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Following is the speech by the Chief Secretary for Administration, Mr Rafael Hui, in moving the second reading of the Civil Justice (Miscellaneous Amendments) Bill 2007 at the Legislative Council today (April 25):(English only)
Madam President,
I move that the Civil Justice (Miscellaneous Amendments) Bill 2007 be read the second time.
The Bill seeks to improve the civil procedures in the High Court, District Court and Lands Tribunal. The main objectives are to streamline and improve civil procedures, encourage and facilitate settlement, and enable judicial resources to be better distributed and utilized.
As in many common law jurisdictions, our present civil justice system has to keep abreast with the needs and developments of modern times. With Hong Kong's economic development and social and technological advances, there has been over the years a sharp increase in the number and complexity of transactions, in particular commercial ones. The increase in the scope and complexity of legislation reflects this. All this has put pressure on our civil justice system, generating large numbers of disputes and consequent civil proceedings. Our civil justice system, largely unchanged for several decades, has been criticised for not having kept up with the times.
In February 2000, the Chief Justice appointed the Working Party on Civil Justice Reform to review the rules and procedure of the High Court in civil proceedings and to recommend changes thereto, with a view to ensuring and improving access to justice at reasonable cost and speed. The Working Party completed the review and published its Final Report in March 2004. The Chief Justice subsequently decided that the proposed changes should be implemented not just in the High Court, but also in the District Court and the Lands Tribunal, where such changes are appropriate.
The Judiciary has consulted stakeholders, including the legal profession, at various stages. These include a 7-month consultation starting from November 2001 on the Civil Justice Reform Interim Report and Consultative Paper, and a 3-month consultation starting from April 2006 on the Consultation Paper on Proposed Legislative Amendments for the Implementation of the Civil Justice Reform. The package of proposals in the Bill is the result of these extensive consultations. I would like to highlight the major proposals.
Facilitating Settlement
The Bill introduces a number of amendments to facilitate settlement. Specifically, a new cause of action called "costs-only proceedings" is proposed to enable parties who have reached settlement on a substantive dispute and have agreed who should pay the costs, but cannot agree on the amount, to apply for the costs to be taxed by the Court of First Instance or the District Court. At present, where parties cannot agree on the amount of costs even though the substantive dispute has been resolved, it is necessary to litigate the whole dispute, consuming even more time and costs.
Amendments are also proposed to facilitate settlement by extending the common law defence of "tender before action". Currently, such defence only applies to liquidated claims, that is, those in the nature of a debt. It would be extended to claims for unliquidated damages, such as claims for damages.
To promote greater transparency between the parties at an earlier stage so as to facilitate settlement, the Bill proposes amendments to extend the Court's existing power to order pre-action discovery against potential parties and post-commencement discovery against non-parties. These powers are currently restricted to personal injuries and death claims only, and are proposed to be extended to all types of civil claims.
Better Distribution and Utilisation of Court's Resources
Another main objective of the Bill is to enable better distribution and utilisation of the court's resources. To this end, the Bill introduces a number of amendments to screen out unmeritorious and vexatious applications, streamline procedures, and penalise undue delays.
Specifically, amendments are proposed to introduce a leave requirement for interlocutory appeals from the Court of First Instance to the Court of Appeal. Leave would only be granted where there is a real prospect of success or some other compelling reason exists for an appeal. This would help screen out unmeritorious appeals on interlocutory matters which do not determine substantive rights.
To streamline existing procedures, amendments are proposed to empower the Court of Appeal to deal with leave and interlocutory applications on paper without a hearing.
Moreover, the Bill introduces amendments to screen out vexatious applications by allowing persons other than the Secretary for Justice to apply to the court for a vexatious litigant order. Such order restricts a vexatious litigant from issuing fresh proceedings except with the leave of the court. To penalise undue delays and misconduct, amendments are proposed to extend the Court's existing jurisdiction on wasted costs, which applies to solicitors only, to cover barristers as well. A clause is also proposed to be added to require the court to take into account the interest that there be "fearless advocacy" when determining whether or not wasted costs orders should be made. This would be in line with the proposed amendments for criminal cases under the Criminal Procedure Ordinance in the Statute Law (Miscellaneous Provisions) Bill.
Other Improvements
In addition, the Bill introduces a number of amendments to improve the existing civil procedures, so that the court is empowered to grant interim relief in aid of proceedings outside Hong Kong which would improve our regime and increase Hong Kong's competitiveness, to order costs against a non-party if it is in the interests of justice to do so, and to nominate a person to execute certain instruments if the person originally ordered to execute them fails to do so or cannot be found. Moreover, amendments are proposed to provide greater flexibility for the Lands Tribunal to adopt the practice and procedures of the Court of First Instance and to streamline the processing of claims in the Tribunal.
Conclusion
Madam President, the package of proposals in the Bill will improve our civil justice system by facilitating settlement, streamlining procedures and enabling better utilisation and distribution of the court's resources. I hope Members will support these proposals and pass the Bill as soon as possible.
Thank you, Madam President.
Ends/Wednesday, April 25, 2007
Issued at HKT 13:39
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