A VIEW from Hong Kong
7 May 2001
At the January opening of the 2000 legal year, the chief justice announced the establishment of a working party under the chairmanship of Mr Justice Patrick Chan. The party's brief is to review the civil rules and procedures of the High Court and to recommend changes "with a view to ensuring and improving access to justice at reasonable cost and speed". In the 15 months since this announcement, there has been much speculation as to whether Hong Kong will implement reform of civil procedure on the scale of Woolf. Reservations about "root and branch" changes have been expressed by the legal profession. Many of the concerns are the same as were expressed in England and Wales, such as fears of front-loading costs and scepticism over case management by the judiciary.
According to a letter received by Simmons & Simmons from the Department of Justice, the working party has made steady progress and aims to publish a paper by September. It is understood this will be followed by a period for public consultation early in the new year. The inquiry being conducted by the working party will "draw on the experience of other jurisdictions and their approaches to reforms. The civil justice reform in the UK is one [of] the approaches to which the working party would make reference".
The implementation of the Woolf Reforms in England and Wales in 1999 left Hong Kong in a somewhat unique position. On Hong Kong's reversion to China on 1 July 1997, the basic law preserved the existing legal arrangements in Hong Kong for 50 years, but with the Court of Final Appeal established in place of the Privy Council. Since that date there has no longer been the need for Hong Kong to follow the changes in law and practice in England and Wales any more than other common law jurisdictions around the world. Nonetheless, Hong Kong's civil procedure was almost identical to the England and Wales model at the point of reversion to China. The Woolf Reforms effectively left Hong Kong facing the future with a civil procedure that had been criticised and discredited in its country of origin.
Early feedback from Hong Kong courts has been somewhat confusing and contradictory. Although the evidence is purely anecdotal, it appears that some masters and judges have been impressed by references to the spirit of the Woolf Reforms. Others have been decidedly less so, stressing that Hong Kong is no longer required to follow its colonial master. Nevertheless, the advent of the Woolf Reforms has left Hong Kong in a genuine quandary, and viewed in this context it is perhaps less surprising that the chief justice has seen the need to establish the working party and explore civil reform. While it is impossible to predict the panel's recommendations, a recent case would at least suggest that the Court of Appeal is in broad agreement with views around the common law world regarding the excesses of traditional litigation, in particular the role that expert evidence and discovery can play in this.
In the personal injury case of Cheung Chi Hung, the court referred to the contribution that expert evidence makes to the cost and length of litigation. Mr Justice Rogers strongly alluded to the overriding objectives of civil procedural rules (CPR) to deal with cases justly and in a manner proportionate to their complexity or the amount in issue. The suggestion that much of what poses as expert, impartial evidence is not impartial and sometimes not particularly expert, has a clear CPR theme.
Whatever the recommendations of Judge Chan's panel, it seems likely that significant reform in Hong Kong may be waiting in the wings. Whether this is of the "root and branch" variety is a separate issue, and is perhaps less likely, but whatever form it may come in, here is positive proof that proposals for reform may at least fall on receptive ears in the Court of Appeal.
Ian Cocking is a dispute resolution partner at Simmons & Simmons Hong Kong office