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17.2
Court making procedural orders nisi
The second strategy referred to in Proposal 30 also received support.
However, the
High Court masters queried how the court would find itself in a position to take the
initiative unless it was generally seized of a case under a docket system. Some
respondents stressed that the circumstances in which the court could take the initiative
ought to be clearly defined.
As indicated in the Interim Report, what is envisaged here is the court exercising a
power to make an order of its own motion when such order appears to be "plainly
needed and unlikely to lead to a contentious hearing".
Hence the words "in
appropriate cases" in Proposal 30.
For example, the parties may have agreed a series of directions which the court is
happy to make, but omitted to include a direction which is unlikely to be controversial
but which the court considers necessary or desirable for disposing fairly of the matter
or saving costs. Instead of calling the parties to a hearing regarding such a direction,
the court ought to be able to give the relevant direction by way of an order nisi,
allowing any party who objects to apply for it not to be made absolute. If the power is
used properly, such applications are likely to be very rare and a hearing will usually
have been avoided as a result of the court taking the initiative. In the Working Party's
view, so understood, this aspect of Proposal 30 should be adopted.
Where the court considers one or more procedural
directions to be necessary or desirable and unlikely to be controversial between
the parties, it ought to have power, of its own motion and without hearing the
parties, to give the relevant directions by way of an order nisi, with liberty to the
parties to apply within a stated period for that order not to be made absolute.
Notes
From respondents including the Bar Association, the BSCPI, two sets of barristers' chambers, two
firms of solicitors and an individual respondent.
At §435.
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