Overview

In our bulletin six months ago, we asked whether Civil Justice Reform (CJR) had been effective or defective. Our view at the time was that the transition had been smooth, and that the judiciary had taken a sensible and practical approach to the implementation of the new Rules of the High Court - balancing firm direction with relatively lenient enforcement.

At a CJR conference in October 2009, shortly after that bulletin was published, the Chief Judge of the High Court, Mr Justice Ma, expressed his disappointment with the legal profession in not following the new rules. He cited a failure to comply with up to 80% of court directions and deadlines. He referred to solicitors on opposing sides reaching arrangements to try to bypass the rules and also warned the "honeymoon period" would not continue.

Six months later, and a full year since the CJR came in, we again ask: how have things changed? The answer is that, save for a couple of notable exceptions, much of litigation practice seems to have remained the same as it was before the implementation of CJR. This can, at least in part, be attributed to a failure or reluctance on the part of legal practitioners to comply with the new rules, particularly where conformity would not best suit the strategy of a particular case. But if that is right then at least part of the responsibility must also be shouldered by the judiciary, which effectively provides the policemen of the new rules, and which under the new regime has an express duty for management of cases.

By reference to developments from reported cases over the last six months, this latest briefing looks critically at how the new regime has worked in practice, and concludes that there is still some way to go before litigators in Hong Kong will feel that the new rules are being robustly and consistently applied.

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