TNAG-1286-FCO40-16372-Constitutional-development-in-Hong-Kong.-Part-2-of-2-1984 — Page 143

A376

Ord. No. 58/84

LIMITATION (AMENDMENT)

HONG KONG

Short title.

Repeal and replacement of section 35.

(Cap. 347.)

L.S.

No. 58 OF 1984

I assent.

An Ordinance to amend the Limitation Ordinance.

D. C. BRAY, Deputy to the Governor,

25 July 1984

[27 July 1984]

Enacted by the Governor of Hong Kong, with the advice and consent of the Legislative Council thereof.

1. This Ordinance may be cited as the Limitation (Amendment) Ordinance 1984.

Section 35 of the principal Ordinance is repealed and replaced by the

2. following-

"New claims in pending actions: rules of court.

1980 c.58, s. 35.

35. (1) For the purposes of this Ordinance, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced-

(a) in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and

(b) in the case of any other new claim, on the same date as the

original action.

(2) In this section a new claim means any claim by way of set-off or counterclaim, and any claim involving either-

(a) the addition or substitution of a new cause of action; or (b) the addition or substitution of a new party,

and "third party proceedings" means any proceedings brought in the course of any action by any party to the action against a person not previously a party to the action, other than proceedings brought by joining any such person as defendant to any claim already made in the original action by the party bringing the proceedings.

(3) Except as provided by section 30 or by rules of court, the court shall not allow a new claim within subsection (1)(b), other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Ordinance which would affect a new action to enforce that claim.

(4) For the purposes of subsection (3), a claim is an original set-off or an original counterclaim if it is a claim made by way of set-off or (as the case may be) by way of counterclaim by a party who has not previously made any claim in the action.

(5) Rules of court may provide for allowing a new claim to which subsection (3) applies to be made as there mentioned, but only if the conditions specified in subsection (6) are satisfied, and subject to any further restrictions the rules may impose.

(Cap. 4.)

(58 of 1984.)

LIMITATION (AMENDMENT)

Ord. No. 58/84

A377

(6) The conditions referred to in subsection (5) are-- (a) in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substan- tially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment; and

(b) in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determi- nation of the original action.

(7) The addition or substitution of a new party shall not be regarded for the purposes of subsection (6)(b) as necessary for the determination of the original action unless either-

(a) the new party is substituted for a party whose name was given in any claim made in the original action in mistake for the new party's name; or

(b) any claim already made in the original action cannot be maintained by or against an existing party unless the new party is joined or substituted as plaintiff or defendant in that action.

(8) Subject to subsection (5), rules of court may provide for allowing a party to any action to claim relief in a new capacity in respect of a new cause of action notwithstanding that he had no title to make that claim at the date of the commencement of the action.

(9) Subsection (8) shall not be taken as prejudicing the power of rules of court to provide for allowing a party to claim relief in a new capacity without adding or substituting a new cause of action.

(10) Subsections (3) to (9) shall apply in relation to a new claim made in the course of third party proceedings as if those proceedings were the original action, and subject to such other modifications as may be prescribed by rules of court in any case or class of case.

(11) The power to make rules of court under section 54 of the Supreme Court Ordinance shall include power to make rules of court for the purposes of this section.

(12) Rules of court made before the commencement of the Limitation (Amendment) Ordinance 1984 which would have been validly made had this section been in operation when they were made shall have effect as from the commencement of the Limitation (Amendment) Ordinance 1984 as if made by virtue of this section.".

Passed by the Hong Kong Legislative Council this 24th day of July 1984.

R. I. W. UPTON, Clerk to the Legislative Council.

This printed impression has been carefully compared by me with the bill, and is found by me to be a true and correctly printed copy of the said bill.

R. I. W. UPTON, Clerk to the Legislative Council.