Judicial case management

• Author: Evan Bell
• Position: Master, Queen's Bench and Matrimonial Divisions, Court of Judicature for Northern Ireland
• Pages: 76-121

Judicial Studies Institute Journal [2009:2

76

JUDICIAL CASE MANAGEMENT

EVAN BELL*

INTRODUCTION

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.

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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

I. OBJECTIVES OF JUDICIAL CASE MANAGEMENT

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

cases.

6

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

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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

78

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

II. MODELS OF JUDICIAL CASE MANAGEMENT

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:

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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

2008.

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.