B. St. Michael Hylton, Solictor-General, Member of the Rules Committee of the Supreme Court
(In a letter to the Editor)
I REFER to the letter from Mr. Owen Crosbie, published in The Gleaner on January 6, in relation to the provision in the new Civil Procedure Rules (the 'CPR') which authorises the Chief Justice to issue Practice Directions.
I do not agree that the provision is in any way 'frightening' or 'dangerous,' and would make the following observations.
It must first be noted that the CPR does not give the Chief Justice any new power. Even prior to these new rules, practice directions were only issued by the Chief Justice or with his approval. He consulted with the judges of the court, but was not required to consult with the Attorney-General, the Director of State proceedings or representatives of the private bar. This is one of the many cases where the CPR spells out something which was applicable before, but not expressly stated in the Civil Procedure Code or other rule.
The effect of rule 4.2 is, if anything, to restrict the power formerly exercised by the Chief Justice. It provides:
"4.2 (1) A practice direction may be issued in any case where provision for such a direction is made by these rules.
(2) Where there is no express provision in these Rules for such a direction, the Chief Justice may give directions as to the practice and procedure to be followed in the court."
Unless a rule specifically authorises him to do so therefore, the Chief Justice may only issue practice directions relating to the "practice and procedure to be followed in the Court," when there is no express provision in the rules. The Rules Committee made rules to cover those areas which it felt were suitable for rules, and left to the Chief Justice, those items which it considered suitable for practice directions. A practice direction cannot contradict or overrule a rule, and if the Rules Committee considers that a practice direction has been issued in relation to a matter which ought to be the subject of a rule, it can issue a rule which would override the practice direction.
So, for example, Rule 33.5 provides that witnesses who are summoned to court must be paid their reasonable travelling expenses, but that practice directions may be issued in relation to the actual amount to be paid in particular cases for loss of time.
Rules 4.1 and 4.2 were discussed at some length by the "Statutory" Rules Committee, which agreed on the present wording. The Committee is made up of an equal number of representatives of the private bar and of the public bar.
All jurisdictions of which I am aware, allow for practice directions to be issued by the Judiciary or the chief administrative officer of the Court, (e.g., the Registrar) while reserving the power to make rules to a statutory or similar body. This is for the very practical reason that rules are meant to deal with the more critical issues, and to remain unchanged for a longer period, while practice directions deal with administrative matters, and can be issued or changed quickly, as circumstances require.
It has been my experience both since I have been Solicitor-General and during the three years before that when I was Chairman of the Civil Practice and Procedure Committee and of the Bar Association, that the Chief Justice almost invariably consulted with the private bar before issuing a practice direction. Indeed, it would be accurate to say that many of the practice directions issued over the past few years resulted from suggestions from the private bar.
It would be impractical, however, to require the Chief Justice to consult with the private bar before issuing a practice direction, or worse, that he could only do so with the concurrence of all the parties suggested by Mr. Crosbie.
The Chief Justice has invited Mr. Charles Piper, (Chairman of the Civil Practice & Procedure Committee of the Bar Association and a member of the Rules Committee), Miss Carol Aina (lecturer in Civil Practice & Procedure at the Norman Manley Law School) and me, to join him on a committee which will consider on an on-going basis, what practice directions are necessary for the optimum operation of the new rules.
Finally, it should be noted that rule 4.3 requires that practice directions must be published in the Gazette and made available at the Registry. It is also proposed that they be published and available on the Supreme Court web site.
In my view, therefore, there is no reason to be frightened by this provision. As far as 'inaccuracies' in the Court of Appeal rules are concerned, I am sure that the Rules Committee will be grateful if any are pointed out and will take steps to correct them.
