Recent developments in the use of technology in civil litigation

In the June 2020 issue of our Emerging Technologies & Cyber Law newsletter, we gave a first-hand account of how ONC Lawyers have expanded the use of technology in civil litigation in Hong Kong, specifically, the introduction of the use of Data Rooms as a new mode of service in Hong Kong.

What began as a seed in our Courts for embracing the use of technology to promote cost-effectiveness in civil litigation has within a short time blossomed with Mr Justice Coleman recently allowing substituted service of certain Court documents by way of QR code^[1]  in Airport Authority v Persons Unlawfully and Wilfully Obstructing or Interfering with the Proper Use of the Hong Kong International Airport [2020] HKCFI 2743.

Background

The Injunction Order

On 13 August 2019, the Airport Authority, the Plaintiff in the case, obtained an ex parte interim injunction against the Defendants (whose identities are not known) (the “Injunction Order”), concerning the obstruction and interference caused by the August 2019 protests at the Hong Kong International Airport (the “Airport”). The service of the writ of summons and the Injunction Order was to be effected by the Plaintiff by way of substituted service through the following methods:

1.        posting securely at conspicuous places in the Airport;

2.        posting on the Airport Authority’s website; and

3.        publishing in one English newspaper and one Chinese newspaper in Hong Kong for 3 consecutive days.

On 23 August 2019, the Injunction Order was varied and continued. An order for substituted service was granted on the same basis, with the duration of newspaper publication being reduced to one day only.

The present appeal

The Airport Authority then applied for leave to serve the statement of claim and any subsequent documents in the action (the “Documents”) by way of substituted service through the following methods:

1.        posting a copy of the Documents on the Airport Authority’s website;

2.        fixing a copy of the Documents securely at conspicuous places at entrances to and within the landside areas of the Airport Terminal 1 building; and

3.        exhibiting securely in conspicuous places in the Airport a notice containing a QR code which would link to the Documents posted on the Airport Authority’s website.

(the “Proposed Methods of Service”)

In granting leave to serve the Documents via substituted service, Master Kot however differentiated between service of the statement of claim and subsequent documents. Master Kot was of the opinion that since the statement of claim is an important document that informs the Defendants of the details of the claim, service should be effected in a way sufficient to bring to the attention of those targeted as Defendants. As such, Master Kot ordered the statement of claim and the order made by her (the “Kot Order”) to be (1) advertised in one English newspaper and one Chinese newspaper for one day, and (2) posted in full across the Airport island (the “Kot Methods of Service”).

The Airport Authority appealed against the Kot Methods of Service, on the basis that the cost, time and effort incurred therefrom would be disproportionate when compared to effectiveness.

Principles relating to innovative methods for substituted service

In the appeal, Mr Justice Coleman identified that the main consideration of granting leave for substituted service is to ensure the chosen method would likely bring the court documents to the notice of the persons subject to the Court’s jurisdiction.

While a common means of effecting substituted service is by way of advertising in newspapers, it has become increasingly common for service on unnamed defendants identified by description to be effected by posting the documents at conspicuous places on the subject premises and on websites. It is also noteworthy that advertising in newspapers appears to become antiquated overtime, given the fact that readership of printed newspapers have continuously diminished over the years.

Mr Justice Coleman further stated that effecting service through the use of modern technology “may also be accepted by the Court”, in an appropriate case, as giving effect to the underlying objectives of (1) increasing cost-effectiveness, (2) promoting a sense of reasonable proportion and procedural economy, and (3) ensuring fairness between the parties. Under Order 1A rule 4(2)(k) of the Rules of the High Court (Cap. 4A), active case management also includes making use of technology.

Ruling

Having considered the above principles, Mr Justice Coleman opined that in an appropriate case, the use of QR code as a means of effecting substituted service of court documents can be an effective and proportionate way of achieving the aim of likely bringing the documents to the attention of those to whom attention is to be drawn. In particular, this method may seem particularly suited to (1) cases with large numbers of defendants or potential defendants, or (2) where there is a significant volume of documents to be served.

Turning to the Proposed Methods of Service, taking into account the substantial costs and manpower already incurred by the Plaintiff in the previous service of the writ of summons and the Injunction Order, as well as the prominent use of modern modes of communication in the recent social unrest, Mr Justice Coleman held that the use of QR code is appropriate and proportionate. Given that the notice proposed to be exhibited in conspicuous places in the Airport have clear instructions on how to access the Documents by scanning the QR code contained therein, the Documents can be easily obtained and read at the reader’s own convenience.

Once it is accepted that the Proposed Method of Service is sufficient to bring the Documents to the attention of Defendants and would-be Defendants, Mr Justice Coleman considered it unnecessary to adopt a different approach as to service in relation to the statement of claim. As such, the appeal against the Kot Order is allowed, and the Airport Authority is granted leave to serve the order made by Mr Justice Coleman and the Documents by way of the Proposed Methods of Service.

Takeaways

Mr Justice Coleman has outlined some useful principles for employing innovative methods in effecting substituted service in the present proceedings, and has made more room for the use of technology in civil litigation going forward. It remains to be seen whether QR code has further use in civil litigation, but the Court’s openness to using different technologies will certainly lead to cost-effectiveness in litigation procedures and is to be welcomed.