The rules of procedure exist to enable civil litigation to be conducted in a way that is fair and effective and allows parties to resolve their disputes in a satisfactory manner. The objective of Civil Justice Reform is to improve the way in which we conduct litigation to be more fair, more efficient and more cost effective. It will entail more work for judges, particularly in respect of active case management, and it will require lawyers to change their attitudes and how they approach litigation.

It's important to bear in mind that the justice system exists for the benefit of litigants, whether corporations or individuals, and not for the benefit of judges or lawyers. CJR is very much aimed at ultimately producing a better outcome for the users of the system and thus for the public as a whole. If the courts are able to deploy their resources - which are limited - more efficiently and more effectively, civil justice will be more affordable and accessible and better able to serve the needs of litigants.

The objectives of CJR are well encapsulated by the new Order 1A rule 1, which sets out the six underlying objectives. These are objectives which the courts and parties to litigation ought to have borne in mind anyway under the pre-CJR system but in many instances did not. It was regarded as important to spell out these objectives, as well as the sanctions for non-compliance.Two important objectives are to improve fairness and to increase efficiency in the use of resources. We are aiming to instill a sense of proportion in litigation and ensure as far as is possible that only applications that achieve something in terms of moving the case forward are made. I would expect to see a reduction in the time it takes for matters to go from the start of litigation to trial.

The courts have traditionally left the parties to decide how to conduct their litigation in terms of defining the issues and setting the pace. With the implementation of CJR, the courts can be expected to take a greater degree of control, both in terms of the issues that are being litigated and the time that is allowed for parties to put their case across and bring it to trial. Cases will be managed proactively, and the proliferation of unnecessary interlocutory applications, which take up time and constitute quite a heavy drain on the resources of both the courts and the parties, will be discouraged.

This may lead to greater front-end loading of costs, because it will be necessary for the lawyers and the parties to identify the real issues in a case at a relatively early stage. Under the pre-CJR rules, this ought to be the position but quite often the real issues don't emerge until late in the run up to the trial. The changes are designed to try to get parties to focus on what the real issues are and what their case is really all about at an early stage. That is going to mean that work which previously might not have been done until quite late in the proceedings will have to be done earlier.

Having said that, front-end loading should enable us to see savings - possibly significant savings - in litigation that goes all the way down the line. The substantive work has to be done at some point, and if it is left until the end, it may mean that a lot of the work done at the earlier stages may have been misdirected because of the lack of focus on the issues and thus be essentially wasted. We are hoping to cut out that sort of waste along with unnecessary interlocutory applications and satellite litigation.

It can also save money in another way. With the earlier focus on the real issues, parties will have a better appreciation of their own case, the other party's case and the relative strengths and weaknesses. That may provide greater scope to identify any common ground or overlap which can be exploited in terms of a settlement. If the result of spending the money a little earlier is that the case is able to settle at a much earlier stage than might otherwise be the case, one would think that a substantial amount of costs could be saved.

It is now spelt out for the first time in Order 1A rule 3 that the professions - and their clients - have a duty to assist the court in active case management and attaining the underlying objectives. We expect the professions will cooperate and do their part to promote the objectives. Counsel and solicitors appearing in court have always had a duty to assist the court; for example, by drawing attention to all relevant authority, by presenting cases fairly and by not trying to mislead the court in any way. What is new is that it is made explicit and made express, rather than something everyone always has, or at least always should have, understood.

The key thing is going to be the change in approach and way of thinking. We are moving away from a perhaps more tactically-oriented system of litigation, where you try to gain tactical advantage and position yourself best to achieve whatever result it is you hope to achieve with your litigation. It is a cultural change, and I think for everyone this is going to be the main challenge.

I was asked once whether there was going to be a sort of a 'soft opening' to the amended rules. The answer is no. That would be contrary to the whole point of the exercise. In the very early stages you may find that there will be a certain amount of understanding from the courts that some of the procedures are new and therefore unfamiliar. Obviously, if there is some doubt as to what is required in a certain situation then that will be allowed for. What won't be accepted is ignorance of the changes or lack of awareness of what is required. There will not in effect be a suspension of the requirements for a period of time for the benefit of people who are not yet up to speed.

There will be greater encouragement of the use of alternative means of dispute resolution, in particular mediation, to enable parties to resolve their disputes in a way that will be satisfactory from both sides' points of view. The commencement of the mediation practice direction has been postponed until 1 January 2010 to enable the legal professions and the mediation profession to be fully prepared for what is sure to be a vital feature of civil litigation. When the practice direction comes into effect, it too will be applied fully from the outset.

If there is a phrase or concept in the amended rules which is identical to that which has been used in another jurisdiction - whether England under Woolf or any other jurisdiction - then decisions from that jurisdiction in relation to that phrase or concept may be of persuasive value. But we need to bear in mind that Hong Kong has its own needs and operates in its own context. Local case law will develop, and in the early stages one can expect there to be appeals to the Court of Appeal so that authoritative guidance can be provided as to the approach to be taken and the interpretation to be given to particular concepts or phrases.

The judiciary has done a number of things in preparation for CJR. It has organised internally a range of training programmes for judges and judicial officers, and I think it is right to say that every single member of the judiciary will have been to one of these sessions. There has been a lot of discussion about the different aspects of the new rules, which we think will enable judges to feel comfortable that they are up to speed and ready to act. There has also been extensive training for other court staff, including staff in the registries who interact with the public, so that they are familiar with the changes and the new forms and documents which will need to be filed.

An extensive exercise has also been carried out to update and upgrade the judiciary's IT systems to cater for the changes. In the longer run, that will provide a useful database from which we will be able to keep an eye on how things are going, identify any potential problem areas that might arise, and monitor and reflect on how well the procedures are achieving their objectives.

Lawyers have a reputation for being conservative and somewhat resistant to change. However, we have been very pleasantly surprised by the almost universal acceptance of the premises underlying the CJR, and impressed by the willingness shown by both sides of the profession to move forward with the changes. The professions have been very ready to come forward with their views, and although we haven't always agreed on everything, the suggestions have been extremely helpful and have been put forward in a genuinely constructive way. It suggests that the professions accept the desirability of the changes that CJR seeks to bring and that they appear to be very much on board with the whole idea. We have been very impressed with that.



Brendan Clift

民事司法制度改革： 高等法院的觀點 
高等法院原訟法庭法官鮑晏明就民事訴訟程序規則的大幅修改，與《香港律師》分享了一些看法。

程序規則應當使得民事訴訟能夠以公平、有效的方式進行，並讓各方可以通過令人滿意的途徑解決爭議。民事司法制度改革的目標在於改善我們行使訴訟的方式，使之變得更加公平、高效和合乎成本效益。這需要法官開展更多工作，尤其是在積極管理案件方面，亦要求律師改變其態度及進行訴訟的方式。

必須牢記，司法制度存在的目的是給訴訟人（不論是法團還是個人），而非給法官或律師帶來好處。民事司法制度改革很大程度上是為了最終產生對制度的使用者，從而是對公眾整體更好的結果。如果法院能夠更有效率和成效地分配（有限）資源，人們便更能承擔民事司法的運作成本並享受其服務，民事司法制度也就能夠更好地滿足訴訟人的需要。

新的Order 1A rule 1有效地歸納了民事司法制度改革的目標。該規則定出了六個基本目標。即使是在民事司法制度改革之前，各級法院及與訟各方均應該明晰該等目標，但很多時候卻並非如此。改革的兩個主要目標是改善公平性及提高資源運用的效率。我們力求在訴訟中灌注一個適度理念，並儘量確保僅提出在某程度上能推動案件進展的申請。我期望案件從訴訟開始到審訊的時間會有所縮短。

向來，法院讓各方自行決定如何在確定爭議事項及設定進度方面開展訴訟。實施民事司法制度改革後，法院有望在訴訟事項和給予各方案件受理和交付審訊的時間方面實施更大程度的控制。法院將主動管理案件，並制止不必要的非正審申請氾濫的情況，以免浪費法院和各方的時間，造成雙方資源的巨大消耗。

這或會造成某種程度的訟費前置，因為律師和各方必須在較早階段便識別出案件的真正爭議事項。依據民事司法制度改革之前的規則，情況亦應是如此，但真正的爭議事項卻往往要在交付審訊前的較晚階段才顯現。這些變更旨在努力讓各方在早期階段便著重瞭解真正的爭議問題是什麼，以及案件的核心問題何在。這意味著，先前可能在程序較遲階段才做的工作，現在必須在較早時期進行。

儘管如此，訟費前置應當能讓我們在隨後的訴訟中節省訟費（可能是大筆訟費）。實質工作在某個階段總是要做的，如果是留到最後才做，那麼早先階段所做的許多工作便可能由於未能專注於關鍵事項而出現方向錯誤，以致實質上變成虛耗。我們希望消除這種虛耗，以及不必要的非正審申請與「纏訟」。

這樣做還可以通過另一種方式節省支出。由於及早專注於真正的爭議事項，各方便能更好地瞭解自己及對方的案由以及形勢的優劣。這可以讓他們在更大範圍內發現彼此共同或重疊的立場，以便在達成和解方面利用上述立場。如果稍微提早付出費用，令案件能夠在比原先更早的階段得到和解，這樣將能夠節省大筆訟費。

Order 1A rule 3首次明確規定，專業人士─以及其客戶─有責任協助法院積極管理案件，並實現基本目標。我們期望專業人士會積極合作，並透過自身努力來推動目標。在法院出庭的大律師和律師向來有責任協助法院，例如：提請法院注意所有相關典據；公平陳述案情；不試圖以任何方式誤導法院。不同之處是在於，它是清晰明確地作出，而並非一些眾人皆知或至少應是眾人皆知的事情。

關鍵之處將在於改變做法和思維方式。我們正在摒棄或許是較為著重運用戰術的訴訟制度。在這種制度中，人們力求取得戰術優勢，並佔據最佳地位，藉此實現自己希望通過訴訟來達到的各種結果。這是一種文化改變，而我認為，對於所有人來說，這將是主要的挑戰。

曾經有人問我，修訂後的規則是否會有某種「通融」。答案是否定的，因為這將有悖於改革的整個主旨。在非常早期階段，人們可能發現法院會在某種程度上體諒到某些程序較新，因此不為人們所熟悉。顯然，法院會允許人們對某種情形中的規定存在一些疑問，但不會容許無視變革或對規定的要求缺乏瞭解的做法。實際上，法院不會因有人尚未做好準備而暫緩執行規定一段時期。

法院會鼓勵更多採用爭議解決替代程序（尤其是調解），使得各方能夠通過雙方都認為滿意的途徑解決爭議。為使法律和調解專業人士充分準備好迎接必將成為訴訟之重要特點的新規則，調解實務指示的生效日期已推遲到2010年1月1日。實務指示生效後，亦會從一開始便適用於所有案件。

修訂規則中若有某個詞句或概念與其他司法管轄區（無論是實行「伍爾夫勳爵改革」的英格蘭還是其他司法管轄區）所使用的相同，那麼該司法管轄區就該詞句或概念所作的裁定或將具有很大的說服力。但我們必須謹記，香港有其自身的需要，並且在自身的環境中開展運作。本地判例法會發展成熟起來，而在早期階段，預計將有案件會上訴至上訴法庭，這樣，可以就特定概念或詞句所採取的立場或給予的闡釋提供權威性的指引。

司法機構已經完成了針對民事司法制度改革的若干準備工作。司法機構為法官和司法人員舉辦了一系列內部培訓課程。可以說，司法機構中的每位成員都有機會參加上述課程之一。人們對新規則的不同範疇開展了各項討論，我們認為，這將使得法官能夠有把握地相信自己掌握了最新情況，並可以胸有成竹地行事。其他法院人員亦接受了廣泛的培訓，包括與公眾接觸的登記處人員，使他們熟悉有關的改變，以及需要提交的新表格和文件。

我們還採取了廣泛行動，更新、提升司法機構的資訊科技系統，以適應有關變動。從長遠來看，它們將能提供有效的資料庫，令我們藉此追蹤事況發展、識別可能出現潛在問題的領域，監察並反映該等程序在實現目標方面做得如何。

律師素以保守和抗拒改變而著稱。然而，他們幾乎一致地接納民事法律制度改革的大前提，這令我們欣喜萬分。令我們印象深刻的是，兩個法律專業都表現出推動改革的意願。法律界非常樂意提出自己的看法，雖然我們並不能常常就任何問題達成一致，但這些建議非常有用，並且提出的建議亦確實具有建設性。這表明，法律界認同民事司法制度改革所謀求帶來的變革，而且他們看來非常接受整個改革思路，這令我們留下了非常深刻的印象。




祁秉麟