On 26th April 1999, the Civil Procedure Rules (CPR) came into force in the UK. Over the last 3 years we have watched with interest, as the implications of these reforms became apparent. On the whole however, the reforms have achieved their objective – to reduce the cost, delay and complexity associated with the previous system of civil justice.

LAST year I relocated to Hong Kong and, upon my arrival, discovered that the same criticisms and concerns were frequently voiced with regard to the Hong`Kong civil justice system.

There is a strong-held belief that the defects in the Hong Kong system not only affect access to justice but also undermine the competitiveness of the region as a financial and commercial centre. Critics of the current system claim that the main problem is the excessively high costs associated with litigation in Hong Kong. As a direct result of these high costs there is evidence that parties to civil disputes frequently opt to avoid Hong Kong as a venue for the resolution of disputes. It is considerations such as this, which the critics believe have led to Hong Kong becoming a much less attractive place in which to do business.

In addition to the concerns regarding the high costs of litigation in Hong Kong, other areas of concern have been identified. With regard to delay in the civil justice process it has been acknowledged that, whilst the delays encountered are not at crisis levels, they are significant and that something must be done to rectify this situation. There is also grave concern regarding the complexity of the civil justice system in Hong Kong.
As a result of these concerns in February 2000, the Honourable Chief Justice Andrew Kwok-nang Li appointed a Working Party, which included judges, a barrister, a solicitor, a professor and a lay member, to:-

“… review the civil rules and procedures of the High Court and to recommend changes thereto with a view to ensuring and improving access to justice at reasonable cost and speed.”

This led to the publication on 29th November 2001 of the Interim Report and Consultation Paper. The aims of the Report are to:-

• Report on reforms in other jurisdictions relevant to Hong Kong; 
• To review available evidence as to the state of civil justice in Hong Kong; and,
• To formulate proposals for possible reform for the purpose of consulting court users and all interested members of public.

The main criticisms in relation to the current system in use in Hong Kong include the following:-

• Litigation is too expensive;
• Litigation is too slow;
• There is a lack of equality between litigants
• Litigation is too uncertain in terms of both time and cost;
• The system is too fragmented; and
• Litigation is too adversarial

There is a widespread belief that the characteristics of an effective civil justice system would include the following:-

• A fair and just system which:-
  – ensures equal opportunities for litigants,
  – provides litigants with an adequate opportunity to state its own case and answer its opponents, and
  – treats like cases alike.
• Procedures and costs should be proportionate;
• The process should progress with reasonable speed;
• The system should be easy to understand;
• The system should be responsive to the needs of those who use it;
• It must provide certainty; and
• The system should be effective, adequately resourced and organised.

In general, it is considered that Hong Kong’s civil justice system suffers from similar problems to those experienced in the UK. The Interim Report draws references from the Final Report of Lord Woolf claiming that this report:

“ .. identifies as the main cause of the ills mentioned … the unbridled and inappropriate application of adversarial principles in the civil justice system.”

Therefore, the Working Party has used the Woolf Reforms as a framework for considering theavailable options and possible civil justice reforms to the Hong Kong system.

The main focus of the Interim Report and Consultative Paper is that of the procedural rules and machinery which regulate the civil justice system in Hong Kong. In examining these procedures the Working Party has drawn from developments made abroad.

Within the Interim Report and Consultative Paper the Working Party makes a total of 80 proposals for possible reform. However it is important to note the these are merely proposals, they are not the recommendations of the Working Party. These proposals have been floated in order to seek the reactions of the legal profession and all interested parties, organisations andthe general public.

In general terms, the Working Party has reached the conclusion that broad based, coordinated and properly resourced reforms are what are called for.

Initially the consultation period was due to end in April 2002, however, this period was extended by two months following a request from the Hong Kong bar Association. In total 93 responses were received to the proposals. The Working Party is currently reviewing these responses and will then make its recommendations in the form of a Final Report, to be submitted to the Chief Justice in early 2003.

Therefore, once again we find ourselves waiting with bated breath for the Final Report of the Working Party. Will the resulting reforms be as sweeping as those introduced in the UK which effectively replaced the existing civil justice system, or will the Hong Kong legal profession merely have to contend with minor alterations to the current system?
Only time will tell.

Clare Williams was seconded to Trett’s Hong Kong office during 2001 and is now a Consultant to Trett in the UK.