The Commercial Court of Uganda: 1996 to 2006

Pre Birth Issues

Delay in the High Court—A National Scandal

• Incessant adjournments• Recycling of cases• Inadequate handling of interlocutory

matters esp. temporary ex-parteinjunctions

Initial Attempts to deal with the problem

• Judges Meetings to discuss the problem• Proposals for case management• From Master Calendar to Individual Calendar• Creating Divisions• Studies:

1.The Professor Read Report on Training 1992 2. The Platt Commission 19953. Judges’ Committee on Setting up of the Commercial court 1996

Birth of Commercial Court

• Legal Notice No. 5 of 1996– Salient Features

• Renames Commercial Division Commercial Court• Cuts down on jurisdiction• Provides directions for handling Commercial

Disputes• Initiates a preliminary hearing as part of the pre

trial procedure• Directs Judges to be proactive

Initial Steps

• Case management system to achieve certainty of hearing date

• Cut down incessant adjournments• Individual Calendaring System• Commercial Court Users’ Committee

Created

Hibernation

1998 to 1999

Uganda Commercial Justice Sector Study

• Issued report on 23 July 1999• Main Findings

– Corruption– Delay– Lack of Commercial Awareness– Problems with Enforcement of Judgments– Employee Fraud/Criminal Justice System– The Bar/Commercial Lawyers

Recommendations

• Develop Customer Service Culture• Implement business friendly court

procedures• Introduce business like court management• Remove constraints on effective court

performance• Build institutional capacity to deliver

results

Build Institutional Capacity to Deliver Results

• Recruit sufficient competent & motivated staff

• Nominate competent and effective judges• Provide space, systems, facilities & budget

Remove constraints on effective court performance

• Corruption- administrative & Judicial• Case backlog

1. Unascertainable2. Clean break on transfer to new premises

Develop Customer Service culture

• Counter Pro Debtor Culture• Counter improper use of injunctions• Cut delay arising from incessant adjournments• Convene the Commercial Court Users’

Committee• Prepare and distribute Commercial Court User’s

guide that includes a section on complaints about improper judicial behaviour

• Training for judges and support staff

Implement business friendly court procedures

• Adjournments• Time allocated to cases (day to day hearings)• Notification of hearing date• Jurisdiction of the Commercial Court• Civil Procedure Rules• Management of Cases• Link to ADR mechanisms (make ADR

mandatory)

Introduce business like court management

• The role and authority of the Head of the Commercial Court Should be enhanced to enable her to be an effective leader of the institution

• A long-term Technical Advisor should be engaged to support and develop the managerial role of the Head of the Commercial Court

• Introduce outcome oriented budgeting for the Commercial Court

Introduce business like court management

• Adopt result oriented management based on the ROM Report 1997

• Issue performance measurement reports to C C users, and other Interested parties

• Develop ‘Customers Charter’ to be published as part of the Commercial Court Users’ Guide

Performance Measure Reports to include:

• The average time taken to resolve commercial cases

• The number of cases disposed of per month

• Satisfaction ratings from user surveys (e.g. % of users considering support staff corrupt)

• Set performance targets similar to targets in OOB

Medium-Term Competitive Strategy for the Private Sector (2000-2005)

• MOFPE adopted the Uganda Commercial Sector Study Report

• Incorporated salient features of the same into the Medium-Term Competitive Strategy for the Private Sector (2000-2005) with the key aim of ‘Making Institutions Support Private Sector Growth’

• Plan was time bound and budgeted for

Implementation

• Commercial Justice Reform Project Secretariat Established to oversee implementation of proposals

• Commercial Justice Technical Advisor appointed to provide management support to the Commercial Court

• Second Start for the CC

Second Start

• New Head and Judges appointed• Shift from High Court Building into

premises elsewhere in the city• Registrar and staff dedicated to court• Customers Service Strategy developed

with funding and technical support• Training for Judges and Staff provided

Court Annexed Mediation Programme Introduced in 2003

• Run by CADER, Centre for Arbitration and Dispute Resolution

• Rules provided for mandatory referral to mediation before CADER for every case filed in the commercial court, except where cause is shown

• Programme run for 2 years• 33% of cases referred were successfully settled• Decision has been made to make court annexed

programme a permanent feature of our civil procedure rules for the commercial court

Problems Encountered in MPP (CADER)

• Opposition from the Bar• Limited pool of mediators• Lack of vigorous sale of the programme• Sustainable financing

In-house Mediation 1

• Conducted in appropriate cases referred to the Registrar/Mediation by order of a judge

• Registrar has some training mediation• In the first 6 months registered successful

mediation rate of 60% in respect of all cases referred to him (118 civil suits)

In house Mediation 2

• Conducted by Judges• In appropriate cases encourage parties to settle

with judge acting as a mediator• If it fails to settle, and the impartiality of judge

may be in question, assigned to another to conduct the trial, otherwise judge continues with trial

• No statistics available for this mode as yet as the CCAS does not capture this information

Criticism to In house Mediation 2

• Some Advocates have complained ‘Judges force ‘parties’ to settle/agree’

• Is it the proper use of Judge time?• Don’t Judges jump into the arena instead

of being umpires?

Ten Years Later• Commercial Court in separate premises with a

new home under construction• Computerised Case Administration System in

place, functional, offering fairly reliable performance data

• Performance targets set, regularly measured and reported

• Competent staff• Multi Door Court House

1. In house mediation2. Court Annexed Mediation Programme with CADER3. Ordinary dispute resolution

Ten Years Later• Competent and Effective Judges• Clearance rate- more cases disposed of than

filed effective 2005• Case Backlog Clearance Programme in Place• Production of Uganda Commercial Law

Reports• Judgments of the court are available

electronically at http://www.commonlii.org/resources/2206.html

• Cause list distributed electronically by email in addition to the traditional hard copy method

This is how 2005 worked out.IN THE HIGH COURT OF UGANDA (HCT) AT KAMPALA.

COMMERCIAL DIVISION. CIVIL CASES RETURNS FOR THE PERIOD 01/01/2005 - 31/12/2005.

1324

10575

284

1593

1660

1577

1609

15151439 1389 1398

1211 11721122

10310692130

163

147175173

236

201142

108204

267 251197

154

204 205145 153

112211721211

1324139813891439

1515

1609

1577

1660

1119

0

200

400

600

800

1000

1200

1400

1600

1800

Jan Feb Mar Apr May Jun July Aug Sep Oct Nov Dec2005

No.

of C

ases

B/FwdPendingFiled*

Disposed

Pending

IN THE HIGH COURT OF UGANDA (HCT) AT KAMPALA. COMMERCIAL COURT DIVISION.

CIVIL CASES MONTLY RETURNS FOR THE PERIOD: 01-JAN-2005 - 31- DEC-2005.

78164

266 253 202 147 159

12941136

10610310592130149176193200142

163236

206206 208160

114

1080 10721178

13701367142014971590156015241460

0200400600800

10001200140016001800

Dec-04

Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec

PERIOD

No.

of C

ases

FiledDisposedPending

This is how 2006 is looking like so far! (Not as good as 2005)

IN THE HIGH COURT OF UGANDA (HCT) AT KAMPALA. COMMERCIAL COURT DIVISION.

CIVIL CASES MONTHLY RETURNS FOR THE PERIOD: 01-JAN-2006 - 31-OCT-2006.

99

1122 1092 11051149

156 138 155 122207 173 137 148 144 161

129 171 152 194129 102 133 150 151

1072 1129 11381184 1199 1193 1203

0

200

400

600

800

1000

1200

1400

Dec-05

Jan Feb Mar Apr May Jun Jul Aug Sep Oct

2006

No.

of C

ases

FiledDisposedPending

What else is happening?

• Commercial Court Users Committee continues to meet (quarterly) and provides a healthy feed back to the court in areas of service dissatisfaction

• Shall launch a Customer’s Charter on 15th

December 2006 as we celebrate 10 years of the Commercial Court that commits the CC to meeting certain service standards

What about mediation?• New rules being drafted to make mediation

permanent feature of the civil procedure for the commercial court

• To provide for mandatory mediation as in the pilot project

• But to grant an option • to the parties in exceptional circumstances to opt out of

mediation• To indicate which ‘door’ they will enter into once they come to

the court-– in-house mediation or – court annexed mediation (cader) or – any other mediator agreed to by the parties

Challenges

• Delayed Judgments• Automation of Court proceedings• Sustainable Financing• Case backlog clearance• Abrupt transfers of staff• Finishing Construction of the Home for the

Commercial Court• The Bar (Quality of Legal Representation)

What is in the bag for the next 10 years?

• The Commercial Court will develop a strategic plan for the next 5 years in line with the Strategic Plan for the Judiciary

• Key Drivers of the Commercial Court S P?– Technology and Automation to play a key role in court processes

and delivery of services & products– Developing the full potential of our human resources through

training, motivation, management and professional development– Encouraging the development of a Commercial Bar for the legal

practitioners that practice at the CC– Increasing Public Trust and Confidence in the CC– Continuous monitoring and evaluation of the performance of the

CC with a view to its further enhancement

Any lessons along the way?• Leadership is key at all levels• Support of the top guns in the judiciary• Adequate resources (human and otherwise) (3 Ps,

People, property and processes) and their management• An understanding of the magnitude of the problem and

the solution• Break with ‘business as usual’ (relocation may help

provide a symbolical break but not essential) (issue is attitudinal)

• Case Management and Trial Date Certainty key drivers to reigning in errant parties and their legal repres.

• Continuing professional education and development• Ability to be able to measure what you want to achieve

Above All Remember

• ‘In the Commercial Court and indeed in any trial court it is the trial judge who has control of the proceedings. It is part of his duty to identify the crucial issues and to see they are tried as expeditiously and as inexpensively as possible. It is the duty of the advisers of the parties to assist the trial judge in carrying out his duty. Litigants are not entitled to the uncontrolled use of a trial judge’s time. Other litigants await their turn. Litigants are only entitled to so much of the trial judge’s time as is necessary for the proper determination of the relevant issues’

• Lord Roskill at page 488 in Ashmore v Corporation of Lyod’s [1992] All E R 486