Time to change the classification of cases
BANGLADESH is experiencing a huge backlogs and the number of pending cases is increasing day by day in compare to increasing population. In a lawyer dominated advisory legal system, like Bangladesh, case management could be a way to dispose of this situation. Case management is a tricky tool and need to be handled skilfully like most developed countries have used and have experienced extraordinary positive results. However, I would like to focus on just one component of case management and that is 'Differential Case Management' experiencing from Australian courts.
Most people who are interested in case management, by this time came to know what case management is. But I would like to re-state in the light of Professor M Shah Alam, who defines case management as, 'the detailed scheduling of life and history of a case, after submission of written statement, drawn by an early judicial intervention i.e. sitting judge's order, enforcing active participation of the parties and strict observance of the schedule under court's supervision'.
In other words, it is a procedural calendar of a particular civil suit where the parties have to follow procedural stream-lining worked out by the court, and which also includes initiation and coordination of consensual processes aimed at the resolution of the case other than through a court trial. As a consequence, case management ensures the time of resolving a case and shifted the control from the lawyers or client to the court and the client get a complete picture of his case regarding the lifespan at the very beginning and accordingly he can prepare himself.
Unambiguously, differentiated case management means case management would be ensured according to the classification. Here the most important term is 'classification'. The successful countries ensure differential case management depending on their complexity and the need for pre-trial activity.
More specifically, like medical cases, legal suits also should be diagnosed at the very first day of registration. The honorable Chief Justice of Western Australia Martin Wayne compared this diagnosing process at the early stage for each case separately with the medical profession and termed it as 'triage'. He explained: a patient in the medical case is particularly assessed at the very beginning; the same can be adopted in court cases too. For example, if a case is complex in nature it would be allocated with proper time, or if a case is more suitable for mediation it should be straight sent for mediation (most of the partition suit demand mediation). At the time of filing, the court officer (Serestadar) would classify according to the complexities of the cases.
In Bangladesh, chapter 16 of Civil Rules and Order ensures five classes of cases according to the nature of the cases. But the fact is there is no different treatment rather all classes of the cases follows same procedures except the pre-emption cases and miscellaneous cases. These classifications secure the reserve of records. Here I would like to argue that classification of cases should be made to ensure how the cases would be treated not how the record would be secured for future.
In Australia, the Supreme Court of New South Wales has adopted the 'Differentiated Case Management (DCM)' in the 1990s. The DCM was introduced based on concept that not all cases make the same demands. Therefore, at the very initial stage, the individual need would be identified and court schedule would be planned according to its characteristics and the degree of appropriate management would be ensured. Accordingly, some cases would be heavily supervised while others would be less supervised to ensure their timely disposal. A similar approach exists in United Kingdom through the adoption of procedural tracks; those are small track, fast track and multi-track.
To ensure separate treatment according to the complexity of each case at first we will have to sort out the definition of 'complex cases'. Manual of complex and Multidistrict litigation defines it as 'having unusual problems and which require extraordinary treatment.' Jay Tidmarsh briefly clarifies 'costly to litigate, when they involve many issues, when they involve may parties, when they involve parties located in many forums, when they involve legally thorny issues, when they are protracted, when they develop voluminous evidence, or when the outcome of the case might have nationwide consequences.'
To ensure separate treatment we must know the identification marks of complex cases and how they occur because it allows the court, legal practitioners and the parties to determine and set plan for the cases measuring the complexities through managerial judging. Michael Legg has summarised the causes of complex civil litigation as follows:
a. Legal complexity: it involved through uncertainty or nature of the law applied in each case.
b. Factual complexity: it needs expert opinion or technical support. Expert evidence and discovery can create complexity through increasing the size of the litigation or the difficulty of the underlying concepts that need to be resolved by a judicial officer.
c. High stake or bet the company litigation: Sometimes commercial objectives and company involvement threaten a case to be complex.
d. Multiple parties: it arises through a number of claims and party interests being combined into a single proceeding. This may have efficiency advantages for the court but it can also result in more complex litigation.
e. Lawyer conduct: lawyer conduct can result in complex litigation through 'adversarialism' by taking of every point within the litigation and lack of cooperation between the lawyers can cause the contentiousness of the case to result in the need for greater evidence (every point must be proved rather than non-core issues agreed), a larger range of claims and associated legal issues so that the since of the litigation increases.
The Bangladeshi civil trial court should turn to change the classification according to the complexities of the suits as part of case management not just considering the title of the cases. And accordingly the schedule and plan would be ensured for individual cases. Remarkably, there must be an option for conversion from complex to simple or from simple to complex category even in any stage of the suit as soon as it is identified that the suit is not a complex one or it is no more simple case and would ensure different treatment.
It would rightly be told that the overall court system of Bangladesh is too fragmented in the way it is organised since there is no one with clear overall responsibility for the administration of civil justice, and too adversarial as cases are run by the parties, not by the courts or the rules of court, all too often, are ignored by the parties and not enforced by the court.
Though case management varies depending on the personality, experience, expertise, willingness to innovate and experiment, likes and dislikes of a particular judge but this classification will surely forward a step in reducing case backlogs within the boundary of case management.
The writer is MPhil Candidate, Macquarie University, Australia.