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K10. A docket system
| 359. | A docket system was considered but rejected by Lord Woolf as unsuitable for England and Wales. (Note 311) However, such systems have strong adherents in other common law countries and are worthy of mention as offering a possible alternative approach to case management and timetabling. |
| 360. | Mr Justice Ipp is one of its supporters. He regards docket systems as one of two broad varieties of case management systems, which he contrasts as follows :- |
| "There are many different permutations in the techniques of pre-trial case management. There are, however, two basic models, and all pre-trial management techniques are, in some form or other, adaptations of them. These two models are, first, management involving continuous control by a judge, who personally monitors each case on an ad hoc basis, and, secondly, management where control is exercised by requiring the parties to report to the court (often in the form of a master or registrar) at a few, fixed, strategically determined, intervals or occurrences (sometimes called 'milestones') and where the management of the case is part of the routine and structured control by the court over all or most of the cases in its registry." (Note 312) | ||
| 361. | Case management by the docket system falls within the first category. Mr Justice Ipp was particularly impressed by the success of what has become generally known as the "Rocket Docket" system operating in the United States District Court for the Eastern District of Virginia, which he describes as follows :- |
| "It is worthy of mention that there is a form of this model which has proved to be extraordinarily successful for the management of all kinds of cases, and not only complex litigation. That is the case management system implemented by the United States District Court for the Eastern District of Virginia, known throughout the United States as the 'Rocket Docket'. The Rocket Docket procedure of the Eastern Virginia District Court has kept to its system of firm trial dates for 30 years. It handles twice the national average of civil and criminal cases, disposing of the equivalent of 647 cases per judge, with an average of 59 civil and criminal cases going to trial each year. Each year that court is among the two or three fastest courts in the United States federal system for resolving civil cases. The court maintains this ranking even though the district encompasses three major metropolitan areas (the Washington DC suburbs of Northern Virginia, Richmond and the Tidewater area), two large ports of entry (Norfolk, Virginia and Dulles International Airport), and contains many federal Government agencies and contractors which generate much complex civil and criminal litigation." (Note 313) | ||
| 362. | An overview of how the "Rocket Docket" works is given :- |
| "The pre-trial process begins with a pre-trial conference usually handled by a registry officer held within weeks of the first responsive pleading or motion. All counsel must be present and must provide suggested trial dates not more than six months ahead. Once set the date is immutable. Working backwards from the trial date other dates are set. These dates are embodied in a court order. The deadlines established are graven in stone. Extensions or adjournments are granted only for matters such as the serious illness of counsel (even then there has to be a good reason why another counsel cannot be a replacement). This system puts the case under the court's control but does not require the judge to learn details of the case beforehand and the litigation is not taken out of the hands of the lawyers. Every Friday is motions day and the judges take the Bench fully prepared having read the papers beforehand. Motions are resolved on the day. Arguments seldom take longer than 10 minutes a hearing. The early fixing of a trial date, the immutability of that date, and the availability of the judge to hear interlocutory motions are the keys to the success of the Rocket Docket. The system is renowned for its simplicity and effectiveness." (Note 314) | ||
| 363. | Docket systems are in operation in many courts in the United States. A similar system (known as the "Individual Docket system" or IDS) has also met with much success in the Australian Federal Court. How it operates has been described in detail by the ALRC in its Discussion Paper No 62. (Note 315) Having canvassed opinion on the system, the ALRC reports :- |
| "There was unanimous positive feedback in consultations and submissions about the operation of IDS. This is a significant accolade. The Commission consulted with several hundred practitioners from around Australia, experienced in Federal Court litigation, with expert witnesses, some litigants and judges and administrative staff from the Court. Submissions and consultations were overwhelmingly supportive and complimentary of IDS, although practitioners did record some areas of concern." (Note 316) | ||
| 364. | There was "consistent high praise about the quality judging and effective management of the Federal Court." The benefits, attributable to the fact that "the same judge deals with and manages a case from start to finish" were thought to include :- |
| "...... discouraging unnecessary court appearances, making interlocutory hearings more productive, allowing the early exchange of information, and narrowing issues in dispute; and helping to make case resolution more efficient and effective, including appropriate referral of cases to mediation." (Note 317) | ||
| 365. | The key features of a docket system therefore involve (i) the handling of the case by the same judge from beginning to end; (ii) the early fixing of a near-immutable trial date; (iii) case management by the judge himself fixing the timetable and giving relevant directions in the pre-trial period; and (iv) the judge trying the case if it goes as far as trial. |
| 366. | Such a system has undoubted advantages. A common complaint from the parties is that the case makes slow and expensive progress because interlocutory hearings are fixed before different judges who each have to be educated on the facts and issues in the case. After such a hearing, parties are frequently feel that nothing useful has been achieved. When before a different judge, lawyers may attempt to re-open matters already ruled on previously in favour of the other side. With one judge in charge of the case, such complaint are much less likely to arise. |
| 367. | In their Discussion Paper on Civil Justice in Victoria, Peter Sallmann and Richard Wright list the perceived advantages of the docket system as follows :- |
| "Among its advantages are said to be the following: |
| * | Early and clear identification of issues | ||
| * | Early resolution of cases | ||
| * | Early identification of suitability for ADR | ||
| * | Better management through increased and early familiarity of the judge with individual cases and, as part of this, better judicial performance generally | ||
| * | Avoidance of the need for a case to be explained afresh on a number of different occasions | ||
| * | Improved communications between the court and the lawyers involved in a case | ||
| * | Minimisation of interlocutory proceedings and often resolution of such issues without the need for a hearing | ||
| * | Improved capacity of judges to manage their own time, calendars, caseloads and reserved judgments | ||
| * | Lower costs and savings in time | ||
| * | Work value and task variety of court and judges' staff are enhanced | ||
| * | Courts become more efficient and accountable | ||
| * | Better trial management | ||
| * | Overall, the kind of modern project management required for dealing with litigation | ||
| * | Improved capacity for a court to calculate its judicial and other resource needs because of the ability to measure case dispositions per judge on a firm and clear basis." (Note 318) |
| 368. | Their recommendation for the State of Victoria was that careful consideration be given to adoption of a docket system in the light of the enthusiasm shown by many for the Federal Court's system. (Note 319) |
| 369. | Why then did Lord Woolf consider a docket system unsuitable He mentioned four grounds (Note 320):- |
| * | A docket system would provide continuity and commitment, but only "at the cost of flexibility and the efficient deployment of judges." | |
| * | It would require a significant increase in the number of judges. | |
| * | It would not allow for the flexible movement of cases between tiers of the legal system. | |
| * | It would lead to a far more specialised judiciary whereas a preference exists for generalist judges especially in appellate courts. |
| 370. | In the light of the foregoing discussion, readers are asked to give consideration to the exploration of a docket system in Hong Kong as an alternative to Proposals 18 and 19: Proposal 20. It is perhaps worth noting that when he was Chairman of the Bar Association, Mr Ronny KW Tong SC expressed the view that such a system "is not necessarily unsuitable for Hong Kong" in the context of a suggestion that High Court masters should be done away with altogether. (Note 321) It may be that given present case-loads, a docket system would be appropriate only for specialist lists. |
Notes
| 311 | WIR, p 63, §2-4. <back> |
| 312 | Mr Justice D A Ipp, "Reforms to the Adversarial Process in Civil Litigation", (1995) 69 ALJ 790. <back> |
| 313 | Ibid, 790-791. <back> |
| 314 | Ibid, p 791. <back> |
| 315 | ALRC, Discussion Paper No 62, pp 285-297. <back> |
| 316 | ALRC No 89, p 447, §7.6. <back> |
| 317 | Ibid, p 15. <back> |
| 318 | GTC, p 79. <back> |
| 319 | GTC, p 82. <back> |
| 320 | WIR, p 65-66. <back> |
| 321 | W&B, p 192. <back> |
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