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(d)
It should be open to the parties, up to a reasonable time (to be fixed in rules or
practice directions) prior to the order date, to agree to modified dates, leading
(subject to the court's discretion) to a revised order date. If no agreement is
reached, the order date should be retained unless a master can be convinced on a
time summons that there are compelling reasons for moving it. Such time
summonses would have to be dealt with promptly (as discussed further below).
(e)
On the order date, the master would decide what order to make on the
interlocutory application on the basis of the materials before him. If, for
instance, the respondent has failed to put in any materials or submissions in time
and no extension for filing such evidence has been given, the master would
make his decision based on the applicant's evidence and submissions.
(f)
Where the matter is likely to go to the judge in any event, the master has a
discretion to order that the summons be referred to the judge. Any request by
the parties for such a reference would be given substantial weight, but the
decision would lie in the master's discretion.
(g)
The rules ought to make it clear that, save in the most exceptional cases,
further evidence will not be admitted in the event of the summons being
adjourned for argument or in the event of an appeal to the judge after
determination on the papers by the master.
This system is likely to lead to earlier hearings in most cases. Presently, when an
applicant takes out a summons, he is given a "3 minute hearing" about 10 days later.
At that hearing, the summons is adjourned for an oral hearing before the master on a
date to be fixed, often two months later, with directions given for filing evidence
before then. On the proposed system, many applications will have been decided on
the papers or referred upwards to the next level of court some time before the oral
hearing before the master would arrive under the present system.
Notes
Such exceptions perhaps being defined along the lines laid down in Ladd v Marshall [1954] 1 WLR
1489.
This was favoured by the Law Society which suggested that similar tests to those adopted in the
Court of Appeal for the admission of fresh evidence be applicable to determine whether further
evidence should be admitted.
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