CHALLENGES OF CASE MANAGEMENT
IN SOMALILAND HIGH COURT
by
Guled Abdulahi Osman LAW-18-511
&
Salah Bile Warsame LAW-18-5
A Thesis
Submitted to the School of Law, Alpha University College, in Partial
Fulfillment of the Requirements for the Bachelor Degree of Law @ 2021.
Harg Somaliland
Bachelor Degree of Law
2021
Chapter 1
INTRODUCTION AND BACKGROUND
INFORMATION
Chapter Outline
1.1 Introduction
1.2 Background Study
1.3 Statement of the
problem
1.4 Objectives of the study
1.5.1 General Objective
1.5.2 Specific Objective
1.5 Research questions
1.6 Scope of the study
1.7 Definition of terms
1.8 Significance of the study
1.1 INTRODUCTION
The public administration of a country represents the main interface between the
state and its citizens. The acts and decisions of administrative authorities have a
direct impact on the daily life of individuals as they deal with issues such as taxes,
public registries, education, social services or health. These acts and decisions
contribute to creating conditions for security, stability and public trust, which are
prerequisites for the development of stable and democratic societies.
A proper public administration requires that the public is empowered to effectively
challenge administrative acts, and to hold the public officials accountable for their
decision making. Administrative justice therefore constitutes a core component of
democratic governance, and its existence is fundamental in any society based on
the rule of law, as it entails that the government, and thereby its administration,
acts within the scope of legal authority. Notwithstanding, administrative justice has
for long been a neglected area implying consequences for individuals.
CHALLENGES OF CASE MANAGEMENT IN SOMALLAND HIGH COURT 2021
Central to the effective protection of human rights and respect for the rule of law is
the right for individuals to appeal against administrative decisions, and to have the
possibility to seek legal redress through the application of fair administrative
procedural rules whenever their rights, liberties or interests have been affected.
This is applicable to administrative decisions just as it is to criminal and civil law
proceedings, with the main difference being that the responsibility is more
burdensome for the individual in administrative processes. The aim of an
administrative justice system is to ensure that administrative acts can be reviewed
in proceedings adhering to fair trial standards by a competent, independent and
impartial court or tribunal. It should help people to resolve disputes with the
providers of public services, guarantee that the decision makers are held
accountable, and enhance public trust in the administrative justice system.
"Not only must Justice be done; it must also be seen to be done."1
The most important general mandate of the high court and their subordinates are
two: first to manage the case, and secondly to adjudicate the case. But Somaliland
judiciary fails to fulfill the management of the case except the procedural rules like
civil and criminal procedural managements as we discussing below upcoming
chapters.
The Australian Law Reform Commission in a background paper called “Judicial and
Case Management” (1999) has elaborately considered this subject. It defines
‘Judicial Management’ as a term used to describe all aspects of judicial involvement
in the administration and management of courts and the cases before them. It
includes procedural activism by judges in pre-trial and trial process and in ‘case
management’. At its broadest, it also encompasses questions of court governance
and court administration.
‘Case management ’is defined as referring to process involving the control of
movement of cases through a court or tribunal (case flow management) or the
control of the total workload of a court or tribunal.
1
Few sentences have been quoted more often than the aphorism: “Justice must not only be done, but must also
be seen to be done”. This dictum was laid down by Lord Hewart, the then Lord Chief Justice of England in the case
of Rex v. Sussex Justices, [1924] 1 KB 256.
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CHALLENGES OF CASE MANAGEMENT IN SOMALLAND HIGH COURT 2021
Case management in courts is often, but not always, performed by Judges. When
it is performed by Judges, it is referred to as ‘judicial case management’ to
administrate the justice.
1.2 BACKGROUND TO THE STUDY
The efficient and effective management of court in any country is of paramount
importance to conducting court proceedings and successful completion of court
cases in a timely manner and ensuring justice is delivered to citizens. The Judiciary
and the public rely upon court records which should be complete, accurate, and
readily available, in order to ensure delivery of justice is met.
In Somaliland today a lot of complaints have been raised about the performance of
the Judiciary in relation to the administration of justice partly because of
professional malpractices on the one hand and poor management practices on the
other.
‘Case management’ means that the ‘progress of cases’ before the courts must be
‘managed, in one sense, its direction from traditional adversarial case management
which had left the pace of litigation primarily in the hands of the legal practitioners.
In our country, we have not had any specific rules of case management where
Judges monitor the movement of cases throughout its career in the Court or any
system of different tracks. We have ad hoc systems improvised by each Court but
not a uniform system. One of the main items which involve considerable waste of
the judicial time of every trial Judge is the system of calling out all the listed cases
– which are not yet ripe for final disposal – to find out whether (a) notices are
served, (b) whether defects are cured, (c) whether affidavits, reply or rejoinder
affidavits are filed, (d) whether notices in applications for bringing legal
representatives or record are served, (e) whether parties have 10 taken various
steps necessary to be taken at various stages of the case. This part of the work, in
several trial Courts, takes more than an hour of the Judge’s time. By the time
regular work is taken up, the Judge loses the freshness of the morning and is
already tired
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CHALLENGES OF CASE MANAGEMENT IN SOMALLAND HIGH COURT 2021
There are a number of reasons why Somaliland does not have a case management
system. These are: First, the constitution of the Republic of Somaliland 2000 and the rules of
procedures in civil and criminal proceedings are incompatible, and there are various
rights and duties and procedures states the highest law of the country (constitution)
but not included the other justice tools (procedural and substantive laws), and there
are cultural conducts and beliefs that not matching the rule of law. In Article 128:
The Basis and the Supremacy of the Constitution says:1. The Constitution shall be based on Islamic principles.
2. The Constitution shall be the supreme law of the land, and any law which
does not conform to it shall be null and void.
But the supremacy of the constitution in not upmost believes of our justice officers
and it’s the main issue uprising the conflict of the constitution and the other laws .
The second reason is the failed and non-effective legislators in our parliament that
not
makes
more
than
30
laws
that
stated
in
these
articles
12,18,20,25,47,65,74,77,87,106,122,124,11,32,45,54,58,98,101,102,104,121,123
,124 in Somaliland constitution.
Third reason is the each court used a different approach to administering the case,
which resulted in the legal service provider not being able to understand or be
confused by the administrative procedures they were using.
1.3. STATEMENT OF THE PROBLEM
Already everybody in Somaliland knows the bad and weakness management of
Somaliland current courts from these angles: mismanagement and challenges of
case time management, lack of the balancing the case load and available judges,
lack of daily oversight and accountability, lack of registration and reporting case
management and lack of case flow and tracking of case process. And these
challenges are make a substantive mismanagements of weak judicial commitment
and leadership; not existence court consultation with the legal profession; invalid
court supervision of case progress; inexistence of the case standards and goals ;
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CHALLENGES OF CASE MANAGEMENT IN SOMALLAND HIGH COURT 2021
failure a monitoring information system; and there is not effective listing for credible
dates; lacks of the strict control of adjournments.
In this research we want to know all the administrative steps that cases go through,
who manages them and how they manage them. which means we have to study
where these challenges are coming from, how they are coming, and when they are
coming. When we look at these stages, it is easier for us to get to the bottom of the
challenge itself.
In this research we also want to know how the court studies the daily, weekly,
monthly, and annual events. and how to benefit from the experiences taught by
events. the court's record of these events and its decisions and plans for the future.
as well as knowing how to plan for the future of the judiciary
Why do we need to know in this study? The objectives our study focused how to
alternate the harsh and failure management of the old management case in the
courts to new and flexible management system of the case. Like
(a) early resolution of disputes;
(b) reduction of trial time;
(c) more effective use of judicial resources;
(d) the establishment of trial standards;
(e) monitoring of caseloads;
(f) development of information technology support;
(g) increasing accessibility to the courts;
(h) facilitating planning for the future;
(i) enhanced public accountability;
(j) the reduction of criticism of the justice system by reason of perceived
these flexible and accountability management stimulates these
1. judicial commitment and leadership;
2. court consultation with the legal profession;
3. court supervision of case progress;
4. the case of standards and goals;
5. a monitoring information system;
6. listing for credible dates;
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CHALLENGES OF CASE MANAGEMENT IN SOMALLAND HIGH COURT 2021
7. strict control of adjournments.
It has been stated in the Report of the Commission that case flow management has
helped bring about substantial procedural, operational and cultural changes in the
judicial systems of Australia. In our country, we have not had any specific rules of
case management where Judges monitor the movement of cases throughout its
career in the Court or any system of different tracks. We have ad hoc systems
improvised by each High Court but not a uniform system. One of the main items
which involve considerable waste of the judicial time of every trial Judge is the
system of calling out all the listed cases – which are not yet ripe for final disposal
– to find out whether (a) notices are served, (b) whether defects are cured, (c)
whether affidavits, reply or rejoinder affidavits are filed, (d) whether notices in
applications for bringing legal representatives or record are served, (e) whether
parties have 10 taken various steps necessary to be taken at various stages of the
case. This part of the work, in several trial Courts, takes more than an hour of the
Judge’s time. By the time regular work is taken up, the Judge loses the freshness
of the morning and is already tired. We must dispense with this system and innovate
a system in lieu thereof whereby this work is delegated to a senior ministerial officer
or a court manager or another judicial officer who can take up this work on a
Saturday in regard to the matters to be listed in the ensuing week before all the
Judges in the particular Court. One or more judicial officers may do this work on
behalf of all other judicial officers in regard to the lists of all of them. May be, some
other alternative can also be found. In case, default order have to be passed, the
matters can be listed before Court.
The efficient and effective management of court in any country is of paramount
importance to conducting court proceedings and successful completion of court
cases in a timely manner and ensuring justice is delivered to citizens. The Judiciary
and the public rely upon court records which should be complete, accurate, and
readily available, in order to ensure delivery of justice is met.
In Somaliland today a lot of complaints have been raised about the performance of
the Judiciary in relation to the administration of justice partly because of
professional malpractices on the one hand and poor management practices on the
other. `
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CHALLENGES OF CASE MANAGEMENT IN SOMALLAND HIGH COURT 2021
1.4. OBJECTIVES OF THE STUDY
1.4.1. General Objective
This general objective it intends to explore challenges of case
management in Somaliland high courts
1.4.2. Specific Objective
It has also the following specific objective:
1.4.2.1.
To examine if the selection, appointments, promotion, and
investigation
of
disciplinary
misconduct
of
judicial
personnel is based on a clearly identified ethical code of
conduct or not.
1.4.2.2.
To examine if the two level court structure has an impact
on the rights of litigants or not.
1.4.2.3.
To examine the Courts, whether they are efficient in
managing court cases and deliver decisions to the
expectation of citizens in terms of possible attainable
efficiency and quality desired by the citizens.
1.4.2.4.
To examine if the two level court structure has an impact
on the rights of litigants or not.
1.4.2.5.
To study whether the judiciary in the country is striving to
create an efficient and transparent judicial system that will
ensure the prevalence of the rule of law. 6.
1.4.2.6.
To assess if the municipal courts are accessible in all
terms.
1.4.2.7.
To provide the Country Judicial system with brief
recommendations on the basis of analytical results.
1.4.3.
1.
RESEARCH QUESTIONS
Is the judiciary in the country independent in performing its
functions from any other organ of the Government?
2.
Are the selection, appointment, and promotion of judicial
personnel, clear and transparent, that are free from the influence
of the executive?
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CHALLENGES OF CASE MANAGEMENT IN SOMALLAND HIGH COURT 2021
3.
Is political attitude a requirement for selection of judicial
personnel?
4.
Is there a clearly identified judicial personnel code of conduct in
the Judiciary to administer the judicial personnel? Is there an
impartial and independent body to investigate ethical misconduct
issues?
5.
Is the two level court structures in the City narrowing litigants’ right
to appeal? Are there any legal and jurisdictional gaps that hamper
the efficiency and access to justice in the courts?
6.
Is the judicial system efficient in managing court case flows? Does
it practice court case flow management system?
7.
Does the justice system in the country, in terms of working system,
need a fundamental change?
8.
Are the City Courts in the City accessible in all aspects for the
people? (In terms of location, cost, time, and information etc…)
1.5. SCOPE OF THE STUDY
This study focuses the management of case in Somaliland High Court, indepth knowledge on the court management to support administration of
justice in case management challenges. The targeted respondents were
the chief of justice in courts from lower (district and regional) courts to high
courts, records staffs, litigants and advocates.
1.6. The limitations encountered in the study included the following;
1. With the culture of secrecy and delay in passing by parliament,
the researcher encountered some reluctance and corporation of
some respondents to corporate fully in releasing required
information. However with the current Constitution and Bill of
Rights every citizen has a right to information which
the researcher had explained to the respondents without really
coercing.
2. . There was too much bureaucracy and delays in the approval
and acceptance of my study by the judicial system courts
and the Supreme Court. In fact it took more than one months to
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be granted permission by Despite the stated limitations the
findings and recommendations are worthy of acceptance and
implementation
1.7. DEFINITION OF THE STUDY
The Case flow management is the court supervision of the case progress of
all cases filed in that court. It includes management of the time and events
necessary to move a case from the point of initiation (filing, date of contest,
or arrest) through disposition, regardless of the type of disposition. Case flow
management is an administrative process; therefore, it does not directly
impact the adjudication of substantive legal or procedural issues.
Definition of Delay The American Bar Association (ABA) defines delay as
any elapsed time other than reasonably required for pleadings, discovery,
and court events. To instill public confidence in the fairness and use of court
systems, delay must be eliminated by courts. An effective caseflow
management system does not initiate or cause delay.
1.8. SIGNIFICANCE OF THE STUDY
This study provides sufficient information on the Challenges of case
management in Somaliland. High court, It will also be a reference for many
policy makers, researchers, students, lawyers and even other people who
have close interest on the subject matter. Specifically the study may be
benefiting some of the following:
1. Government of Somaliland in particular the Judiciary section, Nation
Development and controlling and administrating the all judicial parties to
take the administrative rule and fair justice.
2. Lawyers and students to get easy access of the court business.
3. All court clients get simplest and easiest court management guidelines
4. Researchers on the subject matter will also refer this study as a literature
review.
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CHALLENGES OF CASE MANAGEMENT IN SOMALLAND HIGH COURT 2021
CHAPTER 2 : LITERATURE REVIEW
___________________________________________
2.1. Introduction
This chapter will highlight the review of literature that relates to the challenges
on case management in Somaliland high court, in terms of related studies for
previous researchers and conceptual frame work which is related to this study.
With unprecedented enthusiasm the justice system is currently embracing case
management, but the courtship has a long history. To reduce delay and cost
depends on the development of case management skills by the judiciary and
magistrates and has direct impact on justice initiatives. An important
component is to regard that Judicial training to implement these reforms has
traditionally been jurisdiction-specific and knowledge-based rather than skillsbased. So the court and case management depends also and I would say of
skills supported by knowledge. Also it is to remark that the wide variations in
judicial practice arising from local legal cultural framework.
2.2. Theoretical /conceptual frame work
2.2.1. Efficiency in judicial system
The reference to efficiency in judicial system is really necessary, because
efficiency could be seen as a facet of the wider claim to the effectiveness of
judicial protection of rights.
It is not reduce the discussion to a ideological market ideology where the the
judicial protection of rights depend only of a profit-maximising and costminimising approach. if one maintained that judicial protection of rights and
efficiency are incompatible, one would be bound to believe that individuals do
not care about judicial protection of rights (except when they are parties to civil
proceedings)
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CHALLENGES OF CASE MANAGEMENT IN SOMALLAND HIGH COURT 2021
Efficiency is different from effectiveness, as the the first is connected with the
purposes and arrangements of the whole civil justice System, while the
procedural economy is rather linked to the purpose(s) of single proceedings
(most cost-efficient way) . The efficiency of civil procedure should be a link
between the regulation and management of single civil proceedings and the
systemic management of the mass of civil proceedings. A connected micro and
macro view of a management for a better administration of justice . The
literature on the rule of law and economic growth has been one of the more
dynamic areas of theoretical and empirical work in political science, economics
and law, joining an interest in institutions and fundamental economic processes
. The access to the courts and the effective protection of rights should be
provided in a fair process by the law in an efficient way. How? Taking into
account the allocation to each case of an appropriate share of the court's
resources regarding the need to allot resources to other cases .
The real problem and challenge, as Prof. Caponi 2 remarks, is finding a way to
determine how much individuals value judicial protection of rights in
comparison with other goods and services they want to obtain and, accordingly,
how many resources they wish to devote to the judicial System in comparison
with other sectors of public administration. In this field is the political process
and arena the competent to decide.
The management of justice thus leads to a tension between a market logic
and a logic of human rights. In other words, it is necessary to manage the
flow without reaching the guarantees of a fair trial12.
The principle of case management is that the court, rather than the litigants,
controls the pace of litigation. It is a modern approach to dispute resolution
which seeks to move away from the bitter adversarial clashes of the past and
2 1
CAPONI, R., European Minimum Standards for Courts. Independence, Specialization, Efficiency. A Glance
from Italy, Festschrift Professor Nikolaos K. Klamaris (2016), p. 151; also in Europäische Mindeststandards für
Spruchkörper (C. Althamer, M. Weller eds.), Tübingen, Mohr, 2017, p. 139-164.
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CHALLENGES OF CASE MANAGEMENT IN SOMALLAND HIGH COURT 2021
encourage a greater start with judicial degree of cooperation and partnership
between all concerned.
2.2.2. Judicial attention
Judicial attention has come to be a scarce resource: (i) the rate of cases per
judgeship has grown precipitously in lower, appeal and supreme courts; (ii)
there are reasons to discus various proposals that scholars and judges have
offered in response to the rising caseload, including ways to reduce the
number of filings, increase the number of judges, and improve efficiency in the
courts with an appropiate case and court management principles; (iii) there
are frameworks to be taking into account to guarante access to the courts and
the effective protection of rights; (iv) the demand for judicial attention will
continue to exceed the supply of judicial time, thereby rendering judicial
attention a scarce resource14. The adaptation of proceedings and a court
structures is prioritary for the public policies suited to local and temporal
needs15. Judicial "managerial" theories must assure that proportionality will
be considered on a case by case basis, according to constitutional standards,
in the sense of weighing the harm to the parties against the benefit to
administration of justice. The subject is part of the connexion
2.2.3. Courts and case management:
The
management
of
judicial
administration
take
two
forms:
case
management and court management. Both are connected and interplayed.
They are, among all the issues of procedural law and judicial practice, among
those most related to "legal culture". This means, as we have just said, that
rules can have a "primary design" of the judicial role. However, it is perfectly
possible that the legal consecration of the "primary design" does not translate
into its effective realization by the courts. This occurs, among other reasons,
because the traditional role of
the judge can be transferred from an old
procedural system (which also has the weight of judicial traditions) to a new
one that seeks to replace it. This, in turn, is because legislation alone cannot
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CHALLENGES OF CASE MANAGEMENT IN SOMALLAND HIGH COURT 2021
force cultural patterns on judges and because the rules are, in any case,
always interpretable.
Case management is a judicial process which provides effective, efficient and
purposeful treatment to a case so as to achieve a timely and qualitative
resolution of a dispute. The early identification of disputed issues of facts and
law, establishment of a procedural calendar for the life of the case and
exploration of possibilities for the resolution of disputes through methods other
than court trial are step by step goals of the case managment51. This requires
the early assignment of a case to a judge who then exercises judicial control
over the case immediately and decides its adequated track at every stage.
The judge applies judicial process to secure active participation and joint
communication amongst the parties and the lawyers52. The court assists the
parties and lawyers in identifying the real controversies and seeking early
response from the other side on the questions of facts and law raised by the
opponents, minimizing or narrowing down the controversies. It also may be to
refer the case to Alternative Dispute Resolution Methods53. However, it is
necessary to offer good arguments to justify a change in the judicial role and
the horizontal as vertical arrangements for effective case and court
management. These reasons of public policy are not only of interest to the
legislator, but are also essential in the judicial phase within a legal cultural
context. The legislator adopts a norm to achieve a desirable social goal: it
behaves in that sense as a macro-generator of public policies. The judicial
direction of the process responds to a basic idea: justice is in such demand
that courts cannot be passive in the face of the phenomenon without risking,
in time, the collapse of the system. To this end, therefore, it must carry out
activities of "direction", "management" and "control" that rationalize and
optimize the use of judicial resources, always scarce. This function sounds
very "managerial" and therefore incompatible with the traditional role of the
judge within the liberal tradition. However, modern trends have sought to give
these tools of direction of the process to the courts.
1. Let me begin with a brief summary of what has been discussed up to now:
since the end of the nineteenth century, discussion on the role of the judge
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CHALLENGES OF CASE MANAGEMENT IN SOMALLAND HIGH COURT 2021
within the civil procedure was opened in European law. That European
debate has also moved to Latin America and has already developed over
several decades. In general terms, it could be said that the judicial systems
established in the codes, after the French revolution and well into our
century, were characterized by a privatist and individualistic understanding
of the ends of the process. To this understanding of the process the authors
began to call it "device principle". Here, the word "device" accentuated the
primary capacity of litigants to assume initiation, impetus (also often
including obstruction), and finally the termination of the civil proceeding.
Only the protection of private and individual rights were sought Civil Law
Tradition.
2. The parties, but especially the plaintiff, could "dispose" of their right and
therefore directly controlled the purpose, nature and speed of civil
proceedings. Consequently, within the device principle, the direction of the
process (its primary leadership, if desired) was conferred on the plaintiff.
For these reasons, the civilian tradition has said that the claimant is the lord
of the process. The defendant, on the other hand, responded (sometimes
with enormous resistance, if not in open obstruction) to the direction. This
characteristic of the device principle has been blamed the extension of the
average terms of resolution of a civil suit far beyond the social, political or
economically acceptable56. The main contribution of this new doctrine
consisted in making the civil process "public"; although it was true that
individual private rights were discussed and defined. It was also true that
society had a general interest in achieving prompt solutions, egalitarian,
true and just civil outcome57. One of the central strategies of this process
was to prevent the parties from controlling civil procedure; Instead, the new
approach emphasis the need to establish the direction of the process in the
hands of the courts58. Thus, the norms of civil procedure (both its principles
and its rules of detail) were reconceived (though not without hesitation and
setbacks throughout the twentieth century) as rules of public law. In a similar
way, the role of the judge was gradually rethought, not as a passive
spectator of the activity of the parties, but as a proactive actor who sought
the direct realization of the public purposes of the process59. These were
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CHALLENGES OF CASE MANAGEMENT IN SOMALLAND HIGH COURT 2021
essentially of two types: on the one hand, the social objective was to match
materially to the parties, controlling the social or economic superiority of
one of them that could without control translate into procedural superiority;
At the same time, it was sought through the management of the process to
avoid delays or obstructive behavior of the parties60. As Prof. Andrews
remarks "Case management has three main functions: to encourage the
parties to pursue mediation, where this is practicable; secondly, to prevent
the case from progressing too slowly and inefficiently; finally, to ensure that
judicial resources are allocated proportionately, as required by ‘the
Overriding Objective’ in CPR Part 1 (reformulated in 2013 to highlight the
need for cases to be dealt with justly and ‘at proportionate cost’)".
3. The need for the "conduction of proceedings" doctrine after 1930 developed
in the Anglo-American world from the concept of "case management".
Between Civil and Common Law traditions there are very striking similarities
and differences that need to be emphasized. There is a first common
characteristic that will be seen throughout the text and which may generate
misunderstandings on the part of the reader: the rationalization techniques
that constitute the contemporary process direction were originally deployed,
both in Europe and the United States, within civil proceedings. Thus, for
example,
the
European
notion
of
"process
direction"
developed
fundamentally within the continental civil process; in the same way, the
managerial judging of the United States was born in the civil process. This
issue cannot be treated in isolation from the techniques of rationalization
and optimization of the civil, labor or contentious-administrative process. In
the latter, the German expression “Prozessleitung des Richters” and its
analogues in the Romance languages were preferred: "dirección judicial
del proceso " in Spanish, "direzione del proceso" in Italian and finally
"direction (or maîtrise) du procès" in French, “Gerenciamiento,
conducao, direccao” em Portuguese. The new generation of judicial
management of the civil process prefers the central metaphor of "case
management" or "managerial judging". As Prof. Marcus remarks another
point is that some conceptions of the Continental system may overstate the
extent to which it ever involved routine judicial control of the development
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CHALLENGES OF CASE MANAGEMENT IN SOMALLAND HIGH COURT 2021
of cases. Prof. van Rhee emphasizes that the influence of the French code
of 1806 was very much to support a laissez faire approach to litigation under
when the litigants or the lawyers - not the judges - controlled the content
and progress of cases. The Austrian code of Franz Klein, introduced in the
late 19th century, was more oriented toward the sort of judicial activism that
characterizes American case management of the late 20th century.
4. The general trend toward an increasingly broad of judicial management of
litigation in the US is ongoing. To illustrate, in January, 2017, the federal
court in San Francisco issued a Standing Order for Joint Case Management
Statements in all their civil cases. In Germany as Stürner and Wendelstein
remark” Case management is not a technical term used in German
procedural law, nor is there a direct German translation. The closest would
be the judicial power to direct the course of the proceedings. While it is up
to the parties to initiate proceedings, to determine its scope and to state the
material facts, the ultimate responsibility for the progress of the proceedings
lies with the court” These remarks could be applied to the most continental
civil procedure systems. The court is responsible for direction of the
proceedings.. The court is to discuss with the parties the circumstances and
facts as well as the relationship of the parties to the dispute regarding
questions of substance and of the proceedings69. From the Chilean
experience could be remarked that "our case management had been a sort
of spontaneous phenomenon, as we explain in the next question. In fact,
case management is in our experience is so recent or embryonic, that there
is no literature in the subject, nor on horizontal or vertical case management
techniques"70. Family and labor courts constitute the milestone for an
incipient development of case management. Both recent reforms replaced
the written procedures for hearings and the dynamic of the oral systems.
Excesive caseload burden justified the administrative rules decreed by the
"Supreme Court with the goal that each courthouse establishes their own
more elaborated criterions with respect to case scheduling, centering this
responsibility in three figures: the judges’ committee, the president judge
and the Court administrator (all of them being designated as “control and
management entities)".
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5. While the Europeans then spoke of "judicial direction of the process," the
Americans coined the term case management. In accordance with this new
principle of moderation of the pure adversarial system, case management
(in criminal or civil matters) is a process oriented towards ends in which the
courts (and not the parties) control the impulse, progress and disposition of
the parts72. Just as the Europeans had built a critique of the excesses of
the device principle (without turning the civil process into an inquisitive
process), the Americans were discovering the limits of the adversarial
principle73. The literature shows that, in fact, there may be excesses of
"adversariality." The process remains a "question of the parties" before a
neutral arbitrator. However, as the Americans themselves have seen, the
pure model of the neutral arbitrator does not allow judges to avoid the
possible excesses of adversariality that appear in these systems74. As Prof.
Marcus describes "The way in which case management can operate
depends significantly on the structure and orientation of the court system in
which it is to operate. The American system is, of course, a common law
system. Iberoamerica, on the other hand, is mainly or entirely dominated by
civil law systems modeled on Continental Europe. In a way, that means that
judges may regularly be called upon to take a more active role in controlling
the cases and lawyers"
6. These techniques of management also include a mechanism to coordinate
and to allow colaboration between the courts and a minimal standards of
organization within the courts. The direction of the process, however,
requires a careful control of the case, the hearings and the record, as well
as some political courage on the part of the judge to "direct" and "control"
the activity of the parties . This direction is exercised, first, by persuasive
methods and techniques, and by consensus and parties agreements as
complementary and contemporary view. Such direction is variously called
"process management," "litigation management," or simply "procedural
control." The "management of the process" has been accompanied by
parallel techniques of "management of the office" (court management) and
"management of the judicial personnel" (personnel management). The
assistence to the judge's adjudication activities is crucial. "Although largely
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invisible to the public, behind the scenes, judicial assistants/law clerks
frequently play a vital role in the process of adjudication. Yet, especially
outside of the U.S., little is known about their role and duties in the judicial
decision-making process".
The Poland National Report describe a combination between the
court’s work and administrative requierements directly linked with a optimal
case management. There are three main areas of activity indicated in this
regard which should contribute to the improvement of the work of the judges,
which globally will have a positive effect on the management of court cases.
A first point should be increased the number of assistants of judges and
organizational strengthening of the courts. Secondly, it is necessary to
introduce changes aimed at reducing the scope of the cases recognized and
resolved by the courts. In this respect, it seems necessary to introduce legal
regulations and effective tools to eliminate (or significantly reduce) examples
of the so-called judicial barratry (a framework of judicial proceedings in order
to prevent the abuse of process). Finally it is important to improve access to
the justice system, especially for vulnerable groups (e.g. victims of crime,
minors, minorities, people at risk of legal or social exclusion) linked with a
better the participation of the social factor in the administration of justice and
a supported use of alternative dispute resolution methods79. From the
American perspective the judges are becoming more and more active in
controlling the lawyers in cases assigned them. Prof. Marcus remarks : "The
American lawyer has long seemed unique in the world -- almost a cowboy
figure doing justice against the odds."80 So what is left for US judges to
control is not the outcome, but the manner in which the case is prepared for
trial by the lawyers, mainly through the unique American discovery
process81. Finally the judge had to take control of that sort of "institutional
reform" litigation or it would not work.82. This was the beginning of American
case management83. It was a way to supplant the laissez faire and costly
handling of litigation under the relatively unbounded pleading and discovery
rules that applied in federal courts84. The most dramatic procedural
innovation added to American court management in the late 20th century
strongly supported active case management85. This new trend of judging86
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was critizied and provoked opposition considered as dangerous "judicial
activism". 87 Some interpreted this judicial behavior in political terms, seeing
it as "a shift to the right."88 Judges responded that this opposition reflected
a wish "to preserve the laissez faire character of the adversarial system,"
which from judges' attitude had "run amok."89 That debate remains up today
open.
7. Within the case and court management development it is important to
mention the ADR. These can serve as important indicators for assessing
the quality performance of the legal system taken as a whole. But this
indicators need to be carefully examinated. It should be expected and
ensured that dispute resolution methods are chosen by the parties in a truly
free and informed (cultural) way90. Just to mention here is the case Livio
Menini v. Banco Popolare Società Cooperativa, decided by the Court of
Justice of European Union 2017 about the access to justice and mandatory
mediation in Italia explains that mandatory mediation procedure, required
as a condition for the admissibility of proceedings before the courts, may
prove compatible with the principle of effective judicial protection (also in
consumer disputes) but: it should not cause significant delay; it should not
be required that the consumer as a party be represented by a lawyer; it
should not be required to justify the consumer's withdrawal from the
proceedings; generally, participation in such mandatory proceedings should
be available free of charge or at very low cost for the consumer. Reduction
of caseloads saves costs and/or, dependent on the budgetary system, may
help to reduce court delay91. The main disadvantage is that such measures
could diminish access to justice: an increase in fees infringes the
fundamental right of access to an independent and impartial tribunal
established by law (art. 6 ECHR). Increased use of ADR may contribute to
a reduction of case load, but it is not guaranteed that litigants are better off.
The study of the active conduct of the civil process by the judge is an
interesting prism to read the evolution of the place of the judge in the civil
society and in doing so, to evaluate the choices of procedural policy made.
The rules of civil procedure and, more fundamentally, the less visible rules
governing the administration of justice, reflect important political choices.
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They define the place of justice in civil society and, more fundamentally, the
relationship between law and justice and the development of ADR. "In
Germany as a general rule, a conciliation hearing precedes any oral hearing
unless efforts to come to an agreement have already been made before an
ADR mechanism, or the conciliation hearing obviously does not hold out
any prospects of success. In the conciliation hearing, the court will discuss
with the parties the circumstances and facts as well as the status of the
dispute so far in a comprehensive manner (sec. 278 (2) ZPO)". Should a
party fail to appear at the conciliation hearing or should the conciliation
hearing not meet with success, the formal court hearing is to be held
immediately thereafter93. In Germany the reform 2012 rules an "InternalCourt Mediation" possibility (§ 278 a ZPO). Mediation within the court, also
referred to as "court proceedings", is a special form of court ruling. The
judge may refer the parties to appear before a mediation judge. If this is the
case, the classical litigation procedure is terminated, otherwise it will be
continued after the failure of mediation within the referent court94. Usually
the mediation session with the mediation-judge takes half a day or a
maximum of one day. However, there are some regional courts in Germany
where the the lawyers at least are not invited themselves to mediation. In
jurisprudence, too, there are isolated voices supporting that the presence
of lawyers is not necessary. However, should be remark the involvement of
attorneys in the freight-handling process is most useful in most cases 95. In
France also the last reforms support and incentive the use of ADR. It is a
question of encouraging the amicable resolution of disputes, moving to an
amicable justice, the judge becoming "the alternative mode of dispute
resolution". ADR method are urged by the judge as part of the procedure by
creating many tools. The judicial and the contractual are not excluded. The
procedures must now contain an amicable face96. In the UK the mediation
is voluntary, but the court encourages parties to consider a mediation, which
is out-of-court. The mediation in UK could be ponderated as popular. 97 In
Poland according to Art. 10 of the Code of Civil Procedure in cases where
a settlement is admissible, the court has to urge settlement at every stage
of the case in particular by inducing the parties to mediate98. The Chilean
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legal system directs a judicial conciliation stage in its civil procedure as an
essential stage of the proceeding. 99 "Beyond the conciliation stage of the
civil procedure code, the attention of the Chilean legislators to ADR
mechanisms is quite recent" 100. There are no qualitative indicators about
the popularity among the lawyers and the civil justice users about ADR101.
The law in Europe from November 2011 favors ADR in costumer matters to
provide access to alternative methods to solve dispute in that field. 102
8. The comparative contribution of this report can be summarized as follow a
conclusion: The "Inquisitor Judge" does not turn out to be, despite all his
powers, an efficient manager of the proceeding. It is important to note, at
the same time, that the "arbitrator" of the pure adversarial principle is not a
good director of the process either. The experience of many years in
England and the United States has shown this, and for this reason,
opportunities
and
procedural
mechanisms
have
slowly
been
accommodated which allow the judge, even though the trial is "a matter of
the parties".
2.3.
CONCLUSION
1. The reference to efficiency in a judicial system is really necessary, because
efficiency could be seen as a facet of the wider claim to the effectiveness
of judicial protection of rights. It does not reduce the discussion to conform
to market ideology where the the judicial protection of rights depends only
of a profit-maximising and cost-minimising approach.
2. The principle of case management is that the court, rather than the litigants,
controls the pace of litigation. It is a modern approach to dispute resolution
which seeks to move away from the bitter adversarial clashes of the past
and encourage a greater degree of cooperation and partnership among all
concerned.
3. Judicial attention has come to be a scarce resource: (i) the rate of cases
per judgeship has grown precipitously in lower, appeal and supreme
courts; (ii) there are reasons to discuss various proposals that scholars and
judges have offered in response to the rising caseload, including ways to
reduce the number of filings, increase the number of judges, and improve
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efficiency in the courts with an appropiated case and court managment
principles; (iii) there are frameworks to be taken into account regarding
access to the courts and the effective protection of rights; (iv) the demand
for judicial attention will continue to exceed the supply of judicial time,
thereby rendering judicial attention a scarce resource.
4. Critical components within an efficient judicial system are the court and
case management. These depend on the court structure and arrangements
within and between the courts both from a horizontal and from a vertical
point of view. The structural design of a judicial system depends on multiple
factors, one major is the legal cultural context. Judicial reform should have
as its objective the improvement of the quality of justice and the efficiency
and effectiveness of the judiciary, while strengthening and protecting the
independence of the judiciary. Case management is a judicial process
which provides effective, efficient and purposeful treatment to a case so as
to achieve a timely and qualitative resolution of a dispute.
5. The horizontal arrangement has two important components: (i) on one side
the specialization of the courts, (ii) on the other side the distribution in the
court with flexibility to adapt to the importance and / or the complexity of
the case (single judge, panel of judges, etc.). The first point could be
described distinguishing between ordinary and specialized courts, whether
or not specialized courts are formally differentiated. That is, the court is
unlikely to assert excessive control when its workload is excessive and
tends to increase. That is why judicial management of the process has an
aspect of desjudicialization too. Distribution and redistribution of tasks
depend on the court organization and composition. The basic idea of
redistributing tasks of courts (panel and individual judges) and support staff
is to allow judges to concentrate on the core of their adjudication tasks.
Additional to horizontal arrengements should be taken with reference to
the vertical one. They are related with the interplay between superior and
low courts. The role and ends of appeal as the supreme courts, the filter to
access, the caseload and scope of review, the organization taking account
that the number of judges in superior courts is not the same as the lower.
The case and court management should be different. The crisis in the
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administration of justice must be attacked and treated by several fronts,
because the problem has several causes that are fed back to time.
6. Case management view should take into account alternative routes to
resolution including ADR under the conditions presented above of respect
to free option of parties and public policy.
7. The appellate stage in general has first to identify what variables should be
maximized, and second, confront the reality with the potential variables
defy easy measurement. How could the courts reasonably maximize error
correction and law development together? If error correction and law
development could easily be measured and quantified, one could create a
function that sought to maximize a combination of the two.
8. Among the topics listed at the end of last paragraph, the heavy workload
of the Supreme Courts has been a serious problem for a number of
decades. Recognizing a right to review has increased the case load in the
Supreme Courts. One side emphasize that the Supreme Court should
decide every case to protect litigants interests, the other side says the case
should be relevant only if it contributes to legal system values such as
accountabilty, uniformity, general directions for future cases becasuse the
decision is the "last word". Maybe these are no really "dilemmas" but
complementary ends. Finally and as general contribution of this work. The
aims of reform within justice systems and the judiciary must be predicated
on sound principles that will improve the quality of justice for the citizens
and should include complex goals: Improve the Quality of Access to
Justice; Increase public confidence in the judicial system; Improve the
image of the Judiciary; Provide an efficient system that does not
compromise the quality of justice and access to justice.
Chapter 3
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RESEARCH METHODS AND MATERIALS
3.1
Introduction
This chapter discusses the methodology used in this study. It specifically examined
the research methods including the research design, the study setting, population
and sampling procedures and data collection instruments. The chapter discusses
techniques for data analysis and presentation, and ethical consideration related to
the study..
3.2
Research design
A research design is the overall plan or strategy for conducting the research (Oso
and Onen, 2008). According to Kothari (2008) “a research design is the
arrangement of conditions for collection and analysis of data in a manner that aims
to combine relevance to the research purpose with economy in procedure
it
constitutes the blueprint for the collection, measurement and analysis of data.
Boquiren (2003) noted that research design involves determination of the study
population and how it is obtained, sampling procedures, the source of data to
employ, the techniques of data collection and controls of use, the tools to use and
their design and how data will be processed and analyzed.
A qualitative approach was used in this study as it has been clearly noted by Busha
and Harter (1980) that qualitative researchers deploy a wide range of
interconnected methods endeavoring always to obtain a clear perception of the
subject matter. In this study qualitative approach involved the use and collection of
a variety of empirical materials 60 and in-depth interview. This approach allows one
to identify recurring practices and meaning in individual‟s activities. Since
qualitative methods focus primarily on what people tell the researcher and what
they do, enabling the researcher to understand what is going on and hence it can
illuminate issues and suggest possible explanations.
3.3
Study Population
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A population is a group of individuals, objects or items from which samples are
taken for measurement (Kombo & Tromp, 2006). This is the total population from
which the target population will be drawn from as the respondents or study subjects.
Mugenda (2003) further defines a target population as the population to which a
researcher wants to generalize the results of the study.
The subjects of this study were drawn from among the staff of High and lower
Courts working in various sections of the Court (Judicial, Registry (civil and
criminal), members of the public (litigants) and advocates representing litigants.
Sample of 21 persons were picked from the staff population of 33 in number from
the above mentioned sections. This included: Chief judges, 6 judges, 6 clerical staff
each from criminal registry and civil registry and a records officer/Archivist, 1
executive officer (Senior court clerk), 10 Litigants who are consumers of court
service and present at the court at the time of data collection, finally 9 advocates
representing litigants appearing in court at the time of study.
These group of respondents were justified to provide relevant data relating to the
study, in that; the judges and the executive officers were responsible for decision
making, delivery of justice, policy formulation and implementation and overall
management of court processes, the archivist and the registry court clerks were
mainly involved in records management functions at various stages of their life cycle and at the same time provided information on the various types and formats
of records created and received as a result of business transactions and processes
of the court among others. on the other hand litigants were direct consumers of the
court processes and had to provide information the quality of services and
treatment given to them and at the same time gave information on the type of
records they relied on their case handling. The advocates were selected because
they involved in representing litigants in court.
3.4
Sampling Method
Sampling is the process of selecting a number of individuals for a study in such a
way that the individuals selected represent the large group from which they were
selected (Mugenda, 2003)3. In this study non-probability sampling was used which
3
Mugenda is a law graduated students, he makes case management and challenges research in 2003
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involved census, purposive and convenience sampling to select the respondents.
The investigator took census on judges, purposively sampled executive officer,
records management officer/Archivist, and conveniently sampled the court
registries‟ clerical staff, and then interviewed litigants and advocates up to
saturation point.
Target group
Total
Sample Sixe
% of A Group
Number
Chief of Judges
1
1
100
Other judges
6
6
100
Executive Officer (Senior Clerk)
1
1
100
Record management officer /archivist
1
1
100
Registy Clerical staff
24
12
50
Members of the public
Saturation point
Advocates representing litigants
Saturation point
Total
3.5
33
Data Collection methods
These refer to the tools used for collecting data. In the context of this study the
instruments for data collection were interview schedules which were
supplemented by observation and documentary sources.\
3.5.1 Interviews
Interviews It is a person-to-person verbal communication in which one person
(or a group of person) asks the other questions intended to elicit information or
opinions (Oso and Onen, 2008). The researcher conducted face-to-face
interview with all groups of respondents with the aid of semi-structured interview
schedule.
3.5.2 Observation
This study in addition to interview used the observation method. Observation
implies the collection of information by way of investigator‟s own observation
without interviewing the respondents. The information obtained was related to
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what was happening at time of data collection and not complicated by either
past behavior or future intention or attitude of the respondents.
3.6 Data Analysis and interpretation
This part dealt with the organization, interpretation and presentation of the data
collected. In the study, data collected was analyzed qualitatively. Oso and
Onen (2008) observed that, data analysis entails separation of data into
constituent‟s parts or elements, or an examination of data to distinguish its
components parts or elements separately and in relation to the whole. The
investigator analyzed the responses thematically by categorizing. This was
done in consideration with the objectives and research questions of the study.
Data interpretation indicated the results, meaning and significance to the
problem under study through a logical and critical examination of the findings
as obtained after analysis. Interpretations were made as objective as possible
to get the true picture of the situation under investigation. Use of tables to
quantitatively tabulate frequencies and percentages of respondents and
responses were used to arrive at calculations
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