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In the Working Party's view, directions of the kind envisaged in the foregoing rule
ought routinely to be given at the pre-trial review.
At that stage, the court ought to
be in a good position to make an assessment of the needs of the trial. With the parties'
cooperation, it ought to be possible to arrive at a reasonably accurate estimate of the
time needed for each element of the trial
– the opening and closing submissions, the
time needed to deal with each side's witnesses, and so forth
– and so arriving at the
time needed for the trial as a whole. To have such directions beforehand would enable
better planning and resource allocation for the trial. Knowing what periods of time
have been allotted for each task, counsel would be able to plan their submissions and
examination and cross-examination accordingly. This would promote fairness in the
distribution of trial time between the parties, avoiding the common situation of one
party taking up more than his fair share of the time allotted and forcing the other party
to rush through his part of the case.
While it is likely that the court already has ample case management powers to give
such directions, it would be desirable to have a rule specifically setting out these
powers along the lines of the Western Australian model. While the powers should
generally be exercised at the pre-trial review (as should be made clear in a practice
direction), the rule itself should, as with the Western Australian model, give the court
flexibility to exercise the powers "at any time" and to amend such trial management
directions previously given.
As such a rule would not involve giving the court a general power to exclude relevant
and admissible evidence or to exercise the wide-ranging powers envisaged in CPR
32.1, the need for primary legislation mentioned in the Interim Report does not arise.
Such a rule would fall within the general rule-making power in section 54 of the HCO.
Notes
This accords with the view of the BSCPI which urged adoption of this model to be applied at "...... a
pre-trial conference with the designated trial judge to work out the schedule of witnesses and the
points to be pursued. The parties would then have an opportunity of persuading the Judge as to why
certain evidence needs to be called and a more accurate estimate of the time needed for the trial can
then be made."
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