Understanding the Law
November 8, 2013
Having your day in court

One important purpose for the existence of the Court is to resolve the disputes that the members of the public bring before it. Some matters may be resolved easily and quickly, while others may take many years. Those who use the services of the court system no doubt want resolutions that are quick and hassle free.{{more}}

The road to judgment

The answers might be quite obvious that the issue could be resolved in the early stage, perhaps during case management or even before this. Counsel, on examination of the facts, could urge the parties to settle, but there are many persons who want to have their day in court. Having their day in court could mean many sleepless nights, high expenses, drawn out periods in court sessions and perhaps some delays for good reasons. For good reasons, the matter might require more than one interim application, which could delay the hearing of the substantial issue in complex matters. It is not always plain sailing as there could be many adjournments. Any of the parties or counsel could require an adjournment and the reasons could be because of human frailties. After the matter is completed in the first instance court, there might be another journey, as the losing party might be dissatisfied with the judgment. Where the decision is not satisfactory to one party, it could mean a long time in the Court of Appeal.

Cost is a factor

So, you have decided to have your day in court. This should be a studied decision and not one taken in the heat of anger. You must get your witnesses, documents and other evidence to prove your case. While the matter is in the case management stage, it would get the attention of the master of the court. Even at this stage, you might see the need to settle. In fact the parties should be encouraged to settle in terms that are fair. You have to remember that once the matter is in court, cost is an important factor. That is, you would have to pay the costs of the other party if you do not succeed. The defendant could apply to the court at the case management stage for security for costs and the court has the power to grant it, depending on the circumstances. You would be required to pay this money into court before the matter could proceed.

Other actions during case management

The Civil Procedure Rules 2000, (the Rules) is 13 years old this year and it would be good to know how much they have met expectations. Before the Rules, any form of case management had to be done by the judge. This meant many long hours for an overworked judge. Today, we have the benefit of a master, who would examine the matter and prepare it for trial during a case management conference. The master gives the trial dates and the resident judge now spends his or her time on the trial itself. The master could make recommendation as to dispute resolution. The popular form is mediation, which is less expensive than a trial and which allows the parties to speak to each other face-to-face. If mediation does not work out, the parties could go back to court for trial. Trained persons approved by the court and chosen by the parties conduct mediation. The mediators are either lawyers or other persons in our society who have received some training in mediation.

Ada Johnson is a solicitor and barrister-at-law.

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