法律专业COURSEWORK ASSIGNMENT范文(3)

 

Question 2

 

a. State and explain all procedure that needs to be observed by Minnie and Martin and the consequences of default up to the close of pleadings with reference to the Rules of High Court(Cap. 4A) (“RHC”). (It is NOT necessary for students to consider practices unique to personal injury actions under Practice Direction 18.1.) (15%)

The Pleadings set out what is alleged or disputed, which is mainly procedures and not the evidence by which the fact is to be proved. According to the Rules of High Court (Cap. 4) (“RHC”), there are procedures which must be satisfied with. Pleading process refers to the process of plaintiff sue and defendant plea. In Hong Kong, one can file civil sue in the following ways:

To start the procedure, as the Plaintiff, Minnie needs to send Letter before action. Minnie then needs to issue Writ of Summons. Almost all civil actions involving fact dispute need to begin the lawsuit through Writ of Summons. Civil disputes that cause property losses related with contract, infringement, fraud, infringement of personal injury and trust can all file lawsuit through Writ of Summons.(Order 6 RHC) After Minnie serves Writ of Summons (Order 10 RHC), as the Defendant, Martin shall return Acknowledgement of Service and Notice of Intention to Defend (Order 12 RHC). This Acknowledgement informs Minnie that the action is to be defended.  

After Minnie has filed a lawsuit, the Particulars of Claim (unless served with the writ) shall be delivered to Martin within 14 days. The delivery shall be sent to Martin in the form of mail, face to face, putting into the mail box, etc., which sets out the facts alleged to give rise to the claim (Order 18, rule 1 RHC). After the Claims are delivered, Minnie shall submit a pledging writ to the court. Within 14 days after the Claims delivering, Martin must fill in Acknowledgment of service to show whether to raise a plead, and send the Acknowledgement to registry of the court to file within 14 days. If Martin fails to deliver the Acknowledgement within the above period, Minnie may apply to the court for summary judgement. Martin shall also serve Defence within 14 days of delivering the Acknowledgement, the Defence should set out the facts upon which Martin relies to deny liability (Order 18, rule 2). If Martin fails to submit Defence within the above period, the legal effect equals to fail to submit deliver Acknowledgement. The Defence may load reasons for Martin to oppose claims of Minnie, and it may also serve a Counterclaim to against Minnie. If there is a counterclaim, Minnie shall serves a Defence to Counterclaim; if there is no counterclaim,Minnie may serve Reply to Defence(Order 18, rule 3RHC)

 

b. Briefly explain the following procedures, their purposes and how each of them correspond to the spirit of the Civil Justice Reform:-

i. Discovery;

ii. Case management conference;

iii. Pre-trial review.

 (15%)

In Hong Kong, the procedure of Discovery is regulated in Order 24, RHC. Discovery is a pre-trial procedure in a prosecution, which is made for an advance disclosure of documentary evidence. The purpose of Discovery is forcing the disputing parties to disclose to each other, the documentary evidence they currently have, or once had, or by their dominance, custody or control. These documentary evidences are relevant to controversial issues. The Discovery procedure not only discloses evidence, but also lets the other party get access to these files. All documents disclosed in the Discovery procedure are bound by an implied obligation, that is these files will only be used by the parties for litigation purpose. Generally speaking, the Discovery procedure cannot request the third party. And only for the purpose of Discovery, it is also inappropriate to make the third party be one party of the proceedings. If documents or information preserved by the third party are required, it usually needs to summon the third party as a witness. Even so, when the court considers the third party hold documents or information relating to the case, the court shall have the right to require the third party submit and disclose the documents and information they have. 

The case management conference is regulated in Order 25, RHC. The purpose of case management conference is to facilitate the proceedings and give directions for the management of a case. Within 28 days after the pleadings, the parties are required to complete a questionnaire. Upon completion of the questionnaire, the parties are able to reach an agreement on the directions relating to case management that the parties wish the Court to make, and a timetable for the steps of giving the direction and the date of trial. The timetable must include a date for a pre-trial review. Pre-trial review is also an important procedure in the lawsuit, the purpose of pre-trial review is to determine whether the case shall meet the requirements of prosecution, and deliver the case to court for trail. Discovery, case management conference, and pre-trial review are all important procedures and mean a lot to the civil justice reform. These procedures have outstanding advantages, including: 1) to improve the cost effectiveness of civil law procedures, especially for procedures which must be conducted in advance; 2) to ensure that cases can be dealt with effectively within an reasonable and feasible scope; 3) to advocate and cultivate a streamline consciousness which matches the complexity of the cases; 4) to ensure that all parties can achieve justice in the lawsuit; 5) to settle disputes conveniently; 6) to ensure the court resources can be distributed fairly. 

 

C. What can Minnie do to preserve the machine? Outline the procedure she would have to follow and illustrate your answer by reference to decided cases and any relevant rules. (10%)

In this case, in order to determine the cause of the machine’s failure to stop, Minnie wishes to engage mechanical engineering experts to examine the machine. Nonetheless, a mutual friend informs Minnie that Martin is now wishing to “pack up” and relocate to South Korea, where his wife and children are. As the machine is an important real evidence, and now this evidence is likely to lose, or with high possibility that the evidence is difficult to obtain afterwards, to preserve the machine, Minnie can apply an injunction. 

At any stage of civil proceedings, usually followed by the issuance of writ of summons, one party can apply to the court for an interim injunction to regulate what the other party shall and shall not do before the trial. Such a demand is prerequisite and justified. The purpose of such an injunction system is to protect parities from loss. The loss means that even if the litigation ends in favour of one party, what the winning party gains may not be able to compensate for the loss. In an emergency, the plaintiff can even apply for the interim injunction unilaterally before litigation, but the application situation must be notified to the other party unless it is indicated that fulfilling the notification obligation will make the unilateral application come to naught. 

If the applicant wants to obtain an interim injunction, the following shall be proved: the case has a serious question to be tried and a real prospect of success. And the balance of convenience can be achieved in support of the grant of the injunction. If the plaintiff can guarantee to compensate for the loss suffered by the injunction in the case of the defendant's victory, the court may normally grant an interim injunction to the plaintiff. The interim injunction is immediately followed by the writ of summons, directing the defendant to do or cease to do certain acts. The interim injunction can be prohibitive or mandatory .

In this case, Minnie can apply Anton Piller Order. Anton Piller Order is an injunction that prevents the defendant from destroying the evidence of guilty by allowing specific people access to the defendant's domicile to search, confiscate and withhold documents or other items. For Anton Piller Order, the notification to the other party is not required. If the plaintiff wants to obtain the injunction, the following shall be proved: there are substantial prima facie grounds to indicate that the case has solid evidence; the potential damage caused by not granting the injunction is very serious; there is evidence that the defendant has documents or articles that prove guilty and may destroy the materials before the inter parties application. To sum up, in order to preserve the subject matter of the claim or relevant documents, the court has the power to make a mandatory injunction that requires that the defendant allows the plaintiff to enter the place under the defendant's control to inspect and detain objects, and ensure such articles and documents to be kept. 

 

D. What can Minnie do to ensure that Martin does not move his assets to South Korea? Outline the procedure she would have to follow and illustrate your answer by reference to decided cases and any relevant rules. (10%)

In order to ensure that Martin does not move his assets to South Korea, Minnie can make an application of Mareva injunction to the court for property preservation. 

Mareva injunction is regarded as a kind of interim injunction designed to limit the disposition or property transfer (may be used to pay the plaintiff's debt) and guarantee the civil judgement can be effectively enforced. The court has the power to prevent the defendant from transferring or disposing the assets that may be used for execution in order to avoid the future judgment debts by means of interim injunction. The ban would "freeze" a specific number of assets (the capital value would be roughly equal to the plaintiff's indemnity claim during litigation).