Judicial case management

AuthorEvan Bell
PositionMaster, Queen's Bench and Matrimonial Divisions, Court of Judicature for Northern Ireland
Judicial Studies Institute Journal [2009:2
The metaphor of the judge as referee has evolved in recent
years to reflect an increased judicial case management role.
Previously, the image was of the judge as referee standing in the
middle of the pitch, waiting for the teams. When they arrived,
he blew the whistle and refereed the game. Nowadays, the judge
is portrayed as the kind of referee who goes into both changing
rooms before the match. He warns particular players about
spitting and being offside and mentions that he will be keeping an
eye on them. When he has said everything he needs to, he leads
the teams out to the pitch, rather than waiting for them. Then he
starts the game, controlling it throughout.1
The practice of judges managing the conduct of civil cases
emerged in the USA in the early 1970s, prompted by the
pressures of rising caseloads and concern about increasing costs
and delay. It created what some perceive as a new model of
judging. This considerably expanded case management role is
now “virtually a universal phenomenon”2 throughout the
common law world.
This article examines the way judicial case management
has developed and the various tools which have emerged to
enable judges to carry out such functions. It then looks at the
approach of appeal courts to case management decisions and
considers the risks associated with case management.
* Master, Queen’s Bench and Matrimonial Divisions, Court of Judicature for
Northern Ireland.
1 “Sharing UK Experience on Enhancing Efficiency and Accountability of the
Judiciary: with particular reference to Judicial Case Management”, Speech by
Sir Igor Judge, March 2006, India.
2 “Case Management in New South Wales”, Address to the Annual Judges’
Conference at Kuala Lumpur, Malaysia by Chief Justice Spigelman of New
South Wales, 22 August 2006.
2009] Judicial Case Management 77
The first objective of case management is to make more
efficient use of the scarce commodity of court time. Some
evidence exists to support the claim that it does so. In the USA,
the RAND Institute for Civil Justice concluded it was associated
with a significantly reduced time to disposition.3 In England and
Wales its introduction is reported as having been very successful,
with “the adjournment culture” in civil cases now virtually gone,4
and, in criminal proceedings, a significant reduction in the length
of most terrorist cases.5 In New Zealand its introduction has led
to significant reductions in the time between filing and disposal of
The second objective of case management is to reduce
litigation costs. Lord Woolf’s hypothesis was that, by increasing
the efficiency of the litigation process, costs would be reduced.
Research in England and Wales suggests, however, that this has
been proved incorrect.7 Early judicial case management appears
associated with significantly increased costs to litigants.
Some cost increases appear to be consequential upon the Woolf
reforms, in that the requirements of the Civil Procedure Rules8
and case management orders by courts cause parties to incur costs
which would not previously have been incurred.9 One critic has
suggested that over-involvement of judges in case management
results in an increase in the costs of all litigation, whether cases
that settle or cases that proceed to trial.10
3 Resnik, “Managerial Judges” (1982) 96 Harvard Law Review 376.
4 “Sharing UK Experience on Enhancing Efficiency and Accountability of the
Judiciary: with particular reference to Judicial Case Management”, Speech by
Sir Igor Judge, March 2006, India.
5 R. v. Khyam and others [2008] E.W.C.A. Crim. 1612.
6 “Delivering Justice For All: A Vision for New Zealand Courts and
Tribunals”, New Zealand Law Commission, Report No 85, March 2004,
p. 197.
7 Peysner and Seneviratne, “The Management of Civil Cases: The Courts and
Post-Woolf Landscape”, Department of Constitutional Affairs Research Series
9/05, November 2005, p. 72.
8 Hereafter referred to as “the CPR”.
9 Lord Justice Jackson, “Review of Civil Litigation Costs: Preliminary Report”,
May 2009, para. 1.2
10 “Have the Woolf reforms Worked?”, The Times, 9 April 2009.
Judicial Studies Institute Journal [2009:2
The third objective of judicial case management is
fairness. Lord Woolf emphasised that the active management of
litigation was an essential means of dealing with cases justly.11
If litigation decisions are left entirely to the parties, this frees
them to use expense and delay to gain unfair tactical
advantages. Judges have expressed frustration at delaying tactics
being used to obstruct the resolution of the real issues12 and
believe that active judicial management discourages
“interlocutory procedural games and gamesmanship”.13
Various jurisdictions have introduced judicial case
management arrangements. Rather than viewing these as a series
of incremental changes, it may be helpful to view jurisdictions as
moving through different phases of case management
development, which might be tentatively classified as:
a Traditional Model, an Initial Model, a Developed Model, and an
Advanced Model.14
A. The Traditional Model
The Traditional Model leaves the responsibility for the
initiation, conduct, preparation and presentation of civil litigation
with the parties.15 However, even this model allows for some case
management functions to be exercised. In Ashmore v.
Corporation of Lloyd’s16 Lord Roskill observed:
11 “Access to Justice: Final Report”, Lord Woolf, July 1996, Chapter 1, para. 4.
12 Speech by Robert McClelland, Attorney-General of Australia, at the
Australian Financial Review Legal Conference 2008, Melbourne, 17 June
13 “The Woolf Reforms after 9 years: Is civil litigation in the High Court
quicker and cheaper?”, Sir Igor Judge, Speech to the Anglo-Australasian
Lawyers Society, Sydney, 16 August 2007.
14 The names of the models, while not particularly important, have been chosen
to indicate progression in judicial case management. It is important to note that
particular jurisdictions may evolve through the models at different speeds,
depending on the different drivers for change.
15 Jacob, The Fabric of English Civil Justice (1987), pp. 12-13.
16 [1992] 2 All E.R. 486, 488.

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