The Reason for Delay in Civil Litigation
The Reason for Delay in Civil Litigation
Index
1 Introduction
2 Some important definition
2.1 What is civil litigation?
2.2 What is delay?
2.3 What is procedural delay?
3 Components of delay in civil cases
4 Necessary Doctrinal Concept
5 The reason for delay in civil litigation
6 Impact of delay or result of delay
7 Preventing delay in Bangladesh and necessary measures taken recently
8 Good court administration
9 Case management
10 Suggestion:
10.1 Number of judges
10.2 Competent judges
10.3 Court supervision and monitoring
10.4 Alternate dispute resolution, mediation and conciliation
10.5 Commercial courts
10.6 Environment Courts
10.7 Amendments of civil procedure code
10.8 Computerization
10.9 Judicial administration training institution
10.10 Law Commission
10.11 Bar Council of Bangladesh
10.12 Rural Courts
10.13 Effective legal aid system
10.14 Case categorization system
10.15 Time saving device
10.16 New legislative drafting wing
11 Conclusion
1 Introduction:
The justice delivery system in our country is time consuming and unaffordable to the poor people to some extent. The existing regime of civil suits in Bangladesh is governed by the Code of Civil Procedure enacted in 1908. Since then little change has taken place. The legal system may very well be described as admirable but at the same time slow and costly and entails an immense sacrifice of time, money and talent. The causes of backlog and delay of disposal of cases are systematic and profound. The legal system's failure to impose the necessary discipline at different stages of trial of cases allows dilatory practice to protect the case life. A case usually takes about ten to twenty years to disposed of. It is learnt that nearly one million cases are now pending in different courts of the country. The break-up of this backlog is: 4,946 cases in the Appellate Division of the supreme court; 1,27,244 cases in the High court Division, 3,44,518 civil cases and 95,689 criminal case in the judges court and 2,96,862 cases with Magistrate courts and 99,004 cases with Metropolitan Magistrate courts. After years of controversy and frustration of the problem of administration of justice system, a new device needs to be chalked out.[1]
2 Some important definition:
2.1 What is civil litigation?
Civil litigation is a legal dispute between two or more parties that seeks money damages or specific performance rather than criminal sanctions. A lawyer who specializes in civil litigation is known as a “litigator” or “trial lawyer.” Lawyers who practice civil litigation represent parties in trials, hearings, arbitrations and mediations before administrative agencies, foreign tribunals and federal, state and local courts. [2]
Civil litigation generally includes all disputes that are formally submitted to a court, about any subject in which one party is claimed to have committed a wrong, but not a crime. In practice and in ordinary conversation, lawyers and others concerned with civil litigation tend to treat many specialized subjects as outside this definition, such as labor law, as well as divorce actions and even small claims cases, even though all of these are technically types of "civil" litigation.[3]
2.2 What is delay?
Delay means to move slowly, or to stop for a time, or to linger, or to tarry.[4]
But legally we can say that delay means to move any proceeding slowly or any suit is not decided within reasonable time, then it is called delay in civil litigation.[5]
2.3 What is procedural delay?
Generally we can say that procedural delay in civil litigation means such procedure of civil litigation by following which the proceedings of a suit is delayed, or a suit is not decided within reasonable time.
3 Components of delay in civil cases :
A great deal of delay occurs in summon service, processes filed by the parties are not promptly sent to the nazir for service; unduly long adjournments are frequently granted as a matter of course for filing deficit court fees on plaints, process-fees, cost, commissions etc. Tardy practices are made in filing written statement; amendment of pleading even at belated stage; substitution of parties also causes delay of disposal of suits. Want of skilled lawyer and indifferent court is also a contributing device for causing delay of disposal of suits.[6]
4 Necessary Doctrinal Concept:
“Justice delayed is justice denied”
'Justice delayed is justice denied' is a very common adage in the judicial domain. It is one of the most burning problems in the administration of justice. This system of justice is so ambiguous and miserable for the mass people that it cannot be explained in a word. There are many instances that poor people who went to court to address their grievances after selling off their lands and property to meet the expenses of the court, but did not get justice in their lifetime. At present, the only demand of mass people is the speedy approach to justice. Certainly 'speedy approach to justice' is gradually getting the status of an important human right which is also denied by some administrators in justice and the underprivileged people continue to be dominated by them. This day, the judiciary organ is an independent organ in our country from the executive. So, it is high time to adopt effective steps to dispense our justice as early as possible.
How much pain the delay process of justice involves need not be explained. This picture of justice is very much dreadful for our poor citizens. It is generally seen that a case is still hanging in court, which began more than one decade ago. There are many victims who don't easily think of going to court seeking justice because they know it will take years to prove a clearly visible wrongdoer is the actual criminal. Moreover, the impact of this unusual delay in disposal of cases falls on the victims. Due to delay in litigation, people become annoyed to obtain proper justice at any stage and also develop a negative outlook in their mind about the total judiciary schemes including judges, lawyers, associates and the administration of justice etc.
The process of delay in litigation is equally known to all and nevertheless it may sound inconsistent with due process of law. The fact remains that the very cases are misused and abused in order to delay cases for an indefinite period and ultimate success in the cause often proves false. Now, law is an effective weapon in the hands of the state to mitigate the social needs by ensuring proper justice in time. Such effort of law is liable if justice fails to mitigate the misery of the mass people due to delay in litigation only and the faith in justice can never be instilled in the mass people if the state doesn't ensure the speedy process of justice.
In the field of justice, delay in litigation is traditionally practiced in our country as like at the same time as denying due process of law. The result is that cases are piled up in all the courts hugely day by day. Basically, the delay in litigation is incredibly practiced in civil courts. Our civil courts are governed by the Civil Procedure Code 1908 which was enacted during the British reign. But, after the independence, the government of Bangladesh had taken an attempt to accelerate the civil procedure system. The problem of delay in litigation including arrears of cases has been engaging the attention of the Law Commission for a long time and as a result of its recommendations made from time to time, reasonably wide changes have been made in the provisions of the Code in 1983 by making an Ordinance with a view to removing the causes of delay. Before such amendment Ordinance, there was no limitation to submit the court-fees and other relevant documents. But, by this Ordinance, the parties to a suit have to submit the proper court-fees with all relevant documents within 21 days after issue of summons and the plaintiffs have to submit all documents at the time of institution of the suit to focus on the cause of action. On the other hand, there was no specific time for examination of the defendants/witnesses and in framing of issues before such amendment. But, after promulgation of the Ordinance, no time is be allowed for examination of the defendants/witnesses after 2(two) months and the court is bound to frame the issues within 15 days after examination of the defendants/witness. However, by the blessing of this Ordinance, the court is also bound to give the judgment of a case within 127 days from the framing of issues. While 120 days is fixed for hearing and after hearing, rest 7 days is fixed for giving the judgment. But, these changes seem to have had little impact.[7]
5 The reason for delay in civil litigation:
JUDICIARY of Bangladesh is caught in a vicious circle of delays and backlogs. Backlog of cases causes frustrating delay in the adjudicative process, which is eating away our judiciary. While delay in judicial process causes backlog, increasing backlog puts tremendous pressure on present cases and vice versa. This process goes on with no apparent remedy in view. Present rate of disposal of cases and backlog is alarming for justice, rule of law and economic development of the country.
Our judicial and legal system has a rich tradition of common law culture and it can boast of a long record of good delivery of justice. Like any other legal system, common law with its adversarial or accusatorial features, has both its merits and demerits. But in recent years, certain objective and subjective factors have led our judiciary to a situation where its demerits are ruling over the merits, manifesting in crippling backlogs and delays. Delayed justice fails to pay even the winning party of the litigation, for its costs in terms of time, money, energy and human emotions are too high.
Delay in our judiciary has reached a point where it has become a factor of injustice, a violator of human rights. Praying for justice, the parties become part of a long, protracted and torturing process, not knowing when it will end. Where it should take one to two years for the disposal of a civil suit, a case is dragged for 10 to 15 years, or even more. By the time judgment is pronounced the need for the judgment in certain cases is no more required. Moreover, in a society of class differentiation, the lengthy process, which is adversarial and confrontational in nature, puts the economically stronger party at an advantageous position. If the judiciary functions substantively and in accordance with the procedural laws, an existing wide scope for delays, can transform it into a system which becomes procedurally hostile towards marginalised sections of our people, defeating the goals of social justice. [8]
The reasons for delays in our civil justice system are both systemic and subjective. They may be identified as follows: [9]
5.1 Common law oriented adversarial or accusatorial character of the civil process as against inquisitorial as practiced in continental Europe, meaning that the litigation is party-controlled which provides wide maneuvering power to the lawyers, and presupposes lesser initiative and relative passivity of the judges.
5.2 Slow process of service of the summons which can be further slowed down by the intentions of the parties concerned, indicating a poor state of court administration.
5.3 Too much reliance on the resort to interim injunctive relief and orders, leaving the hearing of the main contentions and issues to 'infinity'.
5.4 Frequent adjournments of the trial caused by the insistence of the lawyers, and reluctance of the judges to limit these adjournments, such reluctance being explained partly by heavy case-load and partly by their unpreparedness to continue and complete the process.
5.5 Vested interest of the lawyers for lingering and delaying the process, for they are often paid by their appearances in the court.
5.6 Commonly made interlocutory orders and appeals which fracture the case into many parts and effectively stay the trial.
5.7 Scope for frequent amendments of the plaints and written statements at any stage of the trial.
5.8 Reluctance of the judges, accentuated by their statutory non-compulsion, to use pre-existing rules and orders to expedite the trial, or to sanction the parties for failing to follow the procedural requirements, meaning that the judges do not take initiative to employ procedural power already within their reach, nor do they make use of their rule making power to achieve procedural effectiveness.
5.9 Absence of lawyer-client accountability giving the lawyer monopoly to conduct the case the way he considers best suited to his own interest.
5.10 Little scope for client to client interaction which hinders potentiality for alternative dispute resolution and intensifies conflictual nature of the proceedings.
5.11 Failure of the parties to present the witnesses - sometimes genuine, sometimes deliberate.
5.12 Vagueness in the terms and wordings of the plaint and written statement, charging on the court time to clarify the issues, and the failure of the judges to impose costs for frivolous suits and pleadings.
5.13 Rotation and transfer of judges, often meaning that the same judge who heard testimony may not decide the dispute, taking away thereby much of his incentive to push forward the proceedings to judgment and seriously impeding the process of continuous trial; the new judge may have to repeat some of the procedural requirements already fulfilled.
5.14 Inadequate administrative and logistic support system, enormous work-load of the judges, poor salaries and poor working conditions - all having negative impact on the initiative and efficiency of the judges.
5.15 Insufficient internal discipline and accountability.
5.16 Increase in litigation: A glance through the figures f cases filed in the courts over a number of years would clearly show that litigation has been increasing phenomenally in the country .Whatever may be the causes of this increase and it would be beyond the scope of this book to go into them the fact remains that the courts are over flooded with cases and though more and more courts are being set up the increase in their number is not sufficient to keep pace with the increased number of cases.[10]
5.17 Insufficient judge: There is a general feeling that the government is not appointing sufficient number of judges to deal with increasing work. It is a common experience that even existing vacancies in various HCD remain unfilled for an unduly long time. Prompt appointment of judges to fill the existing vacancies and creation of additional posts in sufficient number would go a long way to solve the problem of delay and arrears.[11]
Above reasons and conditions exist in a long win or lose battle where the parties fight in a 'do or die' manner with no or little perspective of any consensual settlement move coming from any side which could steer the dispute to win-win resolution. Consequential frustration, desperation and costs become too expensive for any judicial system to sustain. Earlier, moves had been made to clear the procedural blockages of our civil justice system though success could not be achieved. Mere amendments of the CPC within the existing trial philosophy may not be the best way to look for the gateway in the blind-alley. Before it is too late, innovative approaches are needed to live up to the uphill tasks of reconstructing our judiciary.
Focusing on the experiences of some other countries including the USA and with an optimistic view that our age-old culture provides to settle any dispute through mediation, a carefully devised mechanism which involves proper court administration, effective case management and amicable consensual dispute resolution, can revolutionise our entire civil justice delivery system. The essence of the concept is that after the filing of the plaint and submission of the written statement, attempts would be made to resolve the dispute through various forms of alternative dispute resolution (ADR) by early judicial intervention. In short, it is mandatory recourse to ADR or CDR (Consensual Dispute Resolution) by the trial judge's order in the pre-trial stage of a case. Court administration and case management are to prepare the ground for the success of ADR. It may be mentioned that in some of the states of the USA (for example California) 90 per cent of the cases are resolved at the pre-trial stage through ADR by early judicial intervention, and only the remaining 10 per cent go to the trial. In our country the picture is just the reverse. [12]
6 Impact of delay or result of delay
There are some impacts of delay in civil litigation. These are:
6.1 A lot of money: For delay in civil litigation, when a person precedes a suit for a long term, he needs a lot of money. It may also happen that the suit is for 5,000/= taka but for delay he/she spends Tk.10,000/=
6.2 Court lost its importance:
We know that “justice delay is justice denied”. When a person is filed a suit and he precedes it for a long term and he can thing that he will not get the proper judgment. It may also happen that father filed a suit but his son gets the judgments. For this reason court lost its important.
6.3 Lawyer may be benefited: When a suit proceeds for a long term, lawyer shall be benefited by money. If a suit proceed for 3 years and client gives 300 taka for every date, lawyer gets a lot of money from one suit.
6.4 There are a lot of suit due to delay in civil litigation, for that the court has to busy for every time and it lost a lot of time.
