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New court procedure will revolutionise business litigation

New court procedure will revolutionise business litigation

Staff Reporter

THE High Court of Namibia is in the process of finalising amendments to the court rules with the intent to introduce a revolutionary new fast track procedure aimed at the resolution of commercial disputes which would ultimately change the country’s profile to that of business friendly destination.


The new procedure has been gazetted on 28 November 2019 and will come into force on February 2020.


In this regard Judge President Petrus Damaseb has issued a new practice directive which introduces into High Court civil procedure, a Voluntary Fast Track procedure (VFT) for the adjudication of commercial disputes.


The new High Court Civil process introduces a form of elective civil justice for the benefit of litigants who want to cooperate and to bring commercial disputes to finality as quickly as possible. The procedure is engaged as soon as pleadings have closed, discovery had occurred and the parties do not anticipate interlocutory skirmishes in moving the case to finality.


The VFT also introduces other important innovations. Not more than one expert can be introduced at trial and such an expert is agreed by the parties but appointed by the court and his or her fess shared by the parties. The rationale is that as a court appointed expert, he or she will be neutral and not owe loyalty to a particular litigant. The new procedure also makes it possible for the parties to come to court to have point of law decided by stated case without leading evidence. That should prove most useful in commercial disputes that hinge on the interpretation of written instruments.


Pictured: Judge President Petrus Damaseb. Photo: Contributed


A case under the VFT will be subjected to compulsory court-connected mediation before the trial takes place. The mediator will be chosen by the court and the expectation is that the court-appointed mediator will be a person with the skills profile most suited and appropriate to the needs of the case.


The parties are also required to engage in a compulsory process of requiring each other to admit certain facts and documents. That should reduce issues in dispute significantly and consequently, court times needed to adjudicate the matter.


The VFT also introduces a system of summery assessment of costs which is done by the judge and not the taxing officer. The animating principle of the system is that a successful party is granted its costs as soon as the case has been completed without having to go through the elaborate and time-consuming process of taxation conducted by the court’s taxing officer. The judge will be expected to make an award of costs in ballpark terms which are reasonable and fair without looking into the granular detail associated with taxation.


The VTF assumes that when the parties decide to invoke it, they do so with the full knowledge that they are waiving certain procedural rights which they would have enjoyed had they proceeded under normal rules of court. Those rights are set out in the practice direction and their exclusion from the commercial process is based on the facts that experience has shown that those procedural rights tend in practice to be abused in a manner that protracts litigation. Their exclusion, it is hoped, will greatly enhance the speedy finalisation of cases so that the court can decide only the real disputes between the parties.


With the enactment of the VTF, the High Court of Namibia is in the process of establishing a Commercial List for the resolution of commercial disputes. Two court rooms have been purpose designed for the Commercial List and are located in the Schonlein Building which hosts the administrative head office of the judiciary.


Effective 1 February 2020, the Judge President is going to assign two judges who will be responsible solely for the dispatch of the court’s business in the Commercial List.


Judge Damaseb said in a statement that he is looking forward to working with the profession and the litigating pubic to make the Commercial List a success and to make a difference to Namibia’s ranking as a business friendly destination.


To demonstrate that the Commercial List’s philosophy and ethos are different from run of the mills cases, judges and lawyers appearing in court will not wear gowns. The presiding judge will simply be referred to as ‘Your Honour’ or ‘Judge’.


“We are in the process of finalising amendments to the rules to introduce a compulsory commercial disputes resolution process in the High Court, building on the principles embedded in its practice directive,” the Judge President said.