Part 1 – Coming to the District Court Soon
If you go down to Wan Chai soon, you could be in for a big surprise. At the time of writing, the District Court’s new “Guidance Note for Case Settlement Conference in Civil Cases” is due to take effect in January 2021.
Some Background
The Guidance Note, published on the judiciary website since mid-October 2020, extends by an additional two years (from January 2021) an existing pilot scheme to introduce the idea of “assisted settlement” into the case management process, placing it on a more formal footing.
At the heart of the scheme is the concept of a Master-led “Case Settlement Conference” (“CSC”). If the judiciary administration deems the pilot scheme a success, they may consider rolling it out for certain civil cases in the High Court.
The principle of facilitating the resolution of disputes, and encouraging parties to use alternative dispute resolution procedures, is already built into the court rules; in particular, the “underlying objectives” and the court’s case management responsibilities. In terms of its objectives, therefore, there is much in the Guidance Note to commend – especially in the context of (for example) lower value and straightforward disputes involving litigants in person, although the Guidance Note does not apply to personal injury and employees’ compensation claims (which are primarily governed by their own Practice Directions).
However, according to the version of the Guidance Note published on the judiciary website in mid-October 2020, there are several provisions that civil legal practitioners in the District Court should look out for (see Part 2).
Case Settlement Conferences
The Guidance Note allows the District Court, at the stage of a case management hearing (or at any other stage of the proceedings), to direct that a case be listed for a CSC before a Master sitting in chambers (not open to the public). In that event, standard directions will usually apply (Appendix 2 of the Guidance Note).
The court may consider that a case is not suitable for a CSC, where a party can show “good reasons” (para. 6(a)) or produce a mediation report (Appendix 1 of the Guidance Note) showing that the parties have already attended a mediation before an accredited mediator and there is no reasonable prospect of settlement. Therefore, so-called “sham mediations” will not be entertained.
Evidence of anything said at a CSC is inadmissible in later court proceedings and the CSC Master will have no further involvement with the case if it is not settled at the CSC.
Apparently, the role of the Master at a CSC is to assist the parties to achieve a settlement – some commentators have likened this to judicial officers acting as “negotiation supervisors or intermediaries”. However, it is not entirely clear how such a role is consistent with the court’s primary aim, in the exercise of its powers, “to secure the just resolution of disputes in accordance with the substantive rights of the parties” (RHC/RDC Order 1A, rule 2(2) – emphasis added).
Costs
Disobedience with the Guidance Note can attract costs sanctions (paras. 17 and 18), and the parties’ legal representatives must prepare a statement of costs incurred up to the CSC and of estimated costs up to and including trial (para. 11).
In Part 2, we consider some concerns.
- Charles Allen, Partner and Accredited Mediator
- David Smyth, Senior Consultant and Accredited Mediator, RPC
Partner and Accredited Mediator, RPC
Focusing on commercial disputes, Charles Allen is a solicitor advocate supporting clients in domestic and cross-border litigation as well as in international arbitrations across numerous jurisdictions.
During the course of more than 20 years of practice in Asia, Charles has been involved in a wide range of disputes before the Hong Kong courts as well as in other jurisdictions around the region, including China, Singapore and India.
Charles also specialises in domestic and international arbitration across a range of industries and has extensive experience under various rules including HKIAC, ICC, LCIA, UNCITRAL and LMAA. He has handled numerous institutional and ad hoc arbitrations as counsel, and has also sat as arbitrator.
Among others, Charles is on the arbitrator panels of the Hong Kong International Arbitration Centre and the Law Society of Hong Kong. He is a Fellow of the Chartered Institute of Arbitrators.
Charles is a versatile and "very sharp and tactical lawyer" who represents clients on a variety of commercial disputes. He acts for a range of clients, including individuals, private and listed companies, multinationals, conglomerates and financial institutions.
He is dual qualified in Hong Kong where he has higher rights of audience in civil matters.
