From 1 December 2021, the “fraud exception” to the summary judgment procedure will be abolished. Going forward, victims of fraud engaged in civil litigation may be able to obtain swift judgment against fraudsters without going through a full trial.
The summary judgment procedure allows a claimant to obtain judgment before trial, if the defendant’s position is clearly unarguable or unsupported by evidence. This procedure saves considerable time and expense as it weeds out hopeless defences at an early stage, avoiding unnecessary or prolonged proceedings.
However, the summary judgment procedure is not available to every type of claim. Fraud claims are among those which are specifically excluded from the summary judgment procedure under the current rules. This has traditionally been called the “fraud exception”.
Abolishment of fraud exception
The fraud exception will be abolished from 1 December 2021, when the Rules of the High Court (Amendment) Rules 2021 and the Rules of the District Court (Amendment) (No. 2) Rules 2021 take effect. Any summary judgment application lodged in either the High Court or District Court from 1 December 2021 onwards is not limited by the exception. The effect of the amendment is that summary judgment will be available for fraud cases where there is no defence. Where there is an arguable defence or triable issue of fact or law, the summary judgment procedure will not assist.
The abolishment of the rule follows the Court of Appeal’s observation in Zimmer Sweden AB v KPN Hong Kong Ltd  1 HKLRD 1016 that the fraud exception “no longer sits well with the modern litigation landscape”.
The Judiciary reviewed the fraud exception and recommended that legislative amendments be introduced. It justified abolishing the rule for the following additional reasons:
- The fraud exception was historically linked to the right to have a trial by jury in fraud cases. There is no such right in Hong Kong and therefore no practical need for the rule.
- It is questionable to oblige a claimant to incur all the expenses of a full trial to get relief even in cases where a defendant only puts forward a token defence.
- The fraud exception was abolished in England in 1992.
The abolishment of the fraud exception is a positive development given the recent increase in cyber and electronic fraud. Victims of fraud with deserving claims can better access justice knowing there is a more cost-efficient avenue to pursue remedy.