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J2.3. Objections to case management
| 245. | This fundamental aspect of the Woolf and other reforms has not escaped criticism. Those who oppose case management tend to raise two objections: first, that it gives excessive discretion to judges, resulting in inconsistency and unfairness and, secondly, that it increases rather than reduces the expense of litigation. |
| 246. | At the forefront of the critics is once again Professor Zander QC. In a Modern Law Review article he states :- |
| "[Judicial case management] massively increases discretionary decision making by judges. This will mean a consequential massive increase also in inconsistent judicial decision." (Note 190) | ||
| Professor Zander expands on this theme in his 1999 Hamlyn Lectures :- | |
| "The problem of inconsistency of approach by the judges creating unfairness applies equally to a whole raft of new discretions given to the judges by the new rules. Under Lord Woolf's judicial case management, the judge who is managing the case knows only what is presented to him by the parties. He has to make snap decisions based often on inadequate information. Inevitably, through no fault of his, he will sometimes make decisions that are unwise or inappropriate. But it will be difficult to appeal such discretionary decisions since the appeal courts, understandably, will not want to second-guess the procedural judge ...... | ||
| So the move to judicial case management not only greatly increases the risk of inappropriate decisions resulting from the judge's lack of familiarity with the case, but equally increases the volume of low-level, inconsistent discretionary decisions that are in practice unappealable. That again seems to me a step backward for fairness." (Note 191) | ||
| 247. | Turning to the second objection, Professor Zander argues that "the greater hands-on case management for Multi-track cases ...... with two pre-trial hearings, will generate even greater additional costs." (Note 192) |
| 248. | There is no doubt that these objections deserve serious attention and that care must be exercised to avoid additional expense due to the adoption of case management. However, an examination of the literature and of the safeguards consciously built into relevant provisions indicates that these problems are manageable. Many commentators regard case management as far preferable to the excesses of unbridled adversarial practices and regard Professor Zander as holding very much a minority view. |
| 249. | It is true, as the ALRC points out, that some judges may be better managers than others: some may intervene too little, others may prove overbearing and be seen excessively to "run the show". (Note 193) Nonetheless, to say that judges will be given broad managerial powers does not necessarily mean that unfairness will result. The guiding principles of the overriding objective provide a framework and common basis for argument. Such inconsistency as there is will be over the application of those principles to particular cases and not inconsistency born of judicial arbitrariness. Such inconsistency is unavoidable whenever there is room for debate as to how an established principle, whether substantive or procedural, should operate on a given set of facts. |
| 250. | It may persuasively be argued that any disadvantages are clearly outweighed by the benefits of case management. (Note 194) The deleterious effects of unbridled adversarial practices are the realistic alternative, resulting in the seriously objectionable consequences discussed above. |
Notes
| 190 | Michael Zander QC, "The Government's Plans on Civil Justice" (1998) 61 MLR 382 at 387. <back> |
| 191 | Michael Zander QC, "The State of Justice - The Hamlyn Lectures, 1999" (Sweet & Maxwell, London 2000), p 44-45. <back> |
| 192 | Ibid, p. 42. <back> |
| 193 | ALRC No 89, ยง6.17. <back> |
| 194 | As Mr Justice Ipp concluded, after a detailed discussion of objections to case management in principle: Mr Justice D A Ipp, "Reforms to the Adversarial Process in Civil Litigation", Pt I (1995) 69 ALJ 705; Pt II 69 ALJ 790; at 717 et seq. <back> |
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