The High Court recently rejected a defendant solicitors' firm's application to strike out a plaintiff's claim on the ground that it was commenced too late. Given the relatively high threshold in Hong Kong for an applicant to succeed with an application to strike out a claim before trial, the court's decision is not surprising. However, the written reasons given in the decision are a useful analysis of the legal principles involved in determining when a cause of action accrues for the tort of negligence.
The High Court has once again been asked to review its jurisdiction to grant permission to issue subpoenas directed at witnesses. In this case, the court granted permission to issue two subpoenas directed at two senior doctors, requiring them to give evidence (supported by specified documents) in aid of a registered dentist's court challenge arising out of disciplinary proceedings against him. The decision reiterates the relatively low threshold for the issue of subpoenas, while also illustrating their possible tactical use.
The High Court recently considered a prospective witness's application to set aside a subpoena directed at him. The subpoena combined directions to the witness to give evidence at trial on behalf of the plaintiff and to produce the originals of certain transaction documents. The court set aside the part of the subpoena directed at giving evidence but not the part directed at producing documents. The decision provides useful guidance as to the general practice for issuing subpoenas.
The issue of liability for costs plays a big part in the settlement of protracted civil litigation in Hong Kong. In particular, where the parties refuse to bear their own costs, which party will pay the other's costs becomes an important consideration. As another recent case demonstrates, without prejudice settlement offers can (among other things) seek to protect a party's position as to costs. Such offers are a common feature of the local litigation landscape for good reason.
Hong Kong has a high incidence of litigants in person, which is largely explained by the cost of civil litigation generally, the absence of class actions, contingent fee arrangements and third-party funding of most civil claims, and the financial eligibility limits for civil legal aid. As recent decisions show, the rates at which litigants in person are awarded costs are far from generous and, to get more, they have to prove that they had to work on the case during their working hours or that they suffered actual pecuniary loss.