Review of Civil Juridiction Limit of District Court

30 April 2003

The Judiciary Administrator,

Judiciary,

High Court,

Hong Kong.

Attention : Ms Emma Lau

Dear Madam,

Re : Review of Civil Jurisdiction Limit of District
Court

Thank you for your letters of 17 March 2003 and 17 April
2003.

On the part of the Bar, we have some doubt on whether
the table set out in § 5.3 of the Review of the Civil Jurisdiction
Limits of the District Court accurately reflects the discrepancy in the
legal costs in litigating in the High Court and in the District Court
for the same case. It has to be remembered that in cases where the High
Court awarded a judgment in the sum falling within $120,000 and $600,000,
it is possible that the amount claimed initially is much higher than $600,000
and that for one reason or another, the High Court holds that the full
amount claimed is not sustainable. Furthermore, although the table works
on cases where the judgment sums are between $120,000 and $600,000, it
is also possible (and in our view probable) that the average of claims
in High Court cases are higher than those of the District Court. Also
even

for cases where initially the amounts claimed are within the District
Court jurisdiction limit of $600,000, it is likely that the solicitors
opted for commencing action in the High Court because of the relative
complexity of the case. For all these reasons, we have our reservations
on whether the figures set out in paragraph 5.3 would accurately reflect
the saving of costs for litigating in the District Court.

Another factor which needs to take into account is that
on taxation on District Court scale, the taxing master would adopt a much
lower rate than corresponding taxation on High Court scale. While this
should not affect the actual amount which the client would have to pay
to his own solicitors, we have anecdotal evidence that because solicitors
would not like to see a great discrepancy between the solicitors and own
client costs and the party and party costs, generally speaking, they tend
to ask less experienced solicitors in their firm to handle the District
Court litigation in order to lower the overall charges. Thus the difference
in the costs to the clients in litigating in the District Court and in
the High Court would also mean that there is a difference in the quality
of the service to the client.

That having been said, we do not have any evidence, anecdotal
or otherwise, contradicting the suggestion that it would be cheaper to
litigate in the District Court.

Another area of our concern is the quality of the Judges
hearing civil cases in the District Court. In this regard we note with
appreciation the effort of the judiciary set out in paragraph 7 of the
Review paper. However, we also note that although some Judges are "assigned"
to take care of particular types of cases, there is no hard and fast rule
or practice that other Judges will not be asked to try those cases. Whether
the civil jurisdiction of the District Court is to be increased or not,
we would hope that there should be stricter division of work between civil
and criminal Judges, and that the listing clerk or Judge would make sure
that cases involving higher amount or greater complexity would be presided
over by Judges with appropriate expertise and experience.

One other effect of raising the civil jurisdiction of
the District Court is in relation to appeal. At the moment, appeal from
the High Court to the Court of Appeal is as of right, whilst appeal from
the District Court would require leave. It is paradoxical that whilst
now the parties litigating in the High Court presided over by more experienced
Judges would have an unrestricted right to appeal, with the increase of
the jurisdiction resulting in their being heard by the less experienced
District Judges, the parties would require leave to appeal against the
District Judges' decisions. The solution to this anomaly may be either
(a) to abolish the requirement of leave to appeal from District Court;
or (b) to make it mandatory to require leave to appeal from the High Court.
On our part, we would find alternative (b) to be very unattractive. The
Bar has clearly stated its position on this point in its response to the
consultation on Civil Justice Reform.

On the whole, we would not oppose to the increase of
the jurisdiction of the District Court, but we hope that our concerns
raised in the letter would receive the proper attention of the Judiciary.

As the Chairman of Panel on Administration of Justice
and Legal Services of the Legislative Council has expressed interest in
receiving the Bar's response to the proposal on the increase in the jurisdiction
of the District Court, I have taken the liberty of sending a copy of this
letter to the Clerk of that Panel.

Yours truly,

Edward Chan

Chairman

cc : Clerk of Panel on Administration of Justice and Legal
Services