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In a climate of courts clogged with backlog, with the defeaning clamour for faster trials, for alternative dispute resolution and mediation in litigation even at appellate levels, what about mandatory engagement between counsel before filing of an interlocutory application?
The erudite Hon. Justice Steven Mubiru made this case well in Simbamanyo v Equity Bank in 2022;
“The court is unduly burdened by interlocutory applications of a procedural or evidential nature, to an extent that has rendered the disposal of the substantive disputes overly slow. In a judicial system clogged by applications almost to the point of suffocation, the interests of justice require that resort to the court be made only where other [discovery] methods available to [obtain the same information] have failed. Time has come to apply the Civil Procedure Rules in a way that eliminates the practice of interposing numerous interlocutory applications and objections in a manner that obfuscates the issues at trial or prevents a quick disposal of the main suits. The majority of such applications are amenable to resolution by the cooperation and consent of both parties. For the most part, such applications should be resolved outside the courtroom. Parties are expected to start and complete pre-trial matters of procedural or evidential nature with a minimum of court's intervention. It is only if the parties cannot agree on a just outcome, that the court may have to resolve the dispute.”
What a gem! This captures the depth of frustration and the urgent call for a new path. We have all been there! Buried under one application after another, often losing sight of what the real dispute is. Sometimes as victims and other times as the aggressors, we know the cycle well.
Now for a pre-filing alternative dispute resolution for interlocutory applications. Think of it as a notice of intention to file an interlocutory application. Before filing, counsel should be required to issue a notice, call up opposing counsel and attempt to resolve the intended application. Yes of course if this fails, proceed to filing. But think about applications to amend, applications to file extend time, discovery as in the case cited above. Why shouldn't these applications be resolved by prior engagement followed by a filing by consent? Is the rush to filing driven by our bread-and-butter considerations?
In Namibia the filing of an interlocutory application can only be done after a failed attempt at amicable resolution. The Namibian High Court in Bank Windhoek v Benlin Investments ruled that the attempt at amicable resolution must be much more than a simple letter inquiring how the respondent is going to resolve the matter. According to the court, writing of letters devoid of the demonstration of a genuine desire to seek an amicable resolution will not do and cannot amount to compliance with the rules in question. Instead, the court required the parties to take the requirement seriously and make every effort to fully and deliberately engage in the process of resolving matters amicably.
One caution though, the consequences of default with this preemptory engagement should perhaps not be a striking out of the application but a denial of costs or even, an order that costs be paid by the offending party. This should sit well with faster disposal of the whole matter. In fact, the Namibian High Court in CV v JV adopted this approach when it decided that despite the applicant's failure to comply with the peremptory engagement required by the rules, it was in the interests of justice and finality and also consistent with the overriding objectives of the rules, that the court nonetheless consider whether there was any merit in the application.
We should all care about faster resolution whether we have a good case or not. Unfortunately some of our cultural traditions in Uganda reflect a belief about delaying cases. The Baganda say “ogusula gukuwa empoza”, while the Banyankole say ”ogwayosha gukuha empoza” to the effect that disputes that are delayed or postponed give you room for a defence, and no doubt, there are other similar sayings in other communities. We must move beyond this traditional wisdom in the best interests of justice and the quest for development of our countries.
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