Before the Trial
The Court would fix a date for pre-trial review, a hearing before the trial judge, when the parties are expected to be ready for trial. All interlocutory orders and directions are expected to have already been complied with, and the parties are expected to have disclosed their respective cases to each other that they should be in a position to assess their respective strengths and weaknesses to their own case.
At the Trial
The judicial system in Hong Kong is an adversarial one which the parties have to present their case to the court for its determination. The parties will make submission at the beginning and the end of the trial, and call their respective witnesses to testify so that the opposite party can cross-examine.
The submission of the parties contains both submission on the law and the evidence. On the legal side, the parties will rely on both written statute and judicial decisions made in the past. The weight of a judicial decision depends on the time it was made, the level Court that made the decision and the jurisdiction that made the decision. In overall, the decision of the higher courts in Hong Kong such as Court of Appeal and Court of Final Appeal has binding effect over the lower courts such as District Court and High Court, and their decisions must follow unless they can be distinguished from the decisions of the higher courts. On the evidence part, the burden of proof rests on the party who asserts the case, hence the parties should expect to present their evidence at the trial in full, and such evidence shall be thoroughly examined, especially at the closing submission.
The judicial process in Hong Kong is complex and difficult which the parties often rely heavily on legal representation to protect their right and obtain the best result for them.
When a party is aggrieved by the order made by the Court, he/ she may wish to appeal against it. Consideration should be given to the following factors:
- Whether permission is required from Court before lodging an appeal. In some circumstances, permission must be sought from the original judge or the higher court before an appeal can be lodged.
- Grounds of appeal – the challenge of a court decision can be on a question of law, finding of facts or the exercise of discretion.
While a new point of law may be raised, the appellant may not raise a new point of law on appeal if the evidence could have been materially more favourable to the other party had it been raised at trial. The appellate court will not overturn primary finding of facts by the trial judge unless it can be shown to be plainly wrong. The appellant can only adduce new evidence on appeal if he can show that such evidence could not have been obtained at trial with reasonable diligence, would, if believed, have a very important effect on the outcome of the case, and is not inherently improbable. The appellate court will not normally interfere with an exercise of discretion by the lower court unless it can be shown that the judge erred in law or took into account irrelevant matters, or is painfully wrong.
An appeal does not operate as a stay of execution of judgment and proceedings itself. The parties must make separate application for it, and the Court will only exercise its discretion to order a stay of execution if good reasons exist, such as the appeal will be rendered nugatory without a stay of execution.
Lawyers in Hong Kong usually charge on hourly basis. The hourly rate depends on the seniority of a lawyer. While experienced lawyer may have a higher rate, less experienced lawyer may incur more time on the same work. The Court normally expects a piece of work to be handled by a lawyer with sufficient competency, to be assisted by supporting fee-earners for less complicated work in order to achieve the best result for clients with lowest fee. Champerty and Maintenance is strictly prohibited under Hong Kong laws. Lawyers cannot charge on contingency basis, and cannot share the result of litigation with client.
For the above reasons, it is often difficult for litigators in Hong Kong to estimate the amount of fees that will be incurred on a litigation. It depends on the complexity of the case, the issues that are involved, and, most of all, how a case is handled, especially by the opposite party.
Costs normally “follow the event”, i.e. the loser will pay the winner’s costs. The Court has absolute discretion in awarding costs. After the costs order is made, the winning party will present a bill of costs, setting out the amount of work and hours that the lawyers or supporting staff incurred, and the losing party may challenge the amount. If the parties cannot agree on the amount payable, the Court will assess the same, either summarily or by way of “taxation proceedings”. Often, legal costs will not be recovered in full.
Litigation in Hong Kong can be a long and costly exercise with a lot of uncertainties involved. It is itself a project that should be well managed with advice and guidance along the way in order to achieve the best results.
Our team at Hugill & Ip has extensive experience in dealing with Dispute Resolution issues – so kindly get in touch with us to find out how we can help.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.