CJR Interim Report, Section K. Possible Reforms In Specific Areas, K9. Case management

K9.6. Timetabling sanctions and additional resources

356.	For timetables to be effective, a change to the court's approach to time extensions and adjournments must take place.

356.1	The milestone dates (such as the date of the case management conference, if one is directed, the pre-trial review and the trial date) must be immovable save in the most exceptional cases.

356.2	Where a party is not ready, he can no longer expect the court and the other side to wait upon his preparation. Except in the rarest of cases, he must expect the case to move on despite his lack of readiness, to his detriment.

356.3	Non-compliance with the timetable attracts sanctions that fit flexibly with the party's default. Thus, if he has not secured expert evidence to exchange in time, it is his loss as the case proceeds on the basis of a direction that he be debarred from adducing such evidence. If he fails to serve certain particulars of his pleading, he may have certain parts of those pleadings struck out.

356.4	In extremis, where he is so severely in default that the case could not be allowed to proceed, he might have his case struck out or possibly struck out unless he remedies the position within a stated (short) period.

356.5	In other words, a party's lack of readiness is no reason to delay progress of the action but may take effect to his detriment. Once this message gets home, the need for ensuring readiness and for planning to meet the milestone dates will become a key consideration in all litigation.

357.	Adoption of a system of case management where the court sets and enforces timetables may well have resource implications both at first instance and in the Court of Appeal.

357.1	The court must ensure that a sufficient number of judges will be available to try cases as and when they reach the timetabled trial date. The system would not be credible if the court finds itself unable to accommodate the parties after having enforced a timetabling discipline on them. The court must take whatever steps are needed, including use of suitable deputy judges from the legal profession and the District Court to cope with any potential congestion.

357.2	On the other hand, a system of early timetabling will give the Registry a better ability to plan so that it may well be possible to avoid congestion using the timetabling process itself or, if congestion is seen to be inevitable, to make provision for the necessary judicial resources to be in place.

357.3	Additional resources at the Court of Appeal level may be needed to cope swiftly with any interlocutory appeals which otherwise have the potential of disrupting any timetable. If allied to proposed changes discouraging unnecessary interlocutory applications in the first place, to changes requiring the parties to have leave for interlocutory appeals and to development of a practice limiting the grant of leave to cases where points of principle arise or where the interlocutory issue may be crucial to the outcome of the case, all but a relatively small number of cases are likely to be kept to the timetable.

357.4	Some unused court trial days may result from early timetabling by the court. As described above, trial dates are not presently fixed until the end of the entire interlocutory and trial preparation process. Cases which settle before this time therefore presently do not create gaps in the court's trial diary. If early timetabling is adopted, a longer period ensues between the fixing of dates and the trial date itself. One may therefore expect a larger proportion of fixed dates to be ineffective as cases settle in the meantime. However, it will often be possible to fill the vacancy with a different case that is ready for trial. Moreover, various measures to minimise unused trial dates have been adopted elsewhere, including :-


	(a)	fixing dates initially in the form of a fixed window period (say a specified calendar month) for trial, refining it to a particular starting date within that month when the action has reached a later stage;

	(b)	allowing parties who may be anxious for an early determination of their case to bid for earlier dates which come available, perhaps with the court regularly advertising such vacant slots on the judiciary's website as they arise;

	(c)	timetabling certain types of (simple) cases to enter a relatively short running list at a fixed time.


358.	Readers are asked whether a system of case management timetabling similar to that operated under the CPR with appropriate modifications to suit Hong Kong conditions should be adopted: Proposals 18 and 19.