PRACTICE DIRECTION – SL3

 DIRECTIONS MADE BY THE JUDGE IN CHARGE OF
THE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
PURSUANT TO ORDER 72, RULE 2(3)
OF THE RULES OF THE HIGH COURT

 

1.    This Practice Direction is made following consultation with, and with the approval of, the Chief Justice.

A     Applications for Judicial Review       

(1)     Order 53

2.    The provisions of Part A apply to applications under Order 53 of the Rules of the High Court.

(2)     Headings

3.    All applications for judicial review, whatever the nature of the relief claimed, shall contain a heading which identifies the applicants and respondents as follows:

(1)

[Name of applicants]

 
(2) Applicants
 

and

 
(1)

[Name of respondents]

 
(2) Respondents

It is neither necessary nor appropriate for applications for judicial review, in which one of the prerogative orders is sought, to be entitled as follows:

The Hong Kong Special Administrative Region and  
[The Respondent] Respondent
ex parte [The Applicant] Applicant

Nor is it necessary for the heading to include a reference to the nature of the decision challenged.

4.    The proper respondent to an application for judicial review, when the Court’s supervisory jurisdiction over criminal proceedings in an inferior Court is invoked, is the other party to the proceedings in the inferior Court, and not the inferior Court itself.

(3)     Applications for Leave to Apply for Judicial Review

5.    Where the documents in support of an application for leave exceed 10 pages, a list must be provided on the filing of the application identifying the pages of the exhibits relevant to the application.  Where only part of the page needs to be read, that part should be indicated in any convenient way other than highlighting.

6.    Applications for leave will be determined without a hearing, unless the applicant requests a hearing in the notice of application, or the Judge before whom the application is placed directs otherwise.

7.    If the applicant requests an oral hearing only in the event of the Judge being minded to refuse leave, the Judge will initially consider the application without a hearing.  If he decides to grant leave, the applicant will be informed.  If he is minded to refuse leave, a date for the oral hearing will be fixed.

8.    In order to ensure that any observations made by the Judge on the grant or refusal of leave are brought to the attention of the parties, the decision of the Judge on the application for leave will be notified to the parties’ solicitors on Form CALL-1.  Form CALL-1 is annexed to this Practice Direction as Appendix A.

(4)     Delay

9.    Although the maximum time allowed for the making of an application for leave to apply for judicial review is 3 months from the date when grounds for the application first arose, that does not relieve the applicant from his obligation under Order 53, rule 4(1) to apply promptly for leave to apply for judicial review.  Where an application for leave to apply for judicial review is not made promptly or within 3 months from the date when grounds for the application first arose, the notice of application should set out the reasons for the delay.  If the consent of the proposed respondent to an extension of time has been obtained, such consent should be filed with the notice of application.  If the proposed respondent has not consented to such an extension, he may, on notice to the applicant’s solicitors, apply promptly to set aside any leave given.  Such an application to set aside will usually not be necessary since the respondent will be entitled on the substantive hearing to rely on delay in making the application as a ground for opposing the grant of relief.

(5)    Interim Relief

10.    Save in exceptional circumstances, applications for interim relief may only be granted if leave to apply for judicial review has been obtained.  If the notice of application for leave to apply for judicial review also includes an application for interim relief, the Judge will first consider whether the application for leave to apply for judicial review should be determined without a hearing.  If the Judge decides that the application for leave to apply for judicial review should be determined without a hearing, and if the Judge grants leave to apply for judicial review, a hearing to determine the application for interim relief will be fixed.

(6)     Hearing of Interlocutory Applications

11.    If leave to apply for judicial review is sought at an oral hearing, the hearing will take place in open Court, unless the Judge hearing the application orders otherwise.  Applications for interim relief and applications to set aside the grant of leave will also take place in open Court, unless the Judge hearing the application orders otherwise.  All other interlocutory applications will be heard in chambers, unless the Judge hearing the application orders otherwise.

(7)    Affidavits and Affirmations

12.    References in these directions to affidavits include references to affirmations.  The relevant paragraphs in Practice Direction 10.1 relating to affidavits are applicable to affidavits in judicial review proceedings.

13.    Affidavits in support.  The affidavits in support of the application for leave to apply for judicial review should verify all relevant facts upon which the applicant intends to rely.  The affidavits should also verify such reasons as are set out in the notice of application for any delay in applying for leave.  Since the application is an interlocutory one, the affidavits may contain hearsay evidence provided that the sources of the deponents’ information or belief are stated.  Since the application is made ex parte, it is incumbent on the applicant to make full disclosure of all material facts of which he is aware even though they may be disadvantageous to him.

14.    Affidavits in reply.  Although the maximum period allowed to the respondent for filing affidavits in reply is 56 days, that does not relieve the respondent from his obligation under Order 53, rule 6(4) to file affidavits in reply as soon as practicable.  The maximum period of 56 days was fixed because the previous period of 21 days was generally regarded as unrealistically short.  The period of 56 days must be strictly adhered to.  Although the period may be extended, it should be clearly understood that extensions of time will only be granted in exceptional circumstances.  When an expedited hearing of the application for judicial review is ordered, the applicant should invite the Judge to abridge the 56-day period if the circumstances of the case so require.

15.    Further affidavits.  Order 53 does not envisage excessive use of affidavits.  However, the Judge has power, at the substantive hearing, to allow the use of further affidavits by the applicant.  If the applicant intends to seek the Judge’s permission to use further affidavits, he must give notice of his intention to do so to every other party as required by Order 53, rule 6(3).

16.    Exhibits.  Care should be taken to avoid the duplication of exhibits.  If a deponent wishes to identify or comment on a document which has already been exhibited, he can do so without exhibiting the document himself.

(8)    Review of Merits

17.    Counsel and solicitors instructed by the applicant should give further careful consideration to the merits of the application once they have received the respondent’s evidence, even though leave to apply for judicial review has been obtained.  Form CALL-1 reminds the applicant’s legal advisers of this obligation.

(9)     Bundle for Use at the Hearing

18.    Preparation and filing.  The applicant’s solicitors should prepare a hearing bundle for use by the Judge.  The bundle should be lodged in Court and served on the respondent’s solicitors at least 7 clear working days before the date of the hearing, unless the Judge has ordered otherwise.

19.    Form of bundle.  The documents in the bundle should be:

          (1)     firmly secured together;

          (2)     arranged in chronological order;

          (3)     paged consecutively at bottom right; and

          (4)     fully and easily legible.

Where lever-arch files are used, no file should exceed 250 pages.

20.    Contents of bundle.  The bundle should contain copies of:

          (1)     the notice of application in Form No. 86;

          (2)     the affidavits in support and the exhibits to them;

          (3)     the completed Form CALL-1;

          (4)     the originating summons in Form No. 86A;

          (5)     the decision challenged if not separately exhibited;

          (6)     any further affidavits (including those filed on behalf of the respondent, if any) and the exhibits to them; and

          (7)     any orders made in the course of the proceedings.

The bundle should be properly indexed, and dividers should be used.  The preparation of bundles should not simply be the mechanical reproduction of materials.  Thought should be given to the format which would be of greatest use to the Judge.  In most cases, it will be more convenient for the exhibits to be in a separate section of the bundle.  In that event, the exhibits should follow each other chronologically (without the front or back sheets), i.e. in the order in which they came into existence, rather than the order in which they were produced as exhibits, and should be accompanied by an index identifying the exhibit by page and exhibit number.  In any event, to enable the Judge to find quickly a document referred to in an affidavit, the number of the page at which the document can be found should be marked at the side next to the appropriate part of the affidavit.

 

 

Extract from the judgment of Mr Justice Stock
in Bahadur v. Secretary for
Security
(HCAL No.18 of 1999)

The Bundle of Documents and Practice Directions

I take this opportunity of reminding practitioners of the text of Direction 1.9.3 [i.e. paragraph 20 of this Practice Direction] of the Constitutional and Administrative Law List Practice Directions

          “The bundle should be properly indexed, and dividers should be used.  The preparation of bundle should not simply be the mechanical reproduction of materials.  Thought should be given to the format which would be of greatest use to the judge.  In most cases it will be more convenient for the exhibits to be in a separate section of the bundle.  In that event the exhibits should follow each other chronologically (without the front or back sheets), i.e. in the order in which they came into existence, rather than the order in which they were produced as exhibits, and should be accompanied by an index identifying the exhibit by page and exhibit number.  In any event, to enable the judge to find quickly a document referred to in an affidavit, the number of the page which the document can be found should be marked at the side next to the appropriate part of the affidavit.”

The bundle prepared in this case by those acting for the applicant had no regard to that Direction.  Indeed, had they set out to disobey it in every detail, they could not have fared better.  There was simply placed into one bundle a series of affirmations with exhibits attached; the index failed to identify even a single key document; the exhibits followed no chronological order of any kind; and in between affidavits and their exhibits were thrown a letter here, and a summons there, and a couple of notices of application.

I would like to think that practitioners who present bundles in that sort of condition would change their ways if they knew how difficult it is for a Court to prepare for a case, then to follow a case, and then to work on the judgment, when faced with such an unhelpful bundle of documents.

Practitioners should please take note that henceforth, in cases within this List, the presentation of a bundle in this condition is likely to result in an adjournment with a requirement that the costs thrown away be borne by the solicitors personally.

(10)  Skeleton Arguments

21.    (1)     Every applicant and interested party who proposes to make submissions in support of an application for judicial review must ensure that a skeleton argument, drafted by counsel who is instructed to argue the case, is received 7 clear days before the commencement of the substantive hearing by the Judge’s clerk, the respondent, such interested parties as may be directed by the Court and any interested party who has indicated a wish to be heard.

          (2)     Every respondent and interested party who proposes to make submissions in opposition to an application for judicial review must ensure that a skeleton argument drafted by counsel who is instructed to argue the case, is received 3 clear days before the commencement of the substantive hearing by the Judge’s clerk, the applicant and any interested party who has served a skeleton argument in accordance with sub-paragraph (1).

22.    Skeleton arguments should, if appropriate,

          (1)     contain a chronology with cross-references to the bundle of documents;

          (2)     list the dramatis personae if the number of people who feature in the documents warrants it;

          (3)     identify the issues which the application raises;

          (4)     state the propositions of law to be advanced;

          (5)     identify all the authorities to be relied on, together with page numbers and paragraph references;

          (6)     identify the essential documents for advance reading by the Judge, together with the page numbers and paragraph references; and

          (7)     contain such other information as counsel considers would enable the Judge to have a better understanding of the merits of the application.

(11)  Uncontested Proceedings

23.    (1)     Where parties are agreed as to the terms on which applications for judicial review can be disposed of, and require an order of the Court to put those terms into effect, they should file a draft consent order, together with a short statement signed by the parties’ solicitors setting out the matters relied upon as justifying the making of the order, and citing the relevant authorities and statutory provisions.  The order and the statement will then be submitted to a Judge.  If he is satisfied that such an order can be made, the proceedings will be listed for hearing and the order will be announced in open Court without the parties or their representatives having to attend.  If the Judge is not satisfied that such an order can be made, the proceedings will be listed for hearing in the normal way.

          (2)     Where the parties seek an interlocutory order and are agreed as to the terms of that proposed order they should file a consent summons, signed by the parties setting out the terms of the proposed agreed order, and, where appropriate, citing the relevant authorities and statutory provisions relied on.  The consent summons will then be submitted to a Judge.  If he is satisfied that the order should be made, the order will be made on the papers without any hearing, unless the Judge directs otherwise.

B       Applications for Habeas Corpus, Election Petitions and Appeals from the Obscene Articles Tribunal

24.    There is an insufficient number of applications for habeas corpus, election petitions and appeals from decisions of the Obscene Articles Tribunal to justify formal directions in respect of them.  The provisions of Order 54 of the Rules of the High Court govern applications for habeas corpus.  Part 6 of the Chief Executive Election Ordinance (Cap. 569), Part VII of the Legislative Council Ordinance (Cap. 542), Part V Division 4 of the District Councils Ordinance (Cap. 547) and Part 5 of the Village Representative Election Ordinance (Cap. 576) govern election petitions in respect of the election of the Chief Executive, members of the Legislative Council, members of the District Councils and village representatives respectively.  Rules for the practice and procedure relating to election petitions have been made under the principal Ordinances respectively.

25.    Nevertheless, paragraphs 17 to 23 above apply to applications for habeas corpus and election petitions, and paragraphs 18 to 23 above apply to appeals from decisions of the Obscene Articles Tribunal, subject to any specific rule or procedure in the relevant legislation or subsidiary legislation and with such modifications as are necessary to reflect the fact that they are not applications for judicial review.

C       Transferred Cases

26.    Cases which are transferred to the List on the certificate of a Judge of the Court of First Instance or a Judge of the District Court will be listed for a hearing for directions in chambers as soon as reasonably practicable after the transfer.  At the hearing, the Judge may give such directions for the further conduct of the case as appear to him to be appropriate.

D       Commencement Date

27.    This Practice Direction supersedes the previous Practice Direction SL3 on Directions Made by the Judge in Charge of the Constitutional and Administrative Law List Pursuant to Order 72 rule 2(3) of the Rules of the High Court dated 12 February 2009.

28.    This Practice Direction shall come into effect on 2 April 2009.

Dated this 30th of March 2009.

 

(Andrew Cheung)
Judge in Charge of
the Constitutional
and Administrative Law List
 

Appendix A   (Form CALL-1)

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