2021/2022 CIVIL LITIGATION PRACTICE DESK BOOK

CHAPTERS

Subjects covered:

1. Interlocutory Applications/Proceedings

2. Summary Judgment and 0.14AApplications

3. Default Judgments

I. Introduction to Interlocutory Applications/Proceedings

1. 'Interlocutory' applications are, simplistically speaking, applications made by

parties to the Court before trial.

2. Most interlocutory applications are made 'inter partes' - i.e. with notice given to
the opponent of the application and an opportunity given to the opponent to
object to the application:

(1) In limited circumstances, applications may be made 'ex-parte' - i.e. with

no notice or opportunity to object being given to opponent:

(a) Sometimes it is the relevant Court rule that provides for a

particular application to be made ex parte, e.g. see RHC and
RDC 0.44A r.2 in relation to applications for a "prohibition order";

(b) However, where the relevant Court rules do not provide for this,
the applicant may decide to use the ex parte procedure for an
application, e.g. for certain types of injunctions;

(2) Inter partes applications are made by issuing a 'summons' - i.e. the
summons (prepared by the applicant) is taken to the Court for the
Court's seal to be stamped on it (and for a hearing date for the
application to be assigned in the Court's diary):

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(a) Note: under RHC and RDC 0.32 r.3, unless the Court orders or
the Court rules provide otherwise, a summons must be served
on every other party not less than 2 clear days before hearing.

3. Under the new RHC 0.32 r.11A and RDC 0.32 r.16A, a Master (i.e. junior
Court officer) may, among other things, determine interlocutory applications
with or without an oral hearing, as well as give any directions he/she thinks fit
for the purpose of the application, e.g. for the filing of affidavit evidence for the
application:

(1) Where determination of application is adjourned to oral hearing, no

further evidence may be adduced unless Court thinks there are
exceptional circumstances making the further evidence desirable [new
RHC 0.32 r.11A(4) and RDC 0.32 r.16A(4)];

(2) Where the Court makes an Order on an interlocutory application before

a case management summons has been issued or before Court has
given directions/timetable for the further conduct of the case, it may, if
appropriate, specify the consequences of failing to comply with the
Order [new RHC 0.32 r.11B(1) and RDC 0.32 r.16B(1)];

(3) However, where the Court makes an Order on an interlocutory

application after having dealt with case management summons or given
directions/timetable for the further conduct of the case, it must normally
specify the consequences of failing to comply with the Order [new RHC
0.32 r.11B(2) and RDC 0.32 r.16B(2)];

(4) Note: consequences referred to above must be 'appropriate and

proportionate' in relation to the non-compliance [new RHC 0.32 r.11 B(3)
and RDC 0.32 r.16B(3)];

(5) The revised Practice Direction 5.4 (which is stated to apply, with
suitable adaptations, to the District Court) contains a new section
dealing with Masters' disposal of interlocutory applications on paper,
including the types of applications that are generally considered to be
appropriate for disposal on the papers.

Note: paper disposal of interlocutory applications, has not been widely

adopted by the parties and practitioners. According to the First Year
Report 2010, in the High Court (HC), only 32 out of 1,139 interlocutory
applications were disposed on paper, whilst the figure in the District
Court (DC) was 4 out of 272. This lack of enthusiasm from litigants is
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unsurprising, as it is well recognized that paper disposal is not

appropriate for the complicated type of interlocutory applications and
where litigants are unrepresented: see White Book 2021, Volume 1,
para. 32/11A/2. From the list of suitable cases for paper disposal as
listed in Part D of PD 5.4, it can be noted that most of these interlocutory
applications would usually involve substantial disputes thus require
extensive arguments, so much so that written skeleton arguments filed
by the parties may not be sufficient to assist the court in forming its view.
For example, the court will have to look into the merits of the parties'
cases when considering whether to grant summary judgment, setting
aside a regularly-entered default judgment, grant interim payment, and
security for costs.

II. Summary Judgment and 0.14AApplications

A. RHC and RDC 0.14

General

1. Main Court rule: amended RHC and RDC 0.14

2. Purpose:

(1) "... to enable a plaintiff to obtain a quick judgment where there is plainly
no defence to a claim" (emphasis added) [Home and Overseas
Insurance Company Ltd v. Mentor Insurance Co (UK) Ltd (In Liquidation)
[1990] 1 WLR 153]

3. When is it appropriate to use 0.14?

(1) Action begun by writ [RHC and RDC 0.14 r.1 (2)]; and

(2) P has served Statement of Claim [RHC and RDC 0.14 r.1 (1)]; and

(3) D has given Notice of Intention to Defend [RHC and RDC 0.14 r.1(1)];
and

(4) D has no defence [RHC and RDC 0.14 r.1(1)]:

(a) Policy:

(i) 'Since the policy which underlies the summary procedure

is to prevent the defendant from delaying the plaintiff from
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obtaining judgment in a case in which the defendant has

clearly no defence to the plaintiff's claim, the procedure
should be invoked only where this condition is satisfied'
[Man Earn Ltd v Wing Ting Fong [1996] 1 HKC 25
(Godfrey JA)];

(b) Clearly no defence; if defence is put forward, is it credible?

(i) 'Unless it is obvious that the defence put forward by the

defendant is "frivolous and practically moonshine, 0 14
ought not to be applied": see Codd v Delap (1905) 92 LT
510, per Lord Lindley at 511' (emphasis added) [Man Earn
Ltd v Wing Ting Fong, above];

(ii) ' ... plaintiff ... asking the court to embark on a mini trial of
the action on affidavit evidence. That is not a proper
course for the court to take ... sufficient for the court to ask
itself the simple question: "Is what the defendant says
credible?" If so, he must have leave to defend. If not, the
plaintiff is entitled to summary judgment. The issue is not
whether the defendant's assertions are to be believed: it is
whether those assertions are believable' (emphasis added)
[Ng Shau Chun v Hung Chun San [1994] 1 HKC 155
(Godfrey JA)];

(iii) ' ... whether the defendant's assertions are believable is a

question to be answered not by taking those assertions in
isolation but rather by taking them in the context of so
much of the background as is either undisputed or beyond
reasonable dispute' [Re Safe Rich Industries Ltd,
unreported, Civil Appeal No. 81 of 1994 (Bokhary JA) (as
he then was), as cited in Bank of China (Hong Kong) Ltd v
Cosan Ltd [2006] HKCU 1407];

(iv) E.g. is defence put forward consistent with other evidence

(in particular, documentary evidence) and/or generally
implausible?

4. 0.14 not appropriate where there is material factual dispute or complex (or
novel) legal dispute:

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(1) ' ... Order 14 is for clear cases; that is, cases in which there is no serious
material factual dispute and. if a legal issue. then no more than a crisp
legal question as well decided summarily as otherwise ... .' (emphasis
added) [Crown House Engineering v Amee Projects Ltd (1990) 6 Const
LJ 141 (Bingham LJ), as cited in Man Earn Ltd v Wing Ting Fong,
above];

(a) However, if a case turns on a distinct point of law, it may be more

appropriate to use the O.14A procedure instead (see below).

5. 0.14 also applies to Defendants seeking summary judgment on a

counterclaim [RHC and RDC 0.14 r.5].

6. Note: 0.14 does not apply to, among other things:

(1) Actions involving libel, slander, malicious prosecution, false

imprisonment or seduction, or where there is an allegation of fraud [see
RHC and RDC 0.14 r.1(2)];

(a) "Fraud" exception used to be construed narrowly, as restricted to

an action based on fraud as defined in Derry v. Peek (1889) 14
App Gas 337, i.e. 'a false representation has been made (1)
knowingly, or (2) without belief in its truth, or (3) recklessly,
careless whether it be true or false' [see Tan Eng Guan &
Another v Southland Co Ltd & Others [1996] 2 HKLR 117];

(b) Court of Appeal recently clarified scope of "fraud" exception [see

Pacific Electric Wire & Cable Co Ltd v Harmutty Ltd [2009] 3
HKLRD 94]:

(i) Contrary to any suggestion in previous cases, "fraud"

exclusion was not restricted to actions involving a claim
for damages for fraud. Exclusion also covers all actions in
which there is 'a claim in respect of which the underlying
allegations on which the claim was based constituted an
allegation of fraud' (emphasis added);

(ii) In respect of a writ that contains a number of different

claims, as long as one of those claims is based on an
allegation of fraud, 0.14 cannot be used in that case at all;

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(c) Apart from the above, Courts have also commented that other
cases alleging dishonesty, even though, strictly speaking, they
fell outside the "fraud" exception, were also inappropriate for
0.14: ' ... the rationale for the [fraud] exclusion is that it is
inappropriate for the court to decide in summary proceedings
whether a defendant has been fraudulent. In my view, save in the
clearest possible case, it is inappropriate for the court to decide
in summary proceedings whether a defendant has been
dishonest' [see, e.g. Wavefront Trading Ltd v Po Sang Bank Ltd
[1999] 2 HKC 130];

(2) Actions falling within 0.86 (applications for summary judgment where
writ claims for specific performance of agreement for sale, purchase,
etc. of property (including land) and 0.88 (mortgage actions) [RHC and
RDC 0.14 r.1(3)].

Application

7. Application by summons, supported by affidaviUaffirmation [RHC and RDC

0.14 r.2]:

(1) Must verify factual basis of claim (may include statements of information
and belief as long as sources/grounds stated); and

(2) Must state that in the deponent's belief there is no defence to that claim.

8. Note: Summons and affidaviUaffirmation must be served on Defendant 'not

less than 10 clear days before the day of hearing' [RHC and RDC 0.14 r.2(3)].

9. If Defendant opposes application, should file affidaviUaffirmation before

hearing (although no time limit) setting out as fully as possible its defence and
'triable issues' (i.e. issues which should be determined by Court at trial, e.g.
material factual disputes):

(1) Must contain sufficient particulars of defence - 'when the affidavits are
brought forward to raise that defence they must ... condescend upon
particulars. It is not enough to swear, "I say I owe the man nothing." ...
You must satisfy the Judge that there is reasonable ground for saying
so' [lnterform (Interior & Marble) Co Ltd v Far East Wagner Construction
Ltd [1999] HKCU 521 (Mayo JA)].

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10. Once Plaintiff establishes it has valid claim for summary judgment, onus shifts
to Defendant to show existence of triable issue(s) and/or other reasons for the
matter to go to trial [RHC and RDC 0.14 r.3(1 )].

Orders that may be Made

11. There are several possible orders that Court may make:

(1) Grant summary judgment, i.e. clearly no defence - action ends there:

(a) Note: Court may stay execution of judgment until after trial of any
counterclaim by Defendant in action [RHC and RDC 0.14 r.3(2)]
(see below);

(b) Plaintiff will likely be awarded costs of the action (including the
application):

(i) Note: costs order will not be 'in any event' because the
action has ended and there will be no trial;

(2) Give 'leave to defend', i.e. Court is satisfied that 'there is an issue or
question in dispute which ought to be tried or that there ought for some
other reason to be a trial' [RHC and RDC 0.14 r.3(1)]:

(a) 2 types of leave:

(i) 'Conditional' leave - this is where Court still thinks there is

something shadowy about the defence put forward:

► 'Summary judgment is not appropriate where there

is a real dispute of fact. ... If the defence asserted is
less than probable but more than shadowy, then
unconditional leave should be granted: where
shadowy, then it may be appropriate to grant
conditional leave' [Tong Nai Kan v Cheung King
Fung Francis [2005] 2 HKC 249 (Stock J)];

► Example of condition - payment into Court of whole

or part of Plaintiff's claim [e.g. Yi see Wu
Development Ltd v Big Island Construction (HK)
Ltd (2007), HCA 714/2007];

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► Note: Court should not impose condition (even

where defence is shadowy) where, owing to
Defendant's financial circumstances, this would be
tantamount to refusing leave to defend [e.g. see
Kwong Key Construction & Engineering Ltd v
Sun/ink Ltd [2003] 4 HKC 300];

(ii) 'Unconditional' leave - Court thinks that Defendant has

clearly asserted a credible defence and/or the matter
should go to trial, but Plaintiff's application was not
unreasonable;

(b) When leave to defend is given (whether conditional or

unconditional), action will continue;

(c) Costs of application will usually be 'costs in the cause';

(d) Court will give further 'directions' (i.e. orders regarding the further
steps in the action, including timing) [RHC and RDC 0.14 r.6(1)],
e.g. date for filing and serving Defence;

(e) Note: if no time is specified in the order for its service, no need to
serve Defence until 28 days after leave to defend given
[amended RHC and RDC 0.18 r.2(2)];

(i) Under the old RHC. and RDC 0.18 r.2, the 28 day period
used to be 14 days;

(f) Unless discovery of documents is dispensed with, it will not

normally be possible to give direction for the future course of the
action at the hearing of the summons under 0. 14, as if it was a
case management summons under 0. 25: see White Book 2021.
Volume 1, para. 14/6/1.

(3) Dismiss Plaintiff's application, i.e. application clearly inappropriate -

action continues:

(a) Where 'the case is not within this Order or if it appears to the
Court that the plaintiff knew that the defendant relied on a
contention which would entitle him to unconditional leave to
defend', Court may award costs of application to Defendant and
may order the costs to be paid forthwith (i.e. immediately) [RHC
and RDC 0.14 r.7(1)].
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(b) The duty for the court to give directions for the further conduct of
the action does not arise when the summons for judgment is
dismissed, and indeed there may not be jurisdiction to do so: see
Symon & Co. v Palmer's Stores (1903) Ltd [1912] 1 KB 259;
White Book 2021. Volume 1, para. 14/6/1.

12. Note: Plaintiff's application and Court's order can relate to only one of several
claims by Plaintiff or part of a claim:

(1) E.g. if Defendant only disputes a part of a monetary claim but does not
dispute the balance, Court will likely grant summary judgment on the
undisputed part.

13. What if Defendant has set-off defence and/or counterclaim? See Shenzhen
Baoming Ceramics Co Ltd v Companion-China Ltd [2000] 2 HKC 790 (Keith
JA):

(1) Four scenarios are discussed in that case, with differing amounts of
connection between the subject matter of the Plaintiff's claim, on the
one hand, and the Defendant's claim(s) in set-off and/or counterclaim(s),
on the other:

(a) Where Defendant raises arguable set-off defence, entitled to

leave to defend to the extent of the set-off (Court has no
discretion);

(b) Where Defendant has bona fide (i.e. in good faith) counterclaim
'arising out of the same subject matter as the action and
connected with the grounds of defence', Court should not grant
summary judgment subject to stay pending determination of
counterclaim, but should give unconditional leave to defend
(even if Defendant admits whole or part of Plaintiff's claim);

(c) Where no defence to claim but there is plausible counterclaim of

not less than amount of claim (counterclaim not connected with
defence), Court should give summary judgment but stay
execution until after trial of the counterclaim;

(d) Where counterclaim 'arises out of a separate and distinct

transaction or is wholly foreign to the claim', Court should grant
summary judgment with costs but without stay;

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(2) Note: in the Shenzhen Baoming case, which cited the relevant part of
the 1999 White Book that set out these 4 scenarios, there was also this
comment: ' ... the lack of clarity between [scenarios (b), (c) and (d)
above] gives the court freedom to respond to the perceived justice of
the individual case .. .'

(a) In that case, Defendant's counterclaim, although arising under a

different contract from contract giving rise to Plaintiff's claim,
arose in the course of the same trading relationship between
Plaintiff and Defendant. Therefore, Court thought that, even
though Defendant had no defence to Plaintiff's claim (for unpaid
goods), it would be unjust to allow Plaintiff to get money (by
executing the summary judgment) before Defendant's
counterclaim (relating to defective goods supplied by Plaintiff), is
determined. Court therefore applied scenario (c).

B. RHC and ROC 0.14A ('Disposal of Case on Point of Law')

14. Main Court rule: RHC and RDC 0.14A

15. Purpose:

(1) to accelerate the final judicial disposal of an action at the

interlocutory stage and thereby save the expense and delay which
would otherwise arise not only if the action were to proceed to a full trial
but also if the parties would be required to undertake the necessary
pre-trial steps to prepare for such trial' [Shell Hong Kong Ltd v Yeung
Wai Man Kiu Yip Co Ltd [2003] HKCU 757 (Chan PJ)].

16. When to use:

(1) ' ... at any stage of the proceedings' [RHC and RDC 0.14Ar.1(1)];

(2) Where there is 'any question of law or construction of any document'

that [RHC and RDC 0.14Ar.1(1)]:

(a) ' ... is suitable for determination without a full trial of the action'; and

(i) Not appropriate where issues of fact are in dispute (or

where Court is being asked to proceed on 'assumed or
hypothetical facts'):

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► '... it is inappropriate to use this procedure if the

issues of facts are interwoven with the legal issues
to be determined. For obvious reasons, the
question of law or construction of document cannot
be dealt with on assumed or hypothetical facts. And
if it is necessary for the court to hear evidence to
resolve a factual dispute in order to come to a
determination on the question of law or
construction of document, it would not normally be
suitable to invoke Order 14A' [Shell Hong Kong Ltd
v Yeung Wai Man Kiu Yip Co Ltd, above]:

• In the context of the construction of a

contract, relevant issues of fact could
include the background circumstances in
which the contract was made [Ng Chun
Kong Calvin trading as Ko and Co v First
Star Development Ltd (2007)
CACV81/2006]. Accordingly, even if the
contractual term to be construed appears to
be a discrete matter, a dispute regarding the
background circumstances in which the term
was agreed (which the Courts have
acknowledged could affect its construction)
may make the matter unsuitable for
determination under O.14A;

► 'Assumed or hypothetical facts' - an O.14A

application cannot proceed on this basis because
parties are not necessarily bound by such assumed
or hypothetical facts at trial. This would be
inconsistent with the finality requirement of O.14A;

(b) ' ... will finally determine (subject only to any possible appeal)
the entire cause or matter or any claim or issue therein':

(i) '... It is not necessary for the making of an application

under Order 14A that the determination of a question of
law or construction of any document would finally
determine the whole action ... It is sufficient if an issue in
the case can be disposed of using such procedure.
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However, it is not contemplated that the parties would

submit a trivial matter for determination under Order 14A.
This would not only be contrary to the spirit and purpose
of this procedure, but may also lead to possible abuse,
resulting in unnecessary expense and delay and wastage
of judicial time. No judge would accede to that sort of
request or application in the proper exercise of his
discretion .. .' (emphasis added) [Shell Hong Kong Ltd v
Yeung Wai Man Kiu Yip Co Ltd, above];

(ii) ' ... it is not essential for the answer in an Order 14A
summons to be determinative of the whole case but where
it is not it is a strong factor to be taken into account when
deciding the suitability of the proceedings (per Chan PJ at
paragraphs 24 and 38 of Shell Hong Kong Ltd v. Yeung
Wai Man Kiu Yip Co. Ltd and another (2003) 6 HKCAFR
222)' [Citadines Ashley TST (Hong Kong) Ltd v
Quenchers Ltd (2007), HCA 2704/2006 (Burrell J)].

17. Application by summons or 'may be made orally in the course of any

interlocutory application' [amended RHC O.14A r.2 and ROG O.14A r.2]:

(1) Either party may apply or Court may use procedure of its own motion
[RHC and ROG O.14Ar.1(1)];

(2) Note: parties must have consented to use this procedure or have had
opportunity to be heard on the question of law or construction;

(3) Court has discretion to decide whether a particular question should be

decided under this procedure.

18. Note: issue decided on 0.14A is conclusive and cannot be reopened (unless
appealed), e.g. if case continues after one issue is decided under O.14A
procedure, that issue cannot be reopened at trial.

Ill. Default Judgment

1. Administrative in nature - basically, Defendant missed deadline for:

(1) Giving notice of intention to defend (generally, Defendant failed to file

Acknowledgement of Service ("AOS")) [RHC and ROG 0.13]; or

(2) Service of Defence [amended RHC 0.19 and RDC 0.19].

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2. [Note: Where Plaintiff fails to serve Statement of Claim, Defendant may apply
to Court to dismiss the action; Court may dismiss action or make other order
[RHC and RDC 0.19 r.1.]

A. In Default of Giving Notice of Intention to Defend

General

3. As mentioned previously, in respect of a writ served within the jurisdiction,

Defendant must file AOS in Court within 14 days after service of writ (including
the day of service of writ) [RHC and RDC 0.12 r.5(a)].

4. If Defendant fails to file AOS giving notice of intention to defend within the
above time period (or files AOS stating will not contest proceedings), Plaintiff
may be able to enter 'default judgment' in accordance with RHC and RDC
0.13:

(1) Whether Plaintiff can enter default judgment depends on the type of
claim(s) made by Plaintiff (see below).

5. To enter judgment under 0.13, Court needs to be satisfied that writ has been
served on Defendant. Accordingly, Court requires one of the following as a
pre-requisite to entering judgment [RHC and RDC 0.13 r.7(1 )]:

( 1) Defendant acknowledged service of writ; or

(2) Affidavit/affirmation filed by Plaintiff proving due service of writ; or

(a) Under revised Practice Direction 24.1, for writ (issued on or after
2 April 2009) claiming for money, this affidavit/affirmation should
also confirm that the relevant admission form under the new
RHC and RDC O.13A has been served with the writ on
Defendant;

(3) Plaintiff produces writ indorsed by Defendant's solicitor confirming

acceptance of service for Defendant.

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Liquidated Claim Only

6. Where writ indorsed with liquidated claim only, Plaintiff may enter final
judgment for amount not exceeding claim in writ and for costs [RHC and RDC
0.13 r.1(1)]:

(1) 'Liquidated' claim means a claim for an ascertained sum (does not need
to be assessed by Court).

7. Note: High Court Ordinance (Cap. 4) s 48 and District Court Ordinance (Cap.
336) s 49 give power to Court to award interest for the pre-judgment period:

(1) Therefore, strictly speaking, a claim for pre-judgment interest is not

'liquidated' (the amount is not yet ascertained) because it depends on
what Court orders;

(2) However, 0.13 r.1 (2) provides that a claim which is otherwise a
liquidated claim will not stop being so simply because it includes a claim
for pre-judgment interest at a rate not higher than the 'judgment rate' of
interest ('judgment rate' is the rate of interest applicable to a judgment
from the date it is made by Court).

Unliquidated Claim Only

8. Where writ is indorsed with a claim for unliquidated damages only, Plaintiff
may enter interlocutory judgment (on liability) for damages to be assessed and
costs [RHC and RDC 0.13 r.2]:

(1) 'Unliquidated' claim means a claim of an amount that needs to be

assessed by Court, e.g. claim for damages for negligence or breach of
contract.

Claims for Detention of Goods or for Possession of Land

9. There are special rules for these - see RHC and RDC 0.13 rr.3 and 4.

Mixed Claims

10. Where writ is indorsed with more than one of the types of claims above (i.e.
liquidated, unliquidated, detention of goods and possession of land), but no

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other types of claim, Plaintiff may enter judgment in respect of each type of
claim in accordance with the relevant rule [RHC and amended RDC 0.13 r.5].

Other Claims

11. Where writ indorsed with a claim not within the above categories (i.e. not
liquidated, unliquidated, for detention of goods or for possession of land),
Plaintiff may:

(1) Upon filing affidaviUaffirmation proving due service of writ; and

(2) Where Statement of Claim not indorsed on or served with writ, upon
serving Statement of Claim,

proceed with the action 'as if that defendant had given notice of intention to
defend' [RHC and RDC 0.13 r.6(1 )], i.e. if not already served Statement of
Claim, file and serve Statement of Claim and wait for Defendant to serve
Defence; if Defendant fails to serve Defence, apply to Court for judgment
under amended RHC 0.19 and RDC 0.19 (see below).

12. Examples of 'other' claims are claims for equitable relief (which are in Court's
discretion), e.g. injunctions, declarations, specific performance.

13. Note: where Plaintiff's writ contains 'other' claims but for some reason no
longer needs to proceed with action (e.g. Defendant satisfied claim or
complied with Plaintiff's demand), Plaintiff may enter judgment for costs [RHC
and RDC 0.13 r.6(2)].

Abandoning Claims

14. If Plaintiff has difficulty entering judgment against defaulting Defendant, e.g.
because Plaintiff's claims include an 'other' claim, Plaintiff can always consider
abandoning such 'other' claim.

Writ Served by Post Returned Undelivered After Default Judgment Entered

15. If writ served by registered post is returned undelivered after default judgment
entered, Plaintiff must (before take any other step in action) [RHC and RDC

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0.13 r.7(3)]:

(1) Apply to set aside default judgment on grounds that writ not served; or

(2) Apply to Court for directions.

Setting Aside Default Judgment (After It Has been Entered)

16. Court may, 'on such terms as it thinks just', set aside or vary any default
judgment [RHC and RDC 0.13 r.9] - very wide power.

17. Primary question for Court - was judgment entered 'regularly' or 'irregularly' (i.e.
properly or improperly)?

(1) Why the distinction?

(a) Irregular judgments - no fault on part of Defendant;

(b) Regular judgments - some fault on part of Defendant, who is

seeking Court's indulgence;

(2) Examples of irregular judgments:

(a) Writ not properly served on Defendant;

(i) Includes where Plaintiff followed Court rules (in respect of

deemed service) to serve writ but writ never came to
attention of Defendant;

(b) Non-compliance with 0.13 and/or other relevant Court rules;

(i) E.g. judgment entered for too large a sum, although

parties can apply to amend judgment [e.g. see Pollard
Construction Co Ltd v Yung Yat Fan (trading as Golden
Year & Co) [1999] 3 HKC 109].

18. Regular judgment:

(1) Court will ask whether defence advanced has 'any real prospect of
success':

(a) Does the 2nd Defendant here show a real prospect of

success? Does his case carry some degree of conviction? ... has

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the 2nd Defendant disclosed "merits to which the Court should

pay heed"?' [Dao Heng Bank Limited v Chan Chiu Cheung [1997]
HKCU 765 (Stone J)];

(i) Other observations made by Stone J in this regard:

► '... As Bokhary J.A. pithily observed in Premier

Fashion: "No defence is any good if it will not work
in law even if based on fact. Likewise, no defence,
whatever its effect in law if believed, is any good if it
does not enjoy any real prospect of being
believed." .. .'

(ii) More than merely 'arguable' defence;

(iii) ' ... a matter of common sense .. .' [The Saudi Eagle [1986]
2 Lloyd's Rep 221 (Sir Roger Ormrod)];

(iv) In ' ... rare cases in which a provisional view of the probable
outcome of the action cannot sensibly be formed without
an assessment of the witnesses ... an appropriate test to
determine whether the defendant has a real prospect of
success is to ask whether the defence "could well be
established" at trial' [Guangdong International Trust &
Investment Corp v Yuet Wah (Hong Kong) Wah Fat Ltd
1997] 2 HKC 696, Keith J];

(b) Therefore, Defendant should prepare detailed

affidaviUaffirmation confirming facts upon which defence is
based;

(2) Court will also consider 'all the relevant circumstances' [Dao Heng Bank
Limited v Chan Chiu Cheung, above (Stone J)]:

(a) Good to have reasonable explanation for failure to give notice of

intention to defend, but lack of explanation is not necessarily fatal
to application:

(i) ' ... post Saudi Eagle [1986] 2 Lloyds 221, merits are now
the key in applications of this sort; as the Court of Appeal
put it in Fountain ... , the merit factor, being the primary
concern, outweighs the absence of a reasonable
explanation for the Defendant's failure to resist the default
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judgment' (emphasis added) [Dao Heng Bank Limited v

Chan Chiu Cheung, above (Stone J)];

(b) Other relevant considerations, e.g. any prejudice to the parties;

(3) Court can (in theory) impose conditions on setting aside default judgment,
e.g. payment of money (part or all of Plaintiff's claim) into Court:

(a) However, in L & M Specialist Construction Ltd v Wo Hing

Construction Co Ltd [2000] 3 HKC 335, Ribeiro JA (as he then
was): ' ... In my view, it must be rare that a payment into court is
made a condition of setting aside a judgment. It may in theory do
so, as the court apparently did in the relatively old case of
Richardson v Howell, where the defence is considered shadowy
and in what one might call 'conditional leave to defend territory'.
However, there is a certain logical tension between a court
deciding that the defendant has real prospects of succeeding in
his defence and the court considering at the same time that the
defence is in shadowy realms. While I do not consider such an
outcome impossible, I would expect it to be exceedingly rare ...
there must be something specific in the defendant's conduct or in
the case which justifies the imposition of a condition .. .';

(4) Defendant applying for regular default judgment to be set aside

generally pays costs of application:

(a) ' ... the broad principle ... in setting aside of judgment cases the
golden thread is that, generally speaking, the person asking for
the indulgence generally pays .. .' [Dao Heng Bank Limited v
Chan Chiu Cheung, above (Stone J)].

19. Irregular judgment:

(1) Note: timing: must make application to set aside 'within a reasonable
time and before the party applying has taken any fresh step after
becoming aware of the irregularity' (emphasis added) [RHC and RDC
0.2 r.2(1)];

(2) Traditional approach (and probably still the prevailing approach, e.g.
see Sinokawa Investment (Holdings) Ltd v Li Chun [2006] HKCU 1060
and Wong King Fun v Keywah International Ltd [2008] HKEC 2195) -
default judgment must be set aside as of right, i.e. merits of defence not

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considered [e.g. see Po Kwong Marble Factory Ltd v Wah Yee

Decoration Co. Ltd [1996] 4 HKC 157];

(a) Note: Court may still impose terms and/or conditions for setting
aside default judgment, depending on, e.g. conduct of parties [Po
Kwong Marble Factory Ltd v Wah Yee Decoration Co. Ltd,
above]:

(i) E.g. Bokhary JA- "'Ex debito iustitiae" or as of right means

without going into the merits of the defence. It does not
mean shutting one's eyes to the circumstances
surrounding the question of service and why things went
wrong in that regard. The Court's statutory jurisdiction is
unfettered. Here, there is a very real risk - suggested by
the strange way of doing things - that any judgment which
the plaintiff may ultimately obtain may be an empty one if
we do not guard against it. The way to guard against it is
to impose the condition proposed by my brother Sears.
And there is jurisdiction to do so';

(ii) Conditions imposed by Court - e.g. Defendant to pay into

Court whole or part of amount of Plaintiff's claim;

(3) Changing trend? - increasingly, Courts have asserted that even where
default judgment is entered irregularly, it still has discretion to look at
merits of defence (and refuse to set aside if defence does not have 'real
prospects of success'):

(a) E.g. see Faircharm Investments Limited v. Citibank International

[1998] All ER (D) 32: '[w]here a party was bound to lose on a
subsequent application for summary judgment under 0.14, it
would be pointless to set aside an existing judgment which had
been found to be irregular, unless the irregularity was so
fundamental that the judgment in the case would have to be set
aside whatever the circumstances .. .'

(b) Some support of Faircharm approach in Hong Kong cases (but

probably not yet the law in Hong Kong), e.g.:

(i) 'It has not been suggested by the 3rd Defendant that the
present judgment had been obtained irregularly. In any
event, even if it had been obtained irregularly, the modern
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approach is to still consider whether there are any merits

in the defence, instead of adopting a rigid distinction
between judgments which had been regularly obtained
and those which had not' [Standard Chartered Finance
Limited v Wai Fat Motors Company Limited [1999] HKCU
238];

(ii) 'For what it is worth I find the Faircharm approach every

bit as attractive as did Nazareth VP .. . If there is no
defence, then there cannot be any point in prolonging the
agony. To do so is to rely on empty formalism in the name
of justice. It is as well to remember that if justice requires
that a defendant irregularly sued should have the
judgment set aside, it equally requires that a defendant
who owes money and has no defence should have a
judgment against him' [Bank Austria Aktiengesellschaft v
Suwardi Sukamto [2002] 1 HKC 232 (Muttrie DHCJ)].

B. In Default of Defence

General

20. As mentioned previously, Defendant must serve Defence (and Counterclaim, if

any) before the expiration of 28 days after the time limited for acknowledging
service of the writ or after the Statement of Claim is served on him, whichever
is the later [amended RHC and RDC 0.18 r.2(1 )]:

(1) Under the old RHC and RDC 0.18 r.2, the 28 day period used to be 14
days.

21. If Defendant fails to serve Defence within the above time period, Plaintiff may
be able to enter 'default judgment' in accordance with amended RHC 0.19 and
RDC 0.19:

(1) As with judgment in default of giving notice of intention to defend,

whether Plaintiff can enter default judgment in default of Defence
depends on the type of claim(s) made by Plaintiff;

(2) Note: as mentioned previously, in the context of a Counterclaim,

Defendant is in the position of a plaintiff and vice versa. Accordingly, if
Plaintiff fails to serve Defence to Counterclaim within the prescribed
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time, Defendant can apply for default judgment under the same rules
[RHC and RDC 0.19 r.8].

Liquidated Claims. Unliquidated Claims. Claims for Detention of Goods and

Possession of Land and Mixed Claims

22. Essentially same rules as for judgment in default of giving notice of intention to
defend [RHC and RDC 0.19 rr.2-6].

Other Claims

23. Where Plaintiff makes claim not within the above categories (i.e. not liquidated,
unliquidated, for detention of goods or for possession of land), Plaintiff may
apply by summons to Court for judgment; Court will give whatever judgment
that Plaintiff is entitled to [amended RHC 0.19 rr.7(1) and (3) and RDC 0.19
rr.7(1) and (3)].

Abandoning Claims

24. Similarly, if Plaintiff has difficulty entering judgment against defaulting

Defendant, e.g. because Plaintiff's claims include an 'other' claim, Plaintiff can
always consider abandoning such 'other' claim.

Notice Before Entering Default Judgment Under 0. 19

25. Before entering default judgment under amended RHC 0.19 and RDC 0.19,
must serve 'notice in writing of ... intention to [enter default judgment] on the
party against whom judgment is sought or, if that party is legally represented,
on his solicitor' not less than 2 clear days before entering judgment [RHC and
RDC 0.19 r.8A(1)(a)]:

(1) Must file in Court affidavit of service of above notice [RHC and RDC
0.19 r.8A(1)(b)];

(2) However, no need to serve notice if [RHC and RDC 0.19 r.8A(2)]:

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(a) Court made order prescribing/extending time for service of

Defence/Defence to counterclaim; or

(b) Defaulting party does not have solicitor and failed to state
address for service within the jurisdiction;

(3) No prescribed form for notice - can be in the form of a letter;

(4) Timing of notice:

(a) After AOS filed in Court;

(b) 'The Notice may be served at any time, whether or not the
defendant is already in default: see Ho Yuen Tsan v Hop Wing
Transporlation Co. Ltd [1997] 1 HKLRD 46. In other words, the
Notice may be served before the default occurs. The purpose of
such a Notice is simply to give warning to the other party that no
indulgence will be given once default occurs .... Where such a
Notice is served before the default has occurred, then judgment
in default can be entered as soon as the default occurs providing
that two clear days have elapsed' [ Schindler Lifts (Hong Kong)
Limited v Ocean Joy Investments Limited [2002] HKCU 37 (Ma
J)].

Effect of Time Summons?

26. 'An application for extension of time will not necessarily stop time running and
will not prevent the plaintiff from entering default judgment: see GP Vickers &
Company Limited v Humanbo Enterprises Limited , unreported, 16 January
1984, Power J' [Schindler Lifts (Hong Kong) Limited v Ocean Joy Investments
Limited [2002] HKCU 37 (Ma J)].

Setting Aside Default Judgment

27. Court may, 'on such terms as it thinks just', set aside or vary any default
judgment [RHC and RDC 0.19 r.9] - very wide power.

28. Same considerations as for judgment in default of giving notice of intention to

defend, in particular, whether judgment was entered 'regularly' or 'irregularly.

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 Legal Practice Manual - Civil Litigation (Rapine! & Leung)

160 . INTERLOCUTORYAPPLICAT.IONS AND PRE-TRIAL STEPS IN AN ACTION STARTED BY WRIT ..

4.1 Appli~ation for Default Judgment (Debt or Liquidated Sum)

Key· . .· ·. · ·. . . ·
Words inlJa'I!l][~I~fi?ffiand i n & - - - a r e alternatives. Delete whichever is
not appropriate.

HCA [number) I [year]

IN TI-IE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. [number] OF 20[year]

BETWEEN

[Name of plaintiff] Plaintiff

and

[Name of defendant] Defendant

DEFAULT JUDGMENT .
[DEBT OR LIQUIDATED DE!vlAND]

The [date] day of[month] 20[year]

~~·(·0Z11%~·.;s,i.-,,tt1'!!~".·
N. o 'IT©;: .•.,,.,,.,,,v,,2~iYffii~~1,c-.,:;)!!t<~~-·-~··.
i:':e'i0 • n,e;p:tim,•., · •;,uc1,'-<i..-"'1'.~,,;tl°''"·~em · J.l'eLJ:. · .. · . . · · •
/ r i·~
. ·, • . · ·. . b th D e1enwnt
· . , .· · y . e
c: J ..
~::,;;'-"1w.l't-....i,.~..:.:t.;,~.,.,..., _';.".>.'(r~#;;.:;:,..-,,:,-.,;;::.,,z'¢.,.~~--~;;;;.t,":I~<,\,.. · ~ ~~
,\,.,:a,1.....
herein, ·

rt IS THIS DAY ADJUDG,ED that the Defendant do pay the Plaintiff I-lK$[arno1mtJ and HK$
[amount]
. :It~.'.,~..··
fl:!¥~~- . . . I. . ·

Registrar

5.23
 SAMPLE DOCUMENTS 161

HCA [number] I [year]

We, name of solicitor's furn IN THE HIGH COURT OF THE

Solicitors for the Plaintiff certify HONG KONG SPECIAL ADMINISTRATIVE REGION
that time for service of the COURT OF FIRST INSTANCE
Defence by the Defendant ACTION NO. [number] OF 20[year]
prescribed by the Rules of
Court or extended by Order of
the Court or by consent of the [Name ofplaintiffj Plaint!ff
parties has expired BETWEEN
and that the Defendant is in and
default of serving its Defence
within such time. [Name ef defendant] Defendant

"1.ted: [date]

DEFAULT JUDGMENT

[name effirm] Dated the [date] day of[month] 20[year]

Solicitors for the Plaintiff Filed the [date] day of [month] 20[year]

[name ef solicitors firm]

Solicitors.for the Plaintiff
[address]

Ref:
Tel:
Fax:

5.24
 Legal Practice Manual - Civil Litig_ation (Rapinet & Leung)
162 INTERLOCUTORY APPLICATIONS AND PRE-TRIAL STEPS IN AN ACTION STARTED BY WRIT

4.2 Default Judgment (Unliquidated Damages)

Key
This form is a combined form of interlocutory and final judgment. The plaintiff may
at his/ her option enter interlocutory judgment by omitting the words below the line
in the form and enter a separate final judgment.
Words in:{nf~;itfil.%:tB'i'.tland i n l i } ~ a r e alternatives. Delete whichever is not
appropriate.

HCA [number] I [year]

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. [number] OF 20[year]

BETWEEN

[Name ofplaintif!J Plaintiff

and

[Name of defendant] Defendant

DEFAULT JUDGMENT
[UNLIQUIDATED DAMAGES]

The [date] day of[month] 20[year]

No:~2:tJ§~~~~e1¼2mt21:~§fs[~w!~'11~~Pt'.filYS'.h~liiiiiRby the Defendant

herein, ·

IT IS THIS DAY ADJUDGED that the Defendant do pay the Plaintiff damages and interest thereon
to be assessed.

Tl;i_e amount found d~e to the_ !'_._,_,L._,_~~;_-._~ff_._,_.~~"'d_,,S_~nt having been certified at HK$[amount]
as appears by the certificate of~~f~°f,{ffic!illlfil·· • . · - ~ f i l e d the [date] day
of [month] 20[year].

5.25
 SAMPLE DOCUMENTS 163

- - G E D that the Defendant do pay the PlaintiffHK$[amount] and HK$[amount]m'~

-~ "!it!SD

Registrar

5.26
164 INTERLOCUTORY AP PUCATIO NS AND PRE-TRIAL STEPS IN AN ACTION ST ARTE.D 6Y WRIT

HCA [number] ! [year]

We. [name ~(solicirors.finn] IN THE HIGH COURT OF THE

Solicit0rs for the Plaintiff HONG KONG SPECIAL ADMINISTRi\TIVE REGION
cenify that the rime for COURT OF FIRST INSTANCE
service of the Defence by ACTION NO. [number] OF 20[year]
the Defendant prescribed bv
the Rules of Court or BETWEEN
extended by Order of the
Court or by consent of the
parties has expired and that [Name qfplaint!{f] Plainr{ff
the Defendant is in default
of serving irs Defence within and
such time.
[Name ~f d~tendant]
Dared: [dare]

DEFAULT JUDGMENT
[UNLIQUIDATED DAJ\1AGES]

[ 11 ,111n· (~ tjlrm]
Solicicors for the Plaintiff Filed the [d,m] day of [111011th] 20[year]

[1IL1me (f soiiciwrsJinn]
Solicirors for the Pbinciff
[c1ddress]

Ref
Tel:
Fax:

5.27
 Chitty's "Queen's Bench" Forms
99 DEFAULT JUDGMENT FOR FAILURE TO GI\lt\: NOTICE OF INTENTION TO DEFEND

The above costs have been taxed and altowed at £-- as appears by
the Taxing Officer's Certificate dated the - - day of--,

(Signed)-
Solicitor for the plaintiff.
Note.-A judgment in this form will entitle the plaintiff to issue a writ for specific delivery
of the goods in question under Ord. 45, r. 4(2)(b).

SECTION 3. SETTING ASIDE DEFAULT JUDGMENT

FORM PAGE
99; Summons to set aside Regular Judgment ............................ :......... 104
100.· Summons to set aside Irregular Judgment..................................... 105
101. Affidavit in support of Application to set aside Default Judgment for
Failure to Give Notice of Intention to Defend................................ 105
102. Order setting aside Regular Judgment ............·............................. 106
103. Order setting aside Part of Regular Judgment................................ 106
104. Conditional Order setting aside Regular Judgment . .. .. .. .. . ... ... .. . . .. . .. 107
105. Order setting aside Irregular Judgment ... .. . . .......... .. .. . . .. .. . . .... . . ... . . 107

Rules
See Ord. 2, r. 1 (non-compliance with rules).
Ord. 2, r. 2 (application to set aside for irregularity).
Ord. 13, r. 9 (setting aside judgment).

General Note
Any default judgment entered for failure to give notice of intention to defend may be
set aside by the Court on such terms as it thinks just (Ord. 13, r. 9). Although notice of
intention to defend may not be given without le'ave after judgment has been entered (see
.Ord. 13, r. 6(1)), yet no acknowledgment of service need be lodged nor notice of intention
be given in order to make an application to the Court to set aside a default judgment
entered for failure to give notice of intention to defend, but in such application leave
should be sought to acknowledge service and to give notice of intention to defend, in case
the judgment is set aside wholly or as to part only.
If the judgment is regular, the affidavit in support of an application to set aside must ,
only explain the delay in giving notice of intention to defend but also show that the defe,._.
ant has reasonable grounds for a defence on the merits.
If the judgment is irregular, the summons to set aside must state the grounds of objec-
tion showing the irregularity complained of (Ord. 2, r. 2), and although the defendant is
entitled ex debito justitiae to have an irregular judgment set aside, nevertheless itis advis-
able to support such application with an affidavit as to merits. ·

99
Summons to set aside Regular Judgment
[Title as in action]
[Formal parts .as usual on application to Master] on the hearing of an
application on the part of the defendant for an order that the judgment
entered herein on the - - day of-, - in default of notice of inten-
.tion to defend [ and the execution issued thereon] be set aside and that
5.28
 SETTING ASIDE DEFAULT JUDGMENT 101

the defendant be at liberty to defend this action [by acknowledging ser-

vice and giving notice of intention herein within- days] and that costs
of and occasioned by this application may be provided for [or as the case
may be].
Dated the - - day of- .
[Conclude as usual].

100
Summons to set aside Irregular Judgment
[Title as in action]
[Formal parts as usual on application to Master] on the hearing of an
application on the part of the defendant for an order that the judgment
entered herein on the - - day of- -, in default of notice of inten-
tion to defend having been given [and the execution issued thereon] be
set aside for irregularity on the ground [or grounds] that [here state the
ground or grounds of irregularity alleged as required by Order 2, rule 2]
and that the plaintiff do pay to the defendant the costs of and occasioned
by the said judgment [and execution] and this application to be taxed.
Dated the - - day of-
[Conclude as usual].

101
Affidavit in support of Application to set aside Default Judgment for
Failure to give Notice of Intention to Defend
[Title as in action]
I, C.D. of- [state full name, residence or work-place and occupation
or description], the above-named defendant, make oath and say as fol-
lows:
1. [ State the facts of the case showing the issuing of the writ, and the ser-
vice of it, and when the time for acknowledgment of service expired, and
explaining satisfactorily, as far as possible, how it was that the defendant
did not acknowledge service of the writ or give notice of intention to
defend whether it arose from inadvertence or mistake, or otherwise,
according to the circumstances of each case.]
[Or if it is contended that the judgment is irregular state fully the facts
and circumstances relied on to support this contention; and although if
this contention be right, it is strictly unnecessary to show a defence on the
merits, yet it is advisable even in such case to set out the facts disclosing
the defence on the merits.]
2. For the reasons and under the circumstances aforesaid, I did not
acknowledge service of the said writ of summons nor give notice of my
intention to contest the proceedings.
3. [Here state shortly facts disclosing a defence upon the merits, so as to
satisfy the Court, that there is such defence.]

5.29
102 DEFAULT JUDGMENT FOR FAILURE TO GIVE NOTICE OF INTENTION TO DEFEND

4. For the reasons and in the circumstances aforesaid, I am advised

and verily believe that I have a good defence to this action upon the
merits, and respectfully ask that the default judgment signed herein may
be set aside and that I may acknowledge service of the writ and give
notice of intention to defend.
Sworn [as usual]
This affidavit is filed on behalf of the defendant.

102
Order setting aside Regular Judgment
[ Title as in action]
Upon hearing-
And upon reading-
It is ordered that the judgment entered herein dated the-- day of-
-, [and the execution issued thereon] be set aside.
And it is further ordered that the costs of and occasioned by the enter-
ing of the s;,id judgment and of its setting aside, including the costs of
this application [and the costs and charges of the sa.id execution] be
taxed [if not agreed] and paid by the defendant to the plaintiff [or be the
plaintiff's costs in any event.]
And it is further ordered [set out any directions given as to the further
conduct of the action, e.g. that the time for the defendant's acknowledg- ·
ment of service be extended for 7 days from the date hereof and that the
defendant do serve his defence within 14 days thereafter and so forth.
Dated the - - day of- ·

103
Order setting aside Part of Regular Judgment
[Title as in action]
.Upon hearing-
.And upon reading-
It is ordered that the judgment herein dated the - - day of-
be set aside as to£- part thereof, and that the residue of the said judg-
ment [and the execution issued thereon to the extent of such residue] do
stand.
And it is further ordered that the costs of and occasioned by this
application be taxed and paid by the defendant to the plaintiff [or be the
plaintiff's costs in any event].
And it is further ordered that the defendant be at liberty to acknowl-
edge service herein [notwithstanding the said judgment] within 14 days

5.30
 Setting aside Default Judgment
IN THE illGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
General Reference
(a) Insert case number
BETWEEN
(b)(l)
(b) Insert name(s) of Plaintiff(s)
Plaintiff(s)

and
(c) Insert name(s) cf (c)(I}
* Defendant(s)/
*Defendant(s)/ Applicant(s)
Applicarit(s)

SUMMONS

LET ALL PARTIES CONCERNED ATTEND before the *Registrar/Master _ _ _ _ _ _ _ _ __

sitting in Chambers *(open to public)/ (not open to public) at the High Court of Hong Kong, High Court
Building, 38, Queensway, Hong Kong on _ _ _ _ _ _-day, the ___day of _ _ _ _ _ _ __
200 a t ~ - - - - - o.'clock in the *fore/after noon, on the hearing of an application on the part o{the
( )* Plaintiff(s)/Defendant(s)/Applicant(s)._ _ _ _ _ _ _ _ _ _ _ _ for an Order that:-

. (d) State the order to be (d)(J) (please prepare an affmnation stating the facts and reasons in support of the application.)
obtained

(i) [0.13, ,.9, RHC] o, i. The judgment I order dated _ _ _ _ _ _ _ _ _ be set aside.
[0.14, r.11,RHC] or
ii. Meanwhile, the judgment/ order be stayed.
[0.19,c.9, RHCJ

(e) State the costs order, if (e) And that the costs of the said application be paid by the ( ) *Plaintiff(s )/ Defendant(s)/Applicant(s)
necessary
_ _ _ _ _ _ _ _to the( )*Plaintiff(s)/ Defendant(s)/Applicant(s)._ _ _ _ _ _ __

Dated this day of , 200

Registrar

(f) Insert name of the person This summons was taken out by: Cf)_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ in person,
taking out this summons whose address is (g)
"(g) Insert address of the -------------------------------
person taking out this _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Telephone No. _ _ _ _ _ _ __
summons
The following are the names/addresses of all persons / solicitors to be served with this Summons
(h} State the names and To: (h)(J)
addresses of all persons / -----------------------------------
solicitors to be served Address _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _~ _
with this summons. ·

(i) Give the time estimate of {J) Time estimate: Signed

the hearing
-~---*min/hour/day(s)
) * Plaintiff(s)/Defendant(s)/Applicant(s)
Foot~notes:
* Delete whichever is inapplicable
(l) Or to fill in details which appear on the originating document
2
( ) Set out the provision of the Rules or'the High Court or relevant laws under which the application is made
3
( ) If the space here is insufficient, blank paper may be used and attached to this summons (Revised -April 2006)

5.31
 Interlocutory Affirmation / Affidavit - "Template"

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
Qener_al Reference '(a) ACTION/ MISCELLANEOUS PROCEEDINGS
(a) Insert cas~ number NO. _ _ _ _ _ _ OF20

BETWEEN
(b)(I)
(b)Insert name(s) of Plaintiff(s)
Plaintiff(s)

and
(c)(J)
(c)Insert name of Defendant(s)
Defendant(s)

•Affidavit/Affirmation of [

I CdJ of c,i
(d) Insert name of ----------------------- -----------
deponent /affirmant.

(e)lnsert address of [make oath/ solemnly and sincerely affirm] and say as follows:
deponent /affinnant.
(fj(2) (3)
{f)State the relevant facts/
reasons in support of
the application

I make this 'affidavit / affirmation 'in support of / in opposition to the Summons filed on
day, 20 . The facts deposed to herein are true to the best of my
knowledge, information and belief save where otherwise stated.

SWORN/ AFFIRMED at the High Court of )

Footnotes:
• Delete whichever is the Hong Kong Special Administrative Region )
inapplicable
(I) or to fill in details this day of 200 ,)
which appear on the
originating document. Before me
(Z) if necessary, attach to
it the relevant
documents numbered
and listed in
chronological order as
exhibit(s).
(3) If the space here is
insufficient, blank
paper may be used Commissioner for Oaths, Judiciary.
and attached to this
affinnation / affidavit.
The last paragraph
and the jurat should This affirmation is filed on behalf of the ' Plaintiff(s) / Defendant(s).
1rnpear at the end of
the last page.

5.32
 "HCA/ HCMP No. - - - - OF 20

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
'ACTION I MISCELLANEOUS PROCEEDINGS
NO. _ _ _ _ _ OF 20

BETWEEN
Plaintiff(s)

AND

Defendant(s)

'AFFIDAVIT/ AFFIRMATION
OF[ l

Filed on the ............. day of ............................... , 20 ...... .

Name: _ _ _ _ _ _ _ _ _ _ __

'Plaintiff(s) / Defendant(s) in person

Address for Service: _ _ _ _ _ _ _ _ _ _ __

5.33
 Legal Practice Manual - Civil Litigation (Rapine! & Leung)
212 INTERLOCUTORY APPLICATIONS AND PRE-TRIAL STEPS IN.AN ACTION STARTED BY WRIT

4.1 Default Judgment:Acting for the Plaintiff

Keep Client Informed Throughout Tick when
completed
Judgment in Default of Notice of Intention to Defend
1. When the writ of summons is served, make a diary note of the
defendant's deadline for acknowledging. □

2. If the defendant fails to file the acknowledgement of service within the

time prescribed, fill in and file the relevant form at court, either:
• to enter final judgment against the defendant, if the sum
claimed is liquidated; or □
• to enter interlocutory judgment against the defendant for
damages to be assessed, if the claim is unliquidated. □

3. Prepare and file an affidavit/ affirmation of service of the writ of

summons along with the forms entering default judgment. □

Judgment in Default of Filing a Defence

4. · Make a diary note of the time limit for the service of the defence. □

5. If a statement of claim is filed after the defendant has acknowledged

service of the writ of summons, again note in the diary the time limit
for the fil1ng of the defence (28 days after receipt of the statement
of claim). □

· 6. If no defence is filed, give 48 hours' written notice to the defendant's

solicitors of ttie plaintiff's intention to enter default judgment. □

7. If no defence is filed following the 48 hours' notice, enter default

judgment as in 1-3 above. □

5.34
 CHECKLISTS 213

4.2 Default Judgment:Acting for the Defendant

Keep Client Informed Throughout Tick when
completed
Acting for Defendant
1. As soon as you receive a wr+t of summons on behalf of your client,
check whether it was served personally or by post.

2. If the writ of summons was served on your client and he /she came to
see you about it, ask him / her whether the writ was served on him /
her personally or by post. D
--
3. Make a diary note of the time limit for acknowledging service of the
writ of summons. □

Take the client's instructions on whether he /she wishes to contest

the proceedings. D

5. File the acknowledgement of service before expiry of the time limit

by indicating whether the proceedings will be contested. D

6. If the proceedings are not to be contested, indicate whether the client

wishes to apply for a stay of execution. D
•· File a further summons supported by an affidavit. D

7. Note in the diary the time limit for filing a defence. D

• If a statement of clajm has not been served, make a diary note of
the time limit for filing a defence once it has been served. D

8. Read the writ of summons and the statement of claim and consider
whether to instruct counsel to settle the defence. D

9. Consider whether you need an extension of time to file the defence. D

• Check with counsel, if instructed, when he / she will finish drafting
the defence. D

10. If served with a default judgment, and 48 hours notice has. not been
given by the plaintiff's solicitors, consider applying to have the default
judgment set aside (see RHC O 19 r 9). D

5.35
 Legal Practice Manual - Civil Litigation (Rapine! & Leung ►
264 . SUMMARY JUDGMENT AND STRIKE-OUT APP.LICATIONS

5.1 Summary Judgment:Act,ing for the Plaintiff

Keep Client Informed Throughout Tick when
completed
Merit of O 14 Application
1. Determine whether your client'sdaim is such that there is no defence. □

2. Consider. with your client whether it is appropriate to apply for summary

judgme11t, and, if it is a question of liiW or of the construction of a
document, whether an alternative application under RHC O 14A is
appropriate. □

3. If it is appropriate to apply for summary judgment, consider the evidence

you need to put in the supporting affidavit. □

The Supporting Affidavit

4. Draft an ?ffidavit to support the application for summary judgment.
Note the requirements of RHC O 14 r 2, namely, that the affidavit: □
• must verify the facts; □
• must contain a statement of the deponent's belief that there is no
defence to the claim or parts thereof in respect of which the
application. is made except as to the amount of damages claimed
(see notes to RHC O 14 r 2). □

Time of the Application

5. Ascertain whether the statement of claim has been served. □

6. Determine whether the defendant has given notice of intention to defend. □

8. Decide whether to wait to see the defence, or whether it will be possible

to wait to see judgment in default of defence. □

9. Prepare sufficient copies of the application, one copy for the court,
one copy for service on each defendant and one copy for your file. □

10. Serve the Order 14 summons and the supporting affidavit on the
defendant at least ten clear days before the return date. □

5.36
 CHECKLISTS 265

11. If it is clear that there will be evidence from the defendant,

consider agreeing a timetable. □

Receipt of Defendant's Evidence

12. Consider the defendant's affidavit, does it raise a defence which you
can conclusively destroy by submitting further evidence? If so,
prepare an affidavit in reply. □

1 3. If, as a result of the late filing of the defendant's affidavit, the hearing
has to be adjourned, seek costs of the adjournment. □

The Hearing
14. If counsel is instructed, remind counsel to ask the master to grant a
"certificate for counsel" so that counsel's fees will be recoverable on
taxation. D

15. ·1f the application cannot be dealt with in the 15 minutes allowed, adjourn
it, or consider making use of it to fix a timetable for service of evidence. D

· 1 6. When the master has made the relevant order, draw up the order and
send a draft to the court for approval (see procedures for drawing up a
court order in Chapter 3). D

5.37
266 SUMMARY JUDGM.ENT AND STRIKE-OUT APPLICATIONS

5.2 Summary Judgment:Acting for the Defendant

Keep Client Informed Throughout Tick when
completed
1. Upon receipt of an Order 14 summons and plaintiff's affidavit, consider
the affidavit carefully and decide whether your client can raise a triable
issue. D

2. If your client wishes to resist the Order 14 application, file an affidavit in

reply at least three days before the return day. D
• Diarise this date. D

3. Prepare the affidavit in reply. Consider appending a draft defence as

an exhibit to the affidavit in reply. D

4. If the point is a question of law or construction of a document, consider

including an alternative application under RHC O 14A. D

5. If the hearing will take longer than 15 minutes, notify the plaintiff's
solicitors so that costs are not wasted in preparing for an ineffective
hearing. D

6. If necessary, instruct counsel to resist the Order 14 application. □

7. If the case is likely to be contested, seek to agree with the plaintiff

on an adjournment of the hearing for argument. □
• An adjournment agreement can be reached either before or at the
hearing, but if it can be reached before, the costs of attending the
hearing can be saved or substantially reduced. □

8. Advise your client on the kind of order the court can make and of the
possibility that he / she may have to pay money into court as a
condition to defend the plaintiff's claim. □

9-. Consider an appeal where appropriate. □

5.38