Courts to accelerate commercial disputes
For the first time in the High Court's civil process, the new Voluntary Fast Track (VFT) procedure will introduce a form of elective civil justice for the benefit of litigants who want to cooperate and conclude commercial disputes as quickly as possible.
Judge President Petrus Damaseb has issued a new practice directive introducing the VFT procedure for the adjudication of commercial disputes.
According to the deputy director in the division of public relations in the Office of the Judiciary Ockert Jansen, the new procedure will come into force on 1 February next year.
Jansen explained that the VFT procedure is engaged as soon as pleadings have closed, discovery has occurred and if the parties do not anticipate interlocutory skirmishes in finalising the case.
The High Court is also in the process of establishing a commercial list for the resolution of commercial disputes.
Two courtrooms have been designated for the commercial list and are located in the Schoenlein Building in Windhoek, which hosts the administrative head Office of the Judiciary.
Effective 1 February next year, Damaseb will assign two judges who will be responsible solely for the commercial list.
“To demonstrate that the commercial list's philosophy and ethos are different from run-of-the-mill cases, judges and lawyers appearing in the court will not wear gowns. The presiding judge will be referred to simply as 'Your Honour' or 'Judge',” Damaseb said.
The VFT also introduces other important innovations.
“Not more than one expert can be introduced at trial and such an expert is agreed by the parties, but appointed by the court and his or her fees shared by the parties,” said Jansen.
He explained that the rationale is that as a court-appointed expert, the person will be neutral and not owe loyalty to a particular litigant.
Points of law
The new procedure also makes it possible for the parties to come to court to have a point of law decided, without leading evidence, said Jansen.
“That should prove most useful in commercial disputes that hinge on the interpretation of written instruments.”
According to him, a case under the VFT will be subjected to compulsory mediation before the trial takes place.
The court will choose a mediator and the expectation is that the court-appointed mediator will be a person with the skills profile best suited for and appropriate to the needs of the case.
The parties are also required to engage in a compulsory process of requiring each other to admit certain facts and documents.
“That should reduce issues in dispute significantly and, consequently, court time needed to adjudicate the matter.”
The VFT also introduces a system of summary assessment of costs, which is done by the judge and not by a taxing officer.
According to Jansen, the animating principle of the system is that a successful party is granted its costs as soon as the case has been completed without having to go through the elaborate and time-consuming process of taxation conducted by the court's taxing officer.
Awarding of costs
The judge will be expected to make an award of costs in ballpark terms, which is reasonable and fair, without looking into the finer detail associated with taxation.
Jansen said the VFT assumes that when the parties decide to invoke it, they do so with the full knowledge that they are waiving certain procedural rights, which they would have enjoyed had they proceeded under the normal rules of court.
“Those rights are set out in the practice directions and their exclusion from the commercial process is based on the facts that experience has shown that those procedural rights tend in practice to be abused in a manner that protracts litigation.”
According to Jansen, their exclusion is hoped to enhance the speedy finalisation of cases so that the court can decide only the real disputes between the parties.
The High Court is currently in the process of finalising amendments to the rules, in order to introduce a compulsory commercial disputes resolution process in the High Court, building on the principles embedded in the practice directive.
ELLANIE SMIT
Judge President Petrus Damaseb has issued a new practice directive introducing the VFT procedure for the adjudication of commercial disputes.
According to the deputy director in the division of public relations in the Office of the Judiciary Ockert Jansen, the new procedure will come into force on 1 February next year.
Jansen explained that the VFT procedure is engaged as soon as pleadings have closed, discovery has occurred and if the parties do not anticipate interlocutory skirmishes in finalising the case.
The High Court is also in the process of establishing a commercial list for the resolution of commercial disputes.
Two courtrooms have been designated for the commercial list and are located in the Schoenlein Building in Windhoek, which hosts the administrative head Office of the Judiciary.
Effective 1 February next year, Damaseb will assign two judges who will be responsible solely for the commercial list.
“To demonstrate that the commercial list's philosophy and ethos are different from run-of-the-mill cases, judges and lawyers appearing in the court will not wear gowns. The presiding judge will be referred to simply as 'Your Honour' or 'Judge',” Damaseb said.
The VFT also introduces other important innovations.
“Not more than one expert can be introduced at trial and such an expert is agreed by the parties, but appointed by the court and his or her fees shared by the parties,” said Jansen.
He explained that the rationale is that as a court-appointed expert, the person will be neutral and not owe loyalty to a particular litigant.
Points of law
The new procedure also makes it possible for the parties to come to court to have a point of law decided, without leading evidence, said Jansen.
“That should prove most useful in commercial disputes that hinge on the interpretation of written instruments.”
According to him, a case under the VFT will be subjected to compulsory mediation before the trial takes place.
The court will choose a mediator and the expectation is that the court-appointed mediator will be a person with the skills profile best suited for and appropriate to the needs of the case.
The parties are also required to engage in a compulsory process of requiring each other to admit certain facts and documents.
“That should reduce issues in dispute significantly and, consequently, court time needed to adjudicate the matter.”
The VFT also introduces a system of summary assessment of costs, which is done by the judge and not by a taxing officer.
According to Jansen, the animating principle of the system is that a successful party is granted its costs as soon as the case has been completed without having to go through the elaborate and time-consuming process of taxation conducted by the court's taxing officer.
Awarding of costs
The judge will be expected to make an award of costs in ballpark terms, which is reasonable and fair, without looking into the finer detail associated with taxation.
Jansen said the VFT assumes that when the parties decide to invoke it, they do so with the full knowledge that they are waiving certain procedural rights, which they would have enjoyed had they proceeded under the normal rules of court.
“Those rights are set out in the practice directions and their exclusion from the commercial process is based on the facts that experience has shown that those procedural rights tend in practice to be abused in a manner that protracts litigation.”
According to Jansen, their exclusion is hoped to enhance the speedy finalisation of cases so that the court can decide only the real disputes between the parties.
The High Court is currently in the process of finalising amendments to the rules, in order to introduce a compulsory commercial disputes resolution process in the High Court, building on the principles embedded in the practice directive.
ELLANIE SMIT
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