Global menu

Our global pages

Close

GAP Part II: Coronavirus brings another general adjournment to Hong Kong Court proceedings

  • Hong Kong
  • Coronavirus

08-03-2022

Access to the Hong Kong Courts will be severely restricted again as a result of the fifth wave of the COVID-19 pandemic. How will your business be affected?

On 4 March 2022, following the outbreak of the fifth wave of the COVID-19 pandemic, the Hong Kong Judiciary announced a general adjournment of all court proceedings between 7 March 2022 and 11 April 2022 (“GAP”), subject to the exceptions set out in the Annexes to the Judiciary’s press release (“Annexes”). The Annexes summarise the types of cases and matters that each level of Court or Registry will continue to handle (see the press release here).

Under the GAP, the Court will only conduct limited affairs to “ensure that justice is not unduly delayed” and “strike a balance between public health considerations and due administration of justice”. Practically, we believe the following key points should be noted:

New cases: no originating process or new court action (including writ action, mortgagee action, judicial review or winding up and bankruptcy) may be filed at the Court during the GAP, unless the limitation period for a cause of action or making the application may expire during the GAP.

Ongoing cases: for actions that have been commenced, or applications that have already been made prior to the GAP, subject to the Court’s directions, they may still continue. Non-exhaustive examples of civil proceedings that may be conducted in Court during the GAP include ongoing hearings and urgent applications or appeals. Notwithstanding the Judiciary’s announcement that ongoing hearings may proceed, in reality hearings fixed during the GAP may still be adjourned or, if possible, dealt with on paper or remotely depending on the circumstances of each matter. This reflects the practical impact of possible COVID-19 infection of individual solicitors, barristers and members of the judiciary who are involved in pending hearings as well as the overall intention of the GAP.

Case management: to the extent that the Court has made any requisitions on ongoing matters or applications, unless otherwise directed, we expect that it will only be possible to address such requisitions after the GAP. This reflects there being no ability to file responses to such requisitions during the GAP.

Urgent applications for bankruptcy cases: the Court has explicitly set out the urgent applications that will be handled for bankruptcy cases, including:

o urgent applications under section 30A of the Bankruptcy Ordinance (Cap. 6) by the trustee in bankruptcy or creditor of the bankrupt for the suspension of the bankrupt’s discharge from bankruptcy;

o urgent objections to discharge applications not yet filed but with imminent dates of discharge of bankruptcy, and urgent applications for non-commencement orders under section 30AB of Cap. 6 not yet filed but with imminent deadlines for filing; and

o urgent applications under section 42 of Cap. 6 by the debtors for validation orders

The Judiciary’s announcement has not expressly addressed issues relating to service. In the absence of specific directions and consistent with previous experience, we expect that litigating parties are required to serve documents on each other in accordance with the timetable set by the Court. Only filing with the Court will be postponed until after the GAP. The parties may, however, agree amongst themselves on a sensible way to accept service in light of the public health situation.

Implications to Businesses

For businesses expecting to originate a new process in the Hong Kong Court, the GAP will unfortunately mean that they will likely need to postpone filing those proceedings unless they are approaching the expiry of an applicable limitation period for one or more of their claims. They may also wish to consider whether any other dispute resolution mechanism is available in the circumstances of their matter to dispose of it on a more timely basis.

As regards existing court actions, while some matters may be dealt with remotely or on paper, businesses should expect the GAP to cause delays to progressing ongoing disputes, both during the GAP and also after it concludes due to the potential backlog of court cases that the GAP will cause.

If the Hong Kong Government further tightens the social distancing measures (whether linked to the universal mass testing which is under discussion or otherwise), we expect that the Hong Kong Judiciary may further revise and enhance the GAP. In the event of such developments, we will issue further briefings to ensure you are kept fully up to date and highlight what other forms of alternative dispute resolution businesses in Hong Kong may wish to consider.

If you have any questions regarding the effect of the GAP, please get in touch with your usual contact at the firm or any of the individuals below.