The Rules of the High Court (Amendment) Rules, 2021 (“the Amendment Rules”) came into effect on 08 January 2021.
The Amendment Rules bring about some interesting developments, which we highlight below for your perusal:
1. MONITORING TIMELINES FOR JUDGMENTS & WRITS
1.1 The Registrar is now mandated to monitor compliance with judicial standards for delivery of rulings or judgments. The Rules have introduced a mechanism, which sets out timelines on when rulings or judgments should be delivered in different categories of matters.
1.2 The Amendment Rules also introduce a mechanism through which the judge president of any division may report a recalcitrant judge who continually fails to comply with required timelines to the Chief Justice (“CJ”), who is empowered to deal with the matter as he may deem necessary including referral to the Judicial Services Commission.
1.3 A further development is that, judgments in urgent applications and summary judgment rulings shall except in exceptional circumstances be handed down no later than twenty (20) court days after the hearing. This is a welcome development in circumstances in which Summary Judgment has nearly lost its meaning in the manner in which it is treated by the High Court in this day. It reinvigorates Summary Judgment into an effective means of disposing of clear-cut cases in an efficient and speedy manner.
1.4 Furthermore, the Registrar is required to process any application for default judgment and writ of execution within thirty (30) court days from the date of filing. He is further required to tax any bill of costs within sixty (60) court days from the date of filing subject to the availability of the parties.
1.5 In circumstances in which the experience of the public has been characterized by undue delays in the delivery of rulings and judgments, as well as delays in the case-management system, these amendments are very welcome developments, which hopefully present a step towards accountability and a more efficient High Court, if utilized and applied.
2. CASE MANAGEMENT
2.1 The Amendment effectively place upon litigants the responsibility of preparing an Initial Case Management Report (“ICM Report”), which process was driven by the Court in the prior iteration of the Rules.
2.2 An ICM report prepared by the Plaintiff/Applicant shall be filed within seven (07) court days of the date of the parties meeting. The Court is in turn required to schedule an Initial Case Management Conference within seven (07) court days of the filing of the ICM Report after consulting with the parties by means of a conference call.
2.3 It remains to be seen whether the administrative infrastructure of the High Court’s current systems will be able to accommodate what is required by the Amendment Rules, in a manner which gives effect to the spirit of the Legislature’s amendments. Further, it could well be that a new form of classism may be introduced, in that the matters of litigants who comply timeously with the Rules will progress, whereas those of the ones who do not, may not. As with all change, this will not be without friction and much remains to be seen, although control being placed in the hands of litigants for a critical part of the litigation process is a welcome development.
3. BARRING & DEFAULT PLEADINGS
3.1 Another new introduction, with a distinctly old flavor, introduces rules dealing with parties’ failure to plead in terms of the timelines mandated by the Rules.
3.2 The effect of the amendment is that any party who fails to comply with time periods for filing of any process shall automatically not be allowed to file such process. Any pleadings filed outside the stipulated time periods will be invalid. This development harkens back to and reintroduces into the Rules, the pre-2008 Rules which contained the infamous “Notice of Intention to Bar”.
3.3 Once an automatic bar comes into effect, the counterparty may apply for a dismissal, a judgment, or set the matter down without notice to the other party for the grant of a Default Order.
3.4 However, a party who has been automatically barred from filing any process may apply to a judge for leave (within 30 days following the automatic bar) to file process outside the time provided under the Rules. The costs of an application for leave for the late filing of any process shall be borne by the applicant on an attorney and client scale unless the judge orders otherwise.
4. COURT ANNEXED MEDIATION
4.1 The Amendment Rules establish court-annexed mediation (“Mediation”) and make it a part of the judicial case-management system. In theory, mediation is intended to facilitate an efficient, cost-effective and speedy resolution of disputes.
4.2 In terms of the Amendment Rules, for all cases registered after the commencement date of the same, an originating process must be accompanied by a notice indicating whether the plaintiff or applicant agrees or opposes referral of the case to Mediation. The Defendant or respondent when entering a memorandum of appearance to defend or notice of opposition must also deliver a notice indicating whether he agrees to or opposes referral of the case to Mediation. A party who opposes referral of the case to Mediation is required to provide reasons for such opposition
4.3 The parties can apply to the judge to have their case referred to the Administrator for mediation at any stage before judgment by consent. However a Judge at the ICMC after hearing the parties has discretion to order a referral to mediation despite a party’s objection.
4.4 The rules provide that any communication or disclosure made during Mediation is confidential and inadmissible in evidence unless it is required by law or discoverable in terms of the Rules or otherwise agreed by the parties.
4.5 Whether this Rule will introduce an efficient means of disposing of cases in an speedy manner, or present a means for the judiciary to shirk its obligation to arbitrate over disputes, remains to be seen. To the extent that the Legislature is introducing alternative dispute resolution into the litigation process, this is a welcome development, which may prove a boon, if properly applied.
5. DEFAULT AWARDS AT TRIAL
5.1 The Amendment Rules provide for judgment in default of appearance at trial, no longer necessitating that the litigant present before court proves its case, unless the judge directs otherwise.
5.2 To the extent that a judge may be content with granting judgment on the basis of the papers before him with respect to the litigant that is present, the Amendment Rules have introduced a more cost-efficient means of securing judgment. This, as the prior iteration of the Rules required that the litigant present at court go through the time and expense of leading evidence in proof of its case, before judgment could be granted in its favor.
6. HOURLY RATES FOR ATTORNEYS
6.1 The Amendment Rules have introduced new hourly rates for the party and party scale, which augment those contained in the prior iteration of the Rules and make them much more market-related. This is a welcome development for the process of recovering costs granted on the party and party scale, in that litigants will recover a more market-related percentage of their actual expenditure in the taxation process.
6.2 The Amendment Rules also introduced tariffs for costs on an attorney client scale. This is a novel introduction into the Rules, which has not existed before in Botswana’s history. With that said, it calls for careful wording of contracts to ensure recovery of legal costs on a scale as between attorney and own client, and where possible to avoid confinement to the party and party and attorney client scales contained in the Amendment Rules.
For further information, feel free to contact Yemulani Alfred on (+267 3912397) or email: yemulani@bookbinderlaw.co.bw