In any civilised society, there is a need that an ordinary person has an easy and speedy access to justice. The provision of speedy justice is acknowledged not only because the superior courts are resolving disputes but it should also witness that the lower courts at district levels are performing their responsibilities to provide access to justice as per the expectations of the common man. Is this the case in Pakistan?
Before this question should be answered, let us look at some of the serious objections that are levelled against the working and performance of the judiciary as far as civil litigation is concerned. In our discussion here, we will only deal with two of the most important obstacles that keep a common man away from seeking litigation in courts to resolve their legal disputes.
One of the obstacles includes that there is no speedy trial in a civil litigation. A simple trial involving trivial issues between the parties takes several years before it reaches its first judgement stage. Further appeals to the higher courts may result in lifetime litigation.
The second important obstacles seems to be that civil Litigation has become expensive for a common man due to its lengthy process as discussed above. Needless to say that there are no other Alternative Dispute Resolution mechanism in place for the society at grass root level that may be opted by an ordinary man.
Any civil litigation system that has to pass the test of trust and confidence by an ordinary citizen should ensure that recourse to civil litigation between parties is based upon an overriding objective that enables courts to deal with cases justly.
This basis is essential as it ensures that both the litigating parties are on an equal footing, the cost of litigation is within affordable limits and there is reasonable level of transparency as to its proportionality in terms of costs involved after taking into account the importance of the case, complexity of the issues and the amount involved.
There should be adequate rules and procedures to achieve the desired overriding objectives. The success of the judicial system is best measured on these principles. There should be proper, defined and understandable procedures that ensure that a civil action will be allocated to a process that will determine its disposal by ensuring that the litigation is cost effective as to its time. No unnecessary time is lost for trivial issues.
There may be different reasons for a lengthy trial that exhausts the litigating parties. Two important reasons are obvious. One is that one of the litigating parties is not responding to the legal issues in a timely manner and the other is that the magistrates or judges in the lower courts are not available to decide the case in a timely manner.
This may be either the judiciary is understaffed, absent or remain busy in some other administrative matters allocated to them and their non-attendance to judicial matters cause tremendous inconvenience to the litigating parties and thereby increase the litigation cost for no fault of the litigating parties.
There is a need to ensure that the state allocates the desired resources at lower level to the judicial system to ensure that civil claims are settled as justly as possible in the shortest period of time so that general public is encouraged to bring civil litigation before the courts for their day to day problems and these problems are resolved justly and in a timely manner.
Non attendance to judicial hearings in a timely manner should be taken seriously by the superior judiciary and explanation must be sought for all these delays.
The unnecessary delay in resolving the civil litigation among the parties has slowed down the development of civil laws that is based on contract law, law of Tort and issues relating to clinical negligence. We do not hear any cases that come up before the courts that are used as legal case authorities developed within our own legal system.
It was Mrs Carlill (Carlill v Carbolic Smoke Ball Co) who bought and used smoke ball to cure her influenza, as specified in an advertisement in the United Kingdom. The amount involved was only trivial, but the case went up to the House of Lords, the highest court of the United Kingdom, where the concept of unilateral contract was discovered and established that would be followed for centuries to come throughout the world where English legal system is in place.
The disproportionate expense and time taken in the civil litigation process has been the main factors for losing trust and confidence in the judicial process. Important issues between the parties remain unresolved only because of this fear that civil litigation process would demand disproportionate time and expense. This is beyond the reach of a common man.
Similarly, we see almost no development in the area of Tort law in Pakistan that ensures duty of care to other fellow citizen. Had it not been because of Mrs Donoghue, who took a legal action under duty of care in the case of (Donoghue v Stevenson) (1932), where the principles relating to the existence of duty of care, its breach and the effects of breach were laid down under English Law of Tort.
This was a case where a ginger beer suitable to be used with ice cream was bought in an opaque bottle that prevented the contents from being viewed clearly. A damages action was brought against the manufacturer after having established that the bottle contained remains of a snail. The judge found that the plaintiff could bring an action. The Court of Appeal overturned this decision.
The appellant appealed to the House of Lords where Lord Atkin said, "The concept of negligence is based upon "a sentiment of moral wrongdoing (for) which the offender must pay." Not every moral wrong can have a practical effect in law so it must be limited to taking "...reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour."
The interesting part of this case is that a trivial issue of identifying remains of snail went up to the House of Lords, the highest Court of the United Kingdom. We find these issues happening every day in our society that are more serious than this referred case, but no one dares even to take the issue to the local lower civil courts to claim his lawful rights due to the reasons cited above.
There is hardly any litigation in the areas of Tort law that deals with a duty of care between the parties. This tendency has hampered the process of asserting an individual's rights against the state, its organs and private citizens. The result is that we, as a nation have become negligent in our dealings between individuals and that have eroded the qualitative images of us as a nation. This has given birth to the "couldn't care" attitude towards others that is reflective in our every day life.
The courts must evolve adequate procedures to ensure that the cases are properly managed by the courts, delays are reduced to the minimum, costs are within its proportionality and the parties are penalised for any unnecessary delaying techniques used during the litigation. This should enable the civil litigation procedures work to the satisfaction of a common man.
There is a strong case that civil litigation process should be reviewed and necessary amendments made to ensure that both the lower and higher courts should actively start case management of civil cases.
This process may include that the parties are encouraged to cooperate with each other in the conduct of the proceedings, legal issues are identified sooner than later, deciding important issues that desires full investigations and disposing the minors issues summarily and to encourage the parties to resolve their issues through other alternative dispute resolution, if there are any, and fixing timetables to control the progress of the case.
There is a strong case that parties should be exempted from attending the courts if the case can be dealt with through their legal representatives. Non co-operation on these matters from any party must be taken seriously and the judgement must reflect the penalty imposed for the non-cooperation.
In case the delay is caused by non attendance of a lower court judge intentional or unintentional, the state must reimburse the parties to this effect either by waiving the court fees or by contributing towards the extra cost incurred. This should encourage parties to assert their legal rights.
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