Hong Kong Regulations

THE RULES OF THE DISTRICT COURT - ORDER 77

PROCEEDINGS BY AND AGAINST GOVERNMENT

(Past version on 01/09/2000).

1. Application and interpretation (O. 77, r. 1)

(1) These Rules apply to civil proceedings to which the Government  is a party
subject to the following rules of this Order.

(2) In this Order-

"civil proceedings by the Government" (由政府提出的民事法律程序)
and "civil proceedings against the Government"
(針對政府提出的民事法律程序) have the same respective meanings as
in Part III of the Crown Proceedings Ordinance ( Cap  300), and do not include
any of the proceedings specified in section 19(3) of that Ordinance;

"civil proceedings to which the Government is a party"
(以政府作為一方的民事法律程序) has the same meaning as it has
for the purposes of Part V of the Crown  Proceedings Ordinance ( Cap 300), by
virtue of section 2(4) of that Ordinance;

"order" (命令) includes a judgment, decree, rule, award or declaration;

"order against the Government" (針對政府的命令) means any order
(including an order for costs) made in any civil proceedings by or against the
Government, or in connection with any arbitration to which the Government is a
party, in favour of any person against the Government or against a government
department or against an officer of the Government as such.

3. Particulars to be included in indorsement of claim
(O. 77, r. 3)

(1) In the case of a writ which begins proceedings against the Government the
indorsement of claim required by Order 6, rule 2, shall include a statement of
the circumstances in which the Government's liability is alleged to have
arisen and as to the government departments and officers of the Government
concerned.

(2) If in civil proceedings against the Government a defendant considers that
the writ does not contain a sufficient statement as required by this rule, he
may, before the expiration of the time limited for acknowledging service of
the writ, apply to the plaintiff by notice for a further and better statement
containing such information as may be specified in the notice.

(3) Where a defendant gives a notice under this rule, the time limited for
acknowledging service of the writ shall not expire until 4 days after the
defendant has notified the plaintiff in writing that the defendant is
satisfied with the statement supplied in compliance with the notice, or 4 days
after the Court has, on the application of the plaintiff by summons served on
the defendant not less than 7 days before the return day, decided that no
further information as to the matters referred to in paragraph (1) is
reasonably required.

4. Service on Government (O. 77, r. 4)

(1) Orders 10 and 11 and any other provision of these Rules relating to
service out of the jurisdiction shall not apply in relation to the service of
any process by which civil proceedings against the  Government are begun.

(2) Personal service of any document required to be served on the Government
for the purpose of or in connection with any civil proceedings is not
requisite; but where the proceedings are by or against the Government service
on the Government must be effected by service on the Secretary for Justice.

(3) In relation to the service of any document required to be served on the
Government for the purpose of or in connection with any civil proceedings by
or against the Government, Order 65, rules 5 and 9, shall not apply, and Order
65, rule 7, shall apply as if the reference therein to rules 2 and 5(1)(a) of
that Order were a reference to paragraph

(2).

6. Counterclaim and set-off (O. 77, r. 6)

(1) Notwithstanding Order 15, rule 2, and Order 18, rules 17 and 18, a person
may not in any proceedings by the Government make any counterclaim or plead a
set-off if the proceedings are for the recovery of, or the counterclaim or
set-off arises out of a right or claim to repayment in respect of, any taxes,
duties or penalties.

(2) Notwithstanding Order 15, rule 2, and Order 18, rules 17 and 18, no
counterclaim may be made, or set-off pleaded, without the leave of the Court,
by the Government in proceedings against the Government, or by any person in
proceedings by the Government-

   (a)  if the Government is sued or sues in the name of a government
        department and the subject-matter of the counterclaim or set-off does
        not relate to that department; or

   (b)  if the Government is sued or sues in the name of the Secretary for
        Justice.

(3) Any application for leave under this rule must be made by summons.

7. Summary judgment (O. 77, r. 7)

(1) No application shall be made against the Government-

   (a)  under Order 14, rule 1, or Order 86, rule 1, in any proceedings
        against the Government;

   (b)  under Order 14, rule 5, in any proceedings by the Government; or

   (c)  under Order 14A, rule 1, in any proceedings by or against the
        Government.

(2) Where an application is made by the Government under Order 14, rule 1,
Order 14, rule 5, or Order 86, rule 1, the affidavit required in support of
the application must be made by-

   (a)  the solicitor acting for the Government; or

   (b)  an officer duly authorized by the solicitor so acting or by the
        department concerned, and the affidavit shall be sufficient if it
        states that in the deponent's belief the applicant is entitled to the
        relief claimed and there is no defence to the claim or part of a claim
        to which the application relates or no defence except as to the amount
        of any damages claimed.

9. Judgment in default (O. 77, r. 9)

(1) Except with the leave of the Court, no judgment in default of
notice of intention to defend or of pleading shall be entered against the
Government in civil proceedings against the Government or in third party
proceedings against the Government.

(2) Except with the leave of the Court, Order 16, rule 5(1)(a), shall not
apply in the case of third party proceedings against the Government.

(3) An application for leave under this rule may be made by summons and the
summons must be served not less than 7 days before the return day.

10. Third party notices (O. 77, r. 10)

(1) Notwithstanding anything in Order 16, a third party notice

(including a notice issuable by virtue of Order 16, rule 9) for service on the
Government shall not be issued without the leave of the Court, and the
application for the grant of such leave must be made by summons, and the
summons must be served on the plaintiff and the Government.

(2) Leave to issue such a notice for service on the Government shall not be
granted unless the Court is satisfied that the Government is in possession of
all such information as it reasonably requires as to the circumstances in
which the Government's liability is alleged to have arisen and as to the
government departments and officers of the Government concerned.

11. Interpleader: application for order against
Government (O. 77, r. 11)

No order shall be made against the Government under Order 17, rule 5(3),
except upon an application by summons served not less than 7 days before the
return day.

12. Discovery and interrogatories (O. 77, r. 12)

(1) Order 24, rules 1 and 2, shall not apply in civil proceedings 
to which the Government is a party. (L.N. 153 of 2008)

(2) In any civil proceedings to which the Government is a party any order of
the Court made under the power conferred by section 24(1) of the
Crown Proceedings Ordinance ( Cap 300), shall be construed as not requiring
the disclosure of the existence of any document the existence of which it
would, in the opinion of the Chief Secretary for Administration, be injurious
to the public interest to disclose.

(3) Where in any such proceedings an order of the Court directs that a
list of documents made in answer to an order for discovery against the
Government shall be verified by affidavit, the affidavit shall be made by such
officer of the Government as the Court may direct.

(4) Where in any such proceedings an order is made under the said section 24
for interrogatories to be answered by the Government, the Court shall direct
by what officer of the Government the interrogatories are to be answered.

15. Execution and satisfaction of orders (O. 77, r. 15)

(1) Nothing in Orders 45 to 52 shall apply in respect of any order 
against the Government. <* Note - Exp. X-Ref.: Orders 45, 46, 47, 48, 49, 
 49B, 50, 51, 52 *>

(2) An application under the proviso to section 21(1) of the Crown 
Proceedings Ordinance ( Cap 300), for a direction that a separate certificate
shall be issued under that subsection with respect to the costs (if any)
ordered to be paid to the applicant, may be made to the  Court ex parte
without summons.

(3) Any such certificate must be in Form No. 95 or 96 in Appendix A, whichever
is appropriate.

16. Attachment of debts, etc. (O. 77, r. 16)

(1) No order-

   (a)  for the attachment of debts under Order 49; or

   (b)  for the appointment of a sequestrator under Order 45; or

   (c)  for the appointment of a receiver under Order 30 or 51, shall be made
        or have effect in respect of any money due or accruing due, or alleged
        to be due or accruing due, from the Government.

(1A) No application shall be made under paragraph (2) unless the order of
the Court to be enforced is for a sum of money amounting in value to at least
$5000.

(2) Every application to the Court for an order under section 23(1) of the
Crown Proceedings Ordinance ( Cap 300), restraining any person from receiving
money payable to him by the Government and directing payment of the money to
the applicant or some other person must be made by summons and, unless
the Court otherwise directs, served-

   (a)  on the Government at least 15 days before the return day; and

   (b)  on the person to be restrained or his solicitor at least 7 days after
        the summons has been served on the Government and at least 7 days
        before the return day.

(2A) An application under paragraph (2) must be supported by an affidavit-

   (a)  setting out the facts giving rise to the application;

   (b)  stating the name and last known address of the person to be
        restrained;

   (c)  identifying the order to be enforced and stating the amount of such
        order and the amount remaining unpaid under it at the time of the
        application; and

   (d)  identifying the particular debt from the Government in respect of
        which the application is made.

(3) Order 49, rules 5 and 6, shall apply in relation to such an application as
is mentioned in paragraph (2) for an order restraining a person from receiving
money payable to him by the Government as those rules apply to an application
under Order 49, rule 1, for an order for the attachment of a debt owing to any
person from a garnishee, except that the  Court shall not have power to order
execution to issue against the Government.

17. Proceedings relating to postal packets (O. 77, r. 17)

(1) An application by any person under section 7(3) of the Crown 
Proceedings Ordinance ( Cap 300), for leave to bring proceedings in the name
of the sender or addressee of a postal packet or his personal representatives
must be made by originating summons.

(2) The Government and the person in whose name the applicant seeks to bring
proceedings must be made defendants to a summons under this rule.

(3) A summons under this rule shall be in Form No. 10 in Appendix A.

"civil proceedings by the Government" (由政府提出的民事法律程序)

"civil proceedings against the Government"
(針對政府提出的民事法律程序)

"civil proceedings to which the Government is a party"
(以政府作為一方的民事法律程序)

"order" (命令)

"order against the Government" (針對政府的命令)