ALTERNATIVE DISPUTE RESOLUTION

Alternative Dispute Resolution

Alternative Dispute Resolution

The organisation, jurisdiction and powers of the high courts are set out in the Supreme Court of Judicature Act (Cap. 322) and the Subordinate Courts Act (Cap. 321). In 1996, the rules of high procedure for both the Supreme and Subordinate Courts were merged and embodied in the Rules of Court 1997. These rules are based on the rules of high practice in England. Several types of proceedings, however, are regulated by their own procedural rules and regulations. These include bankruptcy, winding-up and matrimonial proceedings (Andrews, 2003).

Prior to commencing a high claim in London, several fundamental issues must first be considered. Apart from the existence of a valid cause of action recognised in law, procedural matters must also be addressed. For example, the potential plaintiff must ensure that he has the locus standi to commence proceedings against the proper defendant.

The limitation period of the claim must not have expired. Under the Limitation Act (Cap. 163), the limitation period for actions based on contract or tort is 6 years from the date on which the cause of action accrues. For actions for damages for negligence or nuisance, the limitation period is generally 6 years, unless the action involves a claim for personal injury in which case, the limitation period is shortened to 3 years.

The London Courts must also have jurisdiction to hear the action and further, should be the appropriate forum. Where there are other competing jurisdictions or fori, a defendant may apply to the London court for the London proceedings to be stayed on the basis that the matter would be better heard in another jurisdiction.

The most common form of originating process is the Writ of Summons. (The others are the Originating Petition, Motion and Summons). A Writ of Summons must be served personally on the defendant within 6 months from the date the Writ is issued by the Court. In the event, that personal service cannot be effected, an application may be made to Court for leave to serve the Writ by substituted service, either by way of posting at the last known address of the defendant or by advertisement in the newspapers (Andrews, 2003).

In addition to the option of entering default judgment in the appropriate circumstances, summary judgment may be entered where the defendant has no defence to the plaintiff's claim. An application for summary judgment must be made together with an affidavit that sets out all the material facts of the plaintiff's case and all relevant documents in support. The defendant is given the opportunity to show cause against the plaintiff's application by filing an affidavit in reply within 21 days of being served with the plaintiff's application. The plaintiff may then respond to the defendant's allegation by way of a further affidavit within 14 days thereafter. The application for summary judgment will then be heard before a Registrar (Brinson, 1994).

The threshold for defeating an application is relatively low. The defendant need only show that there are “triable issues” ...