Hong Kong Regulations

THE RULES OF THE DISTRICT COURT - ORDER 23A

DIRECTIONS FOR ACTIONS BEGUN BY WRIT

1. Application and interpretation (O. 23A, r. 1)

(1) This Order applies to all actions begun by writ except-

   (a)  actions in which the plaintiff or defendant has applied for judgment
        under Order 14, or in which the plaintiff has applied for judgment
        under Order 86, and directions have been given under the relevant
        Order;

   (b)  actions in which the plaintiff or defendant has applied for, or
        the Court has on its own motion ordered under Order 18, rule 21, trial
        without pleadings or further pleadings and directions have been given
        under that rule;

   (c)  actions in which an order has been made under Order 24, rule 4, for
        the trial of an issue or question before discovery;

   (d)  actions in which directions have been given under Order 29, rule 7;
        and

   (e)  actions in which an order for the taking of an account has been made
        under Order 43, rule 1.

(2) In this Order-

"agreed directions" (協定指示) means directions or orders agreed between
the parties and taking effect under rule 4;

"automatic directions" (自動指示) means directions taking effect
automatically under rule 5;

"direction" (指示) and "order" (命令) mean any direction or order as to
any matter capable of being dealt with by interlocutory application in the
action under these Rules;

"directions hearing" (指示聆訊) means a directions hearing under rule 9;

"summons for directions" (要求作指示的傳票) means a summons under rule
7 for a directions hearing.

2. Duties of the parties: general (O. 23A, r. 2)

As soon as the pleadings are closed, it shall be the duty of every party to
the action-

   (a)  to consider what directions and orders are required for the future
        course of the action so as to secure the just, expeditious and
        economic disposal of the action; and

   (b)  to endeavour to reach agreement with the other parties as to the
        directions and orders required.

3. Agreed and automatic directions: application
(O. 23A, r. 3)

The provisions of rules 4 and 5 apply except where-

   (a)  the Court has of its own motion ordered a directions hearing; or

   (b)  there is a pending application for any such direction or order as is
        mentioned in rule 1(1).

4. Agreed directions (O. 23A, r. 4)

(1) Subject to rule 6 and paragraphs (3) and (4), where all parties agree
either-

   (a)  that the only direction or order required is a direction that, within
        3 months of the close of pleadings, the plaintiff shall apply for a
        pre-trial review under Order 34; or

   (b)  that such directions and orders as are agreed, including a direction
        as to the time within which the plaintiff shall apply for a
        pre-trial review under Order 34, are the only directions and orders
        required, a memorandum filed in the Registry which sets out the
        agreed directions and orders and is indorsed by each of the parties
        shall take effect as if the directions and orders set out in the
        memorandum had been made by the  Court.

(2) Where such agreement has been reached-

   (a)  the plaintiff shall, as soon as practicable thereafter, draw up such a
        memorandum and take all steps necessary to ensure that it is promptly
        indorsed by the other parties and is filed in the Registry; and

   (b)  the other parties shall, as soon as practicable after receipt of the
        memorandum, indorse their consent on it.

(3) Nothing in this rule shall require any step to be taken where all the
parties agree that the only directions or orders required are
automatic directions.

(4) Nothing in this rule shall be construed as enabling the parties to rescind
or vary any direction or order made by the Court.

5. Automatic directions (O. 23A, r. 5)

(1) Subject to rule 6 and paragraphs (3) and (5), where, upon the expiry of 21
days after the close of pleadings, no memorandum has been filed under rule 4
and no summons for directions has been issued, the following directions shall
thereupon take effect automatically-

   (a)  there shall be discovery of documents within 14 days in accordance
        with Order 24, rule 3, and inspection within 7 days thereafter in
        accordance with Order 24, rule 9;

   (b)  each party to serve on the other parties, within 6 weeks, written
        statements under Order 38, rule 2A of the oral evidence which the
        party intends to lead on any issues of fact to be decided at the
        trial;

   (c)  where any party intends to place reliance at the trial on expert
        evidence, he shall, within 6 weeks, disclose the substance of that
        evidence to the other parties in the form of a written report, which
        shall be agreed if possible;

   (d)  unless the expert evidence is agreed, the parties shall be at liberty
        to call as expert witnesses those witnesses the substance of whose
        evidence has been disclosed in accordance with the preceding
        paragraph, except that the number of expert witness shall be limited
        to one for each party;

   (e)  the record of any proceedings in any court or tribunal shall be
        receivable in evidence upon production of a copy thereof certified as
        a true copy by the clerk or other appropriate officer of the court or
        tribunal; and

   (f)  within 3 months after the time for inspection of documents has expired
        under subparagraph (a) the plaintiff shall apply for a pre-trial 
        review under Order 34.

(2) Where paragraph (1)(c) applies to more than one party the reports shall be
disclosed by mutual exchange, medical for medical and non-medical for
non-medical, within the time provided or as soon thereafter as the reports on
each side are available.

(3) In a personal injury action, other than an action in which the pleadings
contain an allegation of a negligent act or omission in the course of medical
treatment, paragraph (1) shall have effect with the following modifications-

   (a)  where liability is admitted or where the action arises out of a 
        road accident, discovery under paragraph (1)(a) shall be limited to
        disclosure by the plaintiff of any
        documents relating to special damages;

   (b)  the number of expert witnesses limited by paragraph (1)(d) shall be 2
        medical experts and one expert of any other kind for each party; and

   (c)  photographs, a sketch plan and the contents of any police accident
        report shall be receivable in evidence at the trial and shall be
        agreed if possible.

(4) For the purposes of this rule-

"documents relating to special damages" (關乎專項損害賠償的文件)
include-

   (a)  documents relating to any industrial injury, industrial disablement or
        sickness benefit rights; and

   (b)  where the claim is made under the Fatal Accidents Ordinance ( Cap 22),
        documents relating to any claim for dependency on the deceased;

"a road accident" (道路意外) means an accident on land due to a collision
or apprehended collision involving a vehicle.

(5) Where, prior to the expiry of the period referred to in paragraph (1),
the Court has made a direction or order dealing with any matter referred to in
paragraph (1), (2) or (3), nothing in this rule shall affect such direction or
order and the automatic directions taking effect under this rule shall be
limited to such directions (if any) under paragraph (1), (2) or (3) as relate
to matters not dealt with by such direction or order.

6. Agreed and automatic directions: further provisions
(O. 23A, r. 6)

(1) Where, after automatic directions have taken effect, there are
agreed directions, the agreed directions shall, upon the filing of a
memorandum under rule 4, take effect in the place of the automatic 
directions.

(2) Where, after automatic directions have taken effect, a party takes out a
summons for directions, automatic directions not already complied with shall
cease to have effect.

(3) Nothing in rule 4 or 5 shall limit the power of the Court, of its own
motion or on the application of any party, to hold a directions  hearing or
otherwise to make such directions and orders as it thinks fit.

7. Summons for directions (O. 23A, r. 7)

(1) Except where the Court otherwise allows, an application for a
directions hearing shall be by summons for directions.

(2) Where-

   (a)  neither subparagraph (a) nor subparagraph (b) of rule 3 applies; and

   (b)  upon the expiration of 14 days after the close of pleadings, no
        memorandum has been filed under rule 4, any party who contends that
        automatic directions are inappropriate and that the Court should make
        other directions or orders shall, within 21 days after the close of
        pleadings, take out a summons for directions.

(3) Any party may at any stage of the proceedings take out a
summons for directions.

(4) A party who takes out a summons for directions shall apply, so far as it
practicable to do so, for all the directions and orders he desires for the
future course of the action.

8. Duty of parties to whom summons for directions
is addressed (O. 23A, r. 8)

(1) Every party to whom a summons for directions is addressed must, so far as
it is practicable to do so, apply at the directions hearing for all such
directions and orders which have not been applied for in the
summons for directions as he desires for the future course of the action.

(2) Any such application shall be by notice served on all the other parties
and filed in the Registry not less than 7 days before the directions hearing.

(3) For the purposes of these Rules, a notice under this rule shall be treated
as a summons for the directions and orders specified in the notice.

9. Directions hearing (O. 23A, r. 9)

(1) At any stage of the proceedings, the Court may of its own motion and shall
on the application of any party by a summons for  directions, conduct a
directions hearing for the making of all such directions and orders for the
future course of the action as appear best adapted to serve the just,
expeditious and economical disposal of the action.

(2) Subject to paragraph (3), the Court shall endeavour to secure that all
matters which shall be or are likely to be necessary or desirable to be dealt
with by interlocutory application in the action, and which have not already
been dealt with, are disposed of at the directions  hearing.

(3) Where an order for the transfer of the action to the Court of First
Instance is made at the directions hearing, nothing in this Order shall be
construed as requiring the Court to make any further order.

10. Adjournment of hearing (O. 23A, r. 10)

(1) If the Court is of the opinion at the directions hearing that it is not
possible to give all the directions and orders which ought to be given for the
future course of the action, the Court shall deal forthwith with such of those
matters as it considers can be conveniently dealt with forthwith and shall
adjourn the hearing to allow the remaining matters to be dealt with, and
the Court may adjourn the hearing more than once.

(2) If the directions hearing is adjourned and any party desires to apply at
the resumed hearing for any orders or directions not applied for at the
directions hearing, he shall, not less than 7 days before the resumed hearing,
serve on all the other parties and file at the Registry a notice specifying
the additional orders or directions he will apply for at the resumed hearing.

(3) Rule 8(3) shall apply to a notice under paragraph (2) as it applies to
that rule.

11. Admissions and agreements to be made
(O. 23A, r. 11)

At the directions hearing the Court shall endeavour to secure that the parties
make all admissions and all agreements as to the future course of the action
which ought reasonably to be made by them and may cause the order on the
directions hearing, or, if the hearing is adjourned, the resumed hearing, to
record any admissions or agreements so made, and (with a view to such special
order, if any, as to costs as may be just being made at the trial) any refusal
to make any admission or agreement.

12. Duty to give all information at hearing
(O. 23A, r. 12)

(1) Subject to paragraph (3), no affidavit shall be used on the
directions hearing except by the leave or direction of the Court, but, subject
to paragraph (5), it shall be the duty of the parties and their advisers at
the directions hearing to give all such information and produce all such
documents as the Court may reasonably require.

(2) The Court may, if it appears proper so to do in the circumstances,
authorize any such information or documents to be given or produced to
the Court without being disclosed to the other parties but, in the absence of
such authority, any information or document given or produced under this
paragraph shall be given or produced to all the parties present or represented
at the directions hearing as well as to the  Court.

(3) No leave shall be required by virtue of paragraph (1) for the use of an
affidavit at a directions hearing where the affidavit is used to support an
application for an order which, under any of these Rules, is required to be
supported by an affidavit.

(4) If the Court at a directions hearing requires a party or his solicitor or
counsel to give any information or produce any document and that information
or document is not given or produced, then, subject to paragraph (5),
the Court may-

   (a)  cause the facts to be recorded in the order on the directions  hearing
        or, if the directions hearing is adjourned, the resumed hearing, with
        a view to such special order, if any, as to costs as may be just being
        made at the trial; or

   (b)  if it appears to the Court to be just so to do, order the whole or any
        part of the pleadings of the party concerned to be struck out, or, if
        the party is the plaintiff or the claimant under a counterclaim, order
        the action or counterclaim to be dismissed on such terms as may be
        just.

(5) Notwithstanding anything in the foregoing provisions of this rule, no
information or documents which are privileged from disclosure shall be
required to be given or produced under this rule by or by the advisers of any
party otherwise than with the consent of that party.

13. Direction for pre-trial review (O. 23A, r. 13)

Subject to rule 9(3), the order made on the directions hearing, or, if the
hearing is adjourned, the resumed hearing, shall-

   (a)  fix a period within which the plaintiff shall apply for a
        pre-trial review under Order 34; and

   (b)  record each party's estimate of the length of the trial.

14. Costs (O. 23A, r. 14)

(1) If the Court is of the opinion-

   (a)  that a directions hearing was rendered necessary because of the
        unreasonable refusal or failure of a party to agree directions or to
        take any step required under rule 4(2); or

   (b)  that a party acted unreasonably in taking out a summons for 
        directions, the Court may order that party to pay all the costs wasted
        by his unreasonable conduct including the cost of the
        directions hearing.

(2) Subject to paragraph (3), where any interlocutory application in the
action is made otherwise than at a directions hearing, if the Court is of the
opinion that the application ought to have been made at a directions hearing,
the Court may order the applicant to pay the costs of the application
irrespective of the outcome of the application or make such other order as to
costs as the Court thinks fit having regard to the failure of the applicant to
make the application at a directions hearing.

(3) Paragraph (2) shall not apply to an application under Order 14, Order 16,
rule 2, Order 19, Order 21, Order 23 or Order 86.

"agreed directions" (協定指示)

"automatic directions" (自動指示)

"direction" (指示) and "order" (命令)

"directions hearing" (指示聆訊)

"summons for directions" (要求作指示的傳票)

"documents relating to special damages" (關乎專項損害賠償的文件)

"a road accident" (道路意外)