The Commercial Court of Uganda: 1996 to 2006

Transcription

1 The Commercial Court of Uganda: 1996 to 2006

2 Pre Birth Issues Delay in the High Court A National Scandal Incessant adjournments Recycling of cases Inadequate handling of interlocutory matters esp. temporary ex-parte injunctions

3 Initial Attempts to deal with the problem Judges Meetings to discuss the problem Proposals for case management From Master Calendar to Individual Calendar Creating Divisions Studies: 1.The Professor Read Report on Training The Platt Commission Judges Committee on Setting up of the Commercial court 1996

4 Birth of Commercial Court Legal Notice No. 5 of 1996 Salient Features Renames Commercial Division Commercial Court Cuts down on jurisdiction Provides directions for handling Commercial Disputes Initiates a preliminary hearing as part of the pre trial procedure Directs Judges to be proactive

5 Initial Steps Case management system to achieve certainty of hearing date Cut down incessant adjournments Individual Calendaring System Commercial Court Users Committee Created

6 Hibernation 1998 to 1999

7 Uganda Commercial Justice Sector Study Issued report on 23 July 1999 Main Findings Corruption Delay Lack of Commercial Awareness Problems with Enforcement of Judgments Employee Fraud/Criminal Justice System The Bar/Commercial Lawyers

8 Recommendations Develop Customer Service Culture Implement business friendly court procedures Introduce business like court management Remove constraints on effective court performance Build institutional capacity to deliver results

9 Build Institutional Capacity to Deliver Results Recruit sufficient competent & motivated staff Nominate competent and effective judges Provide space, systems, facilities & budget

10 Remove constraints on effective court performance Corruption- administrative & Judicial Case backlog 1. Unascertainable 2. Clean break on transfer to new premises

11 Develop Customer Service culture Counter Pro Debtor Culture Counter improper use of injunctions Cut delay arising from incessant adjournments Convene the Commercial Court Users Committee Prepare and distribute Commercial Court User s guide that includes a section on complaints about improper judicial behaviour Training for judges and support staff

12 Implement business friendly court procedures Adjournments Time allocated to cases (day to day hearings) Notification of hearing date Jurisdiction of the Commercial Court Civil Procedure Rules Management of Cases Link to ADR mechanisms (make ADR mandatory)

13 Introduce business like court management The role and authority of the Head of the Commercial Court Should be enhanced to enable her to be an effective leader of the institution A long-term Technical Advisor should be engaged to support and develop the managerial role of the Head of the Commercial Court Introduce outcome oriented budgeting for the Commercial Court

14 Introduce business like court management Adopt result oriented management based on the ROM Report 1997 Issue performance measurement reports to C C users, and other Interested parties Develop Customers Charter to be published as part of the Commercial Court Users Guide

15 Performance Measure Reports to include: The average time taken to resolve commercial cases The number of cases disposed of per month Satisfaction ratings from user surveys (e.g. % of users considering support staff corrupt) Set performance targets similar to targets in OOB

16 Medium-Term Competitive Strategy for the Private Sector ( ) MOFPE adopted the Uganda Commercial Sector Study Report Incorporated salient features of the same into the Medium-Term Competitive Strategy for the Private Sector ( ) with the key aim of Making Institutions Support Private Sector Growth Plan was time bound and budgeted for

17 Implementation Commercial Justice Reform Project Secretariat Established to oversee implementation of proposals Commercial Justice Technical Advisor appointed to provide management support to the Commercial Court Second Start for the CC

18 Second Start New Head and Judges appointed Shift from High Court Building into premises elsewhere in the city Registrar and staff dedicated to court Customers Service Strategy developed with funding and technical support Training for Judges and Staff provided

19 Court Annexed Mediation Programme Introduced in 2003 Run by CADER, Centre for Arbitration and Dispute Resolution Rules provided for mandatory referral to mediation before CADER for every case filed in the commercial court, except where cause is shown Programme run for 2 years 33% of cases referred were successfully settled Decision has been made to make court annexed programme a permanent feature of our civil procedure rules for the commercial court

20 Problems Encountered in MPP (CADER) Opposition from the Bar Limited pool of mediators Lack of vigorous sale of the programme Sustainable financing

21 In-house Mediation 1 Conducted in appropriate cases referred to the Registrar/Mediation by order of a judge Registrar has some training mediation In the first 6 months registered successful mediation rate of 60% in respect of all cases referred to him (118 civil suits)

22 In house Mediation 2 Conducted by Judges In appropriate cases encourage parties to settle with judge acting as a mediator If it fails to settle, and the impartiality of judge may be in question, assigned to another to conduct the trial, otherwise judge continues with trial No statistics available for this mode as yet as the CCAS does not capture this information

23 Criticism to In house Mediation 2 Some Advocates have complained Judges force parties to settle/agree Is it the proper use of Judge time? Don t Judges jump into the arena instead of being umpires?

24 Ten Years Later Commercial Court in separate premises with a new home under construction Computerised Case Administration System in place, functional, offering fairly reliable performance data Performance targets set, regularly measured and reported Competent staff Multi Door Court House 1. In house mediation 2. Court Annexed Mediation Programme with CADER 3. Ordinary dispute resolution

25 Ten Years Later Competent and Effective Judges Clearance rate- more cases disposed of than filed effective 2005 Case Backlog Clearance Programme in Place Production of Uganda Commercial Law Reports Judgments of the court are available electronically at Cause list distributed electronically by in addition to the traditional hard copy method

26 This is how 2005 worked out. No. of Cases No. of Cases IN THE HIGH COURT OF UGANDA (HCT) AT KAMPALA. IN THE HIGH COURT OF UGANDA (HCT) AT KAMPALA. COMMERCIAL DIVISION. COMMERCIAL COURT DIVISION. CIVIL CASES RETURNS FOR THE PERIOD 01/01/ /12/2005. CIVIL CASES MONTLY RETURNS FOR THE PERIOD: 01-JAN DEC Dec B/Fwd Pending Filed* Disposed Pending Jan Feb Mar Apr May Jun Jul Aug Sep Oct 105 Nov Dec Jan Feb Mar Apr May Jun July PERIOD Aug Sep Oct Nov Dec 2005 Filed Disposed Pending

27 This is how 2006 is looking like so far! (Not as good as 2005) IN THE HIGH COURT OF UGANDA (HCT) AT KAMPALA. COMMERCIAL COURT DIVISION. CIVIL CASES MONTHLY RETURNS FOR THE PERIOD: 01-JAN OCT No. of Cases Dec Jan Feb Mar Apr May Jun Jul Aug Sep Oct 2006 Filed Disposed Pending

28 What else is happening? Commercial Court Users Committee continues to meet (quarterly) and provides a healthy feed back to the court in areas of service dissatisfaction Shall launch a Customer s Charter on 15 th December 2006 as we celebrate 10 years of the Commercial Court that commits the CC to meeting certain service standards

29 What about mediation? New rules being drafted to make mediation permanent feature of the civil procedure for the commercial court To provide for mandatory mediation as in the pilot project But to grant an option to the parties in exceptional circumstances to opt out of mediation To indicate which door they will enter into once they come to the court- in-house mediation or court annexed mediation (cader) or any other mediator agreed to by the parties

30 Challenges Delayed Judgments Automation of Court proceedings Sustainable Financing Case backlog clearance Abrupt transfers of staff Finishing Construction of the Home for the Commercial Court The Bar (Quality of Legal Representation)

31 What is in the bag for the next 10 years? The Commercial Court will develop a strategic plan for the next 5 years in line with the Strategic Plan for the Judiciary Key Drivers of the Commercial Court S P? Technology and Automation to play a key role in court processes and delivery of services & products Developing the full potential of our human resources through training, motivation, management and professional development Encouraging the development of a Commercial Bar for the legal practitioners that practice at the CC Increasing Public Trust and Confidence in the CC Continuous monitoring and evaluation of the performance of the CC with a view to its further enhancement

32 Any lessons along the way? Leadership is key at all levels Support of the top guns in the judiciary Adequate resources (human and otherwise) (3 Ps, People, property and processes) and their management An understanding of the magnitude of the problem and the solution Break with business as usual (relocation may help provide a symbolical break but not essential) (issue is attitudinal) Case Management and Trial Date Certainty key drivers to reigning in errant parties and their legal repres. Continuing professional education and development Ability to be able to measure what you want to achieve

33 Above All Remember In the Commercial Court and indeed in any trial court it is the trial judge who has control of the proceedings. It is part of his duty to identify the crucial issues and to see they are tried as expeditiously and as inexpensively as possible. It is the duty of the advisers of the parties to assist the trial judge in carrying out his duty. Litigants are not entitled to the uncontrolled use of a trial judge s time. Other litigants await their turn. Litigants are only entitled to so much of the trial judge s time as is necessary for the proper determination of the relevant issues Lord Roskill at page 488 in Ashmore v Corporation of Lyod s [1992] All E R 486