The Gazette 1995

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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 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) appropriate orders for costs, including wasted costs orders.

without regard to what is really relevant to do justice between the parties.

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. •

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 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. " must be on their guard to avoid becoming too concerned with 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

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