HONG KONG SAR, CHINA Law and Practice Contributed by: Gordon Chan
2.5 Pre-Action Procedures and Requirements for Product Liability Claims Hong Kong law does not impose mandatory pre- action procedures for general civil claims. Parties can usually start court proceedings directly. However, unreasonable pre-action conduct may have implica - tions in cost assessment. Thus, sending a letter before action to the intended defendants remains common practice and is strongly encouraged. Special Rules for Personal Injury Cases Product liability claims involving personal injury follow stricter rules under Practice Direction 18.1, which pre - scribes a detailed pre-action protocol and directions for alternative dispute resolution procedure. Briefly, the plaintiff must send a formal letter of claim (with supporting documents and medical reports) to the proposed defendant at least four months before starting proceedings. The defendant should reply constructively within one month. Both sides then exchange information on liability and damages over the next three months, as well as proposals for expert report or examination. These directions apply when a product safety issue has resulted in death or injury. Failure to follow them can result in cost penalties, even if the plaintiff wins the case. Pre-Action Discovery Plaintiffs may also apply to the court for pre-action discovery of documents. The court grants this only if the target is likely to become a party and the docu - ments are directly relevant. This is a powerful tool that helps build a stronger case before filing. Consequences of Non-Compliance Courts consider pre-action conduct when decid - ing costs. Unreasonable behaviour, such as ignor - ing a reasonable letter or refusing early information exchange, may lead to paying the other side’s costs on an indemnity basis. In personal injury cases, non- compliance can delay proceedings or result in wasted costs orders. Businesses facing potential claims should respond promptly and co-operatively by engaging legal repre -
sentatives to minimise the risk of adverse costs con - sequence. 2.6 Rules for Preservation of Evidence in Product Liability Claims There are no product-specific preservation rules. However, businesses involved in potential product liability disputes in Hong Kong must take active steps to preserve relevant evidence. This duty arises once litigation is reasonably anticipated, even before formal proceedings begin. It covers documents, electronic records, and the product itself. Failure may lead to adverse inferences and costs sanctions. Key Requirements Parties must suspend routine document and records disposal policies and retain all materials that could relate to the dispute. This includes design records, manufacturing details, testing data, complaints, and the defective product where possible. Note also the duty of document preservation under the detailed provisions in Practice Directions SL1.2 for a pilot scheme for the discovery of electronic documents in commercial cases. An obligation is placed upon legal representatives to inform their clients of the duty of preservation as soon as litigation is contemplated. Courts expect reasonable and proportionate preser - vation efforts. For products, plaintiffs and defendants should secure the item to allow inspection and test - ing by experts. Failure to preserve the actual product can seriously weaken a claim or defence, as physical evidence is often central to proving a defect. Practical Steps for Businesses For potential defendants, steps to be taken to fulfil their duty to preserve documents include: • to identify and notify key people (such as employ - ees involved in design, quality control, or sales) to stop deleting or altering files; • to secure physical products, samples or proto - types in a safe location to prevent loss, damage or tampering; and • to create a clear internal record of the steps taken to preserve evidence.
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