21 February, 2019
Background
In the recent decision, Competition Commission v W. Hing Construction Company Limited [2018] 5 HKLRD 437 (the Decision), the Competition Tribunal (the Tribunal) applied case laws on procedural issues in High Court hearings to Tribunal hearings.
The Decision is a good example showing that the Rules of the High Court (Cap. 4A) and related case law are highly relevant to proceedings in the Tribunal.
Background of the Decision
The Decision was made as a result of an interlocutory application brought in Competition Commission v W. Hing Construction Company Limited (CTEA 2/2017), the second enforcement action brought by the Competition Commission (the Commission) in the Tribunal.
The 4th Respondent applied to amend its Response and file three additional witness statements just one and a half months before trial. The defence given in the proposed amended Response was completely different to the defence in the original Response and the three witness statements were in support of the new defence.
The Tribunal dismissed the 4th Respondent’s application on the grounds that the application did not have merit and that it was made at a very late stage.
Grounds for the Decision
In relation to the latter point, the Tribunal considered various cases concerning procedural issues in civil proceedings in the High Court, including Topwell Corp Ltd v Kwan Kam Kee [2014] 5 HKLRD 1 (a case where leave was granted for re-amendment of the defendant’s defence despite delay), Li Shiu To v Li Shiu Tsang and others (unreported, HCA 416/2003, 14 August 2012) (a case where leave was granted for amendment of the Re-amended Statement of Claim, despite delay) and Jose Miranda da Costa Junior & Anor v Lorenzo Yih, also known as Yu Chuan Yih & Ors (unreported, HCA 156/2010, 28 April 2014) (a case where an application for leave to file further affidavits was dismissed).
After considering these cases, the Tribunal held that delay on its own may not be sufficient to justify a refusal of leave for amendment. However, it was in the interests of the whole community to conduct legal proceedings efficiently and an adjournment of the trial would seriously prejudice the parties involved in the litigation. In this case, having regard to the procedural history of the case and imminent trial date, if the application were granted, the Commission would be prejudiced and left with little time to consider and investigate the new defence put forward by the 4th Respondent. The trial may have to be delayed. Therefore, the 4th Respondent’s application was rejected.
Despite the fact that the hearing was a Tribunal hearing, the principles and objectives in the cited cases should still be upheld. The Tribunal found support from s.144 of the Competition Ordinance, which enables the Tribunal to follow the practice and procedure of the Court of First Instance in the exercise of its civil jurisdiction. Rule 4 of the Competition Tribunal Rules (Cap. 619D) also incorporates the Rules of the High Court (Cap. 4A) to a significant extent.
Key messages
Procedures in Tribunal proceedings are, in a sense, simpler and more flexible than those in the High Court. For example, there is no acknowledgement of service and there is only one mode of commencing proceedings in the Tribunal. However, the simpler, more flexible nature of Tribunal proceedings does not mean that unexplained delays and late applications will be treated more leniently.
Further, where applicable, the Rules of the High Court (Cap. 4A) and relevant case laws will serve as a reference for dealing with procedural issues in Tribunal proceedings.
The final point to take away from the Decision is paragraph 28 thereof, where it is stated that “There is also a broader public interest in these enforcement actions to see the proceedings being dealt with as expeditiously as is reasonably practicable.
The outcome of Tribunal proceedings would well serve as guidance to other undertakings and persons in the regulation of their economic conduct.”
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