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10.1
The consultation response
The response was divided. The Law Society was in the forefront of those favouring a
lower threshold for disposing of cases summarily. Their response went so far as to
criticise the Saudi Eagle test
applied in Hong Kong as making it too easy to set aside
regularly obtained default judgments.
Since, as Sir Roger Ormrod explained,
that
test requires the defendant to "show that he has a defence which has a real prospect of
success" and is restated in CPR 13.3(1)(a),
it would appear that the Law Society was
suggesting that a test even less stringent than the "real prospect of success" test should
be adopted. One set of barristers' chambers also voiced support for the lower
threshold, arguing additionally that there should be no residual category of cases
which, though lacking real prospects of success, ought "for some other good reason"
to be allowed to proceed. A number of others
were attracted by the suggestion that
there should be a single, unifying test, although subject to certain reservations.
Those opposing such changes,
including the Bar Association, did so on differing
grounds. Some thought that the changes would make no difference in practice and
opposed them as an unhelpful complication. Others thought that such changes would
make a practical difference by lowering the threshold for summary disposal, but that
this was undesirable.
Notes
From Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc, The "Saudi Eagle" [1986] 2
Lloyd's Rep 221.
They also criticised as too stringent the current tests for summary judgment and for striking out
pleadings.
At 223.
As pointed out in White Book 13.3.1.
Including the Law Society, the BSCPI, a set of barristers' chambers, a firm of solicitors,
the
HKMLA and some judges.
Including the Bar Association (which took a different view from the BSCPI), a number of judges and
masters, the HKFLA, the BCC and a firm of solicitors.
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