HONG KONG DONGIL TRADING CO. LTD. v. KOREA BUILDING MATERIALS TRADING CORPORATION

1993, No.198
(Civil)

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H E A D N O T E

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In matters of "case management", the judge of first instance is invested with a very wide discretion to give such directions as may appear to him best adapted to secure the just, expeditious and economical disposal of the action. The Court of Appeal will not countenance an "appeal" from the decision of a judge on matters of case management unless the judge has acted outside his jurisdiction or has plainly gone wrong (Ashmore v. Corporation of Lloyd's [1992]1 WLR 446 and Carrian Investments Limited v. Price Waterhouse Civ. App.128 of 1993, unreported, followed).

1993, No.198
(Civil)

IN THE COURT OF APPEAL

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J U D G M E N T

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Godfrey, J.A. :

1. This is an appeal from an order of Mayo J., made on 24th November 1993, giving directions as to the future course of this action. The action is an action in the Commercial List and the power to give directions in actions in that List is conferred upon the judge in charge of the List. For this purpose, Mayo J., in making the order he did on 24th November 1993, was acting as the judge in charge of the Commercial List.

2. The action was commenced as long ago as the 25th September 1991. By the summons for directions upon which the order was made, a summons of 10th November 1993, the plaintiff asked for directions as follows :

" 1. The action be set down for trial within 28 days in the High Court before the Commercial Judge without a jury, the estimated length of trial being four (4) days.

2. A statement of facts be agreed upon if possible; if not, a statement of agreed and disputed facts to be served on each party by the other not later than 21 days before the date fixed for commencement of the trial.

3. Signed Statements of Factual Witnesses shall be exchanged not later than 21 days from the date of the order herein. Unless otherwise ordered, these statements shall stand as the evidence in chief of the witnesses at the trial.

4. Paginated trial bundles to be agreed not later than 21 days before the date fixed for commencement of the trial and lodged not later than 3 clear days before the start of the trial.

5. The costs of this application be costs in the cause."

3. After hearing argument, the judge made an order in the terms of the summons of 10th November 1993 save that he allowed 35 days for the exchange of statements of factual witnesses instead of 21.

4. The function of a judge on a summons for directions is to give such directions as to the future course of the action as may appear best adapted to secure the just, expeditious and economical disposal thereof : see O.25, r.1 of the Rules of the Supreme Court. In giving directions as to witness statements, the judge is empowered, at any stage of the action, if he thinks fit for the purpose of disposing fairly and expeditiously of the cause or matter and saving costs, to direct any party to serve on the other party, on such terms as he thinks just, written statements of the oral evidence on which the party intends to lead on any issues of fact to be decided at the trial : see O.38, r.2A of the Rules of the Supreme Court.

5. The discretions conferred on the judge by O.25, r.1 and by O.38, r.2A are expressed in the widest possible terms and are designed to enable the judge to ensure that the action is brought on for trial as soon as fairly possible. This is part of what has come to be called "case management". This is a skill which the judges are increasingly expected to exercise, of their own motion when necessary, because the lawyers for the parties do not always get on with the case in the manner best calculated to serve the interests of their clients and of the efficient management of the business of the court. No doubt, most lawyers try (most of the time) to avoid justifying this reproach. But some fail; and it has become necessary for judges to adopt a "hands-on" approach to case management to ensure that the needs of the litigants in the case before them, and of litigants in other cases waiting to come on, are properly and effectively met.

6. Attention has been drawn to these matters in a number of recent cases. I may single out in particular Ashmore v. Corporation of Lloyd's [1992]1 WLR 446. The facts of that case are of no importance for present purposes what is important is that the House of Lords has made it plain that when a judge orders the adoption of a particular course of conduct for the trial in the interests of justice, his decision is not to be interfered with by an appellate court unless it is plainly wrong : see per Lord Templeman at p.454. This approach was adopted in this court in Carrian Investments Limited v. Price Waterhouse, Civ.App.128 of 1993, in which this court clearly supported the proposition that the exercise by a judge of his discretion in matters of case management ought to be respected by this court. Mortimer J.A., for example, said this :

"It is impossible for the judge to do justice in or handle a case of this size without intervening to manage the litigation. This is his duty whether or not the parties agree or acquiesce. In accordance with this duty he has made orders and has laid down a timetable leading up to the trial."

Sears J. (sitting as a judge of this court) said this :

"The modern rule of a judge trying complex civil litigation is to be a case manager. His duty is not only to decide the issues but also to ensure that the litigation is conducted speedily and without undue costs."

7. In this case there is no warrant whatever for suggesting that the judge was plainly wrong in giving the directions which he did give. But the appellant, in what my Lord, Litton J.A. referred to, in an interlocutory observation during the course of argument (in my respectful judgment, rightly), as this "so-called appeal", has submitted to us that the judge should not have given the directions which he did for setting down and for the exchange of witness statements.

8. As to setting down, the appellant says that to make that order was premature, when (as is the case) there were outstanding matters as to security for costs, and fortification, which had not yet been determined; and when the date of the trial was not yet known. (Subsequently, on 21st December 1993, the date of trial was fixed for 26th May 1994 and, says the appellant, this shows that the judge's decision on 24th May 1993 to order that the action be set down for trial was a wrong decision. But the appellant has not applied to the judge to vary the direction.) This is a thoroughly bad point. The judge, having dealt with all the matters required to be dealt with on the summons for directions, was perfectly entitled to give the direction which he did give, notwithstanding these outstanding matters (raised by separate applications by the defendant).

9. As to the witness statements, the appellant says that the usual practice, and the proper practice, is to provide that witness statements to be exchanged so many days before the commencement of the trial, not so many days after the order giving directions for the exchange of witness statements. This is a thoroughly bad point, too. The judge clearly had a discretion to decide at what stage of the action witness statements should be exchanged. I see no reason to prefer one practice to another in this connection. It is up to the judge to decide in each case which of the two alternative ways of fixing the date for exchange is to be preferred.

10. There is, therefore, nothing in the appellant's points. But, even if there were, the right course would be to go back to the judge in charge of the Commercial List and ask (given some justification for doing so) for the directions to be varied, not to come here. This court is bound to review interlocutory orders of the judges of first instance in those rare cases where the judge has erred in law or principle, or has otherwise plainly gone wrong. But I would deprecate strongly any future attempt to come to this court to interfere with the decisions of judges on matters of case management. These are peculiarly matters which should be left to them.

11. I would dismiss this appeal.

Macdougall, V.-P.:

12. I agree entirely with what my Lord has said. A judge giving directions is under a duty, in so far as his powers allow him to do so, to ensure that there should be no unnecessary delay in the resolution of litigation, but that it should be expeditiously brought to an end. He has a wide discretion to make such orders as are likely to achieve that result. It is not for this court to take away from the judge the management of a case. Unless it can be shown that he is manifestly wrong, this court will not interfere with his decision. This is not such a case. This appeal should never have been brought. I would unhesitatingly dismiss it.

Litton, J.A. :

13. I agree and have nothing to add.