Court Rules refer to judge-made rules, procedures and guidelines setting out how cases are to be conducted and managed. The main objective is to ensure that cases are dealt with justly.
In the Eastern Caribbean, the civil procedure rules in 2000 (CPR 2000) made sweeping changes. By establishing active, court-driven case management, the rules facilitated backlog reduction and the timelier disposition of cases. Over the years, these rules have been revised from time to time or been supplemented by practice directions. These revisions were often made with a view to ensuring modernization and greater access to the courts.
On 31st July 2023, the Eastern Caribbean Supreme Court Civil Procedure Rules (Revised Edition) 2023 take effect. These revised court rules bring about several meaningful changes. We summarize five of the most impactful for court users: (1) Pre-Action Protocols; (2) Judicial Settlement; (3) Setting Aside Default Judgment; (4) Relief from Sanction; and (5) Expedited Appeals.
Pre-Action Protocols
The revised court rules provide that the Chief Justice may make practice directions prescribing mandatory pre-action protocols. As the name suggests, pre-action protocols set out the steps that parties are expected to take before starting court proceedings. The protocols may include requirements for parties to give notice of dispute, exchange information and attempt settlement, including by mediation.
Mediation is the process by which parties negotiate and resolve their disputes with the assistance of a neutral third party. Given the successes of the court-connected mediation programme, this may be a welcome initiative, particularly in non-commercial matters.
Judicial Settlement
In her 2023 Opening of the Law Year address, Her Ladyship The Hon. Dame Janice Pereira, Chief Justice, referred to the proposed inclusion of judicial settlement in the revised rules.
The revised court rules state that judicial settlement is intended “to complement the provisions for mediation as an alternative dispute resolution mechanism for promoting the early disposition of cases.”
Judicial settlement may take place from the case management conference process and up to and during the hearing or trial of the matter.
In the course of judicial settlement, a judge or master may assist the parties in negotiating settlement, in evaluating the merits of the dispute and may also provide an evaluation or an opinion of the likely outcome of the dispute.
Statements made during judicial settlement are confidential. However, to avoid any appearance of bias, the judge or master who assists with judicial settlement may not take part in any further proceedings in the case, unless the parties consent and the judge or master is satisfied there are no circumstances that would make it inappropriate for the judge or master to do so.
The judge or master may also direct the parties, with their consent, to attempt other alternative dispute resolution mechanisms.
As is the case with mediation, the success of this complementary regime will depend on parties being both reasonable and constructive in their negotiations and not engaging in the process as a mere fishing expedition.
Setting Aside Default Judgment
A significant revision comes in the form of the test to be applied to setting aside a judgment entered in default of the filing of an acknowledgment of service or a defence.
Under CPR 2000, unless the decision may be set aside “as of right” (because the conditions for obtaining default were not met) or there are exceptional circumstances, a defendant must satisfy 3 requirements to have a default judgment set aside. It must be shown that the defendant:
- applied to the court as soon as reasonably practicable after finding out that judgment has been entered,
- has a good explanation for the failure to file an acknowledgement of service or defence, and
- has a real prospect of successfully defending the claim.
The effect of this rule was that a defendant with a strong defence could be shut out of court if unable to meet the first and second requirements, or if unable to show that there was some exceptional circumstance justifying setting aside.
Under the revised court rules however, the merits of the defence are the central focus. To set aside a default judgment, a defendant must satisfy the court that he has a real prospect of successfully defending the claim. In determining whether to set aside, the court may consider whether the application was prompt and if the defendant had a good explanation, but the inability to satisfy one or both, is not necessarily fatal to the success of the application. The residual category, that is, setting aside for “exceptional circumstances”, also remains intact.
The revised rules may therefore better facilitate the achievement of substantive justice between the parties.
Relief from Sanction
In a similar vein, a party seeking relief from sanction for the failure to comply with a rule or order is no longer required to satisfy each of the three requirements specified in CPR 2000, as follows:
- the failure to comply was not intentional;
- there is a good explanation for the failure; and
- the party in default has generally complied with all other relevant rules, practice directions, orders and directions.
These questions, together with others, are now merely factors which the court may consider in exercising its discretion to grant or refuse relief from sanction.
While not a condonation for ruling breaking, these revised provisions facilitate the exercise of the judicial officer’s discretion on much broader justice considerations.
Expedited Appeals
Under CPR 2000, a party had a limited avenue to fast track an appeal by having it proceed as a summary appeal. This applied only where the matter could be heard without production of the full transcript and the other party agreed.
However, the revised court rules now provide for timelines imposed by the rules to be dispensed with on expedited appeals. A party makes a request for an appeal to proceed on an expedited basis by filing and serving a certificate of urgency setting out the grounds on which expedition is sought. In determining whether to hear an appeal on an expedited basis, the court will consider,
- the urgency of the matter;
- whether the record of appeal consists mainly of documents which are readily available;
- if the appeal can be heard justly with an incomplete record of appeal;
- whether the appeal involves points of law and no substantial disputes of fact; and
- the likely prejudice to be occasioned to any party.
This may be especially useful in commercial cases which often involve points of law with no substantial disputes of fact.
Conclusion
In summary therefore, the revised rules provide greater scope for dealing with cases justly, expeditiously and amicably.
Prepared by Sardia Cenac Prospere, Partner.
FLOISSAC, DUBOULAY & THOMAS provides this information for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. This guidance note is not intended to be, and should not be construed as, legal advice for any particular situation and you should not act upon this information without seeking advice from a lawyer. If you have any questions, please feel free to contact us at info@fdt.law.