1. Practice Direction 31
Practice Direction 31 ("PD 31") came into effect on 1 November 2014. It applies to all civil proceedings in the Court of First Instance and the District Court which have been begun by writ, except for the proceedings set out in Appendix A of the PD 31:
(1) Court of First Instance:
- (a) Proceedings in the Construction and Arbitration List
- (b) Proceedings in the Personal Injuries List
(2) District Court:
- (a) Proceedings in the Personal Injuries List
- (b) Proceedings in the Equal Opportunities List under the Sex Discrimination Ordinance (Cap. 480), Disability Discrimination Ordinance (Cap. 487) and Family Status Discrimination Ordinance (Cap. 527)
PD 31 states that the underlying objective of the Rules of the High Court and the District Court (as amended under the CJR) is to facilitate the settlement of disputes. The Court has a duty as part of active case management to further that objective by encouraging disputing parties to use ADR if the Court considers that it is appropriate and that the court should facilitate its use. The Court also has a duty to help the parties to settle their case. The parties and their legal representatives have the duty of assisting the Court to discharge the duty in question.
The other Practice Directions listed below echo the same theme.
The Practice Directions state that that the Court will not make any adverse costs order against a party on the grounds of unreasonable failure to engage in mediation where:
(1) The party has engaged in mediation to the minimum level of participation agreed to by the parties or as directed by the Court prior to the mediation.
(2) A party has a reasonable explanation for not engaging in mediation. The fact that active without prejudice settlement negotiations between the parties are progressing is likely to provide such a reasonable explanation. However, where such negotiations have broken down, the basis for such explanation will have gone and the parties should then consider the appropriateness of mediation. The fact that the parties are actively engaged in some other form of ADR to settle the dispute may also provide a reasonable explanation for not engaging in mediation in the meantime.
In other words, if a party has not engaged in mediation to the minimum level of participation, or has no reasonable explanation for not engaging in mediation, this party may face an adverse costs order.
For details, please go to the Judiciary’s website.