[00:05 - 00:25] So, here, we're all experts now in obligations, correct?

So, you know

everything there is to know about the tort and about the contract, correct? Good,
good, good. So, while we're waiting for other students for the civil procedure,
[00:27 - 00:48] what is a contract, just to test you? Hmm? What is a contract? Any
volunteers? No? A contract is a contract. What is it?
[00:49 - 01:10] In a simple, simple explanation. I know it's got many elements, like
all four acceptance, consideration, legality and all that. But those are elements. So,
what is a contract? A contract is simply an agreement between two or more people
[01:10 - 01:31] which is legally enforced. Correct? Because there are many
agreements, like domestic social arrangements, right? They're agreements, but
they're not generally binding, right? Like, if your family promised you that when
Chinese New Year comes,
[01:31 - 01:52] they will give you a lycee, and you say thank you, I'm looking forward
to getting $20,000. And when Chinese New Year comes, they refuse to give you a
lycee. Will you sue them? No. Because it's a social mistake. Right? Okay. So,
remember a contract is a contract.
[01:53 - 02:15] Two or more people, that's what it means. It's the opposite of
expansion. That's what a contract is. Two or more people, persons, they come
together, and they contract. And when they contract, this is called the consensus ad
idem. Meeting of the minds, correct? And this meeting of the minds,
[02:15 - 02:37] the contraction, it will create obligations. So, whatever the parties
have agreed will be in the consensus, right? And if they don't do what they
promised to do, that is a breach of contract. So, that's what a contract is. Contract.
Because if there's no meeting of the minds,
[02:38 - 02:58] then there is no contract. You didn't think of it that way. That's what
a contract is. Alright. So, was consideration a good topic, or quite confusing?
Remember consideration. Acting in return, or acting in reliance upon.
[03:00 - 03:25] All that confused. I'm sure you've read the manuals, got your lecture
notes. Negligence, good topic. Negligence. Yeah? So, negligence. What is
negligence? What's the definition? Negligence is the breach of a legal duty
[03:25 - 03:46] to take care. Correct? Which results in loss or damage to the
claimant. I think people think this is important. You're going to say we're in the
wrong class. So, three elements. Duty, breach, possession. Remember that, right?
So, whenever there's a question on negligence,
[03:47 - 04:07] the first thing you have to consider is if something has happened, an
activity, either by commission or remission. You remember that, right? Commission
or remission, right? So, if something has happened, and there's no contract, and
you consider negligence, the first thing to consider is is there a legal duty of care?
[04:08 - 04:31] Because if there is no legal duty of care, you can't even consider
negligence. Right? If there is a legal duty of care, you look at it either by precedent.
There might be a case law in the past which says in certain given situations there's a
duty of care, like from Donoghue and Stephenson in 1932 onwards.
[04:32 - 04:52] Or, if it is a new situation, potential duty of care, you look at caparo.
Remember caparo indictment? In that case, the three elements. So, if there's a duty
of care in law, then you have to look at duty of care on the facts, right? So, to ask
you a question,
[04:53 - 05:15] I'll finish in five minutes, okay? In negligence. To ask you a question,
does a driver owe a legal duty of care? A driver of any vehicle. Yes? How do you
know? Because there is a precedent case, right? There's a case law in 1971, right?
[05:16 - 05:38] Nettleship and West. It says drivers owe a legal duty of care. Right?
But is this legal duty of care owed to the whole world? Or is there a limit? So, for
example, if I'm driving my car badly in Admonti now, do I owe a legal duty of care
[05:38 - 06:00] to people walking right now into law? Do I? Answer no, because
they're too far, right? So, the duty of care in law has to be narrowed to the duty of
care on the facts. Correct? So, somebody has to be in the zone of harm.
[06:00 - 06:22] Correct? In other words, the plaintiff has to be in reasonably
foreseeable places. Correct? Someone in the range of harm. Do you remember that
case, Borham and Young? The pregnant lady who got off the bus. The omnibus.
She had heard a noise before, but she didn't know what the noise was.
[06:22 - 06:43] And as she walked down the road, she saw blood. And then she had
a miscarriage. Do you remember that case? So, that case tells you the duty of care
on the facts is owed to reasonably foreseeable road uses. Alright? So, I mean, if you
look at it in a common sense way,
[06:44 - 07:05] if I'm driving my car badly in Adelante, I can't possibly injure people
in Africa. Correct? Because they're too far. So, the duty has to be narrowed down.
So, it's not just a duty to the whole world. So, once you look at the duty of care in
law and on the facts, then you look at breach. Correct?
[07:06 - 07:26] And how do you look at breach? How do you look at breach? You
compare what the defendant has done with a reasonable person. Correct? So, if
the defendant has failed to do something, but a reasonable person would have done
something, then by omission,
[07:26 - 07:47] there is a breach of duty. Or if the defendant has done something
badly, but a reasonable person would not have done the same thing, that is breach
of duty by commission. Remember that case of Blythe and Birmingham? Very old
case in 1856. And that's what it says, how you measure the breach. But then there
are four factors
[07:47 - 08:09] to look at breach of duty. What are they? You can't just say, ah,
broken the duty. Right? You've got to look at the factors. What are the factors? The
first factor is the probability of harm. Correct? Remember the cricket ball case?
[08:10 - 08:32] Bolton and Stone? Where the cricket ball left the ground, hit the lady
in the head. Right? Was the cricket club safer or not? No. Because the chance, the
probability of leaving the ball, was it high or low? Very low. If you look at
probability, likelihood of harm is one of the factors.
[08:33 - 08:53] Bolton and Stone, 1951, is the case of that. Then after that, you look
at the risk of serious harm. So if there's a big risk of serious harm to the claimant,
then that's a factor to consider for breach of duty. Which is the case on the risk of
serious harm? Yeah, Paris and Stéphane, 1935.
[08:53 - 09:14] Where the employer did not provide gold to the employee. Right?
Because he was doing some welding work and he became blind in the process.
What is the third factor? Social utility, right? Okay, the case of Wharton Harms in
1954. And what is the last factor?
[09:15 - 09:36] Cost of precautions. Latimer and AEC. So those are, it's like a
checklist you have to go through. So once you've looked at breach, then you look at
causation. Causation on the facts, causation in law. How do you look at causation on
the facts?
[09:39 - 10:00] You say the plaintiff would not have suffered but for the breach of
duty. Which is the case? Case in 1969, the man who went to the hospital. Yeah.
Yeah, what's that case?
[10:01 - 10:24] Barnett and Chelsea Hospital. So once you look at factual causation,
then you look at legal causation. Legal causation is remoteness of power, right?
What is the case on legal causation? Causation means a consequence, right? The
breach of the defendant which has caused the loss of damage to the plaintiff.
[10:25 - 10:46] The loss and damage has to be what? Direct? Or does it have to be
reasonably foreseeable? It has to be reasonably foreseeable. Case on that is the
case in 1961 called the Bagot case. Okay, so this is like a checklist you go through for
looking at negligence.
[10:46 - 11:06] And then the only other things you have to know are the eggshell
group. Remember that? Fence collar rule, sensitivity, abnormality. Some people
suffer much more than others, right? Because they are fragile, okay? So is the
defendant liable or not liable?
[11:07 - 11:30] Yeah, take your victim as you find, correct? So the defendant can't
say, oh, somebody's handicapped or somebody has a weak heart or somebody is a
hemophiliac, so therefore that person is not reasonable. No, take your victim as you
find. Religious sensitivity, personal sensitivity, biological sensitivity, correct?
[11:30 - 11:53] That is the eggshell rule. The other point you have to know is the
novus actus intervenus. Remember that? What is novus actus intervenus? Yeah, it's
a new act which breaks the chain of possession. So if the defendant has done
something, somebody else or something else might have happened
[11:53 - 12:14] which has broken the chain of liability. Because negligence is like a
tear. Duty, breach, possession. The chain has to be intact. If it is severed, then there
is no blame on the defendant, right? Novus actus intervenus, but it depends. What
about suicide?
[12:14 - 12:34] Can suicide break the chain of possession? Let's say the defendant
has had a traffic accident with the victim, the plaintiff, is injured in battle. The
plaintiff becomes physically injured, suffered head injuries, multiple injuries. The
plaintiff becomes depressed.
[12:36 - 12:59] Later, the plaintiff commits suicide. Is suicide a novus actus
intervenus or is the defendant liable? Can the defendant say suicide is an
unreasonable act of the plaintiff? You don't think so?
[13:02 - 13:25] No? It doesn't break the chain of possession. Pigny and Pointer, case
1952, and IBC. Because the law says if the defendant has caused the accident which
has caused the injuries to the plaintiff, if the injuries are very serious, particularly the
head injuries,
[13:25 - 13:46] the plaintiff might have a personality change. And sometimes the
plaintiff can become depressed. And if the plaintiff kills himself because of
depression, you can't say the plaintiff is acting unreasonably. The chain is broken.
Right? So you can do the negligence question tonight.
[13:47 - 14:11] Anyway, this is a civil procedure. Actually, I don't know anything
about tort. You've done all this, right? Yes? No? I mean, you have, right? You've had
16 lectures. Anyway, the only reason I mention that is because I teach tort from the
CPE.
[14:12 - 14:32] All right, let's move on now. Now, let's start the civil procedure,
module number 2, revision. Now, you will be taking the exam in August, right? Most
of you, I hope. Now, in this revision pack,
[14:33 - 14:55] you will see some past examination questions. You will see some
information about how to answer essay questions and how to answer problem
questions, right? And you will also see some specimen questions with some
guidance notes, right?
[14:55 - 15:19] So that's like how to approach the questions in the exam. Now, if you
turn to page number, I think it's 16, part number 2, you will see the past examination
questions in module number 2, civil procedure 1.
[15:19 - 15:40] Can you see that? It says page 16, but there isn't actually a number
as such. Yep, we're all on the same page. I'm looking at the past examination paper
of civil procedure, right? I'm sure you've all seen that. Now, the exam is in...
[15:40 - 16:01] It's a two-hour paper, OK? Every time it's two hours. And there are
two sections in the exam. There is a section A and a section B. And the exam this
year is going to be the same as well in terms of the format.
[16:01 - 16:28] So in section A, you are given five questions. Normally, they are quite
short questions, quite direct as well. And each question carries 20 marks. And you
have to answer any three questions, all right?
[16:28 - 16:52] So that gives you 60 marks. So if you look at the kind of questions,
they're pretty direct. For example, 2021, May, section A, question 1, outline and
explain the main methods of service of a writ
[16:52 - 17:14] issued from the court of first instance on a viewpoint. In other words,
methods of service. How do you serve formally, correct? In section A, each question
in terms of timing is 24 minutes. But that doesn't mean you have to write for 24
minutes.
[17:15 - 17:37] You should really aim to write for, like, say, 18, 19 minutes. The rest
of the time, of course, in choosing the question, preparing an outline answer, and, of
course, reading the answer. Okay? What many students often do is once they have
answered one question,
[17:37 - 17:59] before they move on to the other question, they don't actually read
it. They don't read their answer. Because if they think they read it, then they may
get a nervous shock. So what do they do? They forget it. They move on to the next
question. But reading the answer very quickly is very important because you might
have missed some grammatical issues
[17:59 - 18:20] or the sentences don't make sense or what you have written may not
really make a lot of sense. It gives you an opportunity to quickly amend and correct,
right? So read the answer before you move on. You've all taken exams before. It is
really quality which matters, not quantity.
[18:20 - 18:41] You don't have to write, like, 20 pages, right? So I'm sure you will ask
me, in Section A, because you have 24 minutes per question, about 18 minutes of
writing, how much should you write? Right? You're going to ask me that, right?
How many pages should you write? The answer is actually very simple.
[18:42 - 19:03] It depends on the size of your account. Okay? Because some people
write very big, right? So they write, like, a few sentences in one page. So it's nothing
like that. Even if you wrote, for example, one A4, both sides, and a little bit on the
second page, that is sufficient.
[19:04 - 19:25] Okay? So when you write the answers, if you mention any case
name, please underline it. If you mention any statute or order number, please
underline it. It makes for good visual impact. Use short paragraphs. It's like an essay.
[19:26 - 19:50] The only question which you can do in point form, in civil procedure,
is pre-action considerations. Okay? Because pre-action considerations, many stages,
right? So you can write that in point form. But everything else, it's like an essay-type
format. Now, sometimes the questions in Section A
[19:50 - 20:10] will have two or three parts. Okay? Which means you've got to
answer all the parts also. So choose any three questions from Section A. So that
gives you quite a lot of choice anyway. And you will see the style of questions. For
example, question number five,
[20:10 - 20:31] explain the procedure involved in making an application for an
income payment. Very direct questions. All right? Sometimes the question will say,
you should cite any relevant law. The word cite means to mention some cases and so
forth.
[20:31 - 20:54] But don't just mention the name of cases. Explain what is important
in the case which helps to answer the question. So don't just say, oh, this is like that
case, or that case, or that case. Explain what it is in the case law that you mentioned
which helps to answer the factual problem. So that is actually Section A.
[20:55 - 21:15] Twenty marks per question. Section B, you're given two questions.
You answer one. And that question will carry 40 marks. Sometimes the questions in
Section B
[21:15 - 21:36] will be in two or three parts also, ABC. You answer all of them in
Section B. So that's how you get the 100 marks. 60 in Section A and 40 in Section B.
Now, what I would advise you to do, once you've chosen your questions
[21:36 - 22:00] in Section A or Section B, spend a few minutes, maybe three, four,
maybe even five minutes, preparing a rough outline of the answer, a plan, right?
Because the plan will give you structure. It will have a chronological sequence to your
answer.
[22:00 - 22:20] However, it will avoid you repeating yourself. And it will make sure
that you don't forget things. Because one of the biggest problems in the exams
normally is this. While the student is writing a particular point in the exam, and
remember exams, of course,
[22:20 - 22:43] there's pressure of time, pressure of many things, the student thinks
in his or her mind of another point as well. Point number two, for example. And the
student says to himself or herself, as soon as I finish writing point one, I will write
point two. And when the student finishes writing point one,
[22:43 - 23:05] the student has forgotten point two. And then there's a little nervous
shock, anxiety. But if you have a plan, a rough outline of the answer, a few lines,
you just look at the plan to move on. So plan is a very good practice. I mean, the
plan doesn't have to be like ten pages long.
[23:06 - 23:26] Maybe seven or eight lines, if anything. Okay? Do that. Sometimes
the questions will ask you for an opinion. The question will say, do you agree? For
example, with whatever the quotation is. So don't say, yes, yes, yes, no, no, no. Give
an analysis of the question
[23:26 - 23:47] and at the end of the question, in the conclusion, you can say, yes,
arguably, I agree with the observation. Or I disagree with the observation for reasons
out there. All right? So watch the timing very carefully
[23:47 - 24:10] because one of the biggest problems the examiners have is students
don't answer the correct number of questions. So if, for example, they just answer
one question in Section A and half a question in Section B, then they've lost a lot of
marks already, right?
[24:11 - 24:32] So do not steal time from the other questions. So allocate yourself 24
minutes. When 24 minutes are finished, resist the temptation to polish off the
answer. Move on to the next question. Make sure you pick up maximum marks from
different questions
[24:32 - 24:52] rather than trying to do one excellent question. Because even if you
do an excellent question, no examiner will give you full marks, right? So you will not
get 20 out of 20. The most you will get is maybe 16 or 17 out of 20, right? So it's like
investments, basically. Spread the risk, okay?
[24:52 - 25:13] And often examiners see a little message at the end of the
examination script from the student, a plea, basically, saying, Time ran out. And
when the examiner looks at the script, the student has only answered one question,
right? So no examiner is going to be sympathetic
[25:13 - 25:39] because you have to observe the rules, okay? So make sure you
answer all the questions. So four questions, make sure it's four. Not three, not one,
it's four, okay? Spread your risk. I think I've mentioned this to you about somebody
I knew who used to take exams before, right? And, for example, there were, like, say,
eight questions
[25:39 - 26:00] and you had to answer four questions only in the exams and this
person used to answer all eight questions. Then he used to leave a message for the
examiner saying, Please mark the best four.
[26:02 - 26:29] And all the answers were perfect answers. So even if the marker's
marked all of them, there will still be an excellent mark, okay? So please do not
make that error by not answering all the questions, all right? So pick up the marks
and move on. Section B, you have, of course, as I've mentioned, two questions.
[26:30 - 26:55] And in Section B, you're given more time. You have 48 minutes to
answer the question. But that doesn't mean 48 minutes of writing. Maybe at the
most about 39, 38 minutes of writing. The rest of the time, reading the answer,
choosing the answer to the question carefully, preparing the plan, structure, and so
forth, right?
[26:55 - 27:18] And make sure you write neatly and leisurely. Sometimes I think you
might have seen this in exam halls. I certainly have seen it. You're all sitting in the
exam hall. You're given one script, answer book, and, like, half an hour later, after
the exam has started, a student has raised their hand, right?
[27:18 - 27:38] And you kind of wonder what's happening to the student. Maybe the
student's feeling sick or there's an issue and so on. And the invigilator goes to the
student, and the student wants a second book, okay? The first book has been
written full-board, right? So don't let that be, like, pressure on you. There are always
some students who do that
[27:38 - 27:59] because, at the end of the day, it is just quality which matters, not...
All right? So you don't have to write books for the exam. It doesn't mean the more
you write, the examiner will find something which helps to answer the question. No,
you've got to be relevant to the point. All right?
[27:59 - 28:20] So you've all taken exams before, so you all know about this, right?
So the exam in Civil Procedure, Module 2, will be very similar in terms of the
structure to the past examination question, okay? And if you look at the questions...
[28:20 - 28:43] Have you actually looked at the questions in Civil Procedure? Yeah,
you have, right? So you'll see that the questions are actually quite direct and quite
clear, so there is no chance of misinterpretation, okay? You don't have to guess
what the question is asking you because the question actually guides you to the
answer.
[28:43 - 29:05] So the questions are actually very direct and clear and simple, almost
like me. All right, and as you probably know, I set the questions in Civil Procedure
anyway. I think I've mentioned that. All right, so reasonably happy with the exam
papers and all that?
[29:06 - 29:27] Okay. Now, I know why you're all here. You're not here to see me, of
course. You just want to know what the tips are, right? Right? So you want to know
what the tips are, and then you just forget about all this innovation, right, and just
go home. Have you had tips in the other papers, in the other subjects?
[29:28 - 29:48] Yeah? So you've chosen your topics already, right? And you've
started preparing answers in your mind, how to kick off the answer. All right. Okay,
so let's look at the important topics that we looked at. Pre-action considerations,
okay?
[29:49 - 30:12] Now, pre-action considerations, either for a personal injury case or
for a contract case, pre-action consideration is actually a very important topic as far
as you are concerned. And there is always a question on pre-action considerations in
Section A.
[30:13 - 30:34] So that's like a 20-mark question. And the question normally gives
you some information, like a factual background, and then it asks you what pre-
action considerations would you take. So remember, pre-action considerations also
mean preliminary steps, right?
[30:37 - 30:59] So sometimes the question on pre-action considerations, apart from
going through a checklist, like, for example, there's no conflict of interest, the
solicitor is competent to act in that case, et cetera, blah, blah, blah, make sure no
other solicitor is acting for the client. You remember those questions, the checklist,
right? How is the client going to pay you, et cetera, and all that?
[31:01 - 31:21] Sometimes that question will ask you, in addition, if the potential
defendant is now living overseas, what additional steps would you have to take?
What is that aimed at? So in other words, if you get a client, a potential plaintiff,
[31:22 - 31:43] saying they want to sue a defendant for $20 million, but the
defendant is now living in England, for example, what additional steps do you have
to take? Can you serve a Hong Kong writ overseas just like that? No, so you have to
do what? Apply for the order.
[31:44 - 32:06] It comes after 10 and before 12. So what is that order? Order 11,
right? To issue and serve the writ out of the jurisdiction, right? And, of course,
there's an affirmation which has to be filed. The court has a discretion in this matter.
[32:08 - 32:29] The Hong Kong court has to be the appropriate forum for listening to
this speech. But if the Hong Kong court does not get permission, then the plaintiff
has to instruct lawyers in England, correct? Okay? So keep your eyes open for that.
So very likely something like that may be turning up here. Okay?
[32:30 - 32:52] Pre-action considerations in a contract matter, and then maybe the
defendant is out of contract, living out of contract. So consider serving the writ out
of the jurisdiction. So let's look at some of the pre-action considerations. So let's say
somebody wants to sue.
[32:52 - 33:13] The plaintiff wants to sue the defendant for breach of contract for
like, let's say, a million dollars. So if it's a million dollars, is it high court or district?
What is the jurisdiction? Jurisdiction is which court?
[33:15 - 33:37] What's the jurisdiction of the district court? Up to? Three million. So
one million would be where? District court, DC. Okay. So if a client comes to you
saying, I want to sue this person, what kind of questions would you ask? Like a pre-
action consideration.
[33:39 - 34:04] You check the client's identity, correct? Okay. You take instructions
about the case, what happened, where. You'd want to see documents right as well.
You'd want to make sure that there is no conflict of interest if you take on the case,
correct? You'd want to make sure the client doesn't have another firm acting for him,
[34:04 - 34:28] correct? If there are documents, you want to make sure you take
photocopies and tell the client to keep the originals because they have to be shown
during discovery. You open up a case file to put all the papers concerning the client's
case in that case file. You ask, for example, how is the client going to pay, correct?
[34:29 - 34:51] Is he going to pay by installments? Is there insurance? How is the
client going to pay your legal fees? Legal methods, no contingency fees, correct? Do
a credit search on the defendant, right? Is the defendant worthwhile suing? Maybe
the defendant is going to be made bankrupt, correct?
[34:52 - 35:13] Do a background search on the defendant, what assets the
defendant has and so on. Consider the time bar limitation, correct? So if it's a
contract case, what is the time bar? How many years? Six years. Okay, so make sure
the time bar has not expired.
[35:14 - 35:36] Where is the case going to be heard? Of course, if it's one million, it
will be the district court, right? Consider what is the cause of action, breach of
contract, or what is the cause of action. It has to be a legitimate cause of action,
correct? You have to tell the client that going to court, of course, is risky.
[35:36 - 36:00] There's no guarantee of winning. If the client loses the case, the
client will have to pay the cost of the other side, correct? Explore the possibility of a
settlement, ADR, Alternative Dispute Resolution, correct? So, in other words, many
of these steps are like some of common sense, right?
[36:00 - 36:23] Some are legal, some are practical, right? So it may be that you may
need to see the client a few times to take full and proper instructions, right? And
then, of course, you write a letter before action, correct? To the defense. And if
there is no response to that, then you issue the writ, correct?
[36:23 - 36:44] From the registry of the court, either the district court or the high
court. So what is the purpose of pre-action considerations? The purpose is to make
sure that if the case goes to trial, the plaintiff is fully and properly prepared, correct?
So there won't be any delays, there won't be any problems,
[36:44 - 37:05] and the case can proceed properly and efficiently. If the information
is given to you that the defendant is living overseas, then you have to say to the
plaintiff, you have to apply for leave, issue and serve a writ of jurisdiction, correct?
[37:05 - 37:26] Under Order 11. If leave is not given, then that is the end of the
matter. And to get leave, you have to make sure that there is a serious case to be
tried, the plaintiff has an arguable case, and the Hong Kong court is the proper court
for listening to the dispute, correct?
[37:27 - 37:47] So those are things. So that's like a 20 mark question. Quite easy to
get, isn't it? So, a very certain question. Pre-action considerations. All right? Keep
your eyes open. Okay, another important topic is
[37:49 - 38:10] how do you serve a writ in Hong Kong? So if the case starts from the
Court of First Instance, so you have a writ, Form 1, issued from the Register of the
High Court, what are the principal methods of serving a writ? So which are the order
numbers?
[38:10 - 38:35] Order 10 and 65, R and C, correct? So what is the first method of
serving a writ? And remember, it's not just the writ, Form 1, it's Form 14 and Form
16, like three days. So the first method is face-to-face. What's that called? What's
that called?
[38:35 - 38:57] Personal service. So this is another question for you, turning up. So
personal service means face-to-face, giving it to the defendant. Anytime, anywhere in
Hong Kong, but not on a Sunday, correct?
[38:58 - 39:23] So if the defendant refuses to take the writ, what can the process
server do? They can leave it near the defendant's custody or control, correct? And
the process server has to do one other thing. What does he have to do? He has to
briefly tell the defendant what the writ is all about, right?
[39:23 - 39:46] He doesn't have to give a lot of details, he simply has to say, these
are court papers, and this is a writ suing you for breach of court, correct? So, very
important, face-to-face personal service, correct? So if the writ is served in person on
the defendant, in Hong Kong obviously,
[39:46 - 40:09] how long does the defendant have to return form 14? Telling the
plaintiff, the court, whether it's going to fight the case or admit the case. How many
days? 14 days, right? Including the day of service. What is the second method of
serving the writ?
[40:11 - 40:33] You use the postal service, right? Ordinary service, you can insert it
into the letterbox of the defendant's last known address, or you can send it by
registered post, right? To his last known address in Hong Kong. The defendant must
be in Hong Kong, correct?
[40:33 - 40:53] For postal service. So, if the writ is put in the letterbox of the
defendant, what does the law say? How many days will it take for the defendant to
have knowledge of the writ? Of course he can have knowledge immediately, but the
law gives this extra time.
[40:54 - 41:15] How many days? Seven days, right? So, the law says that the writ will
come to the attention of the defendant after seven days. So, if the writ is sent by
post, either inserting it yourself into the letterbox,
[41:16 - 41:39] or sending it by registered post to the defendant's home, how many
days would the defendant have to return form 14? Personal service is 14 days, postal
service is 14 plus 7, 21 days. So, mention these brief things to get bonus points,
right?
[41:39 - 42:03] The third method of serving the writ is the defendant may have a
solicitor, correct? Acting firm. So, you serve it on the solicitor's firm, correct? They
will endorse you to accept service. How would you serve the writ if the plaintiff does
not know where the defendant is?
[42:04 - 42:25] He doesn't have his address, he doesn't know if he's in Hong Kong or
not. So, it is impossible or impractical to serve on the defendant. So, what can the
plaintiff do then? Apply for? Apply for substituted service.
[42:27 - 42:55] Advertise the writ where? In a newspaper, correct? Pop the
newspaper or put it up in certain locations, right? So, that is deemed servicing. So,
these are the four methods. Substituted service, postal service, personal service,
service on a solicitor.
[42:56 - 43:23] Right? You can do that, right? So, that's 40 marks. So, that's a
section A question. Service. Now, another topic in section A, which is quite
important really, is interlocutory application order 29.
[43:26 - 43:53] What is order 29? Entry and payment. Remember, entry and
payment? So, this is where the plaintiff can apply to. Remember, it takes a long
time. So, this is a section A question too. So, by the time the writ is served on the
defendant and the case goes through many stages, it takes a long time before the
judge can listen to the case.
[43:53 - 44:16] Correct? But sometimes the plaintiff needs advance money now
rather than three or four years later. Correct? So, the plaintiff can apply for interim
payment. Correct? Order 29. But what are the conditions for interim payment?
There are three conditions.
[44:17 - 44:45] Order 29. What are they? So, the plaintiff makes an application that
he wants advance damages from the defendant supported by an affirmation. And
what are the circumstances? The three conditions under which payment may be
given now rather than three or four years later.
[44:46 - 45:14] One, three conditions. Defendant has good admitted liability. In
other words, the plaintiff is going to get something anyway, right? Second condition.
Plaintiff has obtained judgment against the defendant for damages to be assessed.
[45:16 - 45:37] And third condition, which is a bit more difficult. So, the first two
conditions are easy. The third one is where the defendant is challenging liability,
correct? But the plaintiff believes he has a very strong case and he will win the case
for substantial damages.
[45:38 - 46:01] So, this is where the plaintiff has to prove to the master the merits of
the plaintiff. In any of the situations, does the plaintiff have to show hardship? Does
he have to say, oh, I'm desperate.
[46:01 - 46:23] I need the money now. Does he have to show hardship? Answer, no.
But, of course, if he has hardship, like financial difficulties, he can mention that. But
it is not necessary to show hardship. Right? So, that's Order 29.
[46:23 - 46:45] So, the plaintiff makes the application by summons, inter-party
summons, supported by an affirmation. The defendant can challenge that. The
master will count it. So, that's a 20 marks question, isn't it? You've got 60 marks.
Correct?
[46:47 - 47:07] Another important topic is Order 24, Section 8. What is Order 24? It
is... It's before 25, right? And after 23. So, what is it? It starts with the letter D.
[47:08 - 47:35] Discovery. Correct? Discovery. Discovery of what? Documents.
Correct? So, discovery means that each party, plaintiff and defendant, have to
disclose to each other relevant documents in the case.
[47:36 - 48:01] Correct? Documents they have in connection with the case. It's not
just documents. It means many things, like a video clip as well, photographs, maps,
diagrams, sketches and so on. Wide interpretation of document. So, the parties have
to disclose the documents and also allow inspection of the documents.
[48:01 - 48:22] Unless the documents are privileged. If the documents are privileged,
then they don't have to be shown to the other side. Okay? So, the purpose of
discovery is when the parties have seen the documents. Remember that there's
inspection as well, right?
[48:23 - 48:50] So, you disclose what the documents are. Then the solicitors of the
plaintiff will go to the defendant's solicitors, examine the originals. The defendant's
solicitors will go to the plaintiff's solicitors, inspect the originals. The purpose of
discovery is to enable each party to assess the weakness and strength of the case.
[48:52 - 49:13] They can evaluate the problems and the strengths. And discovery can
help in settling the case. Because each party knows what the evidence is going to be.
Remember, legal costs can be very high, right?
[49:13 - 49:36] So, it is an aid to a potential settlement. So, it's a very important
stage in litigation. The law says the parties have to show relevant documents. How
do you decide if something is relevant? Which is the case relevant?
[49:37 - 50:02] So, you don't have to show all the documents. You know you prepare
a list, right? A list of documents. We've seen that, right? Some are privileged, some
you show, some you object to showing and so on, right? So, how do you decide if a
document is relevant or not? Which is the case? Yeah, I heard something about
champagne.
[50:02 - 50:28] Champagne? Okay, you're thinking of champagne, okay. It is the
Peruvian Guano case. 1880. Compagnie du Pacifique and Peruvian Guano. So, the
test of relevance is a document which helps a party and damages the opponent.
[50:31 - 50:54] So, that's how you determine discovery. So, discovery is very
important. It aids a settlement of a case. It gives the parties an opportunity to
assess the evidence and be more realistic. Do they want to fight the case? Or should
they compromise, give and take, take less rather than more?
[50:56 - 51:21] Alright? So, that's discovery. Another 20 minutes, right? So, now you
have 18 months. Alright? Okay? So, another topic, really, is the topic of summary
judgment. This is a Part A question.
[51:22 - 51:51] Remember summary judgment? Order? This is where the defendant
has no defense, right? What's the order number? So, the defendant is trying to
defend the case. The plaintiff says, oh, what are you doing? You have no defense.
No tribulation. No argument. Rather than going through the stages, the plaintiff
wants judgment now rather than three or four years later.
[51:52 - 52:13] Alright? So, order number 14. Summary judgment. So, the
procedure for summary judgment is what? It is meant for clear-cut cases, correct?
[52:14 - 52:36] Where the defendant has no arguable defense or tribal issues,
correct? And, of course, when you make the application for summary judgment, the
defendant has a return form 14, correct? And, in that, the defendant has indicated
he's going to fight the case, correct?
[52:37 - 52:58] The plaintiff asks himself, why is he fighting? Because, in my opinion,
he has no reason, correct? So, the plaintiff makes the application by inter-party
summons supported by an affirmation, correct?
[52:59 - 53:27] Saying, I believe judgment. The defendant has no defense. Of course,
the defendant can challenge that, correct? By filing an affirmation. So, which is the
case which says that the burden of proof to show that the defendant has a defense
will shift to the defendant?
[53:29 - 53:57] Which is the case? It starts with the letter M. Any volunteers?
Mansipo and Char-On, right? Mansipo and Char-On. C-H-A-R or N. So, clear-cut
cases.
[53:58 - 54:21] The plaintiff should not abuse the process, correct? Now, if the
defendant challenges the application, of course there will be a hearing, correct? The
master will have the affirmation of the plaintiff, affirmation of the defendant. The
master will listen to the legal arguments.
[54:22 - 54:44] And then the master has to give a decision, correct? He has to give
one decision out of four decisions, correct? So, what are the four decisions? Which
is what you must mention. One, the master can give judgment.
[54:47 - 55:10] In other words, it's a clear-cut case. Defendant has no defense.
Plaintiff wins the case. Summary judgment, correct? Saves a lot of time. The second
decision the master can make is to dismiss the summons, correct? Which means the
case will go through the normal stages, correct?
[55:10 - 55:39] What is the third decision the master can make? He can give
permission to the defendant, right? To defend. Which kind? He can give
unconditional leave to defend. Right? Remember that? Unconditional leave. And the
last decision, give the defendant conditional leave.
[55:40 - 56:03] So, judgment for the plaintiff. Dismiss the summons. Give the
defendant conditional leave. Give the defendant unconditional leave. So, remember
those four outcomes? If you answer the question on Order 14, apart from explaining
the procedure on its own basis,
[56:03 - 56:24] you must mention the four outcomes. Alright? Remember, the
purpose of Order 14 is to give the plaintiff speedy judgment. Saves a lot of time. So,
that's really 100 marks. We've got 100 marks.
[56:25 - 56:46] Section A. Reasonably happy? Yeah? You remember these things?
Okay. So, remember. Three action considerations. Discovery. Interim payments.
[56:48 - 57:11] Order 14. And serving. Methods of serving. Yeah? Good. So, let's
move on. Now, you remember sanctioned payments.
[57:11 - 57:32] And sanctioned offers. Good. What are the order numbers for
sanctioned payments? Payments and sanctions. Offers. Order. Before 23. 22.
[57:34 - 57:59] So, these are really like Section B questions. So, litigation in Hong
Kong is expensive, correct? Litigation means fighting the case, right? And letting the
judge decide. Is it also risky? And is litigation time-consuming?
[58:00 - 58:24] And it takes a long time for the case to be heard by a judge. And
there's also this psychological pressure of giving evidence. So, sometimes the
defendant makes an offer to settle the case. To save time and money.
[58:27 - 58:51] But the plaintiff refuses to accept the offer, correct? So, the only way
the defendant can protect himself is by making a payment in default. Sanctioned
payment. And the purpose of that, and the money remains in court. The plaintiff can
accept it or can reject it, right?
[58:52 - 59:14] Plaintiff normally has 28 days. If the plaintiff rejects the sanctioned
payment, the case will go on. So, if after trial the plaintiff gets money which is equal
to the sanctioned payment or less than the sanctioned payment,
[59:15 - 59:38] is the plaintiff in trouble then? Because the normal rule is, in
litigation, the losing party has to pay the winning party equal costs, correct? And the
legal costs sometimes can go into millions of dollars, right? So, let's say the plaintiff is
suing the defendant for 10 million.
[59:39 - 01:00:04] The defendant is trying to settle the case, the plaintiff refuses. So,
the defendant makes a sanctioned payment in default of 8 million dollars. The
plaintiff rejects, so the money remains in court. If the plaintiff rejects the 8 million,
what is the plaintiff hoping to have?
[01:00:05 - 01:00:29] That if the case goes for trial, will he get more than 8 million or
less than 8 million? More than 8 million. So, the plaintiff is in trouble. So, if after
trial the judge gives the plaintiff 7 million, will the plaintiff say to the judge, you keep
the 7 million, I'll take the 8 million.
[01:00:30 - 01:00:50] Can you say that? No. Because the offer is only valid for 28
days. And since your ex-person contracted the law, you know that an offer does not
remain open forever, correct? It can lapse after a period of time. So, there is no
longer an offer to accept, right?
[01:00:51 - 01:01:11] Agree? Okay. So, what are the consequences then for the
plaintiff? Plaintiff rejects the sanctioned payment, but after trial, plaintiff gets 7
million from the judge. So, that means the plaintiff has failed to repay the sanctioned
payment, correct?
[01:01:11 - 01:01:37] So, what are the consequences? One, who's to blame? The
plaintiff has to pay the defendant's legal costs, okay? And the plaintiff has to pay his
own legal costs, right?
[01:01:37 - 01:01:59] What else? Does the plaintiff have to pay interest on the
dependency? Yes. How much interest? 10% of the judgment, correct? And the
interest on the damages would also be reduced.
[01:02:00 - 01:02:21] So, there are severe consequences, right? But that's the risk
that the plaintiff takes, agree? Sanctioned offers work in a similar manner as well. In
fact, both sanctioned payments and sanctioned offers are methods of trying to settle
the dispute.
[01:02:22 - 01:02:45] Avoid trouble. Take less than more because there can be many
risks, correct? So, that's really sanctioned payments, sanctioned offers, audit
dispute. Remember I showed you some calculations, right? In the lecture. You don't
have to do the calculations like that. It's just the principle, like what can happen,
right?
[01:02:46 - 01:03:07] Like paying costs, and costs, and costs. Good, so reasonably
happy with that? That's sanctioned payments and sanctioned offers. Normally, the
questions in section B, each question will have two parts, okay? So, one part is
sanctioned payments, sanctioned offers. Another part is order 13.
[01:03:08 - 01:03:35] Remember order 13? What is that called? Judgment in,
default of what? Good, not returning from protein. Remember the defendant has 14
days if it's personal service, or 21 days if it's a postal service to return form 14,
correct?
[01:03:35 - 01:03:58] So, the failure to return form 14 means the plaintiff can apply
for judgment, correct? And does the plaintiff have to remind the defendant, please,
please, please return form 14? No. Waits for the time. Time is finished. It's
judgment, correct? And is this judgment a good judgment?
[01:03:59 - 01:04:19] Answer, yes, it's valid, it can be enforced. No problem. It is
obtained by a procedural failure on the part of the defendant. That's the defendant's
fault. So, the plaintiff gets the judgment and he seeks to enforce it.
[01:04:21 - 01:04:49] Can the defendant apply to set aside the judgment? Can he?
He can on the order 13 rule. He's going to file an affirmation, right? To show why he
didn't file it. And depending on what the defendant says, sometimes the defendant
may have a good reason, correct?
[01:04:51 - 01:05:16] For example, and the plaintiff doesn't know why the defendant
has not filed form 14, correct? It may be the defendant is dead, right? But the
plaintiff doesn't know that, right? But what are the usual reasons the defendant may
not respond? One, not in Hong Kong, so the writ has not been properly served.
[01:05:19 - 01:05:42] Two, the writ might have been served to the wrong address,
wrong building, so the defendant never had notice, no knowledge. What else? The
wrong method has been used, like sending the writ by fax, for example, or by email.
[01:05:44 - 01:06:04] Sorry, what's the other answer? Yeah, the defendant may be in
a coma or something like that, right? Or the plaintiff did not wait for the correct
period of time for applying for judgment.
[01:06:05 - 01:06:26] The plaintiff didn't wait for 14 days or 21 days to apply for
judgment in default. He applied for it prematurely, correct? So, in these examples,
does the defendant have a good explanation for not returning form 14?
[01:06:27 - 01:06:54] Answer, yes. So the judgment would be regular or irregular. It
would be classified as irregular. So the judgment can be cancelled easily, no problem.
But sometimes the defendant, he knows about the writ,
[01:06:55 - 01:07:16] but he deliberately, intentionally, on purpose, does not return
form 14, correct? He uses the form 14 as tissue paper to wipe his nose, or make
paper masks, or use it as toilet paper.
[01:07:16 - 01:07:38] In other words, he doesn't care, correct? So in that case, if
that's the explanation of the defendant, the judgment would be regular or irregular.
It would be irregular. So is it easy to set aside a regular judgment or difficult? It's
very difficult.
[01:07:39 - 01:08:04] What does the defendant have to show? A, he's got to give an
explanation why he didn't return form 14. But secondly, in his affirmation, he has to
show what? That he has good merit, which is the case on merit. In other words, he
has a very strong defense.
[01:08:05 - 01:08:27] Which is the case? Real prospect of success. Case? Premier
Fashions and Lee Heng Chung, 1990. Correct? So that's really order 13. So that's one
question on section B.
[01:08:27 - 01:08:48] I'm sure you can handle. Okay, let's have a 10-minute break,
and then we move on to one other topic in section B. Good? So let's say 10 minutes.
Break, break, 10 minutes. You're going to recharge your batteries.
[01:09:18 - 01:09:18] Thank you.

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