Coronavirus: HK’s lawyers watch, wait as judiciary set to reveal plan to deal with mounting case backlog

22-Feb-2020 Intellasia | South China Morning Post | 6:02 AM Print This Post

The leader of Hong Kong’s barristers’ group on Thursday joined those calling for a tentative date for the city’s courts to reopen, a day before the judiciary was expected to roll out a plan aimed at reducing a case backlog that has mounted since the coronavirus forced their closure.

On January 29, the judiciary adjourned most hearings until at least the end of February. Only the most urgent applications, including new arrests, time-sensitive injunctions and bail requests, have been heard since.

While the judiciary has provided no estimate of the scope of the current backlog, its own most recently available figures show the Court of First Instance alone receiving an average 1,700 cases a month as of September 19 a number that does not include procedural or estate hearings.

Both the Hong Kong Bar Association and Hong Kong Law Society, which represent about 1,400 barristers and 10,000 solicitors respectively and met judiciary representatives on Tuesday, have previously raised concerns about the growing backlog. The Law Society in particular has pushed for clear criteria for resuming court operations.

But according to legal sources, Friday’s expected announcement which some say could be pushed to Saturday will contain no express “end date” to the suspension of court business. Instead, it will offer a set of administrative arrangements designed to relieve some of the caseloads.

Contacted by the Post, the judiciary did not reveal the details of its contingency plan, saying only that it had “endeavoured to strike a balance between public health considerations and the public interest involved in due administration of justice,” and that discussions with the two legal bodies had been “fruitful and constructive”.

Bar Association chair Philip Dykes SC told the Post that while his organisation would welcome news that court hearings would resume on March 16 alongside the planned reopening of schools, it understood the judiciary’s decision would ultimately come down to public health concerns.

“If there’s a possibility for schools to operate in mid-March, it may be possible for the courts likewise,” Dykes said, adding that introducing even “limited services” would be an indication things were improving.

An “end point” for the closure, he said, would give a sense of certainty to the entire profession as well as litigants.

The decision to close Hong Kong courts has drawn comparisons with the judiciary in Singapore, where cases have continued to be heard amid the virus outbreak, and even the city’s own past precedent. Hong Kong’s courts remained open during the 2003 Sars epidemic.

The Bar Association and Law Society have additionally both called for more cases to be settled on paper without the need for a hearing.

One issue making that difficult is Hong Kong’s ongoing dependence on the physical filing of legal documents. In December, the judiciary tabled a bill to allow electronic filing and sealing, a move that would mimic current practice in Singapore and the United States, but lawmakers have not yet had a chance to approve the change.

Commercial litigation lawyer May Ng, a partner in a global law firm, said while she understood the rationale for closing the city’s courtrooms, there had been an inevitable impact on the profession.

In one multimillion dollar dispute her firm is handling, a rival party failed to respond before deadline, she said. In normal circumstances, that would give her client the clear upper hand and allow the firm to apply for a judgment in her side’s favour.

“Because the court registry is closed and there’s no electronic filing … I can’t apply for a default judgment,” Ng said.

“If you have an e-filing system, all this would be business as usual. It’s a good time for the judiciary to go into e-filing, because a lot of jurisdictions like Singapore, Britain, and the US have it.”

But Dykes said a law allowing electronic filing would have little impact on criminal courts, where there are limitations on what can be settled without a hearing.

“Criminal trials require public access,” he said. “You maybe able to take procedural short-cuts for civil cases, you can’t necessarily do that in criminal cases.”

Dykes said he was unclear about the exact number of caseloads now in limbo, but anticipated that solicitors and criminal barristers were among the most affected by the closure. Priority upon resuming is likely to be given to “churn the backlog”, he added. “It may require the courts deploying a lot of judicial resources in a very limited time.”


Category: Hong Kong

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