The Commercial Court of Uganda: 1996 to 2006
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
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 1992 2. The Platt Commission 1995 3. Judges Committee on Setting up of the Commercial court 1996
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
Initial Steps Case management system to achieve certainty of hearing date Cut down incessant adjournments Individual Calendaring System Commercial Court Users Committee Created
Hibernation 1998 to 1999
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
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
Build Institutional Capacity to Deliver Results Recruit sufficient competent & motivated staff Nominate competent and effective judges Provide space, systems, facilities & budget
Remove constraints on effective court performance Corruption- administrative & Judicial Case backlog 1. Unascertainable 2. Clean break on transfer to new premises
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
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)
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
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
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
Medium-Term Competitive Strategy for the Private Sector (2000-2005) MOFPE adopted the Uganda Commercial Sector Study Report Incorporated salient features of the same into the Medium-Term Competitive Strategy for the Private Sector (2000-2005) with the key aim of Making Institutions Support Private Sector Growth Plan was time bound and budgeted for
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
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
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
Problems Encountered in MPP (CADER) Opposition from the Bar Limited pool of mediators Lack of vigorous sale of the programme Sustainable financing
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)
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
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?
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
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 http://www.commonlii.org/resources/2206.html Cause list distributed electronically by email in addition to the traditional hard copy method
This is how 2005 worked out. No. of Cases 1800 1600 1400 1200 1000 800 600 400 200 0 1593 No. of Cases 1660 1800 1600 1400 1200 1000 800 600 1609 1609 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 01/01/2005-31/12/2005. CIVIL CASES MONTLY RETURNS FOR THE PERIOD: 01-JAN-2005-31- DEC- 1660 2005. 1577 1577 1515 1515 1439 1389 1398 1460 1524 156014391590 1389 1398 1324 1497 1420 1324 1367 1370 1211 200 236 266 253 142 284 236 267 164 202 160 251 78 206 193 176 197 149 163 204 205 163 201 204 Dec- 173 175 147 154 130 92 1211 1172 1122 1294 B/Fwd 1172 1178 1122 1119 Pending 1136 1080 1072 Filed* Disposed Pending 400 206 208 200 147 159 114 130 92 105 103 142 106 0 145 153 75 Jan Feb Mar Apr May Jun Jul Aug Sep Oct 105 Nov Dec 106 103 108 04 Jan Feb Mar Apr May Jun July PERIOD Aug Sep Oct Nov Dec 2005 Filed Disposed Pending
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-2006-31-OCT- 2006. 1400 1200 1000 1072 1129 1138 1122 1092 1105 1149 1184 1199 1193 1203 No. of Cases 800 600 400 200 0 Dec- 05 156 138 155 122 207 173 137 148 144 161 99 129 171 152 194 129 102 133 150 151 Jan Feb Mar Apr May Jun Jul Aug Sep Oct 2006 Filed Disposed Pending
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
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
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)
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
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
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