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J2. Case management and the CPR
J2.1. Case management: a response to adversarial excesses| 234. | As discussed in Section B5, the main ills of civil justice systems are thought mainly to be due to procedural distortions arising out of the adversarial design of the system. Well before the Woolf reforms, the answer to adversarial excesses was seen to be the adoption of more proactive case management by the courts - an approach pioneered by courts in the United States. |
| 235. | In England and Wales calls for case management were made in some of the many studies commissioned into civil justice reform. One such report published in 1988, (Note 179) quickly received the support of the House of Lords in Department of Transport v Chris Smaller Ltd [1989] AC 1197. (Note 180) |
| 236. | In the absence of a legislative framework, the initiative was taken by judges who handed down decisions establishing the court's power to exercise case management. The courts were no longer happy simply to leave the progress and procedural conduct of a case in the hands of the parties. In 1991, the House of Lords declared its support for judges who took necessary case management measures, declaring that appellate courts should be unwilling to entertain complaints about such decisions: Banque Financière de la Cité SA v Skandia Insurance Co Ltd [1991] 2 AC 249. (Note 181) |
| 237. | By 1995, case management had become subject to a practice direction which commenced with the following two paragraphs :- |
| "1. | 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 than 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; (e) reading aloud from documents and authorities." (Note 182) | |
| 238. | Similar developments have occurred in Hong Kong. In Cheung Yee-mong v So Kwok-yan [1996] 2 HKLR 48, the Court of Appeal held that the giving of pre-trial directions :- |
| "...... is a matter of case management peculiarly within the province of the judge of first instance. This court will not review decisions of a judge of first instance on matters of case management unless it is satisfied that the judge's decision was plainly wrong. Only then it is the duty of this court to interfere with it, and only then is this court entitled to substitute its own view as to what is reasonable for that of the judge. The judge's decision must fall outside the ambit of possible reasonable decisions before this court will interfere with it." (Note 183) | ||
| 239. | Rogers JA put it in these terms :- |
| "Unless it can be shown that the Judge has clearly erred and justice will not be done, it is not for this Court to interfere with a judge's assessment of how a case should be conducted in front of him, how he should control his own court and how he should manage the case in front of him." (Note 184) |
Notes
| 179 | Civil Justice Review, Report of the Review Body on Civil Justice (1988) (Cmnd. 394). <back> |
| 180 | Lord Griffiths recommended: "...... a radical overhaul of the whole civil procedural process and the introduction of court controlled case management techniques designed to ensure that once a litigant has entered the litigation process his case proceeds in accordance with a time table as prescribed by Rules of Court or as modified by a judge......" (at 1207) <back> |
| 181 | Lord Templeman (at 280-1): "Proceedings in which all or some of the litigants indulge in over-elaboration cause difficulties to judges at all levels in the achievement of a just result. Such proceedings obstruct the hearing of other litigation. A litigant faced with expense and delay on the part of his opponent which threaten to rival the excesses of Jarndyce v Jarndyce must perforce compromise or withdraw with a real grievance. In the present case the burdens placed on Steyn J and the Court of Appeal were very great. The problems were complex but the resolution of these problems was not assisted by the length of the hearings or the complexity of the oral evidence and oral argument. The costs must be formidable. I have no doubt that every effort was made in the courts below to alleviate the ordeal but the history of these proceedings is disquieting. The present practice is to allow every litigant unlimited time and unlimited scope so that the litigant and his advisers are able to conduct their case in all respects in the way which seems best to them. The results not infrequently are torrents of words, written and oral, which are oppressive and which the judge must examine in an attempt to eliminate everything which is not relevant, helpful and persuasive. The remedy lies in the judge taking time to read in advance pleadings, documents certified by counsel to be necessary, proofs of witnesses certified by counsel to be necessary, and short skeleton arguments of counsel, and for the judge then, after a short discussion in open court, to limit the time and scope of oral evidence and the time and scope of oral argument. The appellate courts should be unwilling to entertain complaints concerning the results of this practice." <back> |
| 182 | [1995] 1 WLR 508 <back> |
| 183 | Per Godfrey JA, at 49. <back> |
| 184 | In Cheung Chi Hung v Konivon Development Ltd [2000] 2 HKLRD 367 at 369. See also, to similar effect Lee Tak Yee v Chen Park Kuen [2001] HKLRD 401 at 403-404. <back> |
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