In this two-part series, private practice lawyer Ralph Kasambara talks about the new developments in the High Court in Malawi
For a long time, many court users have been complaining about the poor quality of the civil justice delivery system in this country. One of the most common complaints that the offices of Minister of Justice and Constitutional Affairs and Attorney General receive almost on a daily basis is that of undue delays in judgments and rulings delivery and lawyers taking too long to conclude matters.
Many users complain of the length of time it takes to have matters resolved in court. The court procedures take too long and not to mention the undue delay judges take to deliver their judgments and rulings. Others complain of the high costs of litigation.
Then, there is the group of lay litigants that find the High Court procedures complex and rules ridden with technical terms that are far from being user-friendly. The result is that the civil justice system tends to favour the rich, so they argue.
The Ministry of Justice and Constitutional Affairs, the Malawi Judiciary and the Malawi Law Society have all pleaded guilty to the charge of poor delivery of civil justice. From 1996, there have been both legislative and rule making initiatives aimed at improving the system. Parliament passed an amendment to the Courts Act clarifying the power of the Chief Justice to promulgate new rules of civil procedure applicable before the High Court; removing all references to the civil procedure law applicable in England; and providing for the establishment of specialised divisions of the High Court.
The Judiciary was of the view that the specialised divisions will help streamline cases and lead to faster and better resolution of disputes. Many lawyers and judges were not comfortable in the continued use of English rules of civil procedure that were adopted in England in 1965 and were ill-suited for local practice.
The enactment of the Courts (Amendment) Act was well received by both lawyers and members of the Judiciary. Prior to this Act, there was indeed total confusion as to what were the applicable rules of civil procedure in the High Court. The debate arose from the wording of Section 29 of the Courts Act that stated that the practice and procedure of the High Court were to be those provided in the Rules of the Supreme Court, 1999.
Some lawyers and judges were of the view that the applicable Rules of Supreme Court in England were the CPR, 1999, English Civil Procedure Rules 1999. This school of thought were led by Justice Dunstain Mwaungulu who was applying the Civil Procedure Rules, 1999. For instance, in the case of Re Ex-parte SGS Malawi Ltd, the aforesaid Judge applied the English Civil Procedure Rules 1999. The other camp religiously stuck to the English Rules for the Supreme Court, 1965.
The then president of the Malawi Law Society (MLS) and many lawyers belonged to this school. No wonder the said president in his address to the members of the MLS lamented on the continued use rules of procedures that were once used in England and Wales and developed in 1965.
The Judiciary fast-tracked its process of formulating and adopting new rules of the court that would replace the old English rules that were partly to blame for the poor state of our civil justice system.
By the end of 2016, the new draft rules of procedure were ready to be adopted and promulgated by the Judiciary. On August 1 2017, the Chief Justice of the Republic of Malawi promulgated new rules of practice and procedure for civil litigation in the High Court of Malawi. They are known as the Courts (High Court) (Civil Procedure) Rules, 2017.
In short, we will refer to them as CPR 2017. These rules took effect from October 3 2017. On October 3 2017 the High Court in Malawi started using the new civil procedure rules 2017. In so doing, Malawi joined several other common law jurisdictions that had already reformed their civil justice by adopting Woolf inspired civil procedural rules.
Oxygen Principle: The CPR 2017 is premised on the overriding objective (i.e. the oxygen principle) of dealing with cases justly. In dealing with cases justly, courts are expected to ensure that the parties are on equal footing; parties and courts are saving expenses; and also ensure that a case is dealt with expeditiously and fairly.
Further, courts are to ensure that in dealing with a proceeding they employ ways that are proportionate to the following: amount of money involved; importance of the proceeding; and complexity of issues. Finally, dealing with a case justly includes allocating to a case an appropriate share of the court’s resources, while taking into account the need to allocate resources to other cases.
Litigants and their lawyers are under a duty to assist the court realise this oxygen principle. The new rules require the courts to further the oxygen principle through active case management i.e. judicial case management.
The Managerial Judge: CPR 2017 has brought in a paradigm shift in civil litigation process in Malawi. At the centre of litigation is now the judge who controls the pace of litigation and pushes for its early resolution either by way of settlement via mediation or outright determination through summary process or trial. Further, the judge is now more involved in the case than was previously the case.
The rationale for this approach was that hitherto when the lawyers were in control of the case, they engaged in delaying tactics leading to undue delay in the disposal of the case. The richer litigants exploited these technical tactics to the extent that poorer litigants were forced to settle cases on less favourable terms or altogether abandon their claims.
This adversarial system controlled by the lawyers thus led to undue delay and exorbitant legal costs. With judicial management, the philosophy is that of judges getting involved in the management of the case at an early stage and controlling both the pace of litigation and the number of interlocutory applications leading to trial.
Front Loading: Second, the new rules have brought in the concept of front loading of the trial process. From the word go, a litigant must not only state his case but also indicate the list of all supporting documentary evidence that he/she will rely on.
Similarly, the defendant must also state his/her case and disclose her cost of supporting documentary evidence. In so doing, the parties are able to assess the strength of their case prior to the next stage of court annexed compulsory mediation. This is another innovation in the new rules.
Compulsory Court Annexed Mediation: The new rules have introduced compulsory mediation rules borrowed from the High Court (Commercial Division) Rules 2007. Kapanda observes that the word ‘mandatory’ does not mean that disputants are forced to settle during the mediation process itself. The judge is there to facilitate the mediation and not force parties to compromise their cases at mediation or any other stage.
As to what extent the mediation process is mandatory, Justice Katsala made a few pertinent remarks in the case of National Bank v Msindo. First, he remarked that these rules should be understood as saying that a party does not have the choice whether he/she should go through mediation or not. Second, he observed that a party wishing not to go through mediation is obliged to apply for an order exempting the matter from mediation. Finally, he warned that simply ignoring the Mediation Rules was not an option.
Prior to CPR 2017 all mediations except in commercial division of the High Court was before a mediator chosen by the parties and their legal advisers. The disadvantage with this process was that it was controlled by the parties and usually took longer than was necessary. Further, most of the times the parties took minimal participation and there were no sanctions for this callous approach.
As a result, it led to unnecessary delay and increase in the cost of litigation. All that has now changed. The judge initially assigned with the case arranges for mediation as soon as the statement of case are closed.
He/she is in control of the mediation process and ensures that parties are actively involved in the process. Sanctions may follow for lack of serious engagement in the process. The mere fact that the mediator is a judge—ideally someone with long litigation experience—his/her involvement is likely to lead to more settlements or streamlining of issues that are to go for trial. The end result is likely to be expeditious resolution of matters and reduction in litigation of costs.
To be continued next week