Law - Civil Proecdure (Hong Kong) [4 Questions] Essay

Law - Civil Proecdure (Hong Kong) [4 Questions] - Essay Example 2). Ms. Cheung sought to have the proceedings stayed because of fundamental unfairness, stating that the conditions were appropriate to stay the proceedings in the interest of justice (Securities and Futures Ordinance, Cap. 571,  § 253(1(i); Jago v. District Court of New South Wales (1989) 168 CLR 23). In this case, the tribunal relied upon the rules promulgated at this time in Hong Kong Civil Procedure 2008, which states that â€Å"there are two distinct, though related, circumstances in which the action may be dismissed for want of prosecution, namely (a) when a party has been guilty of intentional and contumelious default, and (b) when there has been inordinate and inexcusable delay in the prosecution of the action† (Hong Kong Civil Procedure 2008, order 25, at 25/L/2). ... their death or disappearance are the most usual factors†¦in a case of prolonged culpable delay following long delays in serving of proceedings, the court may readily infer that memories of witnesses has further deteriorated in the period of culpable delay† (Hong Kong Civil Procedure 2008, order 25, at 25/L/7). Thus, the delay must result in the increased risk that the defendant will not have a fair trial on the issues or that serious prejudice will occur to the defendant as the result of the delay, because the witnesses will have decreased memories about the facts regarding the proceedings. The term prejudice has been construed to result when no witness was interviewed at the time the acts that give rise to the proceedings were commenced, so that the witness would have no way of refreshing his or her recollection about the events, or that a witness has since become unavailable because of advanced age or infirmity, and this witness would have been available but-for the inor dinate delay (Hornagold v. Fairclough Building Ltd. [1993] P.L.Q.R. 400). Further, the totality of the delay is not necessarily relevant in adducing prejudice to the defendant, but, rather, that any period of delay during any part of the proceedings would be examined to determine prejudice – therefore, if a proceeding began after a period of delay, then no action was taken thereafter, the court can infer from the delay during the latter part of the proceedings is enough to cause the dimming or memories such that the defendant would be prejudiced by the delay (Roebuck v. Mungovin [1994] 2 AC 224). Further, the defendant did not necessarily need to prove that he or she was prejudiced, and did not have to present to the court any example of a specific example of prejudice, ie, the defendant does