7 8 5 Solicitor v Law Society of Hong Kong 2008 the Court of Final Appeal

7 8 5 solicitor v law society of hong kong 2008 the

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5 Solicitor v Law Society of Hong Kong (2008), the Court of Final Appeal (Bokhary PJ): Only two standards of proof are known to our law . One is proof beyond reasonable doubt and the other proof on a preponderance of probability . The strength of the evidence needed to establish such a preponderance depends on the seriousness and therefore inherent improbability of the allegation to be proved’. Civil Courts of the HKSAR The Hong Kong Court of Final Appeal Court of Appeal Court of First Instance Competition Tribunal District Court Lands, Labour and Small Claims Tribunal Magistrates’ Courts are empowered to enforce civil debts A plaintiff pursuing a claim of less than $3 million may choose to pursue it in which two courts? 9 10
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6 Sources of civil litigation rules: Primary legislation (e.g., the High Court Ordinance (Cap.4)). Subsidiary legislation (e.g., Rules of the High Court (Cap.4A)). Case law Practice books (such as Hong Kong Civil Procedure, commonly known as the ‘ White Book ’) Practice Directions Official statements of interpretative guidance of the Chief Justice or a specialist judge for his specialist list, which tell parties and lawyers what the court expects of them in legal proceedings Adversarialism in Civil Litigation 11 12
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7 Adversarial Litigation The traditional adversarial trial is a competitive process encouraging lawyers to discover evidence thoroughly, and identify the flaws in the other side’s evidence more aggressively than in a system where the judge is the discoverer. A court’s duty is to weigh up the relative strength of the parties’ arguments and evidence against the law and its evidentiary standards. Assessing Adversarial Litigation Adversarial litigation has been likened to ‘trench warfare’ . Adversarialism incentivises the opposing lawyers to present their cases in a way that has given rise to tactical manipulation . Judicial non-interventionism allows abuses by lawyers with excessive, unnecessary interlocutory applications and appeals, causing undue delay and high legal costs ; denying access to justice to poorer litigants and wasting disproportionate money and man-hours. 13 14
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