Civil Justice Reform - The Underlying Objectives and Case Management by the Court  

October, 2008 - Karen Dicks, Professional Support Lawyer

This legal update follows our September 2008 issue which gave a general overview of the major changes to the High Court and District Court Rules to come into effect on 2 April 2009. This and subsequent issues deal with those changes in more detail. This issue deals with the new "underlying objectives" and active case management by the court.

The Underlying Objectives

The new court rules will contain a list of factors called "underlying objectives" which the court will have to consider and give effect to whenever exercising its powers or interpreting the court rules or practice directions. The new rules place an obligation on the parties and their legal representatives to assist the court to further the underlying objectives.

The underlying objectives will be considered by the court when making any decision and the parties will therefore have to consider them when taking any step in the proceedings and when deciding whether to make any interlocutory application.

The six underlying objectives are to:
1. increase the cost-effectiveness of any practice and procedure;
2. ensure that a case is dealt with as expeditiously as is reasonably practicable;
3. promote a sense of reasonable proportion and procedural economy in the conduct of proceedings;
4. ensure fairness between the parties;
5. facilitate settlement of disputes; and
6. ensure the resources of the court are distributed fairly.

The clear aim of the underlying objectives is to promote settlement where possible and, where settlement is not possible, to ensure that a case proceeds through the court as quickly, fairly and economically as possible.

Active Case Management by the Court

The new Court rules place a positive duty on the court to further the underlying objectives by actively managing cases. Active case management includes:

• encouraging parties to co-operate with each other;
• identifying issues at an early stage;
• deciding promptly which issues require full investigation at trial and which can be summarily disposed of;
• deciding the order in which issues are to be resolved;
• where appropriate, encouraging parties to use Alternative Dispute Resolution ("ADR"), such as mediation;
• helping the parties to settle;
• fixing timetables and controlling the progress of the case;
• considering whether the likely benefits of taking a particular step justify the cost of taking it;
• dealing with as many aspects of the case as practicable on the same occasion;
• dealing with the case without the parties having to attend court;
• making use of the technology court;
• giving directions to ensure that the trial proceeds quickly and efficiently.

A new rule is to give the court general case management powers. Those of particular note are powers to:
• exclude an issue from consideration;
• dismiss or give judgment on a claim after a decision on a preliminary issue;
• make any order subject to a condition to pay a sum of money into court;
• specify the consequences of failure to comply with an order or condition i.e. orders will be self-executing;

Under the new court procedure, parties will be required to complete, file and serve a questionnaire fairly early on in the proceedings, giving detailed information about the case, including, for example, the following:

• whether any interlocutory applications are intended or outstanding;
• whether any amendment to pleadings is intended;
• the number of factual witnesses likely to be called and how long is needed to prepare witness statements;
• whether expert evidence is needed and, if so, in what field and relating to what issues;
• whether appointment of a single joint expert is appropriate, and if not, why not;
• estimated length of trial;
• approximate volume of documents relevant to the case and time necessary to assemble and list them;
• whether the party's discovery obligations should be modified, for example, by limiting discovery to particular issues.

After considering the parties’ questionnaires and needs of the particular case, a timetable will be fixed for steps in the action, including "Milestone Dates", which once fixed, will be virtually impossible to change. "Milestone Dates" will include dates for a case management conference, a pre-trial review, the trial or period within which the trial is to take place.

The Court will also be given specific powers to control evidence, for example, to limit the number of witnesses (factual and expert) and in appropriate cases order the appointment of a single joint expert.

A new rule will also allow the court to make orders of its own motion (i.e. without either of the parties having applied for such order) and without first having heard the parties, although parties affected by such order will be given the opportunity to apply to set aside the order within a specified deadline.

Likely Impact on Litigation

Advanced planning and preparation.
Cases will have to be analysed and issues identified at a very early stage to enable completion of the case management questionnaire. This will probably lead to greater costs being incurred early on in proceedings (or even before proceedings are commenced) but should help to "weed out" unmeritorious claims and defences and promote settlement.
Stricter court deadlines. The Court will be less likely to grant time extensions and will require strict adherence to court determined timetables and milestone dates.

Fewer interlocutory applications.
The requirement for economy and proportionality means that parties should only make those interlocutory applications that are really necessary. Summary assessment of costs (i.e. costs assessed and payable immediately after an interlocutory application) and costs sanctions for unnecessary interlocutory applications are also likely to deter unnecessary interlocutory applications.

Greater use of ADR.
Active case management by the court specifically includes encouraging parties to use ADR, such as mediation. It is expected that a new Practice Direction on ADR (yet to be finalized) will require parties to consider ADR and, importantly, provide for possible costs sanctions against parties who unreasonably refuse to immediate.

Greater court intervention.
Steps taken in the proceedings and pace at which they are taken will be supervised and determined by the court, rather than left in the hands of the parties. This should help to eliminate delaying tactics and unnecessary applications and ensure that parties focus on the real issues in dispute.

Change in litigation culture.
The new rules encourage cooperation between the parties, which should facilitate more settlements.



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