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 Commentary: Judge Can Ask that Case be Settled

Commentary: Judge Can Ask that Case be Settled

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By Ravi Nanga

LAST week we examined the concept of the case management conference.

The start of the case management conference signals that the judge that will hear and determine the matter commences managing the matter towards the final determination.

At a case management conference, the powers of the judge are very wide and these powers will be used in order to ensure that the matter is handled efficiently and with an aim to resolve the matter.

By the time the first case management conference is fixed, the judge would have read the file and would be familiar with the issues that are to be determined before the parties.

At this juncture it is not uncommon for the judge to explore the possibility of the matter being settled, depending on the nature of the dispute.

It is open to the judge to suggest to the parties to attempt some form of alternative dispute resolution, which will be aimed at reducing legal costs and bringing about an amicable resolution of the matter.

Should the matter proceed to trial and one party is successful, it necessarily means that the other party did not achieve what he set out to achieve in the matter.

In arriving at an acceptable settlement, it means that both parties can go away achieving some form of redress without taking a chance of the winner takes all that may occur if the judge has to decide the matter.

Further, even if one party is successful after a trial, the dispute can be prolonged via appeals to the Court of Appeal and even to the Privy Council, with the attendant increase in legal costs.

One avenue that is open to the judge is to refer the matter to a judicial settlement conference in appropriate circumstances.

This is a totally voluntary process, where the parties must consent. If the parties agree to proceed to a judicial settlement conference, the matter will be transferred to another judge who will manage the Settlement process. What occurs at a judicial settlement conference is without prejudice and is confidential and whatever is said at such a settlement conference cannot be used in the event the matter is not settled.

At the judicial settlement conference the settlement judge is free to express his views on the strengths and weaknesses of a party’s case, and will attempt to narrow the issues that are in dispute. This can be a useful process where the parties are able to gain from the settlement judge’s judicial experience, and be in a position to consider the pros and cons of proceeding with the matter to a trial. The normal format of such a settlement conference is that the parties are allowed the opportunity to present their respective cases in each other’s presence and the settlement judge can express his views on the various issues.

Each party will be encouraged to indicate what they expect to achieve and what they are willing to settle for. The settlement judge can determine whether the matter is capable of being settled and whether to speak to the parties separately. In the event the Settlement Judge decides to speak to the parties separately, the Settlement Judge can attempt to find a workable resolution by pointing out the strengths and weaknesses and the best case scenario for the respective parties. The settlement judge can then inquire as to how each party proposes that the matter can be settled and attempt to bring the parties closer towards an amicable settlement. This is done in order to mitigate against the uncertainties of litigation, as a party may be of the view that they have a strong case, when in fact they do not.

If the settlement judge is of the view that, having spoken with the parties, the matter is capable of being settled, he can set a further settlement conference, and can in fact have multiple conferences. In the event the matter is settled, the parties will be asked to draw up a consent order, setting out the terms of the settlement and the consent order will be sent by the settlement judge to the assigned judge, who will then enter the order, thereby bringing the matter to an end.

In the event the matter cannot be settled, the settlement judge will return the matter to the assigned judge for the continuation of the case management conference. Even if at an early stage the matter is not settled, there is no time limit on when a matter can be referred to a judicial settlement conference, and the matter can be referred to a judicial settlement conference for a second time.

Some parties prefer to wait until further down in the proceedings, when documents have been filed for example, before attempting to settle a matter. If the matter is incapable of being settled, then the assigned judge will continue to manage the case towards a trial.

Ravi Nanga is an attorney.

[Please note that this article is intended only to provide general information on the topic being addressed and should not be taken as providing legal advice. In order to be properly advised it will be necessary for an attorney to examine the relevant documents and obtain the necessary instructions before properly advising as to rights and obligations.]

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