- ABOLISH THE MOTION FOR EXTENSION OF TIME
1.1 There are stipulated time limits for parties to file processes under the Rules but the time may be extended by the court on payment of penalty. Counsel, often do not comply with the time limits and then seek to regularize their processes by filing a motion for extension of time. The motion for extension of time is usually granted without objection from opposing counsel. The motion for extension of time is one of the most common applications brought before High Courts today and it may arise between several times over the course of a trial with consequent delay in the litigation of case.
1.2 Judges know that to deny any party the opportunity to argue an application will be a violation of fair hearing and may be a valid ground of appeal. Moreover, Judges have a duty to consider and rule on every application brought by counsel. The Supreme Court has also held in several cases that where there are two applications, one to dismiss the case and the other for extension of time, the application which saves the matter must first be considered. Therefore, there is hardly ever any valid ground for opposing a motion for extension of time.
1.3 The filing and hearing of motions for extension of time is a precious waste of judicial time which can easily be avoided by amending the Rules. One rule that hinders the speedy dispensation of cases and which must be amended is the requirement that every application shall be in writing and made by motion. It will save the time of counsel, litigants and judges. What is important is to punish the guilty party for late filing and to discourage the delay of the judicial process. My humble suggestion is to abolish the use of the motion for extension of time and counsel should only be required to pay the penalty for late filing and file an affidavit of compliance along with the relevant process.
- ABOLISH MEDIATION AT THE CASE MANAGEMENT CONFERENCE
- The formal atmosphere of the court room (even without the wig & gown) is not conducive to successful mediation and amicable resolution of disputes. In mediation conducted at the ADR office or the LMDC, parties are allowed to speak freely to each other with little interference from counsel. Furthermore, the mediator can go into caucus with the respective parties and extract concessions and admissions which may lead to the amicable resolution of the dispute. Judges, on the other hand, cannot go into caucus with parties during CMC.
- Whereas, the privacy of the mediation sessions is more conducive for parties to speak the truth, this may not be possible in the presence of other members of the public (including other counsel and litigants) in the open court room. One other major advantage of mediation over CMC, particularly in commercial cases, is that parties at ADR or LMDC have access to mediators with technical or specialized knowledge of the subject matter in dispute. This no doubt helps for a proper understanding of the matter and consequently facilitates resolution of the dispute. Therefore, my proposal is to abolish mediation at the CMC and direct that all cases regardless of the nature or subject matter of the dispute should be tracked for compulsory ADR (mediation). This will reduce the number of case coming directly to court. Once the CMC is abolished the Judge will not be prejudiced by the proceedings at the mediation and can therefore proceed to handle the trial. Therefore, time wasted in returning the case to the Chief Judge for assignment to a trial Judge will be avoided.
- OUTSOURCE SERVICE OF COURT PROCESSES
3.1 One major cause of delays and adjournment in litigation is because the other party has not been served or even when they have been served there is no proof of service in the court file. It is very sad to see a whole day wasted and the court unable to conduct the business of the day because a court process has not been served or there is no proof of service in the file. It is also clear that many small law firms lack the manpower or resources for regular and prompt service of court processes. I therefore propose that service of court processes, including originating and interlocutory processes, should be outsourced to competent firms, preferably new firms set up solely for this purpose.
3.2 Existing courier companies may be burdened by other non-judicial delivery and may not prioritize court processes. The official fees paid for service of process is grossly inadequate and most counsel already incur additional costs as tips to bailiffs to ensure service of process. Counsel will therefore be willing to pay commercial rates for this service. The process servers will be properly trained and must take an oath of office. Furthermore, the penalty for negligence in handling and delivery processes must be sufficient to deter such conduct.
3.3 The specialized contracted courier companies will also be responsible for generating proof of service and ensuring that they are delivered to the registrars of the respective courts to be placed in the court file. This will eliminate the burden of registrars having to attend to numerous litigation clerks from various chambers on a daily basis.
- REVIEW THE ANNUAL VACATION
4.1 Several people outside the judicial system have often queried the rationale for an annual vacation for the entire judiciary. The argument is that the judiciary is a vital arm of Government, providing dispute resolution and justice delivery services, which must never stop functioning at close to full capacity. They refer to other ministries, departments and agencies of Government and the private sector where the annual vacation of officers is based on rotation to ensure that the organization never completely shuts down.
4.2 One must not forget that the judiciary also takes a Christmas vacation every year. On the other hand, the average period of annual vacation for most other officers in the public and private sector (except legislators) is 30 days. This means that every case is suspended for a substantial period of the year during vacation. Therefore, valuable time is lost in the dispute resolution process. During the annual vacation, important prosecutions are delayed and people are kept in custody. Again, the resolution of vital transactions and contracts are delayed and which affect the productive sectors of the economy. Therefore, my humble suggestion is that the current practice of annual vacation should be scrapped and Judges should go on rotational vacation.
