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Litigation

Case Management inTrinidad and Tobago

“The Triumph of the Incremental Approach”

“Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.”
(Chales Dickens - Bleak House - Chap.1)

Once society began to organize itself, it was obliged to resolve the thorny question of how disputes over private legal rights were to be resolved. A natural recourse was to the Kings, Princes and authority figures, hence King Solomon’s famous decision in what was probably the world’s first reported custody dispute. But Kings and Princes were generally inaccessible and often arbitrary. Judgment based on a trial by fists, swords, jousting or Sumo (a sport initially devised as a method of dispute resolution ) which depended on the physical skill or luck of the parties or the representatives, with no reference to the facts or the law was clearly unacceptable. Inevitably the Judicature system arose where the authority figure of the King was replaced by his representative, the professional Judge and the Sumos evolved into the lawyers . This is aptly illustrated in the General Form of Writ of Summons in the “Red” Book where the Defendant is commanded to enter an appearance by Elizabeth the Second, Queen, Head of the Commonwealth, Defender of the Faith, the command being witnessed by her Chief Justice of Trinidad and Tobago .

However by the late 19th Century the legal system in England had fallen into the crisis so devastatingly portrayed in the powerful opening chapter of Bleak House. Civil Procedure had become a game played by lawyers, presided over by disinterested Judges resulting in system that was expensive, tediously slow and incomprehensible to litigants.

Almost one hundred years ago, Roscoe Pound made the following observation in a speech about the main cause of dissatisfaction with the Judicial system in 1906:

“Uncertainly, delay and expense . . . [are] direct results of the ... backwardness of our procedure. The effect of our exaggerated contentious procedure is not only to irritate parties, witnesses and jurors in particular case, but to give to the whole community a false notion of the purpose and end of law. ”
The position seemed better locally; my analysis of the first instance decisions reported in the first volume of the Trinidad and Tobago Supreme Court Reports which deals with decisions between 1893 and 1910 suggests that the average period between the initiation of proceedings and decision was about 2 years , but there were still complaints; in Jenny and Wait –v- McIntosh (1894) 1 T.T.S.C.R. 28 Lewis J. could still speak of “protracted proceedings”.

A huge procedural problem was that the system was potentially chaotic since actions were conducted along the common law basis of “most convenient practice”. However the problems were not ignored. The first of the great reforms in England was the merger of the Courts effected with the introduction of the Supreme Court of Judicature Act 1873. This was reflected locally in the Judicature Ordinance 1879 and in keeping with trends abroad, local Rules of Court were also promulgated in an effort to regulate the Court’s procedure (and the lawyers). First in time were the Rules of the Supreme Court 1894. These were replaced by new rules in 1916 and later in 1946, in all cases substantially mimicking parallel developments in England. Finally in 1975, following the work of Justice Malone’s ad hoc working committee, 901 Rules were promulgated and collected in what is now colloquially referred to as the “Red” Book.

Arguably this procedural development over the last century, which codified nationalized and simplified civil procedure should have sufficient to address the complaints about time, expense and complexity. But with the increasing sophistication of litigation and number of litigants the Court systems continued to fail to satisfy the demands for a quick, efficient and affordable adjudication process.
In 1954, Professor L.C.B. Gower, in his critique of the Evershed Report which was the product of a detailed study of English procedure forcibly observed.

“. . . it is believed that the quality of our judiciary and the standards of our advocacy are unrivaled, and that few countries, if any, can boast of a system in which to the same extent justice is both done and manifestly seen to be done to those who can afford to resort to the courts. But, and there's the rub, all too few can afford it; for if English procedure is the best, it is equally among the most expensive, and its expense is speedily making it a luxury beyond the reach of most individuals. … to those in the growing "middle income brackets" it remains unattainable. The result is that the vast majority of disputes are never fought out. Assuming that the bargaining power of the parties is equal, the settlement out of court is likely to be fair enough, and it is doubtless an excellent thing (for all but the lawyers) that there should be an amicable agreement. But often the economic positions are not evenly balanced, and when they are not the party with the larger purse is likely to drive a hard bargain which may amount to a grave injustice to his financially weaker adversary.
Moreover, and this is almost equally disturbing, even those who can afford litigation (such as powerful commercial corporations) are displaying an increasing reluctance to indulge in it. The practice of resorting to arbitration is becoming ever more common, . . .
In other words, litigation is fast becoming a luxury which few can afford, and which many of those who can, prefer to do without. At the worst the result is a denial of justice; at the best it marks the atrophy of the traditional judicial system of which we are deservedly proud. If, as is believed, this is an accurate diagnosis, it is apparent that the traditional attitude of apathy and complacency is a dangerous anachronism.”

In Trinidad and Tobago, litigation times appeared to be lengthening; the Trinidad Law Reports reappeared in 1950 with the publication of Volume 10. My analysis of the 7 first instance civil trials reported in that volume indicates that 1 case took about a year and a half from Writ to Judgment, 2 took about 2 years, 3 about 3 years and one, Thwaites –v- Port of Spain Electrical Board (1950) 10 T.T.L.R. 25, took 5 years . The decision in the Thwaites is also of interest in that the Plaintiff failed on a point in limine taken at the trial that the Defendant was the wrong party to the action. It might be argued with some force that Thwaites would not have taken 5 years in a properly conducted Judicial Case Management System. The “Julien” Reports from the Sixties do not give Writ numbers and so it is difficult to provide a rough analysis of litigation periods for the last part of the 20th Century. However, anecdotal and personal experience suggest that 5 years were typical and the Greenslade Report stated that delays of 10 years were not uncommon . The 1999 to 2000 Annual Report of the Judiciary reported that a survey of the Backlog Reduction Committee in 2000 showed that there were 1592 unresolved actions which were over 10 years old. 1053 of these were rapidly dealt with, but the statistics are significant 431 were dismissed at trial for want of prosecution, 342 were withdrawn or discontinued by Notice (presumably as an alternative to dismissal) Only 270 of the 1053 cases were therefore dealt with either by Judgment or settlement. Further of the original 1592 actions, 100 were abated either by reason of death or the filing of a certificate. Justice delayed truly meant Justice denied.

Trinidad and Tobago’s problems were by no means atypical, throughout the Common Law systems in the 1990’s, Governments and Professional Associations throughout the common law world commissioned numerous studies to deal with the issues of increasing costs and delays. These developments were mirrored in Trinidad and Tobago. In 1987 the Law Association hosted a symposium on “Delays in the Administration of Justice”, in 1992 Cabinet appointed a Task Force which published “the Gurley Report”, in 1996 Mr. Malcolm Rowat published his Judicial Sector Report, in 1997 the World Bank and the Ministry of Legal Affairs co-hosted a Judicial Sector Reform Conference [the Hilton Conference] and arising out of this, the Hilton Conference Committee was formed and subsequently produced its Report, in 1998 the Greenslade Report was published and following that in 2000 the report of the Rules Committee Advisory Committee. Of the many recommendations coming from these reports both local and overseas, the most pervasive was that the management of the conduct of the litigation had to be moved from the lawyers/litigants to the Courts.

“Ultimate responsibility for the Control of litigation must move from the litigants and the legal advises to the Court.”

Overseas pilot case management schemes and pilot projects were implemented, in the United States Federal Courts with the passage of the Civil Justice Reform Act 1990, in Canada in the late 1990’s with Ottawa’s case load becoming 100 per cent case managed by 1997 and Toronto by 2000. In New Zealand following evaluation of a case management pilot scheme, civil case management was set to be implemented fully in 2000. In March 2001, the World Bank announced the approval of a US$30.6 million credit to assist Bangladesh in making its civil justice system more efficient, effective and accountable. The funds being earmarked for the finance of an initial 6 year project aimed in particular at improving case management, reducing delays and case backlog, and improving access to justice, especially for the poor and women .

While this investigative process ran its course, Trinidad and Tobago began to pursue a series of initiatives with the objective of rationalizing the delays. These mark the beginning of what I term “the incremental approach”.

CREATION OF MASTERS
The first of these initiatives was the creation of the new Judicial position of Master of the High Court in February 1980 following the passage of the Supreme Court of Judicature (Amendment) (No. 2) Act 1980. The creation of the office of Master not only addressed the implied concerns raised by the Malone committee in the preface to the “Red” Book, but more importantly it meant that for the first time, litigants had recourse to a Court specializing in interlocutory procedural matters. In theory this meant that interlocutory applications could be dealt with quickly and efficiently and so enable the action to be brought to trial readiness with even greater dispatch. However the rationale in creating more Judicial Officers (whether Judges or specialists like Masters) failed to address the main complaint of the proponents of Court Case Management – namely, that the delays arise not because of a lack of available Judicial resources but rather because the timing of the process is principally determined by the litigants and their lawyers.

“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. For example 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.

In any event there will always be reluctance amongst politicians and taxpayers to increase the size of the slice which the cost of the Administration of Civil Justice is to be allowed from the National Pie. Thus in 1983, Professor Ian Scott, a leading expert on case management, wrote:
“Politicians do not believe that the way to reduce delays is to provide more resources. The road back to adequate funding starts with judges, lawyers and administrators putting their own house back in order so that they can demonstrate to those who control the strings of the public purse that they have done all within their power to see that the court system is being run as efficiently and effectively as possible on the resources available and so that they can show that any further resources that are made available will be used productively.

After surveying the position in a dozen industrialised nations, including both common law and civil law legal systems, Adrian Zuckerman came to a similar conclusion.

A recurring complaint is that courts are understaffed and short of other resources. These may well be important factors. However, there is a growing recognition that, before asking the taxpayer to assume an even greater burden in paying for the administration of civil justice, we should try and find out whether there are other factors contributing to the duration of proceedings ...

We should try and find ways of curbing the appetite for unproductive procedural activity, before we expand the number of judges and of support staff .

In a fully Judge Administered Case Management System (which is where we seem to be consensually bound) the case load on the Masters will be considerably eased, but we should resist the temptation to abolish the post. Masters play a pivotal role in the enforcement of Judgments. This aspect of their duties could and should be considerably enhanced, so that they case manage the enforcement of the Judgment. In this regard a paradigm shift in the focus of those responsible for administration of civil justice is needed. Our consumers, the general public, do not really consider Justice to be done when Judgment is handed down, and they will continue to seek redress in the Courts until the Judgment and costs are recovered .

RATIONALISATION OF RUNNING DOWN ACTIONS
Another initiative aimed at reducing the burden on the Courts was specifically targeted at “running down actions”. RDA’s comprise the largest class of active litigation in the High Court. In the 1999 to 2000 law term, of the 422 cases set down for trial, 125 or almost 30 per cent were RDA’s . The approach took two forms, 1 substantive 1 procedural. Substantively, Parliament recognized that the entity which would ultimately liable to pay the Judgment was the Insurer standing behind the litigant and so by the Motor Vehicles (Third Party Risks) Amendment Act, 1996, Plaintiffs were allowed to join the Defendant’s insurers as Defendants to the action, thus removing the need to burden the Courts with a new action against a recalcitrant insurer. Procedurally, adjustments had been made several years before with the passage of the RSC O. 25 rule 1A which enabled parties to file copies of their documents in support of a special damage claim and gave the Court the power to sanction any opposing party in costs with respect to any frivolous counter notice which has been filed. These initiatives have worked well and there is good argument in favour of extending the ambit of RSC O. 25 rule 1A beyond the sphere of the RDA.

ORDER 3 RULE 6
Commendable as the earlier initiatives were, they still allowed litigants and the lawyers free rein in the conduct of their matters. However, in 1993 with the birth of the much maligned Order 3 Rule 6 the Rules Committee gave the reins of procedural control to the Judges , and they took them with relish. Suddenly files could no longer be left collecting dust in back cabinets, the litigation had to be resolved and the burden fell squarely on the Plaintiff. As Hamel-Smith J. A. trenchantly observed :

“This case reflects the situation that existed before the introduction of the rule. In many instances little or no regard was had for the time frames set out in the rules with the result that litigation advanced at leisure. The administration of justice has moved on and that is a luxury that can no longer be afforded. Rule 6 serves to ensure that when an action is filed its progression to finality is timely and in accordance with the rules of court. Unlike the repealed rule that simply required notice of intention to proceed, leave to proceed under rule 6 cannot be considered a formality by any means. When there is prolonged delay (in excess of a year), particularly where it is attributable solely to attorney’s failure to comply with the rules of court, litigants may find it increasingly difficult to find good and sufficient cause necessary to obtain leave to proceed. Willingness to accept blame for the delay on the part of an attorney, while a commendable gesture, will seldom satisfy the test. The pendulum has swung full circle and the former premise that a litigant should not be made to suffer for the default of his attorney probably no longer has any, or if it does, very little, relevance in the application of rule 6.”

Notwithstanding the initial cries of doom and gloom from the profession, Order 3 Rule 6 has been a success. Inactive matters are quickly weeded out and yes occasionally practitioners still get caught out to their embarrassment and chagrin but this is a small piece to pay for the increased efficiency of the system.

The de la Bastide Reforms.
In his address at the opening of the 1995-1996 Law Term the new Chief Justice stated his two-pronged goal for reform;

“… logically we need to do two things in order to remove the backlog and keep the Courts abreast of their work. Firstly, we need to increase the number of courts and extend their sittings. Secondly, we must use the available Court time more productively. The length of time taken to try cases must be shortened. . . .”

Immediate steps were taken to achieve the first goal, Court hours were increased, the long vacation was shortened, more Judges were appointed, the Temporary Judge System was revived.
Realising the second goal was itself a two pronged process. In the words of the Chief Justice;

“We have 2 goals. One is to get rid of the backlog of cases that has built up and the other is to empower the system to deal promptly with new cases as they arise”

The backlog was easily addressed through the simply expedient of listing the old maters, with the result that by the time of the 2000-2001 Annual Report of the Judiciary, the Backlog Reduction Committee could define an “old” matter as one which had been set down for trial before 1996 whereas a year before the definition was any matter filed before 1990. Notwithstanding the different criteria there is a clear sense of success. This also showed the importance of a fixed trial date in the efficient management of litigation.

The empowerment of the system however was not so easy. Presumably the Chief Justice had in mind case management along the lines of the Woolf Reforms because in February 1998 he invited District Judge Dick Greenslade, one of Lord Woolf’s 5 Assessors to come to Trinidad and prepare new rules to develop a system of case management. Judge’s Greenslade’s Report proposed changes modeled on the Woolf reforms and were positively breathtaking in their ambit. New Rules were published and the stage was set for a sudden shift to full Court driven case management. The Profession rebelled. Implementation of the Rules was deferred.

An alternative route to empowering the Judiciary was needed;
The Coup Claims - a successful case management precedent?
By now the Coup litigation had successfully passed through to a first instance decision. The potential of the Coup litigation to disrupt the local Court system was immense. Over 300 Writs had been filed and the success of Order 3 Rule 6 meant that they would all stay "active" unless stayed pending the determination of a "test case" as ultimately happened. In the 2 “test” cases which did go to trial, the evidence was prodigious, 25 Affidavits, numerous newspaper articles, transcripts of radio and television reports, police “crime clocks” and plans along with the usual pleadings and an extensive range of authorities. Yet as a result of judicious case management which made use of a comprehensive Agreed Statement of Facts; which had each party clearly defining its own perspective of the Factual Issues and which made extensive use of written submissions, the first instance hearing of the coup claim, lasted less than a week with only a tiny proportion of those who had given evidence by affidavit, being called for cross-examination. One important lesson here was the value of each side having a witness statement in advance.

But the coup litigation was driven by the litigants who, perhaps atypically, were composed of sophisticated groups on either side, who wished to have a Judicial determination of the principal issues made as quickly and efficiently as possible. In that context, the Court could assume the more relaxed management role of facilitator rather than an active manager. Instinct and active research suggested that the norm was otherwise, the lower the active Court participation in its management, the slower the litigation.

The 1999 Summons for Direction - Practice Direction .
What however the coup litigation did illustrate was that once the parties were focused on minimizing procedural delays, complex litigation could be completed efficiently and satisfactorily without the need for Greenslade-type reforms . These reforms having been side-lined, the Administration turned once again to the incremental approach. First for review was the Summons for Directions which by then had turned into what the Practice Direction termed a "meaningless formality". The Practice Direction heralded a change in focus as well as substance, parties were now expected to be able to define the issues to be decided at the trial, the witnesses to be called and to agree documents. Procedurally the Court was expected to take on a more aggressive role.

On balance, the reform of the Summons for Directions has only been a limited success, generally there is no real concerted effort to limit and define the issues and now there is a tendency to adjourn that issue to the cause list hearing, witnesses are defined only in the vaguest terms and there is no insistence on agreement with respect to documents.

I suggest that the reason why the Summons for Directions has had such a limited success is directly related to the absence of the key players in the litigation; more often than not the parties are represented by Junior Attorneys who do not have overall conduct of the matter, Counsel is invariably absent but more - more than anything the trial Judge is absent and in her absence, a less focused approach is taken by the litigation teams. This experience is similar to the Australian experience where the Law Reform Commission reported

“The Commission's consultations confirmed that judges play a critical role in case management, case resolution and in assisting to engender compliance with court timetables and orders. As practitioners described it, judges have `clout'. Their directions generally are followed and their suggestions concerning settlement heeded by parties. Practitioners appearing in the Federal Court were emphatic that the advantage of [the Individual Docket Sysytem] was the continuing, informed oversight of the judge who was to determine the case. This was seen as a way to `cut to the issues' and reduce inappropriate tactical play.”

The Law Commission’s report of the views of practitioners’ views of case management other than by the trial Judge closely parallels the local perspective;

We believe that judges, by reason of their expertise in litigation, play an important role in case management ... We have experienced early case management experimentation in State Courts in the 1980's by having non-judicial registrars conducting pre-trial settlement conferences. The consensus was that despite the dedication and good intentions of the court staff, they lacked the experience and expertise in litigation to play an effective part.

It is better to have someone meaningful in charge. If you have matters before people with lesser powers, they are necessarily limited by their jurisdiction to deal only with trivia. Someone more senior can deal with the whole matter.

Although registrars can perform many tasks they do not have the same authority and power as judges. Individual, early treatment by a judge means that the parties are confronted with the judge who is to hear their case right through. The parties do not want to get the judge off-side and therefore they are less likely to engage in unnecessary steps.

Speaking to the Canadian Experience Martin Teplitsky, Q.C presented the argument for early case management by the Trial Judge as follows ;

“…the advantages of the trial judge as case manager are many. First, if there is a trial, it will be shorter because the trial judge will already know the case. No time will be spent bringing the judge up to speed. Second, too much trial time is wasted on proving, often repeatedly, issues that are not in dispute. Discussions with the trial judge will disclose clearly what is and what is not in dispute factually, and the evidence can be limited to what is controverted.

Although some issue definition will occur in case management by non-trial judge managers, lawyer co-operation, which is essential to the success of this exercise, will be greater with the trial judge. The reason for better lawyer behaviour is that lawyers are motivated to impress the trial judge who, if the case is not resolved, will ultimately decide the matter. The trial judge has all the power. That fact alone means that he or she will not have to exercise it. Lawyers care what the trial judge thinks about them and their clients - how reasonable they are, how co-operative.

What I call the trial judge power phenomenon will also influence pre-trial manoeuvring. Lawyers will be less likely to try procedural manoeuvres either to create delay or to run the other party out of funds for fear of the trial judge forming an unfavourable opinion of the party exercising these tactics. My own experience in managing the pre-hearing process in some complex arbitrations has confirmed the accuracy of these observations.

In summary, case management by trial judges should reduce expense and delay both in the pre-trial stage and at the trial stage. These benefits will occur without the trial judge assuming the role traditionally played by counsel.

As for perceived concerns about case management by trial judges, I do not believe that the inability to canvass settlement directly is a "loss." It is a benefit. Early issue definition will stimulate settlements, and nothing stimulates settlement more than an early fixed trial date.

The Practice Direction – Trial of Civil Matters
Nowhere is the force of the above arguments more cogently illustrated than in the reformed Cause List proceedings. If one compares the cause list Practice Direction with the Summons for Directions Practice Direction there is little difference in substance. But the atmosphere is completely different; here parties are faced with the Judge who will try the case and reluctant litigants for the first time are faced with the reality of a trial date, things suddenly get done, witnesses are found, bundles agreed, settlements brokered, Counsel finally emerge from their cocoon. In their Report in the Judiciary’s 2000– 2001 Annual Report, the Backlog Reduction Committee state;

“It is now the case that matters set down for trial pursuant to [the Summons for Directions] Practice Direction are being placed on cause lists within one year.

The Committee is of the view that one reason for this leap forward in the reduction of the backlog is the implementation of the Practice Direction relating to cause Lists dated 10th October, 2000”.
Clearly the significant factor in the progress is the introduction of the Judge led case management.
My greatest criticism is that this comes too late – the Judges need to be brought in and take control earlier, much earlier – at least by the Summons for Directions stage. Then, having had the experience of Judicial control of litigation at an early stage, we find out whether we really need the “earthquake” of the Greenslade reforms or even the less tumultuous hybrid suggested by the Advisory Committee to the Rules Committee or whether we are better off with a quietly progressing incremental approach. I suspect it will be the latter.

 

 
 
 
 
 
 
 
   
 

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