The recent case in Yip Lai Fong v HongKong Yika Technology Limited in DCMP 817/2021 highlighted the need for practitioners to exercise care in using prescribed Forms provided under the rules of Court without reference to the substantial procedural rules that govern them. It is a useful reminder of the practice during medieval times when rules were fixed like iron rules which had to be followed to the latter with no deviation rather than following substantive law. On their demise through legislation, it was said in Maitland the Forms of Action At Common Law that “the forms of action we have buried but they still rule us from the grave.”
A litigant may file proceedings in the High Court or District Court by way of a Writ or Originating Summons (OS). An action is commenced by an OS when it is required by a statute or a dispute, which is concerned with matters of law, is unlikely to be any substantial dispute of fact. Even so, the choice of an OS would determine the issues that are before the Court. The choice is left to the legal advisers who have conduct of the proceedings. The general provisions governing the issuance of all OS is under Order 7 of the rules of the High Court or District Court which shall be in Form No. 8 in Appendix A (except an ex parte summons in Form No.11 in Appendix A) or is otherwise prescribed under a written law or where no party on whom the summons is to be served. Other forms of OS prescribed under the rules are Form 10, Form 11, each form is engaged in a different capacity depending on the nature of the application.
Once an OS is filed and served in the absence of an Acknowledgement of Service, the OS would be heard before the Court. In making the application for hearing of an OS an applicant would need to follow the prescribed notice under the rules. An OS filed under Form No. 8 in Appendix A would require the filing of Form 12 notice for the hearing of the OS.
The contents under Form 12 is merely stated like a default Summons before a Master or a Judge which sets out the date and time of hearing and in default of a party appearing the Court it will make such order as may think just and expedient. Nothing is said whether affidavit or documents or directions are to be filed.
However, under Order 28 r 3 where a Form 12 notice of hearing is filed, the procedural rules requires an applicant to specify what orders or directions the party serving the notice intends to obtain from the Court and likewise his opponent may seek different directions or orders. Hence, no party would be ambushed at the hearing as to the precise orders and directions that are sought by each party from the Court.
In the case of Yip Lai Fong an Originating Summons was commenced by the plaintiff for the recovery of money defrauded by the defendant with funds in the bank account frozen by the Police. The defendant did not file an Acknowledgement of Service that resulted in a Notice of Appointment to hear the Summons which was served on the defendant. In the absence of the defendant filing an Acknowledgement of Service, the notice was in the prescribed form was fixed for hearing in accordance with the prescribed Form No. 12 before the Judge pursuant to Order 32 rule 5.
The hearing would have proceeded had it not been pointed by the Court that the Notice of Hearing in Form No. 12 in Appendix A did not conform to the requirements of Order 28 rule 3(3) which requires mandatorily that the hearing Summons so served must specify orders or directions not less than 7 days before the hearing. This caution was mentioned by the Judge and is caveated under 28/3/2 of Hong Kong Civil Procedure 2021 but was apparently ignored in the said application. The relevant Order is reproduced below.
Order 28 rule 3, inter alia, provides:
- Not less than 14 days before the day fixed under rule 2 for the attendance of the parties before the Court for the hearing of an originating summons which is in Form No.8 in Appendix A, the party on whose application the day was fixed must serve a copy of the notice fixing it on every other party.
- Where notice in Form no. 12 in Appendix A is served in accordance with paragraph (1), such notice shall specify what orders or directions the party serving the notice intends to seek at the hearing, and any party served with such notice who wishes to seek different orders or directions must, not less than 7 days before the hearing, serve on every other party a notice specifying the other orders and directions he intends to seek.
- If the hearing of an originating summons which is in Form No.8 or 10 in Appendix A is adjourned and any party to the proceedings desires to apply at the resumed hearing for any order or direction not previously asked for, he must, not less than 7 days before the resumed hearing of the summons, serve on every other party a notice specifying those orders and directions”.
Judge KC Chan highlighted the above in his judgment that practitioners should be alerted that prescribed Forms should not be followed blindly without recourse to substantial law provided under the rules to avoid an adjournment of the hearing. Costs consequences would have followed had the defendant appeared with Counsel at the hearing.