New District Courts civil procedure rules will come into effect from 1 November 2009, forcing parties to file more fact-specific pleadings, conduct time-limited hearings, and adhere to stricter discovery and expert evidence rules.
This Brief Counsel outlines the changes and provides a short commentary on them.
Broadly viewed, the aim of the new procedures is to encourage parties to exchange relevant evidentiary and documentary information about a case as early as possible and to settle their disputes before the case takes on a life of its own and costs blow out of all proportion.
They offer significant opportunity for reduced cost and faster resolution. Formal court trials – featuring wide discovery and other pre-trial procedures, examination, cross-examination and re-examination of witnesses – are no longer the default option but instead merely one of several alternative methods for resolving a legal dispute.
How the new rules will work
Under the new procedure:
A plaintiff must send the defendant a “Notice of claim” giving a succinct description of the facts justifying her claim against the defendant, and the remedies which she claims. The defendant must acknowledge the notice of claim and respond in detail within 30 working days.
In simple debt claims, the plaintiff may seek judgment by default if the defendant fails to respond. If the defendant contests the claim, or part of the claim, he must send the plaintiff a “Response by defendant” answering the plaintiff’s claim by admissions or denials and by succinctly stating the facts justifying his position and/or any counter-claim.
The plaintiff must then consider whether she wishes to press her claim, in which case she must send the defendant an “Information capsule” within a further 30 working days. Importantly, this will include witness summaries, and identify (but not necessarily provide copies of) essential documents on which she relies to support her claim. In default, the plaintiff’s claim will lapse.
The defendant must respond with his own ‘Information capsule’ within a further 30 working days. This will mirror the plaintiff’s, but it must also identify the essential matters in question in the case.
In simple debt claims, the plaintiff may seek judgment by default if the defendant fails to respond. Otherwise the plaintiff must file and serve either a “Notice of pursuit of claim” (along with copies of the defendant’s Response and the Information capsules) or a “Notice of discontinuance”. If the plaintiff takes no action within 90 working days, her claim will lapse.
There are three types of trial:
Short trials are intended to be allocated by a court or Registrar when it is believed that the claim can be brought on without further formalities. They are to be conducted on the basis of the witness summaries rather than detailed witness statements, and the rules impose tight time-limits for examination, cross-examination and re-examination of witnesses (although the judge can relax those time-limits before, or during, the trial).
Absent a short trial, the new procedure requires that parties to any subject dispute first attend a judicial settlement conference, before progressing to either a simplified or full form of trial. In judicial settlement conferences, the judge is a neutral third party who does not take the side of either party, but instead tries to facilitate open communication between the parties themselves in order to achieve compromise and settlement. Much like mediation, the focus is on the parties: the judge merely issues a recommendation to the parties for settlement consideration.
If no agreement can be reached, the judge will allocate either a simplified or a full trial. Simplified trials are intended to be allocated when it is believed that the claim can be tried upon written affidavits, without oral examination (although the judge may order questioning of a person on oath, and a party may cross-examine a witness on an affidavit filed by another party). Brevity is ensured by rules imposing time-limits for cross-examination, re-examination and submissions. Thus lawyers will be restrained from embarking on lengthy cross-examination on matters that are not really in issue.
The changes also narrow discovery by limiting disclosure to the documents on which a party relies (with the ability to seek specific disclosure of further documents), and restrict expert evidence by limiting each party to one expert per “specialist discipline” (typically, there may be expert evidence on liability and quantum).
There is no pre-trial disclosure for short trials. Under the old discovery rules (which still apply in full trials), parties were required to discover all documents which may lead a party to a “train of inquiry” which enables a party to advance its own case or damage that of its adversary.
The above changes are widely perceived as “radical”, and they do involve a significant move away from the formal court trial. One wonders, however, whether there needs to be a radical re-think of pre-action protocols for general litigation in District Courts.
Mandatory reference to some form of “alternative dispute resolution” (ADR) is one option and would be consistent with the thrust of the above changes: providing speedy and inexpensive resolution of legal disputes.
ADR can take a variety of forms, including mediation, conciliation, and “mini-trial”. It has become increasingly popular because of the advantages offered: reduced cost, faster resolution, privacy.
Experience in the employment area, where mandatory reference to (government-funded) mediation has been in place since 2000, tells us that it is highly effective, particularly for low value, high volume grievances.A mini-trial is a non-binding structured settlement process. It resembles mediation, but there is a key difference: the case is presented to a panel comprising a neutral third party and senior representatives or agents of the parties themselves who have authority to negotiate a settlement – or bring the process to an end at impasse. The aim is to flush out quickly, and before an objective adviser and senior managers, the details of any claims and defences.
Finally in this context, there may also be a need to consider alternatives to “loser pays” costs shifting. One option is to provide incentives for early resolution of claims by requiring the court to consider whether reasonable attempts have been made to settle the dispute before, or during, the proceedings.