Mediation in Personal Injuries in HK

Dear all,

 

Mediation in Personal Injuries Cases in HK

I am Natalia Cheung, an Accredited Mediator of the Hong Kong International Arbitration Centre (HKIAC) and a practising solicitor in Hong Kong.

 

I would like to share with you some information on mediation in personal injuries cases in Hong Kong.

Practice Direction 18.1 (“PD 18.1”) issued by the Chief Justice and the respective Judges in Charge of the Personal Injuries List in the HK High Court and the District Court stipulates that trial in personal injuries disputes should be regarded as the last resort, after alternative dispute resolution procedure (“ADR”) such as mediation or negotiation has failed to achieve a resolution of the disputes.

ADR means a process whereby the parties agree to appoint a 3^rd party to assist them to settle or resolve their disputes. Mediation is a common mode of ADR. Settlement negotiations between the parties do not constitute ADR.

The Court has the duty to encourage and assist the parties to use an ADR to facilitate settlement of disputes if the Court considers appropriate. The parties and their legal representatives have the duty of assisting the Court to discharge such duty.

Pre-Action

Before commencement of proceedings in personal injuries disputes, parties to the disputes should explore settlement by making bona fide attempts to engage in settlement negotiations by without prejudice correspondence, by structured without prejudice face-to-face meeting, or by any other manner agreed by the parties.

If such negotiations fail in achieving any settlement of their disputes after a reasonable time, the parties should proceed to explore ADR by mediation or other mode of ADR.

The claimant’s solicitors should send to the proposed defendant(s) letter of claim in a form prescribed by PD 18.1 to enable the proposed defendant(s)' solicitors or insurer(s) concerned to give a constructive reply to the claim.

The claimant’s solicitors should explain to the claimant on ADR such as mediation as soon as the letter of claim is sent.

Commencement and in the course of proceedings

Mediation Certificate

At the time of the issue of the Writ, the Plaintiff’s solicitors shall file in Court a Mediation Certificate in the form as prescribed in Practice Direction 31 (Practice Direction on Mediation).

 

At the time of the filing of Acknowledgement of Service, the Defendant’s solicitors shall file into Court a Mediation Certificate.

Mediation Notice

After filing the Mediation Certificate, if a party ("the Applicant") wishes to attempt mediation, he should as soon as practicable serve a Mediation Notice on the other party

("the Respondent") in the dispute in the form as prescribed in Practice Direction 31.

Mediation Response

Upon receipt of the Mediation Notice, the Respondent should respond to the Applicant by way of Mediation Response within 14 days (or such other time as the parties may agree or as the Court may direct) in the form as prescribed in Practice Direction 31.

The parties should proceed to engage in mediation in accordance with the stipulated rules and timetable if agreement to mediation has been reached. The parties may also apply to the Court for an interim stay of the proceedings as appropriate.

Without prejudice nature of Mediation

What happens during the mediation process is without prejudice communications and therefore is protected by privilege.

The Court cannot compel the disclosure of or admit materials so long as they are protected by privilege in accordance with legal principles, including legal professional privilege and the privilege protecting without prejudice communications.

Possible adverse costs order for unreasonable failure to engage in mediation

Solicitors should advise their clients that the Court may make an adverse costs order against a party where the party unreasonably fails to engage in mediation if this has been established by admissible materials.

The Court will not make such adverse costs order where:

(1)   The party has engaged in mediation to the minimum participation level agreed to by the parties or as directed by the Court prior to the mediation.

(2)   A party has a reasonable explanation for not engaging in mediation. E.g. active without-prejudice settlement negotiations between the parties are progressing or the parties have actively engaged in other mode of ADR other than mediation in the meantime.

For further information on mediation, please contact Ms. Natalia Cheung 

[(852)-6777 5767]

E-mail: natalia@plaw.hk

 

Natalia Cheung 

HKIAC Accredited Mediator & Hong Kong Solicitor

Pang Kung & Co., HK Solicitors & Notaries & Civil Celebrants of Marriages

    

 

 

Disclaimer: The above is for your information and reference only. The contents do not constitute legal advice or a substitute for legal advice in individual cases.