| 95. |
Where a claim is
contested, delays have different causes. In our present adversarial system, a key factor
involves the attitude of the parties. The more determined a plaintiff is to press on with
the action, the more likely it is that delays will be avoided. Conversely, where a
plaintiff lacks resolve in the pursuit of the proceedings, the action may become inactive
for long periods. |
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| 96. |
At various points in
the process, delays may be due to the conduct of the litigants or their legal advisers. At
other points, the delays may be due to congestion in the lists or pressures on judicial
resources. |
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| 96.1 |
Pre-action delays:
Delays before issue of the writ will obviously be due to factors outside the court
structure. The parties and their advisers may for instance have engaged in long and
ultimately fruitless negotiations. Their insurers may have taken time to be satisfied that
the litigation ought to be brought or defended under the insurance policy. Or they may
have been held up while trying to secure Legal Aid. |
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| 96.2 |
Summary judgment and
delay: How soon a summons for summary judgment can come up for hearing depends on the
level of judicial resources available. There will inevitably be a queue of some duration.
Attempts to obtain summary judgment obviously can be counter-productive unless one is
quite sure that the defendant cannot raise any triable issue. Otherwise, an application
for summary judgment which fails before the master, and even worse, fails again before the
judge on appeal from the master, will mean significant costs and delay. |
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| 96.3 |
Prior to setting down:
Whether and why delays occur in the context of the pleadings, discovery and evidence
gathering stages depends on certain variables. |
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| 96.4 |
Between setting down
and trial: A certain waiting-time is inevitable since efficient use of judicial resources
demands that cases are not listed for trial until the parties are ready to proceed. To do
otherwise is likely to lead to ineffective trial appointments and wasted court time where
parties "book ahead" for trial dates but find themselves not ready to proceed.
Accordingly, if a case has been set down for trial, this ought to mean that the parties
have completed their preparations and are prepared to go ahead with the trial. In such
cases, delays going beyond a reasonable time spent in the post-setting down queue will
tend to be due to an insufficiency of judicial resources creating a bottle-neck at
setting-down. |
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| 96.5 |
Delays and the trial
itself: Delays can sometimes arise where, due to poor estimates by the parties, other
trials overrun so that a slot originally allocated for a particular trial remains
unavailable. If no other slots have come free, a last-minute adjournment of the scheduled
trial may have to occur with costs possibly thrown away and a delay incurred as the date
is re-fixed. Such delays obviously interfere with the court's ability to manage judges'
hearing diaries. The parties to overrunning trials are themselves obviously also affected.
While not a "delay" complaint as such, the fact that their trial overruns means
that they are exposed to costs not initially budgeted for. |
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| 96.6 |
Delays and appeals:
Where, as in Hong Kong, all appeals to the Court of Appeal, even interlocutory ones, are
as of right, a defendant who is intent on delaying matters, has plenty of scope for using
the appeal process as a means of delay. There is inevitably a queue for the Court of
Appeal. The wait can be substantial at times when pressure builds up on appellate
resources. |
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| 97. |
The accepted practices
of the legal profession may also have an important bearing on litigation delays. A legal
and court culture where delays are accepted and taken for granted may make it difficult to
change waiting-times or reduce backlogs. As Peter Sallmann and Richard Wright point out, (Note 89) this was a conclusion reached in research carried out in
the United States by Thomas Church, whom they quote as follows :- |
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