TNAG-1589-FCO40-21741-Future-of-the-judiciary-in-Hong-Kong.-Part-1-of-2-1987 — Page 155

CHAPTER IV

LISTING, CONTROL OF LISTING AND PREPARATION FOR TRIAL

1.

The Dilemma of Listing

This Chapter naturally follows the preceding one in which the

aim is to have the right numbers of judges, magistrates, judicial

officers and deputy or part-time appointees in the right places. How

are the litigants and their cases to be got to them in the right order,

at the right times, with suitable lawyers, with the necessary

witnesses, with proper preparation and with reasonable convenience and

economy? The normal vicissitudes of life in even the best-regulated

enterprises rule out the possibility of judicial systems consistently

achieving all those aims. Nobody can know the length of a case until

it ends.

The value of the best predictions is reduced where the

identity of the judge is unknown or by a change of judge or counsel.

And there is nothing to force the litigant or defendant to show his

hand or accept defeat or limited success until his day in court begins

or even while the trial proceeds. He has the right to take everybody,

including his own advisers, by surprise.

2.

It is therefore impossible consistently to arrange business

lasting five hours and no more than five hours for each court every

day. The aim of a listing system is to take a course somewhere between

two extremes. One is to meet the convenience of the legal profession

and the public at any price. In practice this means always letting the

parties have their first choice of advocates, never listing a case unless it is certain to be reached and pleasing everyone about the

dates of trial. That leaves courts with a substantial amount of spare

time and therefore puts a larger bill before the taxpayer. It leads either to substantial over-provision or to delay. The other extreme is

to keep the courts fully occupied throughout each court day regardless

of the cost to the public. That causes public inconvenience, and leads

to injustice by adding to legal costs and forcing unjust settlements.

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