 |  |
|
 |
 |
 |
 |
|  | |  | |
7.2
Commentary
The present rule, namely, O 12 r 8, sets out a procedural code for challenging the
court's jurisdiction to entertain the plaintiff's claim. Where the defendant contends
that the court lacks jurisdiction, the rule allows him safely to acknowledge service and,
within the time specified, to bring on the challenge without being deemed to have
submitted to the jurisdiction even if his challenge ultimately does not succeed.
CPR 11 extends this code to cover applications for a stay of proceedings brought by
defendants seeking to persuade the court, as a matter of discretion, to decline to
exercise jurisdiction (which it undoubtedly possesses) over the plaintiff's claim. Such
applications are generally mounted on the ground of forum non conveniens. CPR 11
requires such applications to be made within the time specified, in default of which the
defendant is deemed to have accepted that the court has (and ought to exercise)
jurisdiction to try the claim.
We are of the view that it is desirable to apply these express arrangements to
discretionary stay applications as they add to procedural certainty and consider that O
12 r 8 should be amended to achieve this.
Order 12 r 8 presently requires the defendant, after acknowledging service, to bring
the application "within the time limited for service of a defence". It therefore allows
him to wait until he sees the statement of claim before deciding whether to challenge
jurisdiction or apply for a discretionary stay. We consider this sensible since sight of
the statement of claim may be important to the defendant's assessment of whether the
claim is properly within the court's jurisdiction or is one which ought to be stayed. A
defendant who is confident that a challenge lies may of course mount his application
without waiting for the statement of claim, but we do not consider that the rule should
make early applications a requirement. If a challenge is mounted and the plaintiff
seeks to maintain the proceedings in Hong Kong, costs will in any event have to be
incurred to establish the basis for the court's jurisdiction or its exercise, and no
significant savings would flow from avoiding service of the statement of claim.
Indeed, it would often be by reference to the statement of claim that the plaintiff
would seek to justify continuing with the claim in Hong Kong.
|
 |
|