The Tribune

• Chief Justice targets early May to effect reforms

• ‘More sophisticated’ on big commercial litigation

• Mediation Unit to cut cases going to trial by 40%

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Chief Justice yesterday said wide-ranging reforms to the Bahamian courts’ Civil Procedure Rules will “make the jurisdiction more competitive on dispute resolution” in 70 percent of such cases.

Sir Brian Moree QC told Tribune Business that the 412-page Rules, which were released for consultation last week, should be “promulgated” and in effect by end-April/early May as efforts to address the costs and speed at which commercial cases are resolved gather pace.

Disclosing that the reforms will apply “a more sophisticated and more modern approach” to dealing with commercial cases involving sums over a certain amount, which he declined to close, Sir Brian added that they also involve the creation of a “mediation unit” within the judicial structure in a bid to provide alternative dispute resolution (ADR) so that only 60 percent of cases must go to trial.

Company winding-ups and bankruptcies will not be covered by changes as they have their own rules. Proceedings begun under a specific law that details the procedures to be followed, such as the Quieting Titles Act, are also exempt, as are non-controversial probate matters and family cases covered by matrimonial law.

While criminal cases are also excluded, Sir Brian confirmed that the new Rules will cover all other commercial and contract disputes; mortgage-related actions; money lenders and multiple other categories. “In a grand sense, it really regulates the procedures for probably 70 percent of non-criminal litigation,” he told Tribune Business. “That’s just a guess.

“The majority of civil court proceedings are covered by these Rules, which have now been released for consultation to the Bar Association and all stakeholders. That’s a big step in and of itself, and we’ve been working tirelessly on this.”

Sir Brian said a series of workshops, seminars and webinars will be held to discuss the proposed Rules between now and April to ensure that attorneys, judicial officers and court staff are trained and brought up to speed on the changes and what they will mean for litigants and the court system.

Suggesting that further amendments will flow from the consultation, he added: “By the time we get to the first or second week of May, I hope to promulgate those Rules - either by the end of April or early May. It is a massive process.”

Sir Brian said the Rules are designed to make The Bahamas more competitive when it comes to resolving commercial and other disputes, which is a key factor considered by investors in choosing where to deploy their capital, as well as being vital to this nation’s reputation as an international business centre and international financial centre (IFC).

He added that it will also bring The Bahamas into line with world practices and its Caribbean rivals, disclosing: “Virtually every other country in the region has moved to the new Civil Procedure Rules. All countries have some variation, but the model has been adopted in Barbados, Trinidad, Cayman, Guyana and the eastern Caribbean states.

“We are really the last one, or one of the last countries, in the region to move to Civil Procedure Rules. So to that extent we are catching up and modernising our procedures for civil litigation in The Bahamas.”

In particular, Sir Brian said the reforms will make case management more “judge or court driven”, thereby reducing the ability of attorneys and their clients to stall cases and clog up the judicial system for months and even years.

“The objectives are one, to streamline the process where possible; two, to simplify the process where possible; and three to introduce a strenuous case management mandate to accelerate the disposition of cases and applications whether it’s a judge or judicial officer, sometimes the registrar,” he told this newspaper.

“They will become a much more active player in the case so that litigation is no longer lawyer driven or party driven, but judge driven. This effort to make it more expedited, more streamlined and more efficient, with stronger case management processes included in the Rules, are intended to accelerate the disposition of cases, reduce the amount of time and thereby reduce the cost.”

Sir Brian said the Bahamian judicial system already possesses strong case management powers via the Supreme Court’s rules, but these will now be further “strengthened” via the new Rules. He acknowledged that the changes are “not a panacea; they will not solve all problems, but will provide a much more modern and contemporaneous platform for addressing civil litigation”.

The Chief Justice added there are “significant changes” proposed for the exchange of evidence between parties to a legal dispute and their attorneys, which is known as “the discovery process” and forms “a big part of litigation”.

And, with cross-border lawsuits on the rise, the Rules will also facilitate the ability of Bahamas-based parties to bring litigation against entities and individuals residing in foreign jurisdictions. “That is being added to us up to date with jurisdictions in the region, to make us more competitive, compliant with best practices and ensure our court system is comparable to any in the region with regard to commercial matters,” he added.

“I would say it’s going to greatly enhance the ability of the country to deal with commercial and civil cases in a shorter period of time. It’s going to result in stronger monitoring and tracking of cases by the judiciary because it’s not going to move at the pace of lawyers or the parties. They will move at the court’s pace.”

Sir Brian said the new Supreme Court commercial division rules are “intended to provide a more modern and more sophisticated approach to dealing with large commercial cases” involving sums over a certain amount, although he declined to specify this threshold on the grounds it might change after consultation.

“This combination of new Civil Procedure Rules and new commercial division rules will make the jurisdiction more competitive with regard to dispute resolution,” he added, confirming that the creation of a Mediation Unit to provide alternative dispute resolution is also included in the Rules.

“No court system is able to take every case filed to trial in a reasonable period of time,” Sir Brian explained. “It’s important because of volume that the courts try to provide alternative methods of resolving disputes. We want to end up where we’re maybe taking only 60 percent of cases to trial, which is a more manageable amount than taking all cases to trial.”