A third guidance note on the use of remote hearings for civil proceedings took effect on 2 January 2021. The guidance note (representing Phase 3) provides for wider use of videoconferencing facilities and telephone hearings with respect to all levels of civil courts in Hong Kong. In particular, Phase 3 is more comprehensive and provides more options for connecting with the courts' videoconferencing facilities.
The High Court recently approved a novel order providing for service of various court documents on unnamed defendants by allowing the plaintiff to effect service by (among other means) using a quick response code. The proceedings arose out of protests at the airport in 2019 and, given the background to the case and the high-profile nature of the proceedings, the court was satisfied that service of the court documents should reasonably be expected to come to the attention of the defendants.
The judiciary administration has updated the Guidance Note for Case Settlement Conferences in Civil Cases in the District Court. 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 relating to potential encroachments on parties' rights to legal representation and the protection afforded to the confidentiality of mediation and without prejudice communications.
Given the severity of the 'fourth wave' of COVID-19 which Hong Kong is currently experiencing, it became inevitable that the government would roll out tougher social distancing measures and that the courts would follow suit. On 1 December 2020 the judiciary issued its latest notification for stakeholders about the general arrangement of court and registries business. The courts and their registries very much remain open for business, but they are not dropping their guard.
The High Court recently ordered the continuation of various injunction orders restraining unnamed defendants from engaging in 'doxxing' directed at judges and judicial officers in Hong Kong, together with their spouses and immediate family members. The court's decision follows an increase in such activity in connection with certain verdicts and sentences in cases where persons have been charged with offences arising out of protests or related public order incidents.
The High Court of England and Wales recently refused a claimant permission to rely on a witness statement of one its in-house lawyers, prepared during an ongoing trial, and call that witness to give oral evidence during the trial. The new witness's evidence produced during trial could not be relied on due to its inherent unreliability and the risk that it would be tailored to the state of the party's current case. Parties should always consider what evidence is required to support their case at an early stage.
The High Court recently determined that an application to admit witness evidence outside the directions timetable should be treated like an application for relief from sanctions under Civil Procedure Rule 3.9. The decision suggests that the court may imply a sanction for policy reasons, even where there was no intention on the part of the rulemaker or judge to impose a sanction for a breach.
A recent Court of Appeal decision determined that a Part 36 offer does not alter the status of 'subject to contract' protection in solicitors' correspondence when settling a dispute. This decision reassures lawyers that they can continue to conduct subject to contract negotiations on behalf of their clients without any undue risk of being bound by what is discussed. It is also a useful reminder of the consent order's significance in conclusively settling negotiations which are expressed to be subject to contract.
BHP has successfully applied to strike out 200,000 claims as an abuse of process. Had the judge not struck out the claims, he would have stayed proceedings on jurisdictional grounds under Article 34 of the EU Recast Brussels Regulation and the doctrine of forum non conveniens. While the significant nature of the proceedings would have raised England's profile as a forum for group litigation, this was ultimately not a case which fell within the parameters under which the court can accept jurisdiction.
An appellate court has an inherent power to restore money paid or property transferred under an order which it has reversed, and not all contractual provisions are susceptible to being waived by election. These are the two key takeaways from a recent Privy Council judgment.