THERE IS AN ACUTE shortage of High Court judges in Hong Kong.
The recent recruitment exercise yielded only four appointments, leaving still a number of vacancies unfilled. Can it be that the problem is largely internal? Self-afflicted?
What if the culture within the judiciary were to change, and judges learn to act in a focussed and disciplined way – dealing with real issues of the parties rather than counsel’s arguments and counter-arguments? Aim for brevity and effective remedies, cut out irrelevancies.
Surely their workload would lessen and “productivity” vastly increase? So many of the mega-judgments delivered by the High Court – running to scores of pages incomprehensible to most people, replete with multiple footnotes – deal with matters totally irrelevant to the real issues. Such a vast waste of time and energy.
Since the civil justice reforms eighteen years ago – and Order 1A was added to the Rules of the High Court – judges have a statutory duty to actively manage cases. The matter can no longer be left to counsel.
Among the duties falling on judges are the following: identifying the issues at an early stage, and deciding promptly which issues need full investigation and disposing summarily of the others: Order 1A r.4 (b) and (c). This duty is regularly ignored by judges, who allow themselves to be led by the nose by counsel in dealing with confected legal arguments. These often have little to deal with reality on the ground.
Take a recent example where a judge complained that the applicant’s skeleton submissions came to 46 pages ( not counting the 50 pages in reply ) and the respondent’s counsel’s submissions ran to 83 pages. The question arises: why complain? Where counsel on both sides are plainly seen not assisting in the proper resolution of the matter, why doesn’t the judge simply act as required by Order 1A of the Rules of the High Court? A simple robust adherence to the rules would lighten the burden on the court, and perhaps render unnecessary an increase in the complement of judges.
The Honorable Henry Litton was Permanent Judge of the Court of Final Appeal in Hong Kong from 1997 to 2000.
He has written a number of articles reviewing legal themes in Hong Kong law. To see all of them, click here.
Illustration at the top by fridayeveryday.