Judicial case management is a hot topic, both in Australia and the UK. The Civil Procedure Act (Victoria), and the Civil Dispute Resolution Acts in the Australia, and the Jackson reforms in the UK all promote judicial management as part of the balancing act of access to justice through affordability for litigants, ensuring the limited resources of the courts are available to as many as possible, and a proper exercise of judicial power. All these Acts promote active case management by the judiciary and emphasise that parties are not entitled to use the legal system as they choose, but owe an obligation to all members of the community to ensure access to justice.
The Jackson reforms in the UK are directed at reducing costs and improving access to justice. The introduction of judicial approval of cost budgets is simply one facet of case management, and requires the judicial officer approving the budget to consider what steps are reasonable in the context of the matter.
However, there is nothing new under the sun. In preparing a presentation for the Legal Week Commercial Litigatin Forum in London, I came across a paper presented by Justice Rares to the Access to Justice conference regarding the new Australian Federal Court Rules. His Honour details a very early example of judicial case management:
One early remedy that had an effect was used by the Lord Keeper in England in 1596. He ordered that a pleading 120 pages long be removed from the file because it was about eight times longer than it need have been. He ordered that the pleader be taken to the Fleet prison. His Lordship then ordered that on the next Saturday the Warden of the Fleet bring the pleader into Westminster Hall at 10 a.m. and then and there cut a hole in the midst of the pleading and place it over the pleader's head so that it would hang over his shoulders with the written side outwards. The Warden had to lead the pleader around Westminster Hall while the three courts were sitting and display him "bare headed and bare faced" and then be returned to the Fleet prison until he had paid a £10 fine – a huge sum in those days.
It is an interesting prospect - having lawyers publicly berated for unreasonable demands on the court system. But the modern day system continues to reflect a financial penalty with the likely more frequent making of personal cost orders against lawyers.