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.
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, the 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).
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).