The Legal Procedure

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Raveena Mital's picture

The Legal Procedure

First of all, a Very Happy New Year to all. The last few months were very vigorous with first semester exams, projects and registration for the new term. However, as I started my new term in JD from January, I began to reflect on the sudden change of learning modes in my study of law and thought it would be something worth sharing with you.

Up till now, as my previous posts suggest, the learning style of the JD program was very abstract and theory-based. We were learning the essence of what the purpose behind laws are, the different kinds of legal systems in existence today, the special features of the common law doctrine and the separation of powers. Although they were each very straightforward to understand, the idea of fitting them together in one picture while making connections between the topics seemed difficult. This is because each theory had its own abstract discourse and thus it got confusing to make practical connections.

I had begun to think that perhaps this was the nature of the JD program; we were to digest all the underlying thought behind laws and find ways to put them together in a system. However, I was taken by surprise as soon as the second term started.

Unlike the first semester, my courses this time do not put heavy reliance on legal theories or writings. They have already been dealt with. On the contrary, these courses are very case intensive because they aim to teach the law and specific legal rules through a very pragmatic sense.

For example, in one of my courses, I am currently being taught the civil procedure carried out in Hong Kong courts under the Rules of the High Court Ordinance. This includes the steps litigants must start to initiate proceedings, whether in the common form of writs or originating summons. Writs are mostly used when the parties have a substantive dispute of fact while originating summons are used when the case is pretty much clearly in favor of the plaintiff; that is why cases by writs take a longer time to solve than by those started with their counterparts.

Although I will not go into the mechanics of Hong Kong’s civil procedure in this short blog, I do want to point out an important lesson I have learned from these practical studies so far. That is, often in law, it is the very minute details that have a large impact on how the case is carried in courts and what the end result turns out to be. Let us take the concept of “serving” the writs or summons as an example. In order to initiate a trial, a party must not apply to the court but must also “serve” (or inform) the opposing party of the same by giving him/her the writ or summon. This simple step of handing a document over can be very tricky though. Although Hong Kong law requires that the best practice to serve such legal notice is by personal delivery, often times the defending party may not be tracked so easily. Then at this case, the plaintiff (if the defendant is in the same jurisdiction), post the documents to his/her last known address. When the defendant gets the writ then he/she can notify whether he/she wants to start the defense as well. If there is no notice (and the mail has not been sent back to the plaintiff as “undelivered”), then it is deemed to be properly “served” on the defendant and his lack of care in notifying the court often results in an automatic judgment being made in favor of the plaintiff.

However, what if the plaintiff claims that the documents were actually not served to him properly; in the sense that he/she had actually moved to another residence (unknown the plaintiff), or had not been in Hong Kong during the time the legal notice was posted? How will the court react then? Although in theory the courts must then set aside the default judgment, allowing the defendant to defend, it can be questionable on how credible the defendant’s excuse is. The courts must then look at several pieces of other evidence, supporting the defendant’s claim that the writ or summon was not served properly on him/her.

In my view, this can put quite a burden on the courts’ resources as they unnecessarily have to spend time examining an administrative matter rather than focusing on the substance of the case. However, I also agree that justice cannot be compromised in the name of efficiency; hence it must be ascertained whether the defendant is actually telling the truth or not before doing away with the default judgment. If the courts readily believed any excuse then all defendants would not pay attention to any legal notice before it is too late and then pretend they never got it to begin the case afresh.

But better methods should still be sought that aim to lesson this tradeoff between justice and efficiency. For example, instead of having middlemen (such as the party’s personal solicitors or trainee legal officer) get involved in the process of serving the writ or summon, it would be better to have the courts directly request the defendant to present him/herself in court in which he/she could be informed of the proceeding. Although this suggestion may still involve its own loopholes, it might present itself as an alternative that leads to fewer future disputes on how well the documents were served. Nonetheless the research on better procedural techniques is something I aim to pursue in greater detail as this is an issue worth writing a dissertation on later in the JD program.

What are your views about such civil procedure rules? Are there any better alternatives you may have with regards to justice and efficiency? Feel free to share my views. Meanwhile, I will get back to studying the term two courses and keep you updated with more developments.

Cheers,

Raveena