8. I understand that the usual parties to civil litigation are the plaintiff and the defendant. Who may commence or defend civil proceedings, and can they appear without a solicitor?

8. I understand that the usual parties to civil litigation are the plaintiff and the defendant. Who may commence or defend civil proceedings, and can they appear without a solicitor?

In a civil case, there are usually two main parties: 

• the plaintiff — the person or organisation that starts the action; and 
• the defendant — the person or organisation the action is brought against. 

Whether a person or organisation may commence an action, and whether that person or organisation must be represented by a solicitor, are strictly governed by the person’s or organisation’s legal status and capacity, and by the specific court in which the action is brought. 

1. Individuals may sue in person 

A natural person, that is, an individual human being, of full age (i.e. 18 years old or above) and capacity, may begin and conduct proceedings in his own name, either through a solicitor or in person. 

This applies even where the individual is suing in a representative capacity, for example as a trustee, executor or administrator. 

2. Companies and other bodies corporate generally need a solicitor 

A body corporate, such as a limited company, is treated differently from an individual. As a general rule, in the High Court, a company cannot begin or carry on proceedings in person. It must act through a solicitor. 

The reason is that a company has separate legal personality and limited liability. If a company were allowed to litigate without legal representation, shareholders and directors might be able to pursue litigation without bearing the same personal financial risks as an individual litigant. This may be unfair to the opposing party. 

There is, however, a limited exception. A company may apply to the Registrar for leave to be represented by one of its directors. The application is normally made ex parte and must be supported by an affidavit/affirmation explaining why leave should be granted, together with a certified board resolution authorising the director to appear on the company’s behalf. Lack of funds may be relevant, but it is not necessarily sufficient on its own. The court may also consider whether the shareholders are able to fund the litigation personally. 

A corporate defendant may take some very limited preliminary steps without a solicitor, such as acknowledging service or indicating an intention to defend through an authorised person. However, it generally cannot take further steps in the proceedings unless it is represented by a solicitor or has obtained leave for a director to act on its behalf. 

The position is different in the District Court. A director may represent a company as of right and the court’s permission is not required, provided that the director files with the court an affidavit/affirmation and a certified board resolution authorizing him to act on the company’s behalf. 

3. Minors and mentally incapacitated persons 

A person under disability cannot conduct proceedings personally. 

This includes: 

1. a minor, meaning a person under 18 years old; and 
2. a mentally incapacitated person who is incapable of managing his or her property and affairs. 

Such a person must sue by a next friend and defend by a guardian ad litem. Unless the Official Solicitor is acting in these roles, the next friend or guardian ad litem must act through a solicitor and cannot act in person. 

The title of the action must reflect both the party and his representative. For example: “Chan Siu Man, a minor by Wong Wing, his mother and next friend”. 

The court gives special protection to persons under disability. For example, a settlement of a money claim involving a minor or mentally incapacitated person requires court approval. In addition, allegations in pleadings are not treated as admitted merely because the person under disability has not expressly denied them. 

For more information, please refer to “How can a minor or a mentally incapacitated person settle?”. 

4. Partnerships 

A partnership may sue or be sued in the name of the firm if the firm was carrying on business within the jurisdiction when the cause of action arose. It is advisable to add the words “(a firm)” or “(sued as a firm)” after the firm name in the title of the action to avoid confusion with individual names. 

Using the firm name is a procedural convenience. In substance, it represents the individual partners who were members of the firm at the relevant time. 

A critical exception exists: if the plaintiff knows the partnership has been dissolved before the action begins, the writ must be served on every person within the jurisdiction whom the plaintiff seeks to make liable. 

5. Sole proprietors 

A sole proprietor is not separate from the individual who owns the business. 

A sole proprietor may be sued in the business or trade name. For example, the defendant could be named as “Golden Harbour Café”. If the proprietor’s personal name is known, the defendant could instead be described as “Chan Tai Man trading as Golden Harbour Café”. This prevents a person from avoiding liability by trading under a business name.  

However, a sole proprietor cannot sue in the trade name. If the sole proprietor wishes to bring a claim, the action should be commenced in the individual’s own name. 

6. Unincorporated associations 

An unincorporated association, such as some clubs, societies or groups, does not have separate legal personality. It cannot normally sue or be sued in its own name. 

Proceedings involving an unincorporated association usually have to be brought by or against representative members under the rules on representative actions. 

7. Trustees, executors and administrators 

Trustees, executors and administrators may sue or be sued on behalf of a trust or estate without joining all beneficiaries as parties. Any resulting judgment is binding on the beneficiaries unless the court determines the beneficiaries were not properly represented. However, the court retains the power to order that any of the beneficiaries be made a party to the proceedings in addition to or instead of the existing representatives. 

If a person dies before proceedings are brought, a claim that could have been brought against that person may instead be brought against the estate, subject to the applicable procedural rules. 

8. Attorneys acting under a power of attorney 

Where a person acts under a power of attorney and the attorney commences a legal action on behalf of the donor, the proceedings should generally be commenced in the name of the donor of the power, not in the attorney’s own name. 

The attorney acts as the authorised representative of the donor, but the legal right being enforced remains that of the donor.