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Control of proceedings
05/06/2007 The Star ARTICLES OF LAW by BHAG SINGH
The presiding judge decides how a trial will be conducted. The only thing a
litigant can expect is justice.
AT some point, almost every person ends up going to the courts. This may be
either as a plaintiff or defendant in a civil suit or as an accused person,
or as an offender. Others may end up going to the court as witnesses
summoned to give evidence.
Of course, some may just choose to spend a day in court to see what goes on.
A common complaint about courts is that it takes a long time for a matter to
come to a conclusion. This is generally true. However, who is actually
responsible for delaying the disposal of the matter is a different issue
that needs to be discussed separately.
In civil cases, there are procedures which allow matters to be summarily
dealt with based on affidavits filed or arguments advanced based on the
pleadings before the court, and sometimes by reliance on both.
There are also situations where the summary procedure provisions have not
been adopted but the judge gives directions as to how the documents should
be organised and within what time frame to file them. There may be further
directions to the effect that once all the documents are filed within the
given time, no further documents will be allowed.
Also the judge may, before the trial, limit the number of witnesses and the
time to which they are to be limited. Before this is done, parties are
likely to be allowed to address the court on why it should be otherwise.
A reader asks whether this is fair. He says that unless a party has adopted
the prescribed procedures for summarily dealing with the matter, it should
be entitled to have its case tried to conclusion in such manner as such
party thinks fit and, if necessary, after all the evidence considered
necessary by both sides has been adduced.
It seems that what the reader has in mind is that a party to a litigation
should have the right to call as many witnesses as it wishes and tell the
court all that it wishes, as well as place whatever document or records it
desires to put forward.
Such a view, although correct as a matter of practice generally, does not
represent the correct position on the management of a trial. In reality,
there are various limitations prescribed by law, or which exist on the basis
of the discretion vested in the presiding officer in any court.
To start with, there is the basic rule with regard to evidence. Parties no
doubt will need to adduce evidence to prove their case. However, although
each party has a right to adduce all evidence that will support its case,
this is governed by the law, which also imposes limitations.
In our case, the law is set out in the Evidence Act 1950, which sets out in
detail what evidence is permissible to be adduced and what is not. It is an
Act that applies to all judicial proceedings in or before any court.
One of the underlying principles is the concept of admissibility and
relevance. The evidence that is adduced must be admissible and relevant.
Evidence that is relevant may not be admissible.
The Evidence Act 1950 also sets out how facts are to be proved and how
statements made by persons who cannot be called as witnesses under certain
circumstances are to be dealt with.
However, beyond all this, the fact remains that when a dispute arises
between the parties as to whether the evidence is relevant or admissible, it
is the judge who has to decide and therefore has control of the proceedings.
Even then, it does not mean that the parties have an unbridled right to call
any witness they wish and place him before the court. It is very much within
the right of the judge to control the proceedings by defining the areas in
relation to which evidence is to be adduced and which witnesses are to be
called. This is bearing in mind the express provisions and underlying
principles of the law of evidence.
The objective of litigation is to establish the rights of one party against
another or others with the active involvement of the solicitors of the
parties concerned. In this regard, Lord Templeman, in the case of Ashmore v
Corp of Lloyd’s, said:
“The parties and particularly their legal advisers in any litigation are
under a duty to co-operate with the court by chronological, brief and
consistent pleadings which define the issues and leave the judge to draw his
own conclusions about the merits when he hears the case.”
It has often been said that it is the duty of counsel to assist the judge by
simplification and concentration and not to advance a multitude of ingenious
arguments in the hope that out of 10 bad points, the judge will be capable
of fashioning a winner as it were.
There are cases where judges have complained that there was a tendency for
legal advisers, pressed by their clients, to make every point conceivable
and inconceivable without judgment or discrimination.
In Banque Financiere de la Cite’ SA v Westgate Insurance Co Ltd, the learned
judge warned against proceedings in which all or some of the litigants
indulged in over-elaboration, making it difficult for judges at all levels
to achieve a just result.
When there are complaints against such restraints, it has been said that the
appellate court would be reluctant to entertain complaints about a judge who
controls the conduct of proceedings and limits the time and scope of
evidence and argument.
The control of the proceedings rests with the judge and not with the
Plaintiffs. It is not legitimate to expect the trial to proceed to a
conclusion upon the evidence to be adduced. The only legitimate expectation
of any plaintiff is to receive justice. |
