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V I
E W P O
I N T
MARCH1995
Efficiency of our
Court Procedures?
The efficiency of our own court
procedures in the conduct of civil cases
has been called into question by a
practice direction formally handed
down by the English High Court on 24
January 1995 ([1995] 1 All ER
385/87), which is summarised on page
81. The first two paragraphs of this
practice direction reflect its objective,
as follows:
"J. The paramount importance of
reducing the cost and delay of
civil litigation makes it
necessary for judges sitting at
first instance to assert greater
control over the preparation for
and conduct of hearings that has
hitherto been customary. Failure
by practitioners to conduct cases
economically will be visited by
appropriate orders for costs,
including wasted costs orders.
2.
The court will accordingly
exercise its discretion to limit: (a)
discovery; (b) the length of oral
submissions; (c) the time allowed
for the examination and cross-
examination of witnesses; (d) the
issues on which it wishes to be
addressed; and (e) reading aloud
from documents and authorities. "
Jt is likely that our own High Court
judges would concur with the above
objectives. It, therefore, should become
the urgent priority of our Superior
Courts Rules Committee to examine
critically this practice note and to
incorporate it as appropriate into our
own procedures.
The public are right in demanding that
the delays now endemic in our courts
system be eradicated. Lawyers rightly
respond to that demand by calling for
the appointment of more judges.
However, part of the cause of delays,
particularly in commercial cases in the
High Court, is the uncritical facility
provided at present by our Rules of
Court to 'swamp' a case with
documents (by means of discovery)
without regard to what is really relevant
to do justice between the parties.
Mr. Justice
Hugh Flaherty
of the
Supreme Court, in recently addressing
the efficiency of our courts system,
observed:
"If the main objective of the courts is
to dispense justice according to the
law, it is a serious failing where this
function becomes obstructed and
hindered by delay and time
consuming procedures.
Litigants
deserve, and are entitled to expect,
an efficient expeditious justice
system. . . The courts must be astute
not to contribute to delays. In this
respect it is ironic that pre-trial
procedures which are meant to
expedite proceedings very often
contribute to the length and cost of
litigation. For example, pre-trial
discovery . . . seems almost to have
become an end in itself. . . Judges
must be on their guard to avoid
becoming too concerned with
procedural niceties at the expense of
the merits of a particular case. Form
should not reign supreme over
substance. . . Of course, it is always
necessary to have regard for the
rules of natural justice such as 'audi
alterem partem' and the need for
justice not only being done but being
seen to be done, but once these are
given due recognition they must not
be elevated to being the be-all-and-
end-all of litigation. They are simply
procedural rules which must be
observed so that a correct decision is
reached on the merits. "
Our rules of procedure should provide
for formal judicial intervention at an
early stage of civil proceedings in
order to identify clearly the real issues
and dispose of the issues that can be
resolved by agreement. 'Case
management' has become a new
science, particularly in the USA and
Canada, where the 'docket' system
operates i.e. the allocation of a case at
an early stage in the process to a
particular judge who would deal with
all interlocutory issues and who would
be both entitled and required to seek to
reduce the number of issues to be tried
and the number of documents and
witnesses required for the actual trial.
It may be that a part-solution lies in the
appointment of more Masters of the
High Court and similar quasi-judicial
officials in the Circuit Court, who
would be responsible, within specified
time limits, for reviewing with the
lawyers for the parties every case set
down for hearing before being listed for
actual hearing, with authority to make
recommendations as to the agreement
of issues e.g. medical evidence. Such a
procedure could be coupled with a
sanction that if such recommendations
are not accepted that the trial judge
could ultimately make a 'wasted costs'
order against a party seen to have been
unreasonable in that regard - analogous
to the powers of the court under the
existing lodgement process where an
award of damages does not exceed the
lodgement in court.
Our three court rule-making
committees (for High/Supreme, Circuit
and District Courts) responsible for
initiating procedural improvements in
our rules of court are each made up of
judges, barristers and solicitors of
considerable experience. It behoves
them to constantly review the court
procedures applied in other common
law jurisdictions, particularly our
neighbouring jurisdictions. If these
committees were statutorily required to
publish an annual report accounting for
their year's work, the legal profession
and the public at large would fairly be
able to pass judgment on their efforts.
In the absence of such accountability,
those concerned with our court
procedures can only be envious of
others and critical of ours.
See page 59 of this Gazette for the Law
Society response to the Review
Working Group on the Circuit Courts.
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