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GAZETTE
MARCH 1996
gown of distinction. She was an
official of the court and informed the
writer that the judge assigned to the
case (who would deal with the case
personally until its conclusion) was
computer literate and was likely to
appear in court with his lap-top
computer. Other basic matters as to
bowing and where one should sit were
then ascertained.
The judge appeared in court at 10.00
a.m. precisely and, after the bowing
courtesies, immediately stated he had
read all the papers and did not wish
lawyers for either party to address the
Court. The judge immediately
questioned the parties on various
aspects of the pleadings. "How were
the sums claimed by the respective
parties arrived at?" "Why do you need
experts on this issue?" "Why incur
expense that is not necessary?". Such
questions demanded very specific
answers. The judge used a common
form of directions which covered the
most common scenarios which he
ticked or struck out, or added to, as
appropriate. This form was later to be
the basis of the formal
Order for
Directions.
The judge directed the plaintiff to
prepare and serve, and the defendant
to "comment" on, a schedule known
as a
Scott Schedule,
named after its
inventor Judge George Scott (Judge
1920-1933) that is widely used in
courts and arbitrations in common law
countries but is not mentioned in
the
Rules of the Supreme Court.
The
Scott Schedule
must set out
details under column headings such as
"Defects Alleged", "Costs of
Remedying" to be completed by the
plaintiff, and comments to be
completed by the defendant
under headings of "Comments on
Alleged Defects" and "Alternative
Cost of Remedying". The schedule
must be completed within a stipulated
time.
The
Scott Schedule
forms part of the
pleadings in the case but cannot be
used to introduce new causes of action
or to advance legal contentions. Each
party must set out clearly the
substance of their case; it is not
sufficient to make broad allegations or
simply "to deny" or "not admit". The
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Scott Schedule
is a very useful device
for clarifying a case and making it
manageable.
Usually, the judge orders that each
party give discovery by lists to the
other party by a specified date and an
inspection may take place on three
days notice by one party to another.
Three days is considered an adequate
period for making arrangements
usually by telephone.
Control of Experts
In virtually all cases before the
particular court, expert evidence is
required to assist the judge in
understanding technical facts and in
providing opinions as to matters on
which he bases his judgement. Experts
in this context, include the parties
and their employees if they are to
give opinion evidence as well as
independent experts. The judge
will normally give leave for experts
to be called but in order to save
time and costs will limit their
numbers.
The judge normally orders that
experts of like disciplines meet
in advance of the court
hearing, without prejudice, to
endeavour to agree technical
facts and to narrow issues.
The judge normally orders that
experts of like disciplines meet on a
without prejudice basis to endeavour
to agree technical facts and to
narrow issues. This meeting is
attended only by the experts and it
would be regarded as improper for
any attempt to be made to restrict an
expert's free participation in the
meeting. The experts may prepare a
joint statement indicating matters
about which they are agreed and that
which they are not agreed.
The court has power to order that
experts' reports be exchanged. In
almost all cases, the date fixed for the
exchange would be after the last date
for the experts to meet. An expert's
report is expected to be as short as the
subject permits and should be capable
of being understood by an educated
lay man and not simply by another
1
expert. It should give the writer's
qualifications and experience, be set
out in numbered paragraphs with
subject headings, and illustrated by
sketches and photographs as
appropriate.
Statements of Fact
At the
Summons for Directions
stage,
the judge considers whether the
parties should be directed to serve on
each other by a stated date, signed
statements of witnesses of fact and
whether they should serve as
evidence-in-chief. In most cases,
orders will be made for the exchange
of statements and the date assigned for
the hearing of the case will not be less
than six weeks after the date of
exchange.
Almost invariably the judge directs
that the statement of witnesses
of fact stand as evidence-in-chief so
as to save time. The statement
should be in the witness' own
words, it should contain all the
evidence which counsel would
seek to elicit if you were examining
him in-chief by question and answer.
The statement must not contain
irrelevant evidence or inadmissible
evidence. Numbered paragraphs are
used to be signed by the witness
and dated.
Miscellaneous Orders
The judge has powers to make orders
in relation to interim payment,
inspection of property, preservation
I of exhibits, notices being given to
parties or other experts before
remedial works are carried out
so as to permit early inspection,
joint excavations of a locus in quo,
doing laboratory analyses of
materials, and taking legal evidence
' on commission. Sometimes it may be
necessary for a witness to be
examined in advance of a trial;
normally the judge will,
wherever possible, order that the
examination takes place before
: himself so that he may both see and
hear the witness.