Rules of High Court Cap 4A

November 29, 2022

Roberta Chan is a partner in Baker McKenzie`s Hong Kong office and a member of our Dispute Resolution Group. Roberta advises on all types of cross-border disputes, property disputes and all aspects of commercial and corporate disputes, including corporate and shareholder disputes, contractual and tort claims. She also has extensive insurance and employment experience, including policy interpretation and defense of claims related to contractor risks, liability, workers` compensation, professional liability and other specialty insurance. Roberta is a lawyer who has the right to appear before all levels of Hong Kong`s civil courts. These rules can be cited as the rules of the High Court. Background: The fraud exemption related to the right to a jury trial in fraud cases in England. It was abolished in England in 1992. English courts have also interpreted fraud narrowly. However, since Hong Kong did not have the English equivalent of the right to a jury trial in a fraud case, there was no need to apply a narrow meaning. The amending provisions are an important development and provide litigants with a greater degree of certainty that their case will not be excluded from summary judgment because of certain elements of fraud or dishonesty in their allegations. However, plaintiffs still have to convince the court that the opposing party has no defense against the plaintiff`s claim or counterclaim. This usually involves the analysis of questions of fact and/or law, which a party should carefully consider before making a request for a summary ruling. Litigants intending to seek summary judgment should seek advice and caution when raising complex facts, as the complexity of their case may increase the risk of tribal issues of fact or law.

Over the years, Hong Kong courts have developed their own jurisprudence and adopted a broad interpretation of the fraud exception rule. It was considered whether the claim contained a claim for which the claimant would have to make an allegation of fraud in order to establish or maintain that claim. An “allegation of fraud” refers to an intentional or reckless dishonest act (or omission) intended to deceive. If an allegation of intentional or reckless dishonesty (and therefore fraud) is made, the exception applies and the court does not have jurisdiction to hear the application for summary judgment. This general approach led to uncertainty as to whether the summary determination regime was appropriate in certain circumstances. For example, if the plaintiff seeks damages for claims based on legal concepts such as breach of fiduciary duty and implied trust, and the underlying conduct may or may not be based on dishonesty, such a fact-sensitive issue would result in uncertainty as to the applicability of the fraud exception rule. At the same time, there is a risk that, in order to respond to the defendant`s false defence, to which the fraud exception rule continues to apply, the plaintiff will have to raise an allegation of fraud. In this context, applicants with similar factual allegations often had to carefully weigh their options and strategies, including whether to expedite their processing through the summary judgment regime. Summary judgment was subject to the fraud exception under previous Order 14, RHC Rule 1(2) and RDC. Under the first rule, an action brought by a fraud action was expressly excluded from the scope of summary judgment.

Under the amending rules, parties to a lawsuit whose case is based on an allegation of fraud can now seek summary judgment against the other party if the other party has no defence. The summary decisions system allows parties to obtain a judgment more quickly and cost-effectively. Sorry, the preview is currently not available. You can download the document by clicking on the button above. As a result, a review and public consultation was conducted to consider the lifting of the fraud exemption rule. The amending rules were finally introduced and entered into force on 1 December 2021. The amendments are intended to improve the summary judgment regime and adapt it to developments in legal practice in the interest of litigants. Hugo Suen is a partner in Baker McKenzie`s dispute resolution team in Hong Kong. In a 2016 Court of Appeal decision, Hon. Justice Lam VP (as he was then) noted that in Hong Kong`s modern judicial environment, the fraud exception rule may no longer fit well into the modern judicial landscape. His Lordship further recommended that the RHC and RDC Rules Committees examine the advisability of maintaining this rule.

Since 1. In December 2021, the High Court Rules (Cap. 4A) (“RHC”) and the District Court Rules (Cap. 336H) (“DRC”) were amended to abolish the Amendment Rules. The amendments extended the scope of summary judgment to an action commenced by order and including an action based on an allegation of fraud. A new Rule 12 of Order 14 has been added to the RHC and RDC to reflect the transitional provisions. This rule provides that the previous CHR and RDC Order 14 with the fraud exception rule will continue to apply to all applications for summary judgments pending immediately before December 1, 2021. After the implementation of the legislative amendments, a party based on an allegation of fraud may seek summary judgment at an early stage of the proceeding without a full trial, since the other party has no defence.