Management of Court Cases at the Trial, and Appellate Level

I.   The Source of Responsibility

                The Constitution of India in spirit with the fundamental policy declaration in Article 50 to separate the judiciary from the executive in the public services of the State confers the powers in relation toadministration of justice on the Superior Courts. All authorities, civil and judicial, in the territory of India shall act in the aid of the Supreme Court as ordained by Article 144. The power to make Rules for regulating the practice and procedure of the Supreme Court vests in it under Article 145. The jurisdiction of the High Courts in relation to the administration of justice in the Court including power to make rules of court is preserved by Article 225 of the Constitution. A Constitution Bench of the Supreme Court has held that, apart from Article 225, the High Court may derive Rule-making powers from substantive provisio ns, such as Article 235 (control over subordinate courts), where the nature of powers conferred by the Article would include power to make rules to regulate the exercise of the power. [State of Uttar Pradesh v. Batuk (1978) 2 SCC 102 (paras 10 - 11)]. The power of superintendence over all courts and tribunals throughout the territories in relation to which the High Court exercises jurisdiction conferred by Article 227, includes under Article 227(2)(b), power to make and issue general rules and prescribe forms for regulating the practice and procedures of such courts. Thus, the Constitution of India envisages a major role to be played by High Court in relation to the administration of justice not only in the High Court but also in relation to the courts subordinate to such High Court. The power, by its very nature, is obviously coupled with the duty to render proper administration of justice. The constitutional concern is not limit ed to decision - making by the courts but extends to the processes of decision making which should bring about acceptable standards of administration of justice in courts. The responsibility is clearly of the respective High Courts to ensure proper judicial administration within their territory.

II.   Pendency of Cases

                The alarming figures of pendency of cases in the High Courts and the courts subordinate to them signal urgent need for better ways of administration of justice in courts in India. A glance at pendency of cases would show how acute the problem is. In the High Court of Gujarat, the total pendency of cases as on 30-6-2001 was 1,33,067, of which 38,636 were Writ Petitions, 25,232 First Appeals and 8,576 Criminal Appeals. Many of these matters are nearly a decade old and some even older. There were 47,188 long cause suits, 9,552 Motor Accident Claims regular cases pending in the City Civil & Sessions Court, Ahmedabad as on 30-6-2001 in its total pendency of civil cases which was 63,628, besides there being 581 Sessions Cases and 130 Criminal Appeals. In Surat District, 21,396 suits, 1,773 civil appeals, 901 sessions cases and 158 criminal appeals, while in Vadodara District, 32,305 suits, 4,561 civil appeals, 992 sessions cases and 261 criminal appeals, were pending as on 30-6-2001. (Source of information : High Court Registry).

III.   The Regulative Provisions

                ( a )  The administration aspect of work in courts has two facets. At the macro level are: the types of jurisdictions of the court, its existing workload, the periodic inflow of cases and their categories, the procedures devised for handling such cases, the speed of disposal of cases, arrears, the assistance of the Bar, the Judge’s strength available and needed for coping up with the workload, the quality of the output and host of other factors, not to mention the budgetary requirements. These involve policy and rule-making processes and taking of administrative action to implement them.

                ( b )  At the micro level of court administration, the focus is on how the cases are handled in the court. The cases fall in different categories which call for specific handling techniques. Procedural rules are framed to regulate various stages of progress of a case from its presentation to its disposal. The aim of the regulative provisions is to deal with the individual cases expeditiously for their timely disposal.

                ( c )  The day to day working of a court, at micro level, rests with its presiding officer who must not only attend to the decision making work in individual cases, but also to the collective effect of the workload and adopt ways to ensure, without compromising the quality of decisions, how best they can be quickly made.

                ( d )  At the control and supervisory level, the High Court, beyond keeping track of the files of the subordinate courts, is required to guide and assist the subordinate courts by suitable instructions to cope with the workload and provide for necessary infrastructure for an adequate work environment. The awareness amongst the constituents of the judicial decision making process of the overall need to tone up the administration aspects of judicial work has reflected in detailed studies and implementation of reforms steps in the advanced countries which can provide some guidance while evolving strategies more suited to the national and local culture.

IV.   The Rhytm of Change

                While not undermining the merits of the work relating to administration of justice in court that has been dedicatedly done so far, a few important aspects may be identified for immediate attention to better manage the working and workload of courts. Neither in the Gujarat High Court Rules, 1993 nor in the Code of Civil Procedure, which by Section 122 empowers High Courts - to "make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence", and to annul, amend, alter or add to any of the rules in the First Schedule, provide for the length of the briefs, the restrains on leading evidence, time limits on argument, preparation and calendering of court cases, pretrial conference, limits on the length of trial or adequate sanctions for enforcement of rules. Casualness and prolixity hav e crept in, which have contributed to the vicious cycle of large arrears and delay in disposal of cases. The West has been alert and equally or more conservative legal systems have brought about changes and adopted norms that have shown improvement in the administration of justice in courts. Commercial interests have generated amongst non-court agencies, which have been quick to see green pastures in the hitherto arid area of decision making processes. Managerial concepts have been introduced as a saviour against the collapse of the system under its own weight or due to inept handling. After all, good administration of any institution involves efficient management of its affairs. The rhythm of change can hardly be ignored.

V.   Managing Affairs - at Appellate Level

                ( a )  The High Courts have appellate powers in both civil and criminal cases and the District Courts also have a limited appellate jurisdiction under various laws. Though time limit for presenting appeals is prescribed under various provisions, there is no time limit provided for dealing with the matters or for their final disposal, nor is there any limit on the size of the appellate brief or a time limit on the argument. This stands in sharp contrast with the procedural provisions adopted in other jurisdictions.

                ( b )  In Michigan Court of Appeals Court Rules, there is a provision in Rule 7.212 relating to Briefs prescribing for (A) Time for Filing and Service [TFS] and (B) Length and Form of Briefs, and; (C) Contents of Briefs, which is worth noting. If the appellant does not file the requisite copies of a brief with the Court of Appeals within the time prescribed therein and serve a copy on all other parties to the appeal or if the appellee does not file copies of his brief within the time stipulated and does not serve it on other parties in the time prescribed, the failure entails a forfeiture of his right to oral argument. The length of the brief is "limited to 50 pages double-spaced, exclusive of tables, indexes and appendixes". The printing shall not be smaller than 12-point type. The briefs must contain a title p age, inter alia, stating, "Oral Argument Requested" or "Oral Argument Not Requested". It should include the, "principal points of argument, in the order of presentation, with the number of the pages where they appear in the brief". It should also have an index of authorities, listing in alphabetical order, "all case authorities cited, with the complete citations....." A statement of the basis of jurisdiction of the Court of Appeals and a statement of facts that must be "a clear, concise and chronological narrative", must be there in the briefs. All material facts, both favourable and unfavourable, must be fairly stated without argument or bias. These provisions are intended at precision in the appellate briefs and are aimed at bringing to the fore the real controversy involved and the contentions of the parties. If the court concludes that a brief does not substantially comply with the requirement of the rule, it may order the party who filed the brief to file a supplemental brief within a specified time correcting the deficiencies, or it may strike the non conforming brief. Accuracy in narrating the basis for invoking appellate jurisdiction obviously saves time and is conducive to good administration of justice in courts which includes proper case management.

                ( c )  There is a provision in Rule 7.213 of the Michigan Court of Appeals - Court Rules, for Pre-Argument Conference in Calendar Cases and all civil cases are to be examined to determine if a pre-argument conference would be of assistance to the court or the parties. An attorney or a party may request a pre-argument conference in any case. Such a pre-argument conference shall be confidential. Such pre-argument conference shall be conducted by the court, or by a judge, retired judge or attorney designated by the court. The judge participating in a pre-argument conference or involved in a settlement discussion under this rule, may not thereafter consider any aspect of the merits of the case. There is no provision in the High Court of Gujarat Court Rules for such pre-argument conference. This provision can be introduced in the Rules for reducing the appellate workload and saving the time of the court for more serious and contested appeals.

                ( d )  After the briefs of both the parties have been filed, or after the expiration of the time for filing the appellees brief, the case is submitted as a "calendar case" at the next available session of the court and precedence shall be given to interlocutory criminal appeals and child custody cases. A change may not be made in the sessions calendar, except by order of the court on its own initiative or in response to timely motions filed by the parties.

                ( e )  There is thus sanctity attached to the fixing of matters for hearing in courts unlike in Indian Courts where adjournment is a matter of routine. In the matters listed on daily boards, as also in urgent matters which are moved at the instance of the counsel, the court is often faced with an adjournment motion on one ground or the other that may be put up by the counsel. Since there is no systematic fixation of calendar which would entail fixing of such number of matters as can be effectively dealt with, the matters which are listed in the daily board sometimes run into three figures or even more. There is a convenient possibility of taking and granting adjournments and much of the court time is wasted in running through the board and the time and energy of the Registry is consumed in rescheduling the matters on future dates wh en again similar situation would arise. Arrangement of calendar in a way that the matters listed must necessarily proceed except in cases of extreme emergency, and, listing of cases which can actually reach and be disposed of, is an important amendment required to be made in the context of the court rules to bring about some order in the court proceedings and stop the present chaotic situation prevailing in the High Courts and the subordinate Courts.

                ( f )  Oral argument of a calendar case is not permitted, except on order of the court, unless a party has stated on the title page of his or her brief in capital letters or boldface type "ORAL ARGUMENT REQUESTED", as provided in Rule 7.214 of the M.C.A. Rules relating to Argument of Calendar Cases. The failure of a party to properly request oral argument or to timely file and serve a brief waives the right to oral argument. If neither party is entitled to oral argument, the clerk will list the case as submitted on briefs. Length of argument is regulated by sub-rule (B) of rule 7.214 which provides that, in a calendar case, "the time allowed for argument is 30 minutes for each side". When only one side is represented, only 15 minutes is allowed to that side. The time for argument may be extended by the court on motion filed at least 21 days before the session begins, or by the presiding judge during argument. The provision that the time allowed to each side for oral argument will be determined by the court is also made in Rule 34 of Federal Circuit Rules of Practice. In the Judicial Committee (Devolution Issues) Rules Order, 1999, in respect of allocation of time, Rule 5.29 provides that, within 7 days of the setting down of the appeal, each party shall notify the Registry of the time, in hours, that counsel considers necessary for each address which it is proposed should be made on behalf of that party, and that subject to any directions that may be given at or before the hearing, the counsel will be expected to confine their submission to the time indicated in their estimates. This is a very important provision and with some modification, it needs to be adopted in the High Court Rules for better case management.

                ( g )  Similar provision prescribing time limit for argument is incorporated in Rule 28(3) of the Rules of the Supreme Court of United States which provides that, unless court directs otherwise, each side is allowed one-half hour for argument. The counsel is not required to use all the allotted time. Any request for additional time to argue shall be presented by motion under Rule 21 not more than 15 days after the petitioner’s or appellant’s brief on the merits is filed, and shall set out specifically and concisely why the case cannot be presented within the half-hour limitation. Additional time is rarely accorded. Oral argument is not allowed on behalf of any party for whom a brief has not been filed, as provided in sub-rule (6) of rule 28. The oral argument should emphasize and clarify the written arguments in the b riefs on the merits as required by Rule 28(1), which also lays down that the Counsel should assume that all Justices have read the briefs before oral argument and that oral argument read from a prepared text is not favoured.

                ( h )  The imposition of time limit on oral argument in the appellate court and other proceedings, especially before the superior courts, has a far reaching effect which can be better understood if the bewildering practice prevalent in the courts in India of endless argument by counsel, sometimes even though reminded of the time constrains and there being no need for further arguments, is noticed. There have been cases where oral argument has taken days together over the legal issues already settled. The inner limitation of a judicial mind of avoiding confrontation with an insistant member of the Bar has brought about a situation where at admission stage, many writ petitions or appeals are argued in the High Court endlessly by the counsel. One merit of restricting the length of argument to a reasonable time would be that a counsel would come better prepared knowing that he will be required to make his argument within the stipulated time. Prescribing time limit for argument in the Rules would, therefore, go a long way in the Indian context to save the time and achieve a quicker disposal of the pending matter. A necessary amendment in the procedural rules to make it incumbent on the counsel to complete his argument within the allotted time is overdue. Until such rule is made, the court will be within its power to impose such restrictions as a part of a proper management of the hearing of the court cases by restricting the counsel to a time limit that may be imposed having regard to the nature of the proceeding.

                ( i )  There is a duty on the court to acquaint itself with the brief of a case which is recognised even by the Supreme Court in the United States in Rule 28(2) in which a very significant statement is made : "Counsel should assume that all Justices have read the brief before oral argument". In this statement, lies the essence of duty of Judges in the decision making process. We do come across a thinking in the opposite direction as per which Judges have defended their not reading the briefs before oral argument on the ground that they would rather hear the matter with an open mind. The fact however remains that unless the brief is read before oral argument, it would result in straining nerves to understand the complexity of an appellate brief within the half hour limitation which the counsel may observe to the utter embarras sment of the Judge who at the end of the argument has not yet understood what it was all about. When the superior courts in other jurisdictions have made a statement in their procedural rules, requiring the counsel to assume that all Justices have read the briefs before oral argument, a similar statement in the Rules relating to hearing of the petitions and appeals before the High Court would go a long way in gearing up the justices for fully comprehending the argument presented within the half-hour limitation.

VI.   Standards for Publication of Judgements

                The decisions of superior courts are binding on the subordinate courts. The decisions of the High Courts bind the Courts subordinate to it and therefore, when a judgement of the High Court is reported, it is expected to provide a proper guidance on the question of law that it decides which is the ratio decidendi of the case. The purpose underlying the publication of the judgements of High Court which are binding as precedents would be to deter the parties from agitating issues which have been concluded. Moreover, it would lead to faster disposal of the pending cases which involve similar points and are answered by the ratio of the judgement. A published opinion of the High Court has precedential effect under the rule of stare decisis. It has impact on the course of litigation in the subordinate courts also. At present, there are no standards for publication of opinions of courts prescribed under the Rules by the High Court. There are certain accepted standards for publication of Court opinion which can be adopted by prescribing a rule to that effect. A Judgement must be published if it : (1) establishes a new rule of law; (2) construes a provision of the constitution, statute, ordinance, or court rule; (3) alters or modifies an existing rule of law or extends it to a new factual context; (4) reaffirms a principle of law not applied in a recently reported decision; (5) involves a legal issue of continuing public interest; (6) criticizes existing law, or (7) creates or resolves an apparent conflict of authority, whether or not the earlier opinion was reported. The observance of these standards will have a far reaching effect on restricting litigation to the extent to which its outcome can be predicted in light of the decided cases which are binding precedents. This surely is the co nducive good administration of justice in courts.

VII.   Lawyer Competence and Conduct

                ( a )  A co-operative and knowledgeable Bar is essential for an efficient management of cases in courts. In response to concerns about a perceived decline in lawyer professionalism and its effect on public confidence in the legal profession and the justice system, the Conference of Chief Justices (CCJ) in U.S. adopted Resolution VII at its 1996 Annual Meeting, which called for a study of lawyer professionalism and the development of a National Action Plan to assist state appellate courts of highest jurisdiction in providing leadership and support for professionalism initiatives. With funding by the State Justice Institute and support from the National Center for State Courts (NCSC) and the American Bar Association Center for professional responsibility, the CCJ Committee on Professionalism and Lawyer Competence ("Ce nter"), carried out the resolution.The National Action Plan was submitted by the Working Group to the CCJ for consideration in its 1999 Midyear Meeting which contained the recommendations on professionalism, leadership and coordination and improving lawyer competence among other recommendations. As per these recommendations, the appellate court of highest jurisdiction in each State was expected to take leadership role in evaluating the contemporary needs of the legal community with respect to lawyer professionalism and coordinating the activities of the bench, the bar, and the law schools in meeting those needs and to make special efforts, which should, inter alia, include correlating the needs of the legal profession - bench, bar, and law schools - to identify issues, assess trends and set a coherent and coordinated direction for the profession. Each State’s appellate court of highest jurisdiction should encoura ge and support the development and implementation of a high-quality, comprehensive Continuing Legal Education (CLE) program including substantive programs on professionalism and competence which, inter alia, encourages CLE components on legal practice and office management skills, including office management technology and teaches methods to prevent and avoid malpractices and unethical or unprofessional conduct and the consequences of failing to prevent and avoid such conduct.

                ( b )  The appropriate conduct of counsel appearing before the court is a matter that concerns the court administration. In this context, one is reminded of interesting guidelines which were issued by the United States Supreme Court for October term 2000, entitled, "Guide for Counsel in Cases to be argued before the United States Supreme Court", prepared by the Clerk of the Court. The guidelines indicate the manner in which the counsel is expected to conduct himself while arguing before the highest court, before he exercises the honour of taking the quill pens (which are ‘handicrafted and usable as writing quills’), kept at the argument table as a gift for the counsel - a souvenir of his or her having argued before the highest court in the land. The counsel is required to promptly and quietly vacate the front argument table after the Chief Justice announces that "the case is submitted". In the Guide, the arguing counsel and co-counsel are informed as to where they shall report in the Lawyers’ Lounge on the day of argument, where they shall leave their coats, hats and papers and obtain their identification cards, and told to be at the back up argument table when the preceding case is being argued, about the manner of address, the brevity to be observed and the limit on argument time which is normally 30 minutes and not to be enhanced "by a rapid fire, staccato delivery". The counsel are told : "When the Marshal activates the white light-the-5-minute warning you should be prepared to stop your argument in five minutes. When the red light comes on, terminate your argument immediately and sit down unless you are answering a question from a Justice, in which event you may continue your answer and respond to any additional questions from t hat Justice or any other Justice". These instructions are all meant not just to discipline the counsel but to save the time of the court and aim all seriousness to the business before it. The effect straightaway is to have the counsel who is ready with his brief and who on his part, should assume that all the Judges have read the briefs filed in his case, including amicus curiae briefs, as meaningfully mentioned in the Guide.

                ( c )  It has been said that preparing for oral argument at the U.S. Supreme Court is like packing your clothes for an ocean cruise. When packing for the cruise, you should lay out all the clothes you think you will need, then return half of them to the closet. When preparing for oral argument, eliminate half of what you initially planned on covering. The allotted time evaporates quickly, especially when numerous questions come from the court and therefore, the counsel should be prepared to skip over much of his planned argument and stress the strongest points. The counsel are told to remember that briefs are different from oral argument. "Oral arguments are not designed to summarise briefs, but present the opportunity to stress the main issues of the case that might persuade the Court in your favour". They must avoid em otional oration and loud, impassioned pleas. A well-reasoned and logical presentation without resort to histrionics is easier for listeners to comprehend. The guide for counsel though issued for the benefit of the counsel arguing before the Supreme Court of the United States, can be of immense help if adopted in the work culture of our Courts.

VIII.    The Case Management at Trial Court Level

                ( a )  Case management is a process applied in many jurisdictions. It is a comprehensive system of management of the time and events in a law suit as it proceeds through the justice system, from initiation to resolution. The setting of a timetable for predetermined events and the supervision of the progress of the law suit as per the timetable, are the essential aspects of case management system. The system postulates active involvement of the Judge dealing with the case. Right from the inception, the Judge acquaints himself with the substantive issues of the case and periodically monitors the progress of litigation. The Court takes the ultimate responsibility for an effective progress along a chosen track. Lord Woolf in his interim report to Lord Chancellor on civil justice in England, while considering the question of ne ed for case management by the courts, came to the conclusion that, in order to achieve both the overall aim and specific objectives, there is no alternative to a fundamental shift in the responsibility for the management of civil litigation from litigants and their legal advisers to the courts. He saw a need to introduce a new judicial structure with clearly defined responsibility for civil justice, to ensure that Judges are deployed as effectively as possible to meet these new responsibilities.

                ( b )  The objectives of civil justice system are that : (1) cases should be disposed of within a reasonable time, whether by settlement, trial or otherwise; (2) each side should have full information about the other’s case, in order to assist settlement or preparation for trial; (3) in all other respects, there should be adequate preparation for trial and identification of the relevant issues and of evidence required to resolve those issues; (4) cases which are ready for trial should come on without delay; and, (5) the conduct of trials should be expeditious, with issues, evidence and argument presented in as economical a manner as justice permits. Lord Woolf has summarised specific objectives of case management thus : (1) achieving an early settlement of the case or issues in the case where this is practical; (2) the diversion of cases to alternative methods for the resolution of the dispute where this is likely to be beneficial; (3) the encouragement of a spirit of co-operation between the parties and the avoidance of unnecessary combativeness which is productive of unnecessary additional expense and delay; (4) the identification and reduction of issues as a basis for appropriate case preparation; and (5) when settlement cannot be achieved by negotiation, progressing cases to trial as speedily and at as little cost as is appropriate.

                ( c )  The Australian Law Reform Commission, in its Adversarial Background Paper - 3, "Judicial and Case Management", has defined the expression ‘judicial management’ to describe all aspects of judicial involvement in the administration and management of courts and the cases before them. It includes procedural activism by judges in pretrial and trial processes and in case management (sometimes referred to as ‘managerial judging’). At its broadest, it also encompasses questions of court governance and court administration. The term ‘case management’ is used to describe processes involving the control of movement of cases through a court or tribunal (caseflow management) or the control of the total workload of a court or tribunal (caseload management). Case management in courts is often, but not always, performed by judges. When it is performed by judges, it is referred to as ‘judicial case management’. The objectives of case management include; (1) early resolution of disputes, (2) reduction of trial time, (3) more effective use of judicial resources, (4) the establishment of trial standards, (5) monitoring of case loads, (6) development of information technology support, (7) increasing accessibility to the courts, (8) facilitating planning for the future, (9) enhanced public accountability and (10) the reduction of criticism of the justice system by reason of perceived inefficiency.

                ( d ) &nbspThe fundamental elements of a successful caseflow management system would include judicial commitment and leadership, court consultation with the legal profession, court supervision of case progress, the use of standards and goals, a monitoring information system, listing for credible dates, and, last but not the least, strict control of adjournments. The court supervision of case progress necessiates giving of directions right from the commencement stage so that the case flow remains under control of the court rather than the parties. Complex cases are required to be closely managed by the trial Judge. An efficient case management would minimize the court’s time of disposal of case.

                ( e )  There are differing views on the extent to which Judges should be directly involved in pretrial case management. The Chief Justice of Australia, the Honourable Sir Gerard Brennan is reported to have expressed the view that, judicial time and energy should be reserved for functions which judges alone must perform - that is, the conduct of trials and appeals according to law. He has suggested that in view of the emergence of highly qualified judicial administrators in the last decade, the administration of methods of resolving disputes otherwise than by trial ought to be entrusted to the court’s staff recruited, if need be, from practitioners who have had practical experience in litigation. This view contrasts, to some extent, with the following comments made by Lord Woolf in his final report to the Lord Chancellor on the civil justice system in England and Wales.

                "I do not see the active management of litigation as being outside a judge’s function. It is an essential means of furthering what must be the objective of any procedural system, which is to deal with cases justly. Case management includes identifying the issues in the case; summarily disposing of some issues and deciding in which order other issues are to be resolved; fixing timetables for the parties to take particular steps in the case; and limiting disclosure and expert evidence. These are all judicial functions."

                The form of case management recommended by Lord Woolf introduces the post of procedural judge who would provide continuity to cases as they progress through the interlocutory stages.

                ( f )  The success of case management system would depend on whether it is successful in minimizing the delays in the litigation process. Australian courts have experienced some success in using case management processes to reduce backlogs and the disposition time (See Australian Institute of Judicial Management Papers from the Annual AIJA Conferences of the Australian Higher Courts on case management and delay reduction in the Higher Courts 1991 - 94. )

                ( g )  In the United States empirical research, particularly that by the National Center for State Courts (NCSC) has demonstrated that different approaches taken by courts to case management do affect the pace of litigation. Through a comparison of 18 state courts in 1988, the NCSC found that the courts which took the longest time from commencement to disposition were those that exercised virtually no control over the pace of litigation and had little knowledge about the relative complexity of different cases prior to the point of trial readiness.

                ( h )  The case management systems mainly attempt to impose time standards on the litigation process. Application of sanctions are considered to be necessary adjuncts of an efficient case management. In order to prevent breach of procedural orders, the rules must provide for an effective debarring order where there has been a breach and all directions should contain an automatic sanction for non compliance of the order within the stipulated time. The court should be able to make disciplinary costs orders against the party or his or her legal representative or any other person involved in the litigation who in its opinion does not comply with the procedural rule or an order of the court or causes unnecessary delays or otherwise abuses the process of the court.

                ( i )  If there has to be greater judicial intervention at trial, then the need for judicial competence increases. An inexperienced judge may not be sufficiently skilled to control the course of a complex trial and may not have the knowledge and experience to limit cross-examination, limit the number of witnesses, determine the form of evidence and submissions while still ensuring procedural fairness. (See J. Middleton Adversarial, inquisitorial or a bit of both?) Paper delivered at litigation Reform Commission Conference March 1996 Brisbane).

                ( j )  There have been some oppositions to managerial judging on the ground that judges may become too concerned with the quick turnover of cases rather than the quality of the justice dispensed, and that judges interested in the early settlement of cases may directly or indirectly pressurise the parties to settle. M. Frankel, an American Jurist, in his article ‘The Search for Truth’ (1975) 123 University of Pennsylvania Law Review 1031, 1042, cautioned against judge intervening by managerial decisions and observed, "without an investigative file, the American Trial Judge is a blind and blundering intruder, acting in spasms as sudden flashes of seeming light may lead or mislead him at odd times." However, when case management takes place in open court in a transparent atmosphere and when there are adequat e appellate procedures, judicial intervention for a speedier disposal would not cause any unfairness or breach of impartiality in the decision making process.

IX.    The Procedural Reforms in England

                ( a )  The new Civil Procedure Rules, 1999 adopted in England, reforming Civil Procedure with the aim of modernizing justice and replacing the rules in the High Courts and County Courts by a single unified Code of Civil Procedure have at their heart the concept of the proactive judge and there is "fundamental transfer in the responsibility for the management of civil litigation from litigants and their legal advisors to the courts". Active Case Management (See Rule 1.4.02) will include encouraging the parties to co-operate with each other in the conduct of the proceedings; identifying the issues at an early stage; disposing of some issues summarily, encouraging the parties to use ADR; helping the parties to settle the whole or part of the case; and, fixing timetables and giving ‘tight’ directions with strict penalties for n oncompliance. The new management powers given to judges in order to achieve these ends include, power to require a representative to attend the court, conduct hearings and case management conferences over the telephone; and make decisions upon the court’s own initiative, without any application having been made.

                ( b )  The process of case management begins with allocation, by the procedural judge, to an appropriate ‘management track’, in accordance with jurisdictional rules. The County Court will generally deal with small claims track and fast track cases, whilst the High Court will deal with the multi track. The extent to which the parties can agree to delay the progress of litigation will be severely limited and the court’s order would in general specify sanction in the event of non compliance. A mere denial of allegations by the defendant is not enough and the defendant must give reasons for the denial. The statements of case are required to be supported by ‘statements of truth’, which means that the party will have to swear to the truth of the pleaded case. In most of the cases, the party will be required to give ‘standard disclosure’ which would be not only the documents relied upon by it, but also the documents adversely affecting his case or supporting or harming any other party’s case and the documents which he is required to disclose by a relevant practice directives. Once listed, the trial is assumed to be fixed and the parties are expected to be prepared to start on the allocated day. The judge will generally have read the papers in the trial bundle. Under Rule 32.4 and 32.5 of the New Civil Procedure Rules, 1999, at trial, evidence will, in the main, be given by witness statement, which is verified by a statement of truth. Rule 32.9 provides that a party who is unable to obtain a witness statement, where required for use at trial, may apply for permission to serve a witness summary instead.

                ( c )  The novel provision in the Rules include limiting the use of expert evidence, reinforcing the expert’s duty of impartiality, encouraging co-operation between experts from the start of proceedings, and greater use of single experts. It would therefore no longer be the duty or object of an expert to be, consciously or sub-consciously, an advocate for the case of the party by whom he is employed. Expert evidence as provided by Rule 35.1, should be restricted to that which is reasonably required to resolve the proceedings. Rule 35.3 explicitly states that it is the duty of an expert to help the court on the matters within his expertise and that this duty overrides any obligations to the person from whom he receives instructions or fees.

                Reforms undertaken in the Civil Procedure in the proceedings in the High Court and County Courts in England are aimed at an efficient administration of justice in courts and can with suitable modifications be promptly applied in our jurisdiction where prevalent procedural rules are similar.

X.    The Manpower

                Judicial workload assessment study should be undertaken for measuring how much Judge time is required, on an average, to process the various types of cases and determining how much time Judges have available to hear cases in the number of days fixed for case-related work in a year after taking into account vacation, holidays, sick leave etc. Judge time is an essential ingredient in determining the amount of work that can be accomplished. Weighted caseload model would be the most practical and effective method of workload assessment, given the current state of court-related data and information systems. This approach would help in measuring resource needs, evaluating resource allocations, and providing a strong justification for budgetary requests. The weighted caseload approach provides an objective measure of the Judges and court staff needed to resolve cases effectively and efficiently. The numbers indicating mere caseload need to be tempered by a qualitative assessment that should be an integral part of any judicial workload assessment. (See B.Ostrom & N.Kauder, eds., ‘Examining the Work of State Courts, 1997’ : A National Perspective From the Court Statistics Project (National Centre for State Courts 1998).

XI.    Applying Information Technology to Case Files

                Several technological advances have been made in recent past and the new and better means of keeping and using case file information have emerged. The Utah Courts have developed a computer assisted system for receiving filed litigation documents via electronic mail, automatically updating the court data base, and accounting systems and storing the electronic documents in a paperless case file preserving the utility of paper, but not its disadvantages. The pilot project has confirmed that electronic filing of court documents and paperless case files are feasible and advisable. There are programs underway in several courts that will demonstrate the best practices for filing. Bradley J. Hillis in his paper ‘Internet Experiments in Electronic Court Filing’ (October 6, 1997) points out that, the electronic filing system in Singapore is comprehensive and will illustrate the role of third-party filing agents in assisting attorneys with the process. Australia and Canada have advanced experiments underway. In the United States, the Utah courts have an excellent program that will use digital signatures and an SGML template. This will help the courts efficiently process the documents filed and employs perhaps the best technology available for document filing. The proposed system in King County will show busy urban courts how to use electronic documents within a court, since the new regional justice center in Kent will require sharing of files between locations. Software can make secure the connections on the Internet between courts and customers that will spur the adoption of electronic filing and bring about administrative improvements in the court proceedings. Artificial intelligence systems are developed to assist judges in the decision-making process.

X.    Conclusions

                There is immediate need for more effective administration of justice in courts. The High Courts have ample powers to make necessary changes to manage the affairs of the courts in a manner that would bring about speedy and cost effective disposal of cases. Two pronged attack will be necessary. One that is already in the pipe line is of providing temporary fast track courts to deal with the past arrears. The other is to devise ways which do not generate arrears of cases in future. The immediate answer is to put limits on the size of the briefs, regulate recording of evidence, have provisions for pretrial conferences, provide for fixing calendars which list such number of matters as must proceed except in cases of extreme emergency, provide for time limit on argument, provide for monitoring the progress of complex cases, provide sanctions for noncompliance of the directions, make provisions for involving judges in the swift progress of cases by issuing directions on all interlocutory matters and for holding pretrial conferences to find out whether the parties may sort out their differences without going to trial and finally to fix the trial in a way that it proceeds and gets over on schedule. A uniform approach to bring about the immediate changes in the procedural rules can be adopted by a joint study by the High Courts, of the material available on the recent developments in the U.K., the U.S. and Australian Courts, and concrete changes can be worked out for adoption in the national and local context taking aid of technological advances.