, 0. 86, r. 7 specific
performance, in action for, 0. 86, rr. 1-8 stay of execution, 0.
14, r. 3(2) trial, master by, 0. 14, r. 6 third party proceedings:
between defendant and third party, 0. 16, r. 7 default of third
party, 0. 16, r. 5 waiver of, 0. 45, r. 10
Judgment creditor stop order on funds in
court, 0. 50, r. 10
Judicial
clerk
certificate of, 0. 35, r, 10
list of exhibits, 0. 35, r.
11
Judicial Review
affidavit
service of motion, of 0. 53, r. 5
support, in, 0. 53, r. 6
application, 0. 53, rr. 1, 3, 5
cross examination, 0. 53, r. 8
delay making, 0. 53, r. 4
discovery, 0. 53, r. 8
exparte, for leave, 0. 53, r. 3
hearing, 0. 53, r. 9
interrogatories, 0. 53, r. 8
mode of, 0. 53, r. 3
motion, form of, App. A, Form No. 86
opposition to, right to be heard, 0. 53, r. 9
originating motion, by, 0. 53, r. 5
statements,
support, in, 0. 53, r. 6
sufficient interest, by persons with, 0. 53, r. 3(7)
vacation, during, 0. 53, r. 3(2)
applying for, mode of, 0. 53, r. 5
cases appropriate for application for, 0. 53, r. 1
Certiorari, by, 0. 53, r. 1
consolidation of applications, 0. 53, r. 12
costs, 0. 53, r. 3
security for, 0. 53, r. 3
'Court', definition of, 0. 53, r. 14
cross examination, 0. 53, r. 8
damages, claim for, 0. 53, r. 7
declaration, 0. 53, r. 1
delay in applying, 0. 53, r. 4
discovery, 0. 53,1 r. 8
grant of leave to apply for, 0. 53, r. 3
hearing of application for, 0. 53, r. 9
Judicial Review-continued injunction by, 0. 53, r. 1
interlocutory applications, 0. 53, r. 8 interrogatories, 0. 53,
r. 8 joinder of claims for relief, 0. 53, r. 2 Judge in Chambers,
appeal from order of, 0. 53, r. 13 ex parte application for
leave, 0. 53, r. 3(2), (8) full application for, 0. 53, r. 5
originating summons, application by, 0. 53, r. 5 renewal
after refusal by, 0. 53, r. 3(8) setting and order of, 0. 53, r. 13
vacation, application during, 0. 53, rr. 3, 5
Jury
inspection by, 0. 35, r. 8
trial of action with, 0. 33, rr. 2, 5
Land
charging order on, 0. 50, r. 1
recovery of. See Possession of land
sale, mortgage, exchange, etc. See Sale of land by the court
trespass to, see Possession of land
Landlord and tenant. See Possession of land
Law Amendment and Reform (Consolidation) Ordinance, (Cap. 23)
joinder of action: payment into court, 0. 22, r. 1 out of court, 0. 22, r. 4 money paid into
court under Fatal Accidents Ordinance, etc., 0. 80, r. 15
Law Society
appeals from Disciplinary Committee, 0. 106, r. 11
Legal Aid Ordinance, (Cap. 91)
payment out of court, 0. 22, r. 10
Legal Practitioners Ordinance, (Cap. 159), 0. 106, rr. 1-17 appeal from
disciplinary committee, 0. 106, r. 11 constitution of Court of Appeal, 0. 106, r.
11 disciplinary committee's opinion, direction for, 0. 106, r. 15
discontinuance, 0. 106, r. 17 Law Society, production of documents by, 0.
106, r. 13 notice of motion, 0. 106, r. 12 persons entitled to be heard, 0. 106, r.
16 security for costs, 0. 106, r. 14 cash account, order for, 0. 106, r. 3 control
of solicitor's property, 0. 106, r. 3 service of originating summonses, etc., 0.
106, r. 12 Part IV; jurisdiction under, 0. 106, r. 2 service of documents on
Law Society, etc., 0. 106, r. 10
Letter of request evidence of witness out of jurisdiction, 0. 39, rr.
2, 3 form of, 0. 39, r. 3
Letters of administration. See Administration of estates
Libel, actions for. See Defamation actions
Limitation actions
under Merchant Shipping Acts. See Admiralty proceedings
Limitation Ordinance (Cap. 347)
application for direction under, 0. 32, r. 8A
Liquidated demand (see also Debt) indorsement of writ in respect of, 0. 6, r. 2 judgment
for, on failure to give notice of intention to defend, 0. 13, r. 1 default of defence, 0. 19,
r. 2 rate of interest, 0. 13, r. 1(2)
Lists
directions as to, 0. 34, r. 4
noting of abatement, change of interest, etc. of party, 0. 34, r. 9
originating summons action, 0. 28, r. 11
Long vacation
exclusion of, 0. 3, r. 3 service of
pleadings in, 0. 18, r. 5
Magistrates' Court
appeals from: by case stated. See Case
stated
Mandamus See Judicial review
Mandatory judgment or order. See Judgment; Orders
Marine insurance actions. See Commercial actions
Masters of Supreme Court
appeal from, 0. 58, rr. 1, 2 and 7 arbitration proceedings,
jurisdiction under, 0. 73, r. 3(1) as taxing masters, 0. 62, r. 1
assessment of damages by, 0. 37, r. 1 injunction granting, 0. 32, r.
11, 0. 50, r. 9 inquiry by, 0. 36, r. 11 jurisdiction of, 0. 32, r. 11
meaning of, 0. 1, r. 4 notes of, 0. 32, r. 22 practice master, 0. 63, r. 2
trial by, 0. 36 interpleader issue, 0. 17 Order 14, under, 0. 14, r. 6(2)
Matrimonial proceedings
appeal againstdecree nisi, 0. 59, r. 16
change of solicitor, etc., 0. 67, r. 7 R.S.C.,
applicability of, 0. 1, r. 2(2)
Mechanical recording. See Recording of proceedings
Mental Health Ordinance, (Cap. 136)
applications under s. 69, 0. 32, r. 9
Mental patient proceedings by or against. See Disability, person
under and see Mental Health Ordinance, (Cap. 136)
Merchant, Shipping Act 1894
applications and interpretation under, 0. 75, r. 1 apportionment of
salvage. See Admiralty proceedings defence under, 0. 18, r. 22
limitation action under. See Admiralty proceedings
Minors, proceedings concerning (0. 90) (see also Disability, persons under) costs,
taxation of, 0. 62, r. 30 guardians accounts, 0. 90, r. 8 guardianship applications,
hearing of, 0. 90, r. 7 guardianship proceedings, removal from District Court, 0. 90, r.
10
Minors, proceedings concerning (0. 90) (see also Disability, persons under)--
continued Matrimonial Causes Rules, application of, 0. 90, r. 11 ward of court,
application to make minor a, 0. 90, r. 3 bailiff to enforce order, 0. 90, r. 3A
hearing of application, 0. 90, r. 4B minor ceases to be, 0. 90, r. 4
Models admissibility in evidence, 0.
38, r. 5
Money paid into court. See Payment into
court
Money lenders' Actions (0. 83A)
indorsement of writ, 0. 83A, r. 2
judgment in default of notice of intention to defend or of defence, application for, 0. 83A, r.
4
originating summons, 0. 83A, r. 5
statement of claim, 0. 83A, r. 3
Month, meaning of, 0. 3, r. 1
Mortgage actions (0.
88)
charging order, enforcement by sale, 0. 88, r. 5A judgment in
default, writ action, 0. 88, r. 6 meaning of, 0. 88, r. 1(3)
originating summons action: action for possession or
payment: affidavit in support of summons, 0. 88, r. SA
failure by defendant to acknowledge service, 0. 88, r. 4
documents to be lodged, 0. 88, r. 4 redemption action,
foreclosure in, 0. 88, r. 7
Mortgage of land
by order of court, 0. 31, r. 4
Mortgagee
costs of, 0. 62, r. (2)
stop order on funds in court, 0. 50, r. 10
Motion
affidavit evidence on, 0. 38, r. 2(3)
beginning proceedings by, 0. 5, r. 5
exparte, 0. 8, r. 2
notice of motion. See Notice of motion
in admiralty action. See Admiralty proceedings
originating motion:
appeal to Supreme Court by. See Appeals
for statement of case. See Case stated
refusal of
taxation of costs without order, 0. 62, r. 11
New trial application for. See Court of
Appeal order for, on hearing of appeal, 0.
59, r. 11
Newspaper (see also Advertisement) production of, to
prove common knowledge, 0. 38, r. 3(2)
Next Friend. See Disability, person
under
Next of kin
administration of estate for, 0. 15, r.
3 ascertainment of, 0. 85, r. 3
representation of, 0. 15, 3
Non-compliance with Rules, effect of, 0. 2, r.
1
Notice
of acceptance of money paid into court, 0. 22, r. 3
intention to proceed, after year's delay, 0. 3, r. 6
judgment or order. See under Chambers
motion, etc. See Notice of motion
payment into court, 0. 22, rr. 1, 2
oral notice, when permitted, 0. 66, r. 2(5)
service out of the jurisdiction, 0. 11, r. 4
to admit. See Admission
produce. See Documents
Notice of motion (0. 8) (see also Motion)
adjournment of, 0. 8, r. 5 application by, 0. 8, r. 1
form and issue of, 0. 8, r. 3 issue of, 0. 8, r. 3
originating motion: amendment of, 0. 20, r. 7 form,
0. 8, r. 3 indorsement as to solicitor and address, 0.
6, r. 5 service ofmanner of, 0. 8, r. 4 tin; time for, 0.
8, r. 4 and see under Service
oaths
commissioners for oaths, 0. 114, r. 1
officers empowered to administer oaths, 0. 32, r. 8, 0. 114, r. 2
Official shorthand note. See Recording of
proceedings
Orders (0. 42)
against Crown, satisfaction, etc., 0. 77, r.
15 certificate of, against Crown, 0. 77, r.
15(2) clerical mistakes in, 0. 20, r. 11
conditional order; execution, 0. 46, r. 2
waiver, 0. 45, r. 10 consent, 0. 42, r. 5A
date of effect, 0. 42, r. 3 dating of, 0. 42, r.
3(2) directions on, 0. 44, r. 3 drawing up:
documents to be produced, 0. 42, r. 5 in admiralty
proceedings, 0. 75, r. 45 enforcement of. See
Enforcement of judgments exparte, setting aside, 0.
32, r. 6 for disposal of matter in chambers, 0. 32, r. 19
given in absence of party at trial, setting aside, 0. 35, r.
2 mandatory order: specification of time for doing act,
0. 42, r. 2
order fixing time, 0. 45, r. 6
matters occurring after, stay of execution, 0. 45, r. 11
naming of judge, 0. 42, r. 1(3)
notice of. See under Chambers
numbering of directions, 0. 43, rr. 2(2), 4(2)
of certiorari. See Judicial review
mandamus. See Judicial review
prohibition. See Judicial review
on admissions of fact, 0. 27, r. 3
privy council of, application to make under of High Court, 0. 32, r. 10
proceedings under. See under Chambers
sealing of, 0. 42, r. 5(6)
setting aside-
exparte order, 0. 32, r. 6
for irregularity, 0. 2, r. 2
order of judge in chambers granting or refusing application for leave or judicial review, 0. 53, r. 13
waiver of, 0. 45, r. 10
Ordinance. See under title of particular
Ordinance construction of. See Construction
Proceedings
Originating motion application by notice.
See Notice of motion affidavit evidence
on, 0. 38, r. 2(3) exparte, 0. 8, r. 2
Originating summons (0. 7, 0. 28, 0. 113)
abatement, etc., of action, 0. 28, r. 11
acknowledging service. See Acknowledgment of Service
affidavit evidence on, 0. 38, r. 2(3)
amendment of, 0. 20, r. 7
applications affecting party in default of acknowledgment of service, 0. 28, r. 6
commencement of proceedings by, 0. 5, r. 3
concurrent summons, 0. 7, r. 4
contents of, 0. 7, r. 3
continuation of proceedings as if begun by writ, 0. 28, r. 8
counterclaim by defendant, 0. 28, r. 7
defined, 0. 1, r. 4
delay in proceeding, 0. 28, r. 10
duration of, 0. 7, r. 6
exparte summons, 0. 7, r. 7
affidavit in support, 0. 28, r. 3(4)
form of, 0. 7, r. 2
form of, 0. 7, r. 2, 0. 113, r. 2
hearing of.
adjournment, 0. 28, r. 5
appointment for, 0. 28, r. 2
directions, etc., by court, 0. 28, r. 4
evidence:
by affidavit, 0. 28, r. 4
oral, 0. 28, r. 4(3)
notice of, 0. 28, r. 3
order for, 0. 28, r. 9
in mortgage action. See Mortgage actions
indorsement:
as to capacity, 0. 6, r. 3, 0. 7, r. 3(2)
solicitor and address, 0. 6, r. 5, 0. 7, r. 3(2)
issue of, 0. 7, r. 5
money lender's action, 0. 83A, r. 5
parties, description of, 0. 7, r. 2
possession of land, summary proceedings for, 0. 113, rr. 1-8
proceedings in chambers, 0. 32, r. 9
re-issue of amended summons, 0. 20, r. 10
renewal of, 0. 7, r. 6
resealing on amendment, 0. 20, r. 110
service. See under Service
striking out, etc., 0. 18, r. 19(3)
Particular proceedings (0.
72)
control of actions by judge, 0. 72, r. 2(3) directions, 0. 72, r. 8
entry of, in list, 0. 72, r. 4 after action begun, 0. 72, r. 5
marine insurance actions: order for production of documents,
0. 72, r. 10 pleadings, 0. 72, r. 7 removal from list, 0.72, r. 6
service out of jurisdiction, application for, 0. 72, r. 4(2), (3),
(4) transfer of action to list, 0. 72, r. 5
Partition of
land
by order of court, 0. 31, r, 4
Partners (0. 81) actions by and against firms, 0.
8 1, r. 1 begun by originating summons, ~0. 8
1, r. 8 acknowledgment of service by, 0. 81, r.
4
Partners (0. 81)-continued attachment of debts, 0. 81, r. 7
charging order on partner's interest, 0. 8 1, r. 10
enforcement of judgment or orderagainst firm, 0. 8 1,
r. 5 in action between partners, 0. 8 1, r. 6 garnishee
proceedings against, 0. 81, r. 7 names of, disclosure, 0.
8 1, r. 2 service of writ, on, 0. 81, r. 3 deeming of date
of service, 0. 81, r. 3(2) proof of service, contents of
affidavit, 0. 81, r. 3(2)
Party (see also Defendant; Plaintiff; Third Party)
address for service, 0. 65, r. 5(2)
after removal of solicitor, 0. 67, r. 7
administration, etc., actions, to, 0. 85, r. 3
amendment of name or capacity, 0. 20, r. 5(3), (4)
order on summons for directions, 0. 25, r. 2
change of..
on application by person under disability, 0. 80, r. 7
death or bankruptcy, 0. 15, r. 7
order arising from misjoinder or non-joinder, 0. 15, r. 6
transfer of interest or liability, 0. 15, r. 7(2)
prior to execution, 0. 46, r. 2
death of
before judgment, 0. 35, r. 9
change of parties, 0. 15, r. 7
application by person under disability, 0. 80, r. 7
prior to execution, 0. 46, r. 2
striking out action after, 0. 15, r. 9
description of, in originating summons, 0. 7, r. 2(2)
drawing up judgment or order, 0. 42, r. 5
estates, proceedings against, 0. 15, r. 6A
in person:
notice of intention to act, 0. 67, r. 4
responsibility for accuracy of copy document, 0. 66, r. 4(3)
interest or liability devolving on other party, 0. 34, r. 9
certification and entry in list, 0. 34, r. 9
originating summons action, 0. 28, r. 11
joinder of, 0. 15, r. 4
against whom counterclaim made, 0. 15, r. 3
jointly liable under contract, 0. 15, r. 4(3)
person not joined, 0. 15, r. 6
acknowledgment of service, 0. 15, r. 8(3)
separate trial, 0. 15, r. 5
judgment for, after death, 0. 35, r. 9
misjoinder of, 0. 15, r. 6
non-joinder of, 0. 15, r. 6
partners, proceedings by or against. See Partners
representation of
by different party, on taxation, 0. 62, r. 14
person with same interest, 0. 15, r. 12
right of, to defend counterclaim, 0. 15, r. 3
trustees, etc., as representative of beneficiary, 0. 15, r. 14
under disability. See Disability, person under
Patents Acts 1949 to 1961 and 1977, proceedings under
(0. 103) appeals from tribunal. See Court of Appeal
infringement action: admissibility of evidence, 0. 103, r. 24
admissions, 0. 103, r. 25 beginning by writ, 0. 5, r. 2
particulars of pleading, 0. 103, r. 19 amendment, 0. 103, r.
22 further or better particulars, 0. 103, r. 23 setting down,
0. 103, r. 26(4) summons for directions, 0. 103, r. 26
rectification of register, 0. 103, r. 29 scientific adviser,
appointment of, 0. 103, r. 27
Payment into court (0. 22)
acceptance of, 0. 22, r. 3
by person under disability, 0. 22, r. 4, 0. 80, r. 12
judgment for costs after, form, 0. 62, r. 10(2), (3)
notice of, 0. 22, r. 3
stay of proceedings on, 0. 22, r. 3(4), (5)
time for, 0. 22, r. 3
as to secured property, order for, 0. 29, r. 6
by receiver, 0. 30, r. 5
trustee, 0. 92, r. 2
death of person entitled to, 0. 22, r. 11
during trial, 0. 22, r. 3(2)
effect of, on costs, 0. 62, r. 5
enforcement of judgment or order for. See Enforcement of judgments
hospital expenses, payment of, 0. 22, r. 12
in satisfaction of counterclaim, 0. 22, r. 6
interim payment, 0. 29, rr. 9-17. See also Interim Payment
lien, payment as to property subject to, 0. 29, r. 6
non-disclosure of, 0. 22, r. 7
to Court of Appeal, 0. 59, r. 12A
notice of.
amendment or withdrawal of, 0. 22, r. 1(3)
by defendant who has counterclaimed, 0. 22, r. 2
forms, 0. 22, rr. 1, 2
of fund in dispute, 0. 29, r. 6
two causes of action, 0. 22, r. 3
under Trustee Ordinance, (Cap. 29), 0. 92, r. 2
within time limited for acknowledging service, 0. 6, r. 2
written offer 'without prejudice save as to costs', 0. 22, r. 14
Payment out of court (0.
22)
money paid into courtunder order, 0. 22, r. 8
money remaining in court, 0. 22, r. 5 to credit
of judgment debtor, 0, 49, r. 9 person to whom
payment to be made, 0. 22, r. 10 small intestate
estates, 0. 22, r. 11 to Director of Legal Aid, 0.
22, r. 10 party entitled, 0. 22, r. 10 solicitor, 0.
22, r. 10 when order required, 0. 22, r. 4 where
entitled party legally aided, 0. 22, r. 10
Penalty
action to recover, discovery of documents in, 0. 24, r. 2(3)
Perishable
property
sale of, 0. 29, r. 4
Performing Right
Tribunal
cases stated by, 0. 93, r. 3, 0. 61
Perpetuation of
testimony
commencement of action for, 0. 39, r.
15 against Crown, 0. 77, r. 14
Personal injury
claims
automatic directions, 0. 25, rr. 1(2), 8
proceedings to he begun by writ, 0. 5, r. 2
Personal representative (see also Administration of estates;
Executor) costs of, 0. 62, rr. 6, 28 disallowance of costs, 0. 62,
rr. 28(5), 31(2) form of judgment against, for liquidated sum, 0.
42, r. 1 right of, to sue in person, 0. 5, r. 6 verification of
claims against estate, 0. 44, rr. 6, 7
Petition (0. 9)
affidavit evidence on, 0. 38, r. 2(3) amendment of, 0. 20, r.
7 beginning proceedings by, 0. 5, r. 5 contents, 0. 9, r. 2
costs on dismissal, 0. 62, r. 11 indorsement as to solicitor
and address, 0. 6, r. 5, 0. 9, r. 2(3) presentation, 0. 9, r. 3
service of, 0. 9, r. 4(2)
and see Service striking! out,
etc., 0. 18, r. 19(3) time for
hearing, 0. 9, r. 4(1)
Photographs
admissibility in evidence, 0. 38, r. 5
Plaintiff (see also Party) plaintiff in person: address
for service, 0. 6, r. 5(1)(b) right to sue, 0. 5, r. 6
representative capacity, indorsement of writ, 0. 6, r.
3
Plans
admissibility in evidence, 0. 38, r. 5
Pleadings (0. 18) (see also Counterclaim; Defence, Reply to defence;
Statement of claim) admission of allegations in, 0. 18, r. 13 .amendment of, 0.
18, r. 19, 0. 20, r. 3 by agreement, 0. 20, r. 12 order on summons for directions,
0. 25, r. 3 to plead alternative, 0. 18, r. 10 and see Amendment convictions as
evidence in civil proceedings, 0. 18, r. 7A denial by opposite party, 0. 18, r. 7A(3)
close of,O. 18, r. 20 defined, 10. 1, r. 4 denial of allegations in, 0. 18, r. 13 facts, 0.
18, r. 7 filing of,; 0. 18, r. 5A formal requirements, 0. 18, r. 6 in collision actions,
0. 75, r. 20
Commercial actions, 0. 72, r. 7
joinder of issue on, 0. 18, r. 14
long vacation, service, etc., in, 0. 3, r. 3, 0. 18, r. 5
matters to be pleaded, 0. 18, r. 8
of person under disability. See Disability, person under
particulars of, 0. 18, r. 12
payment into court not to be disclosed by, 0. 22, r. 7
service:
amended pleadings, 0. 20, rr. 3, 4, 5
and see Service
signing of, 0. 18, r. 6(5)
striking out, 0. 18, r. 19
on summons for directions, 0. 25, r. 6(3)
subsequent to reply to defence, etc., 0. 18, r. 4
trial without, 0. 18, r. 21
Point of law. See Question of
law
Possession of land (see also Mortgage actions) action for:
against Crown, 0. 1, r. 6 defence to claim for, 0. 18, r. 8(2)
interim payments application for, 0. 29, r. 10 Counterclaim,
interim payment in respect of, 0. 29, r. 18 directions
thereafter, 0. 29, r. 14 order for, 0. 29, r. 11
Possession of land (see also Mortgage actions)--continued
action for-continued
judgment on failure to give notice of intention to defend, 0. 13, r. 4
in default of defence, 0. 19, r. 5
person in possession, adding as defendant, 0. 15, r. 10
service by, of copy order on plaintiff, 0. 15, r. 10(3)
service of writ, 0. 10, r. 4
summary judgment, relief against forfeiture, 0. 14, r. 10
enforcement of judgment for. See Enforcement of judgments, and 'writ of
possession'
below
summary proceedings for, 0. 113, rr. 1-8
writ of possession:
application for, 0. 46, r. 4
date of issue, 0. 46, r. 6(5)
duration of, 0. 46, r. 8
enforcement of judgment by, 0. 45, r. 3
payment of money, 0. 45, r. 3(4)
form of, 0. 45, r. 12
issue of, 0. 46, r. 2
application for leave, 0. 46, r. 4
expiry of leave, 0. 46, r. 2(3)
praccipe for, 0. 46, r. 6(2), (3)
with leave of court, 0. 45, r. 3, 0. 46, r. 2
praecipe for, 0. 46, r. 6(2), (3)
priority of renewed writs, 0. 46, r. 8(4)
renewal of, 0. 46, r. 8
notice of renewal, 0. 46, r. 8
return by bailiff, 0. 46, r. 9
sealing of, 0. 46, r. 6(1), (4)
service of, 0. 10, r. 4
writs of assistance or restitution, forms of, 0. 46, r. 1
Postal packets
proceedings concerning, 0. 77, r. 17
Powers of attorney index of, 0.
63, r. 8 search, 0. 63, r. 8
inspection, etc., of, 0. 63, r.
8
Preliminary
issues
trial of, 0. 33, r. 3 dismissal of action,
etc. after, 0. 33, r. 7
Prisoner (see also Habeas corpus) bringing
up, to give evidence, 0, 54, r. 9
Privilege (see also Crown privilege) evidence for foreign courts,
etc,, claim to, 0. 70, r. 6 objection to answering interrogatories,
0. 26, r. 4 production of document, 0. 24, r. 5(2), 0. 25, r. 6(4)
Prize courts
R.S.C., applicability of, 0. 1, r. 2(2)
Probate proceedings, contentious (0. 76)
administration pendente lite, 0. 76, r. 14
affidavits in,
filing of, 0. 41, r. 9
scripts of, 0. 76, r. 5
appeal in, 0. 59, r. 1
papers for judges, on, 0. 59, r. 9
commencement of, 0. 76, r. 2
compromise,
infant, on behalf of, 0. 76, r. 12, 0. 80, r. 10
trial on affidavit evidence, 0. 76, r. 12
costs of,
will proved in solemn form, 0. 62, r. 6
Probate proceedings, contentious (0. 76)-continued
counterclaim, 0. 76, r. 8
other proceedings, in, 0. 76, r. 15
default in pleading, 0. 76, r. 10
defence, default of, where, 0. 76, r. 10
denial of defendant's interest, 0. 76, r. 9
discontinuance, 0. 76, r. 11
dismissal of, 0. 76, r. 11
application, 0. 76, r. 11(2)
failure to acknowledge service of writ, 0. 76, r. 6
grant,
lodgment of, 0. 76, r. 4
revocation of, action for, 0. 76, r. 4
parties to, 0. 76, r. 3
guardian ad litem, 0. 80, r. 3
indorsement on writ of summons in, 0. 76, r. 2
contents of, 0. 76, r. 2
interpretation of 'Probate Actions', 0. 76, r. 1(2)
meaning of 0. 76, r. 1
next friend: appointment of, 0. 80, r. 3
notice in,
costs,liability of defendant for, 0. 62, r. 6
to prove will in solemn form, 0. 62, r. 6
particulars in, 0. 76, r. 9
pleadings,
contents of, 0. 76, r. 9
default of, 0. 76, r. 10
probates,
solemn form in, 0. 62, r. 6
registrars,
jurisdiction of, 0. 32, r. 11
scripts,
affidavit of testamentary, 0. 76, r. 5
to bring in, 0. 76, r. 13
service of process, 0. 65, r. 1
out of the jurisdiction, 0. 11, r. 1
substituted service, by, 0. 65, r. 4
settlement on behalf of infant, 0. 76, r. 12, 0. 80, r. 10
statement of claim in,
default in service of, 0. 76, r. 7
interest of defendant disputed. 0. 76, r. 9
service of, 0. 76, r. 7
time for, 0. 76, r. 7
subpoena in, 0. 76, r. 13
to bring in script, 0. 76, r. 13(3), (4), (5)
summonses,
issue and hearing of, 0. 32, rr. 2, 4
service of, 0. 32, r. 3
taxation of costs in. See also Costs
testamentary scripts,
affidavit of, 0. 76, r. 5
undue influence, pleading, 0. 76, r. 9
unsoundness of mind, pleading, 0. 76, r. 9
will,
bring in, order to, 0. 76, r. 13
application for, 0. 76, r. 13
rectification of, 0. 76, r. 16
writ,
form of, 0. 6, r. 1
indorsement of, 0. 76, r. 2
writ of summons, 0. 76, r. 2(1)
Prohibition. See Judicial review
Prohibition order (0.
44A)
application for an order, 0. 44A, r. 2
to discharge, 0. 44A, r. 4 to an
intended action, 0. 44A, r. 1
Prohibition order (0. 44A)-continued making of,
0. 44A, r. 3 on application for examination, 0.
49B, r. 1 on adjournment of examination, 0. 49B,
r. 1A power to award compensation, 0. 44A, r. 5
Property
arrest and sale of, in action in rem. See Admiralty proceedings
income pendente lite, 0. 29, r. 4
injunction restraining dealings, application for, 0. 30, r. 1
inspection, preservation, etc., of property in dispute, 0. 29, r. 2
inspection, etc. of property under ss. 42 and 44(1) of the Supreme Court Ordinance, 0. 29, r.
7A
receiver, application for, 0. 30, r. 1
sale of.
perishable property, 0. 29, r. 4
under direction of court. See under Chambers
subject to lien, etc., recovery of, 0. 29, r. 6
taking samples, 0. 29, r. 3
Question of
law
beginning of proceedings as to, 0. 5, rr. 1-6
reference of, by case stated. See Case stated
trial of, 0. 33, rr. 1-7
Receiver (0. 30) accounts, 0. 30, r. 5 appointment of,
0. 30, r. 1 by way of equitable execution, 0. 51, r. 1
forms, 0. 51, rr. 1, 3 to enforce charge on land, 0.
50, r. 1(4) judgment, 0. 45, r. 3 default by, 0. 30, r.
7 directions to, 0. 30, r. 8 discharge of, 0. 30, r. 7(1)
execution against goods in hands of, 0. 46, r. 2
meaning, 0. 1, r. 4 money due from: interest on, 0.
30, r. 6(2) payment into court, 0. 30, r. 6 payment
to, of money payable by Crown, 0. 77, r. 16 register
of transfers, 0. 87, r. 1 remuneration, 0. 30, r. 3
disallowance, 0. 30, r. 6(2) security to be given by,
0. 30, r. 2 service of order and notice, 0. 30, r. 4
Recording of
proceedings
by official shorthand note, 0. 68, r. 1 in Admiralty
proceedings, 0. 75 mechanical means, 0. 68, r. 8
transcript: definition of, 0. 68, r. 8A for Court of
Appeal, 0. 68, r. 4 free copies, 0. 68, rr. 4, 5 supply
of to party or other person, 0. 68, r. 2(3) for poor
respondent, 0. 68, r. 5 when unnecessary, 0. 68, r.
2(1), (2)
Recovery of land- See Possession of land
Recovery of property. See Property
Registrar affidavit, power to take, 0. 32, r. 8
appeals from to judge in chambes 0. 58, r. 1
assessment etc., of damages by, 0. 37, r. 1
certificate of as to damages, 0. 37, r. 2
definition, 0. 1, r. 4
Registrar-continued evidence at assessment, 0. 38, r.
8 naming of, in order, 0. 42, r. 1(3) oaths, power
to administer, 0. 32, r. 8 powers of, 0. 32, r. 11
proceedings before: liability of solicitor for fees,
0. 62, r. 8(8) reference of matter to judge by, 0.
32, r. 12 reference to, 0. 75, r. 41 hearing of
reference, 0. 75, r. 42 objection to decision on
reference, 0. 75, r. 43
Re~ definition, 0. 1, r. 4 deposit of documents in, 0. 63, r. 5
documents filed in: inspection and copy, 0. 63, r. 4
particulars to be entered in books, 0. 63, r. 3(2) power of
attorney, inspection, etc., 0. 63, r. 8 enrolment of deeds
etc., in, 0. 63, r. 10 issue of notice of motion out of, 0. 8,
r. 3 originating summons out of, 0. 7, r. 5 writ out of, 0. 6,
r. 7 judgments and orders drawing up and entry, etc., 0. 42,
r. 5 receipt of acknowledgment of service by, 0. 12, r. 4
Relator actions authority to use name
in, 0. 15, r. 11
Reply to defence (see also Pleadings) joinder
of issue where no reply, 0. 18, r. 14
service of, 0. 19, r. 3 and see Service
Representative proceedings, 0. 15, r.
12 representation order, 0. 15, r. 15
Rules of the Supreme
Court
application of, 0. 1, r. 2 citation of, 0.
1, r. 1 definitions, 0. 1, r. 4 non-
compliance with, effect of, 0. 2, r. 1
Sale of
goods, under Bills of Sale Ordinance, (Cap. 20), 0. 95, r. 3
land:
actions for specific performance. See Specific performance
by the Court (0. 3 l):
certification of result, 0. 31, r. 3
manner of sale, 0. 3 1, r. 2
order for, 0. 3 1, rr. 1, 4
property:
in action in rem, 0. 75, r, 23
under direction of court. See under Chambers
Salvage. See Admiralty proceedings
Samples
taking, of property in dispute, 0. 29, r. 3
Securities charging order on, 0. 50, r. 1
prohibition of transfer, etc., 0. 50, r. 15 form
of order, 0. 50, r. 15 recovery of property held
as security, 0. 29, r. 6 stop notice as to, 0. 50,
r. 11 form of, 0. 50, r. 11
Security to he furnished by defendant in certain circumstances, (0. 44A),
0. 44A, r. 7
Security for costs (0. 23), 0. 23, rr. 1-
3 of appeal, 0. 59, r. 10(5)
Sequestratio
n
Crown proceedings, 0. 77, r. 16 execution against goods in
hands of sequestrator, 0. 46, r. 2 writ of: application for, 0.
46, r. 5 duration of, 0. 46, r. 8 enforcement of judgment by,
0. 45, rr. 1-4 against officer of body corporate, 0. 45, r. 5
form of, 0. 45, r. 12 issue of, 0. 46, rr. 1-6 application for
leave, 0. 46, r. 5 service and hearing of notice of motion, 0.
46, r. 5 expiry of leave, 0. 46, r. 2(3) praecipe for, 0. 46, r.
6(2) motion for, 0. 46, r. 5 praecipe for, 0. 46, r. 6(2)
priority of renewed writs, 0. 46, r. 8(4) property of person
committed for contempt, 0. 52, r. 8(2) renewal of, 0. 46, r. 8
notice of renewal, 0. 46, r. 8 return by bailiff, 0. 46, r. 9
sealing of, 0. 46, r. 6
Service (0. 10, 0. 65)
acceptance of, by defendant's solicitor, 0. 10, r. 1(4)
address for, of plaintiff, 0. 6, r. 5(2)
Admiralty proceedings, 0. 75, rr. 4, 8, 11
affidavit of, 0. 65, r. 8
after prescribed hours, 0. 65, r. 7
counterclaim, 0. 15, r. 3
notice to be endorsed on, 0. 15, r. 3(6)
time for, 0. 15, r. 3(3)
declaration that writ, etc., not served, 0. 12, r. 8
default of acknowledgment of service, in, 0. 65, r. 9
defence, 0. 18, r. 2
to counterclaim, 0. 18, r. 3
documents (0. 65), 0. 65, rr. 1-10
foreign process, 0. 69, rr. 1-4
in pursuance of contract, 0. 10, r. 3
indorsement of:
by defendant's solicitor, 0. 10, r. 1(4)
Long Vacation, in, 0. 18, r. 5
exclusion from computation of time, 0. 3, r. 3
manner of, 0. 6, rr. 1-10
of documents on bodies corporate, 0. 10, r. 1(7)
recital in judgment, 0. 42, r. 2
notice for assessment of damages by Registrar, 0. 37, r. 1
notice of judgment, 0. 44, r. 3
notice of motion, 0. 8, r. 4, 0. 10, r. 5
appeal to Full Bench, 0. 55, r. 3
Court of Appeal, 0. 59, r. 3
for writ of habeas corpus, 0. 54, r. 2
on agent of overseas principal, 0. 10, r- 2
body corporate, 0. 65, r. 3
Crown:
Crown Proceedings Ordinance, (Cap. 300) cases, 0. 77, r. 4
other proceedings, 0. 65, r. 6
firm, 0. 81, r. 3
partners of firm 0. 81, r. 3
person in default as to acknowledgment of service, 0. 65, r. 9
under disability, 0. 80, r. 16
on foreign State, 0. 11, r. 7
ordinary service, 0. 65, r. 5
original process, 0. 10, r. 1
Service (0. 10, 0. 65)-continued
originating summons, 0. 10, r. 5
for writ of habeas corpus, 0. 54, r. 2
on partners of firm, 0. 8 1, rr. 3, 8
time for, 0. 28, r. 2
out of the judsdiction. See Service out of the jurisdiction
personal service, 0. 10, r. 1(1), 0. 65, r. 2
petition, 0. 9, r. 4, 0. 10, r. 5
proof of, before judgment on failure to give notice of intention to defend, 0. 13, r.
7
reply to defence, 0. 18, r. 3
setting aside of, 0. 12, r. 8
statement of claim, 0. 18, r. 1
subpoena, 0. 38, r. 17
substituted service, 0. 65, r. 4
third party notice, 0. 16, r. 3
warrant of arrest of ship, etc., 0. 75, r. 11
when not required, 0. 65, r. 9
writ:
amended on change, etc., of parties, 0. 15, r. 8
claiming possession of land, 0. 10, r. 4
deemed served, when service is acknowledged, 0. 10, r. 1(5)
habeas corpus, 0. 54, r. 6
in pursuance of contract, 0. 10, r. 3
on partners of firms, 0. 81, r. 3
proof of, before entry of judgment in default. 0. 13, r. 7
scaling of copy of, for service, 0. 10, r. 1(6)
service of, on defendant within jurisdiction, 0. 10, r. 1(2)
deeming of date of service, 0. 10, r. 1(3)
non-service, application by defendant, 0. 12, r. 6^
proof of service, contents of affidavit, 0. 10, r. 1(3)
Service out of the jurisdiction (0.
11)
acceptance of, by defendant's solicitor, 0. 10, r. 1(4), 0. 11, r.
5 address of plaintiff for, 0. 6, r. 5 application for leave, 0.
11, r. 4 certificate of service, 0. 11, r. 5 particular list cases, 0.
72, r. 4 counterclaim, 0. 15, r. 3(5) discharge of order for, 0.
12, r. 8 foreign government, etc., through, 0. 11, r. 6 how
effected, 0. 11, rr. 5-8 in action on contract under Carriage by
Air Act 196 1, 0. 11, r. 7A arbitration proceedings, 0. 73, r. 7
leave of court for, 0. 6, r. 7 particular action, 0. 72, r. 4
notice, 0. 11, r. 9 notice of motion, 0. 11, r. 9 writ, 0. 6, r. 7
form of, 0. 11 order, 0. 11, r. 9 originating summons, 0. 11, r.
9 petition, 0. 11, r. 9 request for service, 0. 11, r. 6 summons,
0. 11, r. 9 when permissible, 0. 11, r. 1 writ for, form of, 0. 6,
r. 1
Set-off Crown proceedings, 0.
77, r. 6
Setting aside acknowledgment of service, 0. 12, r. 3(4) arbitration
award. See Arbitration Ordinance, (Cap. 341) ex parte order,
0. 32, r. 6 for irregularity, 0. 2, r. 2 non-compliance with Rules, 0.
2, r. 1 judgment after trial, 0. 59, r. 2 given in absence of party at
trial, 0. 35, r. 2 on failure to give notice of intention to defend, 0.
13, r. 9 defence, 0. 19, r. 9
Setting aside-continued
order of judge in chambers granting or refusing application for leave or judicial review, 0. 53, r. 13
registration of foreign judgment, 0. 7 1, r. 9
Registry subpoena, 0. 38, r. 19
service of writ, etc., 0. 12, r. 8
summary judgment, 0. 14, r. 1 1
action for specific performance, 0. 86, r. 7
third party notice, 0. 16, r. 4(2)
proceedings, 0. 16, r. 6
verdict, finding or judgment after trial, application for. See Court of Appeal
writ, 0. 12, r. 8
Setting down
action begun by writ (0. 34): list, directions as to, 0. 34,
r. 4 notification of, 0. 34, r. 8 time for, 0. 34, r. 2
admiralty action, 0. 75, r. 26 appeal to Court of
Appeal, 0. 59, r. 5 lodging documents when setting
down, 0. 34, r. 3 on motion for judgment in default of
defence, 0. 19, r. 7 originating summons action, 0. 28,
r. 9
Settlement of action notification of court
by parties, 0. 34, r. 8 and see Disability
person under
Shorthand note. See Recording of proceedings
sitting
Supreme Court, of, 0. 64, r. 1
Court of Appeal, of, 0. 64, r. 2
High Court, of, 0. 64, r. 3
Supreme Court Offices, hours of, 0. 64, r. 7
Slander, actions for. See Defamation actions
Slip rule
correction of judgment or order, 0. 20, r. 11
solicitor
acceptance of service by. 0. 10, r. 1(2)
acknowledgment of service of body corporate by, 0. 12, r. 1(2)
defendant by, 0. 12, r. 1 (1)
address for service, 0. 6, r. 5 two or more defendants by same solicitor, 0. 12, r. 1(4)
affidavit sworn before solicitor of party, 0. 41, r. 8
appointment, notice of, 0. 67, r. 3
body corporate, must sue by, 0. 5, r. 6(2)
change of (0. 67):
notice of, 0. 67, r. 1
committal on failure to give notice as to discovery or production of documents, 0. 24, r. 16(4)
interrogatories, 0. 26, r. 6(4)
non-compliance with undertaking in action in rem, 0. 75, r. 9
costs of'
payable by own client, 0. 62, r. 29
declaration as to issue of writ, etc., 0. 6, r. 5(3)
indorsement of writ, etc., with name and address of, 0. 6, r. 5
liability of, for costs, 0. 62, Y. 8
fees in proceedings before Registrar, 0. 62, r. 8(8)
payment out of court to, 0. 22, r. 10(2)
proceedings relating to. See Legal Practitioners Ordinance, (Cap. 159)
removal from record, 0. 67, r. 5
responsibility for accuracy of copy document, 0. 66, r. 4(3)
right of person to sue by, 0. 5, r. 6(1)
withdrawal of, on ceasing to act, 0. 67, r. 6
Special case. See Case stated
Special referee assessment of damages by, 0.
37, r. 4 inquiry and report by, 0. 36, rr. 1-
5 evidence at inquiry, 0. 38, r. 8 naming
of, in order, powers of, 0. 36, r. 4
reference of question of fact to, 0. 36, r. 1
report by, 0. 36, r. 3 trial of action before,
0. 33, r. 2, 0. 36, r. 4 evidence at, 0. 38, r.
9
Specific delivery. See Writ of
delivery
Specific performance (see also Contract) disobedient
party, act to be done at expense of, 0. 45, r. 8 summary
judgment for (0. 86), 0. 86, rr. 1-8 application for, 0.
86, r. 1 Crown proceedings, 0. 77, r. 7 directions where
leave to defend given, 0. 86, r. 5 dismissal with costs, 0.
86, r. 6 manner of making, 0. 86. r. 2 setting aside
judgment, 0. 86, r. 7
Speeches
order of, at trial, 0. 35, r. 7
Statement of claim (see also
Pleadings) contents of, 0. 18, r. 15
hire-purchase actions, 0. 84A, r. 2
indorsement of, on writ, 0. 6, r. 2
money lender's action, 0. 83A, r. 3
service, default in, 0. 19, r. 1 time
for, 0. 18, r. 1 and see Service
Stay of-
execution, matter occurring after judgment, 0. 45, r. 11
proceedings:
on acceptance of money paid into court, 0. 22, r. 3(4), (5)
claim for relief by way of interpleader, 0. 17, r. 7
delay in prosecution of account or inquiry, 0. 43, r. 7
striking out of pleading, etc., 0. 18, r. 19
pending joinder of parties in action on contract, 0. 15, r. 4(3)
order of prohibition, certiorari, 0. 53, r. 1(2)
proceeding with counterclaim during, 0. 15, r. 2(3)
statement as to, on writ for debt or liquidated demand, 0. 6, r. 2(1)(b)
writ not issued by solicitor named, 0. 6, r. 5(4)
subsequent action until costs of discontinuance etc., paid, 0. 21, r. 5
Stock
registration of transfer. See Debenture holders' actions
Stop orders and notices (0.
50)
funds in court, 0. 50, r. 10
securities not in court, 0. 50, r. 11
form of notice, 0. 50, rr. 10, 11
S~ outaction: abated, 0. 34, r. 9 after death of party, 0.
15, r. 9 in absence of parties at trial, 0. 35, r. 1
amendment of pleading, 0. 20, r. 4 counterclaim, 0. 15,
r. 5(2) in action begun by originating summons, 0. 28,
r. 7 defence, on failure to answer interrogatories, 0. 26,
r. 6 to give discovery, etc., 0. 24, r. 16
8~ out-continued indorsement of writ, 0. 18, r.
19 pleadings, 0. 18, r. 19 on summons for
directions, 0. 25, r. 6(3)
Subpoena amendment of, 0. 38, r. 16 duration of, 0.
38, r. 18 form of, 0. 38, r. 14(1) issue of, 0. 38, r.
14 contents of praecipe, 0. 38, r. 14(5)
proceedings before examiner, 0. 39, r. 4 in
chambers, 0. 32, r. 7 form of, 0. 38, r. 14 Registry
subpoena, 0. 38, Y. 19 service of. See Service to two
or more witnesses, 0. 38, r. 15
Summary judgment. See Judgment; Specific
performance
Summons (see also Jury; Originating summons; Summons for
directions) adjournment, 0. 32, r. 4 affidavit evidence on, 0. 38,
r. 2 amendment, 0. 32, r. 2 dismissal of, taxation of costs without
order, 0. 62, r. 11 issue, 0. 32, r. 2 restoration to list, 0. 32, r. 4(2)
service, 0. 32, r. 3 and see Service; Service out of the
jurisdiction to proceed. See under Chambers withdrawal of, 0. 2 1,
r. 6
Summons for directions (0. 25), 0. 25, rr.
1-7
adjournment, 0. 25, r. 2(7) admiralty short causes,
0. 75, r. 31 admissions and agreements to be
sought, 0. 25, r. 4 restriction as to right of appeal,
0. 25, r. 5 affidavit use at hearing, 0. 25, r. 6
documents to be produced, 0. 25, r. 6 information
to be given, 0. 25, r. 6 interlocutory applications
to be made on, 0. 25, r. 7 matters to be considered,
0. 25, r. 2 order on, recording ofadmissions and
agreements, 0. 25, r. 4 agreement to limit right of
appeal, 0. 25, r. 5 estimate of length of trial, 0. 34,
r. 2(3) list in which action to be put, 0. 34, r. 2(3)
mode of trial, 0. 33, r. 4 standard direction by
consent, 0. 25, r. 9 time for, 0. 25, r. 1(1)
Sunday exclusion of, 0. 3, r.
2(5) time expiring on, 0.
3, r. 4
Supreme Court Ordinance
(Cap. 4)
applications under s. 41 or 42(1), 0. 24, r, 7A inspection,
etc. of property under ss. 42 and 44(1), 0. 29, r. 7A
Taxation of costs. See Costs
Tender
defence of, 0. 18, r. 16
payment out of court on defence of, 0. 22, r. 4
Third Party (0. 16) (see also Party) default of,
0. 16, r. 5 in proceedings against Crown, 0.
77, r. 10
Third Party (0. 16) (see also Party)-
continued directions, 0, 16, r, 4 effect of
counterclaim, 0. 16, r. 11 judgment against,
0. 16, r. 7 in default, 0. 16, r. 5 notice:
acknowledment of service of, 0. 16, r. 3
application for leave to issue, 0. 16, r. 2
form of, 0. 16, r. 1 issue of, 0. 16, r. 2 for
service on Crown, 0. 77, r. 10 service of, 0.
16, r. 3 signed copy, 0. 16, r. 3(4)
withdrawal of claim, 0. 21, r. 3
Time (0. 3) abridgement, 0. 3, r. 5 computation of, 0. 3,
r. 2 exclusion of general holidays, Sundays etc., 0. 3, r.
2(5) extension of, 0. 3, r. 5 costs of. See Costs
'month' defined, 0. 3, r. 1
Title of action
adding name of defendant to counterclaim, 0. 15, r. 3
Tort
proceedings in, to be begun by writ, 0. 5, r. 2
Trade Marks Ordinance, (Cap.
43)
proceedings under, 0. 100, rr. 2, 3
Transcript of evidence, etc. See Recording of
proceedings
Transfer of proceedings
(0. 4) to particular list, 0.
72, r. 5
Trespass. See Possession of land
Trial (0. 33-41)
absence of parties, 0. 35, r. 1
adjournment of, 0. 35, r. 3
answers to interrogatories, use at, 0. 26, r. 7
assessors, with, 0. 33, r. 6
before Registrar. See Registrar
referee. See Special referee
contribution, disclosure of offer of, 0. 16, r. 10
cross-examination at:
of court expert, 0. 40, r. 4
person making affidavit, 0. 38, r. 2
date of trial:
directions as to, 0. 34, r. 4
notification of, 0. 34, r. 8
death of party before judgment, 0. 35, r. 9
early trial, order for, 0. 29, r. 5
evidence at. See Evidence
exhibits, numbering and listing, etc., 0. 35, r. 11
inspection of place or thing by judge or jury, 0. 35, r. 8
judicial clerk's certificate, 0. 35, r. 10
jury, with. See Jury
length of, estimation to be made, 0. 34, r. 2(3)
mode of, 0. 33, r. 2
official shorthand note. See Recording of proceedings
order for trial, in originating summons actions, 0. 28, r. 9
place of, 0. 33, r. 1
payment into court, non-disclosure of, 0. 22, r. 7
preliminary issue rendering trial unnecessary, 0. 33, r. 7
Trial (0. 33-41)-continued
proceedings at, 0. 35, rr. 13 recording of proceedings.
See Recording of proceedings separate trial: in
originating summons action, 0. 28, r. 8 of
counterclaim, 0. 15, r. 5 questions and issues, 0. 33, r. 3
on joinder of causes or parties, 0. 15, r. 5 setting down
for. See Setting down speeches, order of, 0. 35, r. 7
split, offer on liability, 0. 33, r. 4A without pleadings,
0. 18, r. 21
Tribunals (see also under name of particular
tribunal) appeals from. See Appeals case stated by.
See Case stated directions by a master, 0. 79, r. 1
issue of subpoena in aid of, 0. 38, r. 19 transfer of
proceedings (0. 79)
Trustee
accounts, order for, 0. 85, rr. 1-6
administration action. See Administration of estates
consent of new trustee, evidence of, 0. 38, r. 11
costs of, 0. 62, rr. 6, 28
disallowance of costs, 0. 62, rr. 28, 31
party in action for execution of trust, 0. 85, r. 2
power of attorney, inspection, etc., 0. 63, r. 8
representation of beneficiary by, 0. 15, r. 14
right of, to sue in person, 0. 5, r. 6
sale of trust property by, 0. 85, r. 6
Trustee Ordinance, (Cap.
29)
payment into court under s. 62, 0. 92, r.
2 proceedings under, 0. 92, r. 5
Trusts
execution against assets acquired after judgment, 0. 46, r. 2
under direction of court. See under Chambers
variation of, applications for, 0. 93, r. 6
Umpire. See Arbitration
Unliquidated damages
judgment for, on failure to 'M notice of intention to defend, 0. 13, r. 2
in default of defence, 0. 19, r. 3
Vacations
business in, 0. 64, r. 3A
exclusion of, 0. 3, r. 3
Variation of Trusts Ordinance, (Cap.
253)
applications under s. 3, 0. 93, r. 6
Ward of court. See
Infant
Winding up. See
Companies
Withdrawal (0. 21)
of action: by consent, 0. 21, r. 2(4) effect of, 0. 2
1, r. 4 notification of court by parties, 0. 34, r. 8
acknowledgment of service, 0. 21, r. 1 admission as
to fact, 0. 27, r. 2 claim, 0. 21, rr. 2, 3 defence, 0.
21, r. 2(2) notice of payment into court, 0. 22, r. 1
summons, 0. 21, r. 6 stay of subsequent action until
costs paid, 0. 21, r. 5
wit~
attendance of, before Registrar on assessment of damages, 0. 37, r. 1
examination of
before examiner of court, etc., 0. 39, rr. 1-15
form of summons, order, 0. 39, r. 1
perpetuation of testimony, 0. 39, r. 15
proceedings against Crown, 0. 77, r. 14
refusal to attend, be sworn, etc., 0. 39, r. 5
by taxing master, 0. 62, r. 14
for foreign court. See Foreign proceedings
in admiralty proceedings, 0. 75, r. 30
open court, 0. 38, r. 1
out of jurisdiction:
expenses of Chief Secretary, 0. 39, r. 3(6)
letter of request, 0. 39, r. 3
form of summons, order, 0. 39, r. 2
taking of evidence by special examiner, British consul, etc., 0. 39, r. 2
expert witness. See Expert
objections to questions, 0. 39, r. 10
perpetuation of testimony, 0. 39, r. 15
by proceedings against Crown, 0. 77, r. 14
prisoner, bringing up to give evidence, 0. 54, r. 9
subpoena for attendance of. See Subpoena
Writ of
delivery
application for, 0. 46, r. 4 date of issue, 0. 46,
r. 6 enforcement of judgment by, 0. 45, r. 5
expiry of, 0. 46, r. 8 form of, 0. 45, r. 12
issue of, 0. 46, rr. 2-6 application for leave, 0.
46, r. 4 expiry of leave, 0. 46, r. 2(3)
praccipe for, 0. 46, r. 6(2), (3) payment of
money, 0. 45, r. 1 praccipe for, 0. 46, r. 6(2),
(3) priority of renewed writs, 0. 46, r. 8(4)
renewal of, 0. 46, r. 8 notice of renewal, 0.
46, r. 8(3) return by bailiff, 0. 46, r. 9 scaling
of, 0. 46, r. 6 specific delivery: enforcement
of judgment by, 0. 45, r. 4(2) forms of, 0. 45,
r. 12
Writ of execution. See Possession of land; Sequestration; Writ of delivery; Writ of
fieri facias
Writ of fieri facias (0.
47)
against personal representative, form, 0. 45, r.
12 application for, 0. 46, r. 4 duration of, 0. 46,
r. 8 enforcement of judgment by, 0. 45, r. 1
foreign judgment, form, 0. 45, r. 12, 0. 71 forms
of, 0. 45, r. 12 issue of, 0. 46, rr. 2-6
application for leave, 0. 46, r. 4 expiry of leave,
0. 46, r. 2(3) praccipe for, 0. 46, r. 6(2), (3)
praccipe for, 0. 46, r. 6(2) priority of renewed
writs, 0. 46, r. 8(4) renewal of, 0. 46, r. 8 notice
of renewal, 0. 46, r. 8 return by bailiff, 0. 46, r.
9 scaling of, 0. 46, r. 6 stay of execution, 0. 47,
r. 1
Writ of habeas corpus. See Habeas
corpus
Writ of possession. See Possession of
land
Writ of sequestration. See Sequestration
Writ of subpoena. See Subpoena
Writ of summons (0. 6)
acknowledging service. See Acknowledgment of Service
address for service, 0. 6, r. 5
amendment of, 0. 20, rr. 1-11
concurrent writ, issue of, 0. 6, r. 6
validity of, 0. 6, r. 6
duration of, 0. 6, r. 8
form of, 0. 6, r. 1
in action in rem. See Admiralty proceedings
indorsement:
as to address of plaintiff and solicitor, 0. 6, r. 5
amendment, 0. 20, r. 10
claim, 0. 6, r. 2
representative capacity, 0. 6, r. 3
solicitor and address, 0. 6, r. 5
in money lender's action, 0. 83A, r. 2
proceedings against Crown, 0. 77, r. 3
striking out, etc., 0. 18, r. 19
issue of, 0. 6, r. 7
notice of. See Service out of the jurisdiction
proceedings to be begun by, 0. 5, r. 2
re-issue of amended writ, 0. 20, r. 10
renewal of, 0. 6, r. 8
sealing of, 0. 6, r. 7
service. See Service
setting down action begun by, 0. 34, r. 2
signed copy, 0. 6, r. 7(5)
(Cap. 6.) (Cap. 32) (Cap. 10.) (Cap. 179.) (Cap. 290.) (Cap. 189.) (Cap. 1.) (Cap. 4.) (Cap. 1.) (Cap. 1.) (Cap. 149.) App. A. Form 1. App. A. Forms 8, 10, 11. App. A. Forms 13, 38. App. A. Form 14. App. A. Form 15. (1961 c. 27.) (1978 c. 33.) (1961 c. 27.) App. A. Forms 14, 15. App. A. Form 39. App. A. Form 40. App. A. Form 41. App. A. Form 42. (1978 c. 33.) App. A. Form 44. App. A. Form 14. App. A. Form 17. (Cap. 347.) (Cap. 347.) App. A. Forms 14, 15. App. A. Forms 20, 21. App. A. Form 14. (Cap. 377.) App. A. Form 10. (Cap. 8.) (Cap. 281) (Cap. 369) App. A. Form 39. App. A. Form 40. App. A. Form 41. App. A. Form 42. App. A. Form 23. (Cap. 22.) (Cap. 23.) App. A. Form 23. App. A. Form 24. (Cap. 22.) (Cap. 23.) (Cap. 91.) (Cap. 272.) (Cap. 4, sub. leg.) (Cap. 29.) App. A. Form 26. App. A. Form 27. (Cap. 8.) (Cap. 336.) (Cap. 22.) App. A. Form 8. App. A. Form 12. App. A. Form 10. App. A. Form 8. App. A. Form 10. App. A. Forms 8, 10. (Cap. 22.) (Cap. 136.) App. A. Form 10. (Cap. 347.) App. A. Form 48. (Cap. 91.) (Cap. 8.) (Cap. 8.) (Cap. 8.) App. A. Forms 28, 29. (Cap. 8.) (Cap. 8.) App. A. Forms 31, 32. App. A. Forms 33, 34. App. A. Forms 36, 37. App. A. Form 35. App. A. Forms 39-46, 48, 49. (Cap. 159.) App. A. Forms 52, 15. App. A. Form 106. App. C. Form 5. App. A. Forms 53-67. App. A. Form 69. App. A. Form 71. (Cap. 128.) App. A. Forms 72-74. App. A. Forms 73, 74. App. A. Form 53. (Cap. 1.) App. A. Form 102. App. A. Form 103. App. A. Form 104. App. A. Form 105. App. A. Forms 75, 76. App. A. Form 76. App. A. Form 79. App. A. Form 80. App. A. Form 10. App. A. Form 81. App. A. Form 10. App. A. Form 84. App. A. Forms 82, 83. App. A. Form 85. (Cap. 136.) App. A. Form 86A. App. A. Forms 87, 88. App. A. Form 90. App. A. Forms 89, 91, 92. (Cap. 227.) (Cap. 341.) (Cap. 336.) (Cap. 336.) App. A. Form 99. (Cap. 341.) (Cap. 336.) (Cap. 336.) (Cap. 91.) App. A. Form 50. App. A. Form 51. App. A. Form 51. (Cap. 159.) (Cap. 336.) (Cap. 91.) (Cap. 136.) (Cap. 136.) (Cap. 22.) (Cap. 136.) (Cap. 136.) (Cap. 22.) (1894 c. 60.) (Cap. 22.) First Schedule. (Cap. 159.) First Schedule. Second Schedule. (Cap. 91.) (Cap. 42.) (Cap. 336.) (Cap. 38.) (Cap. 149.) (Cap. 1.) (Cap. 300.) (Cap. 91.) (Cap. 91.) (Cap. 179.) (Cap. 91.) (Cap. 8.) App. A. Form 63. (Cap. 319.) App. A. Form 10. (1982 c. 37.) App. A. Form 10. App. A. Form 94. (Cap. 341.) (Cap. 341.) (Cap. 341.) App. A. Form 10. (Cap. 341.) (Cap. 341.) (Cap. 319.) (Cap. 341.) App. A. Form 10. App. A. Form 100. App. A. Form 101. (Cap. 4, sub. leg.) (Cap. 29.) (1894, c. 60.) App. B. Form 14. (Cap. 369.) (1974 c. 43.) (1971 c. 59.) App. B. Form 1. App. A. Form 1. App. B. Form 2. App. B. Form 2B. App. B. Form 2B. App. A. Form 14. App. B. Form 3. App. B. Form 15. (1971 c. 59.) App. B. Form 5. App. B. Form 6. App. B. Form 7. App. B. Form 9. App. B. Form 10. App. B. Form 11. (Cap. 159.) App. B. Form 12. App. B. Form 13. (Cap. 8.) (1894c. 60.) (1894 c. 60.) (Cap. 10.) (Cap. 10.) (Cap. 10.) (Cap. 10.) (Cap. 10.) (Cap. 300.) (Cap. 300.) App. A. Form 96. (Cap. 300.) App. A. Form 95 & Form 96. (Cap. 300.) (Cap. 300.) App. A. Form 10. (Cap. 300.) (Cap. 336.) (Cap. 300.) (Cap. 336.) (1983 c. 20.) (Cap. 136.) (Cap. 22.) App. A. Form 10. (1894 c. 60.) (Cap. 22.) (Cap. 23.) (Cap. 38.) (Cap. 21.) (Cap. 21.) App. A. Form 10. (Cap. 163.) (Cap. 163.) (Cap. 26.) (Cap. 182.) (Cap. 182.) (Cap. 174.) (Cap. 290.) (Cap. 13.) (Cap. 13.) (Cap. 336.) (Cap. 179, sub. leg.) (Cap. 179.) (Cap. 13.) (Cap. 29.) (Cap. 4, sub. leg.) (Cap. 253.) (1956 c. 74, S.I. 1972/1724; S.I. 1979/910.) (Cap. 20.) App. A. Form 10. (Cap. 20.) App. A. Form 10. (Cap. 6.) (Cap. 43.) (Cap. 32.) App. A. Form 10. App. A. Form 10. (1977 c. 37.) (Cap. 42.) (Cap. 29.) (Cap. 159.) App. A. Form 10. App. A. Form 11A. (1812 c. 101.) Not applicable if the defendant is a company served at its registered office. *Where words appear between square brackets, delete if inapplicable *Where words appear between square brackets, delete if inapplicable
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