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13.1
The thinking behind these Proposals
Where parties to litigation both desire to have the action proceed, our system functions
perfectly well. However, where one party seeks to delay proceedings and to frustrate
the other side, the present system is deficient and can be manipulated so that progress
in the proceedings is not maintained. The design faults of the system were examined
in the Interim Report.
It is a system which :-
(a)
incorporates rules of court which lay down a timetable not designed to take into
account the needs of individual cases and so are generally disregarded;
(b)
places the onus on the conscientious party to maintain progress when faced with
recalcitrance from the other side, requiring expensive and delay-inducing
interlocutory applications;
(c)
often involves excessive leniency and tolerance of non-compliance by the
courts; and,
(d)
adopts a policy whereby a cause is not listed for trial until the parties are fully
prepared, thus permitting a recalcitrant party to exploit his own lack of
preparedness as the basis for putting back the trial.
In the existing procedural scheme, a court-determined timetable is intended to be
provided at the hearing of the summons for directions. However, experience has
shown that such timetable is hardly ever effective. Parties often ask for "standard"
time-limits to be imposed, without sufficient thought given to the exigencies of the
particular case. The court is often not equipped to form an independent judgment as to
the realism or otherwise of the directions proposed. Where a party thereafter drags his
feet and fails to meet the time-limits set at the summons for directions, the system
relies on the other side to complain ex post facto of such non-compliance by taking out
interlocutory applications which generate expense and further delay. Such a system
therefore offers opportunities for a party to inflict delay and expense on the other side,
with repeated interlocutory applications depleting resources.
Notes
At §§333-335.
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