Dr. Mohamed Ibrahim M. Adam
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I espouse the view that the area which has the highest priority relates to increase speed/ efficiency of court procedure. There are a host of suggestions; however some of these could be briefly highlighted. Civil proceeding must be structured as would mandate lawyers involved to exert a reasonable effort to identify at an early stage the major points which are at issue between the parties. This objective may be achieved if the procedural rules contain provisions as regards pre-action exchange of information within clearly prescribed rules and time span as would assist in compiling the essential adequate information prone to assist an early resolution of cases before launching on court trial or set aside lawsuits having no legal or factual background to sustain them at an early stage. Reform of procedural rules should contain provisions authorizing identification of situations where a court is empowered to grant summary judgment regarding cases devoid of legal causes of action, having no bona fide assessment of success, non- valid issues for trial. This would operate as effective mechanism for crossing out trivial or unwarranted proceedings. In addition to that, such an approach would assist the court to enter a summary judgment in connection with lawsuits wherever borderline evidence could be fairly ascertained on submission of affidavit evidence addressing disputed facts. Concomitant to the aforestated point, civil procedural rules should provide for resorting to alternate dispute resolution methods such as conciliation, arbitration prior to invoking legal action as an obligatory pre-condition legal mechanism. Such a procedural mechanism would probably persuade the parties to settle disputes or as a minimum say yes on individual issues. An effort towards an alternate dispute resolution mechanism would likely supply the parties concerned with comprehensive points regarding the character of the dispute and the options of an amicable settlement. It is submitted that mediation as a form of dispute resolution requires insight and sound judgment as to the issues subject of disposition. The procedural rules should shed light that the pertinent strategy is to undertake a thorough objective analysis to ascertain whether the issue is suitable for a mediation process. Mediation is a process, by virtue of which, the parties call for the assistance of an experienced neutral mediator, who is knowledgeable about the issue presented for mediation .The mediator has no capacity to make any binding decision, however he or she is expected to rely on appropriate procedure, technique and skill conducive to assist the parties to negotiate an acceptable settlement. Similarly, Conciliation may be a proper form to resolve some disputes that may arise in contractual or other legal relationship. The party initiating conciliation normally sends to other party a written invitation requesting conciliation. UNCITRAL Conciliation Rules may be appropriate to resolve some disputes as this would probably save time and effort. Accordingly, whenever appropriate reform of the procedural rules should encourage ADR as a cost effective, creative mechanism to resolve disputes.
Again, the civil procedural rules may be reformed as would embrace a provision dealing with the mechanism of an efficient court settlement. This may be done by utilizing a settlement conference involving the court if the circumstances of the dispute so warrant. A settlement conference may be held in the presence of the parties involved, their lawyers, and other persons if the judge and the parties deemed their presence would be beneficial in determining the dispute. However, if the settlement conference failed to resolve the dispute, it may be changed into a pre-trial conference. Once more, the main objective is to resolve a dispute in a proper speedy manner prior to launching court proceedings proper. It is of crucial importance that the reform should include provisions that would ensure an efficient, early discovery mechanism focusing on the objective that the parties shall exchange disclosure of statements embodying essential information. Appropriate use of judicious discovery planning, especially written discovery would ensure expeditious proceedings. The suggested reform should incorporate provisions dealing with appropriate use of expert evidence by the court or by the parties on the basis of a joint appointment as would avoid the negative impact of adopting prolonged, adversarial bias of the party who appointed the expert. Court appointment or joint appointment is prone to ensure natural evaluation of the issues by the expert. The procedural rules must provide that the expert witness had to sign a declaration that the supreme responsibility of an expert witness is to the court, which prevails over his duty to the party employing him with clear spelled out instructions as to structure and substance of an expert’s report. The court if deems fit, out of its own accord, or if one party so applies, order an expert witness to confer with any other expert witness with the object of exerting the utmost effort to reach understanding on unresolved issues, and afford the court with a joint report identifying issues on which an understanding has been reached and unresolved issues together with the underlying rationale of controversial issues. The court shall be entitled to order the expert to provide a supplemental report with further elaboration as to particular areas of the expert’s report surrounded by some ambiguity or uncertainty. Expert witness information must be obtained from experts well conversant in the domain for which the expert witness is called for. The procedural rules should incorporate provisions dealing with a short fast procedural route to address lawsuits of small amounts in value. The time and expense devoted to civil proceedings should be proportionate to the amount in dispute and the importance of points at issue. Existing procedural rules and practices must be amended to include timetables to be set by the court for each contested case, streamline many procedures to the effect of maintaining major steps, restraining the right to appeal procedural issues to few specified procedural questions. Reform of civil procedural rules must contain provisions conducive to identify practices that shall be considered vexatious, dilatory tactics, lack of civility, and adding unnecessary cost. Litigation counsel is envisaged to challenge vexatious practices on an appropriate manner and ask the court to impose sanctions thereof.
Reform of procedural rules necessitates development of an efficient case management technique on the basis of pleadings and filings to ascertain and narrow points of disputes as would ensure an expedited date of hearing. This may be done by enforcement of fixed trial dates without the opportunity for adjournment, except in cases of emergency. A pre-trial order shall fix time for completion of all pre-trial steps, and time limits for the trial together with deterrent ensuring sanctions on parties who fail to adhere to time limits. Examination in chief and expert witness may be submitted by way of affidavit. Such reforms require greater judicial control over the trial process during the trial. A well structure of trial management would avoid late applications for trial adjournment, late disclosure of expert reports, and attention to unrepresented litigants. An efficient trial management may be introduced after securing sufficient trained personnel. Case management procedure must be set to address backlog, case flow management, alternative dispute resolution, management of information technology infrastructures, restructuring of administrative personnel and court administration. The goal of a well structured trial management technique is to ensure that no more than 3% of the lawsuits should actually go to trial of the total actions commenced.