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New CA judge calls for reforms to avert abuse of pre-trial management process
The mechanism to hold pre-trial hearings in civil litigation requires urgent reforms to ensure that the pre-trial management hearing is not confined to mere recording of admissions and settlement of issues, Justice Dr Ruwan Fernando stated.
Justice Dr Ruwan Fernando
Speaking at the ceremonial sitting to welcome him as a judge of the Court of Appeal, Justice Fernando said reforms were also needed to ensure that the mechanism is not abused to prolong cases, which would defeat the noble objectives of the legislature.
He was referring to the Civil Procedure Code (Amendment) Act No. 8 of 2017 which introduced the pre-trial hearing in civil litigation before the case is fixed for trial.
“Notwithstanding all the legitimate concerns about the concept of pre-trial hearing introduced by the amendment, it is a genuine attempt made by the Ministry of Justice to ensure that the case will not be protracted because of the lack of trial management and that all parties are prepared to go to trial, and if necessary, to discuss alternative means of settling the dispute at an early stage of the proceedings,” he stressed.
He said that unfortunately, this new concept has been “misunderstood or misinterpreted or attracted so little attention or at most, it has become simply a recording of admissions and settlement of issues.”
He elaborated that in terms of the amendment, the new system spells out a pre-trial management hearing ordered by the court. This is held in the courtroom or chamber of the judge to facilitate a face-to-face discussion of the issues of the case and obtain agreements. This may shorten or simplify the trial and, if no agreement is achieved, prepare the parties to go to trial.
“I strongly believe that unless the bench and the bar are prepared to change their attitudes of traditional way of conducting civil trials and the litigants are allowed to participate in the problem-solving process supported by the necessary practical reforms to the amendment, the latest attempt can also be misused or abused to prolong cases, defeating the objectives of the amendment,” he pointed out.
The civil justice system cannot be a “hide-and-seek game,” and should hold no surprises, Justice Fernando insisted.
“Each party to the lawsuit has the right to be fully advised of what information will be used to establish each side of the case. For an effective pre-trial management hearing, the parties must be prepared to bring all documents that they anticipate will be produced as evidence at the trial. Each party must provide a copy of each potential document to the opposing party and the pre-trial judge, if the pre-trial judge is to obtain admissions of documents and record agreements with regard to the mode of proof of documents or dispense with proof of documents,” he said.
The judge noted that if reforms are introduced, it is most likely to reduce unnecessary applications for the calling of witnesses and producing documents during the course of the trial as litigants and lawyers will be required to get ready for the trial with necessary documents and identification of witnesses at the initial stage of the litigation.
Welcoming Justice Fernando, Acting Solicitor General Sanjay Rajaratnam, PC, said the appointment of Justice Fernando to the Court of Appeal is yet another step in what has been a most distinguished career. He said the new judge has portrayed all the characteristics of a model judge.
“Your Lordship Justice Ruwan Fernando has not exactly hurried to this much deserved judicial appointment. The long road followed by Your Lordship to this exalted office that Your Lordship adorns today is a fitting tribute to hard work, merit, integrity, honesty and dedication shown during this long journey. My Lord, you have been one of those rare all-rounders in the profession, who can turn your hand to anything and perform it at a rare level of excellence in the assigned legal sphere, be it as judge or in academic activity,” he said.
President of the Bar Asso-ciation of Sri Lanka (BASL) Kalinga Indatissa also spoke.
Full speeches are available on our website www.sundaytimes.lk