CODE OF CIVIL PROCEDURE IN HONG KONG
This article will provide guidance on the Code of Civil Procedure in Hong Kong. The legal system in Hong Kong is common law. The rules of the applicable court govern the majority of civil proceedings in Hong Kong. Some are the High Court Rules (Cap. 4A) and the District Court Rules (Cap. 336H).
The amount in dispute often determines the appropriate venue for filing a civil lawsuit. The Small Claims Tribunal handles civil claims with a maximum value of HK$75,000. The District Court considers claims valued at more than HK75,000 but less than HK$3 million (‘DC.
The Competition Tribunal, the Labour Tribunal, the Family Court, and the Lands Tribunal are just a few of the specialized courts and tribunals available. It is preferable to involve a private Hong Kong process service agency like Undisputed Legal to ensure that international service is done quickly and efficiently.
ORIGINATING PROCESS IN HONG KONG
The issuance and service of originating process (such as a writ of summons, originating summons, originating motion, or petition); the filing of pleadings (including a statement of claim, defense, and reply); discovery (the disclosure and inspection of documents); the presentation of factual witness statements (which serve as evidence-in-chief); or the submission of expert reports (if necessary.)
Pre-action guidelines are not always specified in Hong Kong. However, the court has the discretion to consider the parties' behavior before the action in establishing the costs. Consequences in terms of money might occur from behavior that is regarded as inappropriate. As a matter of common practice, plaintiffs often send out demand letters to defendants before filing a lawsuit, outlining the claim's factual and legal foundation and the specific remedy or remedies sought. The parties are urged to exhaust all possible avenues to reach a ‘without prejudice settlement via mediation or discussions.
Writs of summons, originating summons, originating motions, and petitions are the four specified ways to initiate proceedings. Certain proceedings, such as appeals, need an originating motion. In contrast, others, such as petitions for winding up a firm for bankruptcy, challenging an election, or certain marital matters, require a petition. In most cases, a writ of originating summons is used to initiate legal proceedings. A private process service agency like Undisputed Legal is usually involved in the delivery of these documents. Our agents will dispatch documents through the global central authority in compliance with local and international laws.
A Statement of Claim laying out the particulars of the plaintiff's claim may be served concurrently with the writ or at a later time in a writ action (after the defendant acknowledges service of the writ and disputes the claim). The writ must be endorsed with an endorsement of the Claim if the plaintiff chooses to file and serve the Statement of Claim at a later date. The Declaration of Claim, like any other pleading, must be accompanied by a statement of fact, which may be submitted later but should be done as soon as feasible.
WRITS OF SUMMONS IN HONG KONG
Undisputed Legal provides services depending on the court rules and the jurisdiction of the court across Hong Kong. Unless the court has secured an extension, the originating summons or writ must be served on the defendant within twelve months of its issuance. In addition to the writ of summons, you must also provide three (3) signed copies of the acknowledgment of service form. When dealing with an individual defendant in Hong Kong, you can serve them in person, send them registered mail, or drop a letter off at their home.
The defendant has fourteen days from the date of delivery of the writ (with or without a Statement of Claim) originating summons to submit an acknowledgment of service stating whether or not they intend to defend the claim. The plaintiff has fourteen days from the moment the defendant submits the acknowledgment of service form expressing an intention to defend the case to file and serve a Statement of Claim if no Statement of Claim was served with the writ.
If the Statement of Claim is served after the acknowledgment of service has been filed, the defendant has twenty-eight days from the day the Statement of Claim was served on the defendant to file and serve their defense (and counterclaim, if any) on the plaintiff. There is a twenty-eight-day window after service of the defense during which the plaintiff may submit a response. If the defendant responds with a counterclaim and the plaintiff disagrees, the plaintiff has 28 days from the day the counterclaim was served to submit a response.
If either the defendant or the plaintiff fails to submit an acknowledgment of service within the necessary time limit, or if the defendant or the plaintiff fails to file a defense to the counterclaim within the stipulated period, the other party may move for judgment in default. A claimant will need the court's permission to serve proceedings on a defendant outside of Hong Kong, with few exceptions. When permission is granted, service of process may be made in conformity with the local legislation of the jurisdiction in which the action is being filed. If a party needs to serve someone in either mainland China or Macau, they will have to go via the appropriate court authorities there.
JUDICIAL PROCESS IN HONG KONG
The CJR has proclaimed that its two primary goals are good case management and reducing the time and money wasted in legal processes. The changes were implemented to address the rising tide of unfocused and costly procedures marked by frequent interlocutory petitions, extensive discovery, and a general lack of attention to detail. If a party does not comply with the CJR's updated procedures, the court may issue a cost order against them or, in extreme situations, dismiss their claims entirely. The court will no longer automatically give the prevailing party its expenses but will instead consider whether or not such expenditures were reasonable in light of what was at risk.
Initiating legal action in Hong Kong may be done in a few distinct ways. For instance, there are several processes for different kinds of acts (such as a judicial review). In spite of this, a writ of summons is often the initiating legal procedure in business disputes.
In the CFI, the plaintiff (claimant) files a writ of summons with an attached statement of claim. A
The plaintiff may seek summary judgment if it believes it will succeed on all its claims. The court's decision on this application will be rendered swiftly based on the affidavit evidence presented by both parties. The court may enter judgment for all or part of the claim if the court finds no valid defense. If none of these conditions is met, a complete trial will be held, consisting of the following phases:
OUT-OF-STATE PROCESS SERVICE IN HONGKONG
The Hague Service Convention is a multilateral convention enacted in Hague, Netherlands, on November 15, 1965, by member nations of the Hague Conference on Private International Law. Our Hong Kong process servers use it to serve civil and commercial issues. We utilize the Hague Service Convention to provide litigants with a secure and fast way to deliver legal notices to defendants, witnesses, or other third parties in another nation. Service of process in civil and commercial cases, but not criminal ones, is governed by the convention. If the address of the person to be served is unknown, the Convention will not apply either.
Except in restricted situations, a party seeking to serve papers beginning proceedings on a person outside of Hong Kong must first acquire the court's permission. However, in order to get the court's permission to serve outside of the jurisdiction, petitioners must show that there is a substantial issue to be addressed on the merits of the claim and that Hong Kong is the most appropriate venue for the hearing of the matter.
To facilitate overseas proceedings, Hong Kong courts will let foreign courts serve process in Hong Kong and gather evidence from witnesses residing in Hong Kong. The Convention on the Taking of Evidence Abroad in Civil and Commercial Matters has eased international cooperation in taking evidence for civil procedures using letters of request (Hague Evidence Convention). A private process service agency like Undisputed Legal should be engaged in order to ensure that letters of request are adequately served. It should be known that international timelines are, by nature, prolonged. It is important to provide international service of the process well in advance to ensure it adheres to court timelines. At Undisputed Legal, we ensure that we adhere as closely as possible to service timelines and are accountable to every one of our clients.
Without a system to speed up the exchange of requests for help, the PRC had to rely on the delayed and unreliable services of third-party government agencies to deliver and receive letters of request. In an effort to address this problem and make it easier for parties to civil and commercial proceedings in the PRC and Hong Kong to obtain evidence, the Arrangement on Mutual Taking of Evidence in Civil and Commercial Matters between the Courts of the Mainland and Hong Kong went into effect in March 2017.
Neither the People's Republic of China nor Hong Kong is entitled to the protections afforded by the doctrine of state immunity since they are not foreign nations. However, the central people's government and state institutions of the PRC have the protections afforded by the common law notion of royal immunity. There is no exemption for the commercial actions of a state organ in Hong Kong because of the total nature of crown immunity. Additionally, the Crown Proceedings Ordinance allows for legal action against government agencies and corporations.
Documents can be faxed at (800)-296-0115, emailed firstname.lastname@example.org, mailed at 590 Madison Avenue, 21 Floor, New York, New York 10022, or dropped off at any of our locations. We do require pre-payment and accept all major credit and debit cards. Once payment is processed, your sales receipt is immediately emailed for your records.
Drop-offs must call and make an appointment first to be added to building security to permit access to our office. Documents for service must be in a sealed envelope with payment in the form of a money order or attorney check (WE DO NOT ACCEPT CASH) payable to UNDISPUTED LEGAL INC. All documents are received by our receptionist.
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1. A variety of variables, such as the nature of the dispute, the need for interlocutory petitions, and the length of the trial, affect how long civil processes in Hong Kong take. However, it is not unusual for civil processes to take around eighteen months. The parties must also act to further the court's overarching goals, such as the speedy conclusion of proceedings.
2. If the defendant files an acknowledgment of service with the writ, indicating that he or she intends to contest the claim, then the defendant must file and serve on the plaintiff his Defence to the plaintiff's claim within twenty-eight days after the time limit for the defendant to file an acknowledgment of service has expired (and a counterclaim, if any).
3. If the unopposed claim is for money owed or liquidated damages, for which the amount is known in advance, the claiming party may obtain a judgement for the full amount of the claim plus attorney fees. Unliquidated damage claims result in an interlocutory judgement, and the plaintiff will still have to ask the court to determine how much money they are owed.
4. In most legal systems, a writ of summons or originating summons is required to initiate a case. Initiating a procedure with a move or petition is possible in several contexts. It is necessary to make a physical appearance in order to serve a defendant in Hong Kong (i.e. by leaving the document with the person). Service may also be made by sending a letter by registered mail to the defendant at his or her normal or last known address, or by dropping it off at that address's designated mailbox. If any of the aforementioned options are untenable, the claimant might ask the court to approve substituted service (i.e. an order permitting service by some other means, e.g. email or instant messenger service).
5. Generally speaking, a foreign judgement debt may be enforced in Hong Kong by filing an action to do so under common law (without the need to relitigate the underlying cause of action).The Foreign Judgements (Reciprocal Enforcement) Ordinance makes it easier to register and enforce foreign judgements from a number of countries, including Australia, Belgium, Brunei, France, Germany, India, Israel, Italy, Malaysia, New Zealand, and Singapore. Once the judgement is recorded, it may be enforced in the same manner as a decision from a Hong Kong court.
6. But in January of this year, the Hong Kong administration declared that it had completed the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters (Reciprocal Arrangement). When compared to the current Ordinance and agreements, the Reciprocal Arrangement covers a far broader variety of situations. The document details the steps necessary to recognise and enforce awards of property, as well as judgements emerging from civil disputes involving IP infringements and unfair competition. It will include the enforcement of monetary and non-monetary remedy, as well as decisions regarding civil damages issued in criminal cases. In lieu of an express agreement between the parties as to which court would have exclusive jurisdiction over any disputes that could arise under the contract, a jurisdictional test has been introduced. For current agreements, the Reciprocal Arrangement is a much-appreciated step forward in terms of transparency. A legislative proposal to enact it is now being consulted on by the Department of Justice, with the consultation period ending on January 31, 2022.