Free Case Study On Civil Procedure In Hong Kong

Before a claim is filed in court, there are considerations a party has to bear in mind. These are regarded as pre-action considerations. They assist in determining factors such as the type and validity of the claim, the right parties, and the costs vis-à-vis the award. Essentially, they assist a party in determining whether litigation is the best option and if so, how it will be conducted.
Candy Tang wants to sue Sid Ho for injuries sustained because of an accident that occurred due to Sid’s negligence. The injuries have prevented her from carrying on her work as a professional model thus she seeks compensation.
The first consideration is to ascertain what cause of action she has. This being an accident case, it is a personal injury claim. The next consideration is the statutory limitation period for the claim. Under section 27 of the Limitation Ordinance, the limitation period for a personal injury claim is three years.
Accordingly, for Candy’s claim to be valid, three years should not have lapsed. However, if the injuries were latent, then three years should not have lapsed since the discovery. If the claim is outside the limitation period, court cannot hear it.
The burden of proving a claim is on the claimant and is discharged by adducing oral or documentary evidence. For documentary evidence, primary documents are required, that is, the original. Even though the defendant is entitled to such documents under discovery, they are only entitled to copies. The claimant retains the originals for production in court.
Therefore, Candy should retain the original documents in support of her claim. She can however avail copies to Sid. The copies can be certified as original or provided as mere copies.
A conflict of interest arises where the interest of the lawyer or the firm are in variance with claimant’s. For instance, if a claimant wants to sue a person that has retained the services of the lawyer a conflict of interest would arise.
It would thus be imperative to consider whether representing Candy would occasion a conflict of interest. All avenues where such conflict would arise should be considered for instance, whether Sid is a client. If there is a conflict, then Candy is entitled to be informed.
Another consideration is the remuneration of the lawyer. This addresses the manner and extent of payment of legal fees. Normally, the lawyer and the claimant agree on the issue. In other cases, charge-out rates are applied. Importantly, the law disallows contingency payments thus the lawyer should be paid whether or not the case is won.
Candy should thus be aware that she will be required to pay the lawyer. This is separate from the litigation costs, which will be utilized for litigation. Additionally, she will be required to pay the lawyer even if she loses the case.
Legal aid is offered in some cases to assist in payment of legal fees. There is usually a criteria used to determine eligibility to the aid. Some considerations are the financial status of the claimant and whether litigation necessary. It is the duty of the claimant to seek legal aid, though the lawyer may assist.
Accordingly, it would be necessary to ascertain whether Candy is eligible for legal aid. A key consideration is whether she is able to pay the legal fees. If she is not, she may try to find legal aid.
Another consideration is the evidence required for trial; if there is enough evidence to support the claim, whether in possession of the claimant or requires gathering. If more evidence is required, the avenues for gathering it are explored.
It would be essential to evaluate the evidence Candy has in support of her claim. This would include the medical report and the opinion of the doctor as to the nature of the injuries. A police report with details of the accident on whether Sid was charged in relation to the accident. It would also be important to conduct as search of the taxi to ascertain whether Sid owns it or he was an authorized driver.
It is possible to estimate the judgment by a court on personal injury claims, as there are laws that provide a structured compensation guide for injuries sustained. Additionally, past similar cases would also assist in the estimation. It is thus possible to estimate the likely award to Candy. Consideration would be the amount she was earning before the accident and the extent it has affected her earning capacity.
In order to prove that Sid is liable, it must be shown that the accident occurred wholly because of his negligence. Accordingly, a police accident report blaming Sid for the accident would suffice. Additionally, Candy’s statement detailing how the accident occurred will be recorded. It may also be necessary to look for eyewitnesses to corroborate Candy’s testimony. Criminal proceedings or convictions against Sid would be an added advantage.
Other witnesses that may be required are medical and psychiatric doctors. Such are expert witness whose testimony is opinion evidence, thus only persuasive. Accordingly, it may be necessary to seek a second opinion. This will prevent concessions during cross-examination and increase the probative value of the testimony.
The final step is to write a letter before action. This will inform Sid of the contemplated litigation and encourage him to settle the matter. It would also warn him of the consequences of failure to settle. The importance of this letter is twofold: it may lead to a settlement; and it will ensure that litigation costs are awardable to Candy.
A person can achieve a settlement through alternative dispute resolution mechanisms such as mediation, arbitration, and consensus. These mechanisms provide a cheaper and a relatively faster way of settling disputes. They however are based on willingness of both parties. The letter initiates the process of consensus building to settle the matter. Even if Sid is unwilling to negotiate, there is no harm in Candy considering ADR mechanisms.