Case settlement conferences given a 'festive' touch

Introduction
Background
Updated guidance note
Comment

Introduction

The judiciary administration has updated the Guidance Note for Case Settlement Conferences in Civil Cases in the District Court.(1) The updated guidance note is dated 16 December 2020 and is supported by an explanatory supplemental note. The guidance note extends a pilot scheme for facilitating settlement in general civil cases in the District Court and comes into effect on 2 January 2021. The updated version appears to address concerns that were raised relating to potential encroachments on parties' rights to legal representation and the protection afforded to the confidentiality of mediation and without prejudice communications.

Background

The guidance note is well intentioned and seeks to extend a pilot scheme intended to promote settlement in general civil cases in the District Court using case settlement conferences (for further details please see "Settlement 'solutions' looking for problems?").

However, concerns began to surface about certain provisions in the original version of the guidance note dated 14 October 2020. These concerns appear to have focused on two principal issues:

• a provision in Paragraph 13 that could have adversely affected the lawyer and client relationship, by unintentionally limiting the role of parties' legal representatives at case settlement conferences to little more than "bystanders"; and
• a provision in Paragraph 10 that required parties to disclose copies of their without prejudice communications to the court official presiding over a case settlement conference, together with a provision in Paragraph 14 that (for the purposes of a case settlement conference) purported to exclude the protection afforded to without prejudice communications.

Not to be lost in these concerns are the good intentions underlying the guidance note and the obligation on the parties and their legal representatives to assist the court in furthering the objectives of the court rules, including facilitating the settlement of disputes.

Updated guidance note

The updated guidance note is dated 16 December 2020 and comes into effect on 2 January 2021.

The provision in Paragraph 13 (limiting the parties' right to legal representation) has been removed. The emphasis is now more on the legal representatives' role to assist in facilitation of settlement when appearing at case settlement conferences with their clients.

The provision in Paragraph 10 (with respect to disclosure of without prejudice correspondence) has been revised to require that the parties provide a "statement" of their latest offer and counter-offer. Also removed is the provision in Paragraph 14 which purported to exclude the protection afforded to without prejudice communications. The court official presiding over the case settlement conference may still "review and evaluate" the process of any without prejudice negotiation and, with the parties' consent, any concluded but unsuccessful mediation.(2)

Comment

The updated version of the guidance note contains some important revisions that should be welcomed and appear to represent a lighter touch.

It is important that parties and their legal representatives in the District Court understand the background to the guidance note, as set out in its introduction.(3) Equally important is the supplemental note which elaborates on (among other things):

• the purpose of case settlement conferences and the role of the presiding court official (known as a 'case settlement conference master');
• the selection of certain cases for case settlement conferences, bearing in mind that parties that have already conducted a genuine (albeit unsuccessful) mediation and are able to produce a mediation report (as set out in Appendix 1 of the guidance note) should not be required to undergo a case settlement conference if they do not wish to do so;
• the right to legal representation at a case settlement conference; and
• the without prejudice nature of case settlement conferences.(4)

Not to be lost in all of this is the point that the guidance note strikes at the heart of so-called 'sham' mediations in those general civil cases that come within the monetary jurisdiction of the District Court and that is a good thing to be applauded.

During the next two weeks (and irrespective of a COVID-19-restricted festival period), legal practitioners and affected parties in the District Court would do well to familiarise themselves with the guidance note (and its two appendices) and the supplemental note.(5)

The guidance note represents an important development with respect to general (non-personal injury) civil cases in the District Court and unmerited resistance is likely to be futile and could attract costs sanctions.

For further information on this topic please contact Adalia Chan or David Smyth at RPC by telephone (+852 2216 7000) or email (adalia.chan@rpc.com.hk or david.smyth@rpc.com.hk). The RPC website can be accessed at www.rpc.co.uk.

Endnotes

(1) "Guidance Note for Case Settlement Conference in Civil Cases in the District Court".

(2) Supra note 1, at para 15(b).

(3) Supra note 1, at paras 1 to 4.

(4) "Supplemental Note for the Guidance Note on Case Settlement Conference".

(5) Supra note 1, Appendix 1 ("Report on Mediation") and Appendix 2 (standard draft directions for setting down a case for case settlement conference).