[UPDATED] Lawyers to waste more time waiting in Court – WWBCD?

[UPDATED with Bar Council’s response]

What is the Bar Council going to do to ensure that lawyers are not made to waste their time in Courts waiting for their cases to be called, especially as Courts will now start sitting from 8.30a.m. and not 9.00a.m. as before.

Courts to start at 8.30 a.m.

From July 1, 2010 all Magistrates, Sessions, and High Courts in Malaysia will commence proceedings from 8.30 a.m. and not 9.00 a.m. any longer. In theory, this sounds good – longer working hours, so perhaps more work will be done. In reality, this is a recipe for more inconvenience to litigants and lawyers alike, and also puts undue pressure on Judges.

This is because the Courts do not schedule their matters but fix everything to start at 9 (and soon 8.30). The government builds courthouses with inadequate parking and public transport facilities, so everyone is in a mad rush to get to Court at least half an hour to an hour before Court starts just so we can find a decent place to park. Our matter, fixed for 9.ooa.m., is then only called up for hearing about 2.00p.m. or 3.00p.m. – sometimes 4 to 5 hours later.

Take these two examples:

A morning in the Kuala Lumpur Courts

On Thursday, 24 June 2010 I was privileged to be at the “fishmarket” (as it was described by another lawyer) that is the case management centres on the 4^th and 5^th Floors of the Kuala Lumpur Court Complex, Jalan Duta. I had the job of delivering to the Registrar the written submissions and bundles of authorities we had prepared for our hearing, and to fix a suitable hearing date to appear before the Judge.

(Yes, mum and dad – that’s why you spent that fortune putting me through 4 years of law school!)

Anyway, again, the Registrar fixed the matter before a Judge at 8.30 a.m. on a date in July. I asked for a later time – the Registrar said she could not, all matters were fixed at 8.30a.m. and we could liaise with the Court concerned directly to “stand down” the matter to a later time if we had other cases on that day.

So, every lawyer is going to be turning up at that Court (at 8.30 a.m.) in order to wait till their cases are called. Hardly anyone will call the interpreter the day before, and in any event such adjournments are usually done on the morning itself and because we have another Court to be at – not because we have to do work in the office.

Valuable hours will thus be wasted whiling away our time waiting rather than working.

A morning in Shah Alam

On Monday, 21 June 2010, I was in the Shah Alam High Court for “case management.” I received a notice from Court dated 10 June 2010 informing me that my case was fixed at 9.00 a.m. on that day, and stated amongst other things that the actual counsel in charge of the file must attend and that no “MOB” would be allowed. I construed that to mean that I could not ask the Plaintiff’s solicitors to “mention on [my] behalf” at the case management.

I therefore attended Court that morning. I found 3 lists for case management that day. There were a total of 22 cases (with one fixed for 2.30 that afternoon). All the other cases were all shown as fixed at 9.00 a.m. There were thus about 25 lawyers waiting in the corridor of the Menara MRCB, Shah Alam where the Court was located. I presume that in the case of the other 20 or so lawyers who must have been required to attend, they were at that time away attending to other matters.

There were chairs all along the corridor, but no space to do any work. The lawyers were sitting down chatting to each other or reading a book. In one case, a lawyer was reading through a submission and making some notes, albeit with great difficulty and juggling her files on her lap to read through the documents. Her posture was such that I have no doubt she will soon be complaining about lower back problems.

My case was no. 5 on the first of the three lists. However counsel for the other side and myself were eventually called in for case management only at about 11.15 a.m. We informed the Court that we were in the process of settlement and requested another date (which the learned Judge allowed since we indicated that the prospects of a settlement were promising).

I make no complaint about the case being called up with only about 11 days notice, without asking whether the counsel attending the matter was free (since it so happened I was free). I am also grateful that the learned Judge listened to our arguments quite judiciously and gave us time to settle, informing us that if no settlement was reached, strict timetables would be given for submissions and so on (it was an affidavit based hearing).

Why no scheduling?

However, my complaints are as follows:

• Why were all 21 cases fixed at 9.00 a.m.? Why was there no staggered scheduling for the case managements?

• Why was there no mechanism for parties who wished to take another mention date to obtain the same from a Registrar?

• Why isn’t a suitable waiting area provided for lawyers to do some work whilst waiting for their matter to be called up?

I was only able to get back to my office in KL from Shah Alam at about noon on that day. There were thus at least 2.5 valuable hours of my morning from 8.30 a.m. totally wasted (excluding the time for hearing and travelling time) where I was not able to do any work.

With some limited scheduling, and providing suitable workspace for lawyers in Courts, lawyers would be in a better position to comply with directions on documentation issued by the Courts as well as to maintain some quality of life.

Those lost working hours result in lawyers staying very late at the office. This means they do not have time to exercise, spend time with their families or have activities outside their work. This is unhealthy, both for the lawyers physical health and for the administration of justice generally as a healthy body makes for a healthy mind.

I understand that it is in the nature of a litigation lawyer’s job to wait. There is no way to ensure pinpoint scheduling, and I do not expect that. But surely the following would help immeasurably in promoting the quality of life for litigation lawyers:

a) An attempt to schedule cases at reasonable intervals (I would suggest a mix of 1.2 hour and 1 hour intervals depending on the type of cases being heard);

b) Publish the schedule beforehand;

c) Put in place a mechanism for parties to quickly sort out administrative matters with the Registrar, where necessary, without troubling the Judge;

d) Have a proper area for lawyers to do some work whilst they wait for their cases to be called.

Naturally, the 1/2 hour schedules would be considered indicative only and subject to the actual time required to complete hearings and would not preclude urgent cases being slotted in on a case by case basis.

I would ask the Bar Council to make representations for systemic changes to be made so the above is achieved, and to lodge a strong protest at the Court’s move to list cases at 8.30 a.m. from 1st July 2010 unless a Practice Direction encapsulating the above scheduling requirements is also introduced.

[UPDATED on 1 July 2010] WWBCD? Believe it or not, the BC had already done something! They told the CJ it’s a bad thing. To his face. Such courage! But unfortunately, the CJ told them too bad, its already decided but try it out for 3 months and see how lah. So the BC said OK, but got CJ to agree to implement staggered hearings times. Anyway, lets see.

Here’s what the Bar Council’s Circular No. 145/2010 says:

At the meeting with the Chief Justice on 3 June 2010 the Bar Council expressed its concern to the Chief Justice that the Practice Direction would cause hardship to both lawyers and litigants and conveyed the fear of some lawyers that judges would strike out cases if parties were not present at the required time.

The Chief Justice said that he had already issued the direction and that all parties should give this a try for the next three months to see how the system works. He said that the Practice Direction would not be applied strictly and assured the Bar Council that cases would not be struck off until the close of sitting for the day.

The Chief Justice also agreed to the suggestion from the Bar Council that courts could implement a system of staggered hearing times. The Bar Council will revisit this issue with the Chief Justice at the end of September 2010.

See Also:

• Tracked Off by Azman Thaiyub Khan

• Refugee Camps in the Basement of the Duta Complex by Richard Wee