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K17. Trials and case management
| 519. | It is often difficult to predict how long a trial will last. This causes problems for the system. |
| 519.1 | If a trial is given too generous an estimate, the court may find itself without a case booked for hearing when the case goes short - a waste of court resources. |
| 519.2 | On the other hand, if a trial overruns its estimate, other trials scheduled for hearing before the trial judge must be placed with a different judge who may lack the intended judge's pre-trial involvement and familiarity with case or, worse still, may lead to the scheduled case having to be adjourned because no other judge is available to hear it on the date fixed. If this happens it tends to result in wasted costs, delay and inconvenience to the parties and their witnesses. |
| 519.3 | Unrealistic initial estimates, prolixity, whether due to the calling of unnecessary evidence, to excessive cross-examination, to pursuing too many points or to unnecessarily long opening or final submissions are some of the causes of a trial overrunning. |
| 520. | The two main problems with managing trials are therefore unpredictability and prolixity. Lord Woolf puts the problem in these terms :- |
| "There is no certainty at present in relation to the time that a hearing will last. Although time estimates are provided by parties and may be confirmed by the judge, these bear insufficient relation to reality. This approach is wasteful for all concerned. It results in adjournments for other cases and consequential delay. It undermines the planned arrangements of judges, legal representatives and experts. Most important of all, it contributes to additional expense for litigants. This occurs because there is seldom any plan or programme for the hearing, or any attempt to concentrate on key issues and key evidence. Lawyers insist that parties require them to cover every detailed issue in the case. Judges fail to intervene to curtail longwindedness or to focus presentation of the case, lest they give grounds for appeal. | ||
| Excessively and unexpectedly long hearing times eat into preparation time for judges and lawyers alike. There is no effective planning of hearings. Nor is there sufficiently planned use of judges' time when they are not sitting in court." (Note 451) | ||
| 521. | These are of course familiar problems and much pre-date the CPR. It is increasingly accepted, as Mr Justice Ipp points out, that the problem calls for proactive case management :- |
| "It is now fairly acceptable for judges to intervene at trial in the definition of issues, the questioning of witnesses in the interests of justice (and not merely to clarify evidence), the limiting of cross-examination, the calling of witnesses (in exceptional circumstances), and the limiting of time for addresses. Trials would not lose their basic adversarial character if judges intervened to a greater but still limited extent in these ways. ...... | ||
| The extent to which a judge may intervene in the trial is plainly a matter for judicial discretion. The judge of her or his own motion may disallow evidence, require the adoption of procedures designed to shorten the trial (such as the utilisation of written statements of witnesses as evidence in chief), and shorten the time for opening or closing addresses. The steps to be taken will depend on the circumstances and the ingenuity and determination of the judge concerned." (Note 452) | ||
| 522. | While judges have tended to have the support of the appellate courts and the occasional practice direction, (Note 453) it is plainly better that such powers should be placed on an explicit and incontestable footing as part of the rules. As Sallmann and Wright put it :- |
| "However extensive that power may be it is clear that, generally speaking, perhaps because of the adversarial nature of our system and the traditional, detached role of judicial officers, judges have often been reluctant to intervene and to be too actively involved in the actual conduct of trials." (Note 454) | ||
| 523. | It is desirable that time limits on the adducing of evidence, cross-examination and submissions should be imposed, not merely to counter the uncertainty, but also, as Mr Justice Ipp points out, because this is likely to improve the advocacy of counsel appearing :- |
| "Limiting the time for oral argument would compel counsel to concentrate on their best points, discourage them from arguing every issue including those that have no or little prospect of success, and, generally, would raise the standard of advocacy. Disorganised, unstructured arguments would be less frequent. There would be little incentive for counsel to ramble on in all directions, in the hope that eventually a persuasive point will be revealed. Counsel would not be able to afford time in tedious reading of authorities and passages from the transcript." (Note 455) | ||
| 524. | In many jurisdictions, express powers have been enacted to support case management at the trial. For example :- |
| 524.1 | In Western Australia, the Rules (Note 456) gives such powers while reminding the court of the need to ensure elementary procedural justice :- |
| "(1) | A Judge may at any time by direction - |
| (a) | limit the time to be taken in examining, cross-examining or re-examining a witness; | ||
| (b) | limit the number of witnesses (including expert witnesses) that a party may call on a particular issue; | ||
| (c) | limit the time to be taken in making any oral submission; | ||
| (d) | limit the time to be taken by a party in presenting its case; | ||
| (e) | limit the time to be taken by the trial; | ||
| (f) | amend any such limitation; |
| (2) | In deciding whether to make any such direction, a Judge shall have regard to these matters in addition to any other matters that may be relevant: |
| (a) | the time limited for a trial must be reasonable; | ||
| (b) | any such direction must not detract from the principle that each party is entitled to a fair trial; | ||
| (c) | any such direction must not detract from the principle that each party must be given a reasonable opportunity to lead evidence and cross-examine witnesses; | ||
| (d) | the complexity or simplicity of the case; | ||
| (e) | the number of witnesses to be called by the parties; | ||
| (f) | the volume and character of the evidence to be led; | ||
| (g) | the state of the Court lists; | ||
| (h) | the time expected to be taken for the trial; and | ||
| (i) | the importance of the issues and the case as a whole." |
| 525. | Sallmann and Wright note that positive reports have been received from the Western Australia bench as to the operation of these powers :- |
| "Western Australian judges have told us that it is rare for the power to be exercised in the actual conduct of a trial but that its ready availability has, in their view, been a potent influence on lawyers' conduct of trials. They also mentioned that the existence of the Rule has been extremely useful and influential at pre-trial and trial management conferences. At such meetings the trial judge, having examined the file, might, for example, mention to counsel that there appear to be far too many witnesses due to give evidence in relation to a particular point or issue. The judge might mention Rule 5A and its possible use in relation to the matter. The judges told us that it has been remarkable to observe, after such conferences, how the lists of witnesses have been trimmed for the actual trial." (Note 457) | ||
| 526. | A provision to similar effect has been adopted in New South Wales. (Note 458) An additional power aimed at costs transparency in this context enables the court to direct a solicitor or barrister for a party :- |
| "...... to give to the party a memorandum stating: |
| (a) | the estimated length of the trial and the estimated costs and disbursements of the solicitor or barrister; | ||
| (b) | the estimated costs that would be payable by the party to another party if the party were unsuccessful at trial." (Note 459) |
| 527. | In England and Wales, the CPR have sought to address the problems in three ways :- |
| * | They require trial dates to be fixed early, (Note 460) allowing proper planning by the parties and the court. | |
| * | Once fixed, time tables are treated as firm and rarely-moveable milestones. Thus, while parties can generally vary time limits by agreement, (Note 461) this does not apply where a milestone, including a trial date, must move in consequence. (Note 462) Similarly, one of the considerations that must be taken into account in deciding whether a party in default should be relieved from a prescribed sanction is whether relief would mean upsetting the trial date. (Note 463) | |
| * | The CPR also require the court to exercise case management in relation to the trial. Thus, as part of the overriding objective, CPR 1.4(1) envisages the court "giving directions to ensure that the trial of a case proceeds quickly and efficiently." Moreover, as previously discussed, CPR 32.1 empowers the court to control the evidence by, among other things, excluding evidence which would otherwise be admissible and limiting cross-examination. At case management conferences and pre-trial reviews, the court works out a programme to which the parties must adhere and generally takes better charge of the trial. |
| 528. | Readers are consulted as to whether rules giving the court such powers of trial management, subject to necessary safeguards, should be adopted: Proposal 41. As previously mentioned, rules conferring powers to exclude evidence should prudently be supported by an amendment to the High Court Ordinance to put such a rule-making power beyond question. (Note 464) |
Notes
| 451 | WIR, p 15 ยงยง42-43. <back> |
| 452 | Mr Justice D A Ipp, "Reforms to the Adversarial Process in Civil Litigation", (1995) Pt II 69 ALJ 790 at 805. <back> |
| 453 | Eg, Practice Direction (Civil Litigation: Case Management) [1995] 1 WLR 262: which calls for skeleton arguments for trial, and requires succinctness in opening, and, in closing, a brief amplification of the skeleton argument. <back> |
| 454 | GTC, p 134. <back> |
| 455 | Op cit, at 816. <back> |
| 456 | Order 34 r 5A of the Supreme Court Rules. <back> |
| 457 | GTC p 137. <back> |
| 458 | Rule 34.6AA of the NSW Supreme Court Rules. <back> |
| 459 | Rule 34.6AA(4). <back> |
| 460 | CPR 29.2(2): Trial dates or periods are fixed at the allocation stage or as soon as practicable. <back> |
| 461 | CPR 2.11. <back> |
| 462 | CPR 29.5. <back> |
| 463 | CPR 3.9(g). <back> |
| 464 | Along the lines of the Civil Procedure Act 1997, Sch 1 para 4. <back> |
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