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4.2
The consultation response
The overriding objective and the cluster of Rules just described introduce some of the
views as to the extent to which this approach should be adopted in Hong Kong. A
number of respondents expressed unqualified support for such a change.
However,
many, while expressing broad support for an overriding objective and rules regulating
case management, did so with some reservations.
Concerns were voiced, for
instance, as to whether :-
(a)
the new methodology might divert the court from deciding cases in accordance
with their substantive merits;
(b)
such broad concepts as those in CPR 1 might lead to inconsistent interpretations
and therefore to inconsistent and uncertain results;
(c)
such broad concepts might be used inappropriately to override other, more
appropriate, concepts;
(d)
it would be a mistake to abandon tried and tested case-law;
(e)
judges were of a sufficient calibre and experience to exercise such broad
discretions fairly and consistently;
(f)
judges would receive sufficient training to help them to exercise the discretions
fairly and consistently, given that such training may require significant
resources;
(g)
excessive proactivity on the part of judges might cause them to lose, or be
thought to have lost, their impartiality;
(h)
excessive proactivity might force parties who might otherwise settle to go to
trial; and,
(i)
whether a docket system is essential if proactive case management is to work.
Notes
Including the APAA, the HKFEMC, the HKFLA, the HKRRLS and two individual respondents.
Including the Bar Association, the BSCPI, the Law Society, the HKMLA, the Consumer Council, the
BCC, the JCGWG, the Hon Mr Martin Lee SC, the Hon Ms Margaret Ng, the Hon Ms Miriam Lau,
the Hon Ms Audrey Eu SC, the Hon Mr Albert Ho and the Hon Mr Ambrose Lau, one set of
barristers' chambers, three firms of solicitors and four individual respondents. Another solicitors'
firm was against having an overriding objective.
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