Hong Kong Regulations

THE RULES OF THE HIGH COURT - ORDER 15

CAUSES OF ACTION, COUNTERCLAIMS AND PARTIES

(Past version on 30/06/1997).

Adaptation amendments retroactively made - see 25 of 1998 s. 2 1. Joinder of
causes of action (O. 15, r. 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.

2. Counterclaim against plaintiff (O. 15, r. 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.

3. Counterclaim against additional parties (O. 15, r. 3)

(1) Where a defendant to an action who makes a counter-claim 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 person as 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, the defendant must issue the counterclaim
out of the Registry and serve on the person concerned a sealed copy of the
counterclaim together with a form of acknowledgment of service in Form No. 14
in Appendix A (with such modifications as the circumstances may require) and a
copy of the writ or originating summons by which the action was begun and of
all other pleadings served in the  action; 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 issuing and acknowledging service of a
counterclaim against 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 6, rule 7(3) and (5), 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.

(5A) Where by virtue of paragraph (2) a copy of a counterclaim is required to
be served on any person other than the plaintiff, who before service is
already a party to the action, the provisions of Order 14, rule 5 shall apply
in relation to the counterclaim and the proceedings arising therefrom, as if
the party against whom the counterclaim is made were the plaintiff in
the action. (L.N. 363 of 1990)

(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. (L.N. 404 of 1991)

4. Joinder of parties (O. 15, r. 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.

5. Court may order separate trials, etc. (O. 15, r. 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.

6. Misjoinder and nonjoinder of parties (O. 15, r. 6)

(1) No cause or matter shall be defeated by reason of the misjoinder or
nonjoinder 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. (L.N. 167 of
1994)

(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 ( Cap 347) 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"
(任何有關的時效期) means a time limit under the Limitation Ordinance (
Cap 347).

(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 Secretary for Justice and the proceedings should
        have been brought by relator proceedings in his name, or (L.N. 362 of
        1997)

   (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.

6A. Proceedings by and against estates (O. 15, r. 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 commencement and the cause of action
survives, as 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. (L.N. 363 of 1990)

(4) In any such action as is referred to in paragraph (1) or (3)-

   (a)  the plaintiff shall, and the defendant, the personal representatives
        of the deceased or any person interested in the deceased's estate may,
        during the period of validity for service of the writ or
        originating summons, apply to the Court for an order appointing a
        person to represent the deceased's estate for the purpose of the
        proceedings or, if a grant of probate or administration has been made,
        for an order that the personal representative of the deceased be made
        a party to the proceedings, and in either case for an order that the
        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; (L.N. 363 of 1990)

   (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) at the instance of a plaintiff
appointing the Official Solicitor 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 Official Solicitor, directs that the appointment shall extend to taking
further steps in the proceedings. (L.N. 363 of 1990; L.N. 375 of 1991)

(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 has 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. (L.N. 363
of 1990)

7. Change of parties by reason of death, etc. (O. 15, r. 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 of all other pleadings served in the
proceedings and a form of acknowledgment of service in Form No. 14 or 15 in
Appendix A, whichever is appropriate. (L.N. 404 of 1991)

(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.

8. Provisions consequential on making of order under rule 6 or 7 (O. 15, r. 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.

(2A) Together with the writ of summons served under paragraph (2) shall be
served a copy of all other pleadings served in the action. (L.N. 404 of 1991)

(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.

9. Failure to proceed after death of party (O. 15, r. 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 representatives 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 defendant, 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.

10. Actions for possession of land (O. 15, r. 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 paragraph (2).

10A. (Repealed L.N. 127 of 1995)

11. Relator actions (O. 15, r. 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.

12. Representative proceedings (O. 15, r. 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.

13. Representation of interested persons who cannot be ascertained, etc. (O.
15, r. 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.

13A. Notice of action to non-parties (O. 15, r. 13A)

(1) At any stage in an action to which this rule applies, the Court may, on
the application of any party or of its own motion, direct that notice of
the action be served on any person who is not a party thereto but who will or
may be affected by any judgment given therein.

(2) An application under this rule may be made ex parte and shall be supported
by an affidavit stating the grounds of the application.

(3) Every notice of an action under this rule shall be in Form No. 52 in
Appendix A and the copy to be served shall be a sealed copy and accompanied by
a copy of the originating summons or writ and of all other pleadings served in
the action, and by a form of acknowledgment of service in Form No. 14 or 15 in
Appendix A with such modifications as may be appropriate.

(4) A person may, within 14 days of service on him of a notice under this
rule, acknowledge service of the writ or originating summons and shall
thereupon become a party to the action, but in default of such acknowledgment
and subject to paragraph (5) he shall be bound by any judgment given in
the action as if he was a party thereto.

(5) If at any time after service of such notice on any person the writ or
originating summons is amended so as substantially to alter the relief
claimed, the Court may direct that the judgment shall not bind such person
unless a further notice together with a copy of the amended writ or
originating summons is issued and served upon him under this rule.

(6) This rule applies to any action relating to-

   (a)  the estate of a deceased person; or

   (b)  property subject to a trust.

(7) Order 6, rule 7(3) and (5) shall apply in relation to a notice of an
action under this rule as if the notice were a writ and the person by whom the
notice is issued were the plaintiff. (L.N. 404 of 1991)

14. Representation of beneficiaries by trustees, etc. (O. 15, r. 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.

15. Representation of deceased person interested in proceedings (O. 15, r. 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.

16. Declaratory judgment (O. 15, r. 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.

17. Conduct of proceedings (O. 15, r. 17)

The Court may give the conduct of any action, inquiry or other proceedings to
such person as it thinks fit. (Enacted 1988)

"any relevant period of limitation" (任何有關的時效期)