Hong Kong Regulations

THE RULES OF THE HIGH COURT - ORDER 16

THIRD PARTY AND SIMILAR PROCEEDINGS

(Past version on 30/06/1997).

Adaptation amendments retroactively made - see 25 of 1998 s. 2 1. Third party
notice (O. 16, r. 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.

2. Application for leave to issue third party notice (O. 16, r. 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 particulars 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.

3. Issue, service and acknowledgment of service, of third party notice (O. 16,
r. 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 following 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.

4. Third party directions (O. 16, r. 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 paragraph (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.

5. Default of third party, etc. (O. 16, r. 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 (including 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.

6. Setting aside third party proceedings (O. 16, r. 6)

Proceedings on a third party notice may, at any stage of the proceedings, be
set aside by the Court.

7. Judgment between defendant and third party (O. 16, r. 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 contribution 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" (法律責任) 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 ( Cap 377) applies.

8. Claims and issues between a defendant and some other party (O. 16, r. 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 "14 days after service of the
notice on him".

9. Claims by third and subsequent parties (O. 16, r. 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.

10. Offer of contribution (O. 16, r. 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.

11. Counterclaim by defendant (O. 16, r. 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. (Enacted 1988)

"liability" (法律責任)