HONG KONG SAR, CHINA Law and Practice Contributed by: Gordon Chan
Transfer of Cases Parties should note that the tribunal and courts have the power to transfer cases that are inappropriate for that forum. One example is when the amount claimed or counterclaimed exceeds the jurisdiction of the court. 2.11 Appeal Mechanisms for Product Liability Claims Parties who are dissatisfied with a final decision of an adjudicator or a judge in civil cases may challenge the decision through the appeal mechanism. However, this would generally concern challenges to the finding of law instead of facts. Appeals are also typically not as of right, hence parties may require permission to appeal. Appeals From the Small Claims Tribunal A dissatisfied party may first apply for a review by the adjudicator within seven days of the award or order. If still unhappy after review, the party can seek leave to appeal to the court of first instance of the High Court on a point of law only, under section 28 of the Small Claims Tribunal Ordinance (Cap 338). The time limit is generally seven days from service of the award or written reasons. Appeals From the District Court Sections 63–66 of the District Court Ordinance (Cap 336) govern appeals from the district court. A dissatis - fied party must first apply to the trial judge for leave to appeal to the Court of Appeal within 28 days of the judgment being sealed or finalised. If leave is refused by the judge, the party may then apply directly to the Court of Appeal within 14 days of the refusal. There is no further appeal if leave is refused by the Court of Appeal. Appeals From the Court of First Instance Under section 14 of the High Court Ordinance (Cap 4), civil appeal from the court of first instance lies as of right to the Court of Appeal. Hence, no permission is required. The party must file and serve a notice of appeal within 28 days of the decision. In exceptional cases, parties may apply directly to the Court of Final Appeal for leave to appeal under the leap-frog proce - dure, if issued with a certificate by a judge of the court of first instance.
Appeals to the Court of Final Appeal A party unhappy with the Court of Appeal’s decision may seek leave to appeal to the Court of Final Appeal, the highest level of court of Hong Kong, pursuant to the Hong Kong Court of Final Appeal Ordinance (Cap 484). Leave will only be granted if the question involved in the appeal is one of great general or public importance. A party must first apply for leave from the Court of Appeal within 28 days of the judgment, and give the opposite party seven days’ notice of the intended application. If leave is refused by the Court of Appeal, an application should then be made directly to the Court of Final Appeal within 28 days of the refusal. 2.12 Defences to Product Liability Claims Defendants in Hong Kong product liability cases can protect themselves through several established routes. Claims usually rest on negligence or breach of contract, so defences target the core requirements of each. Defences in Negligence Claims Several practical defences help shift or reduce respon - sibility. The most common is contributory negligence, where the injured person failed to take reasonable care for their own safety. Courts may reduce dam - ages to a percentage of the original award based on the plaintiff’s share of fault. Other common defences lie in novus actus interveni - ens for intervening acts breaking the chain of causa - tion, or volenti non fit injuria for voluntary assumption of risk where the plaintiff knew and accepted the dan - ger. Both serve as a complete defence. Defendants such as suppliers or manufacturers can further argue that it was not possible to discover the defect with the scientific and technical knowledge available when the product was supplied. Defences in Contractual Claims Contractual claims are not fault-based, and con - siderations for defences differ from negligence accordingly. Sellers can show that the goods met the implied standards of quality, fitness for purpose and description under sale-of-goods rules. Carefully drafted exclusion or limitation clauses may also cap or exclude liability. However, these clauses are subject
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