JUDGES INDUCTION AND REFRESHERS TRAINING-JUDICIAL TRAINING INSTITUTE IN COLLABORATION WITH ACCESS TO JUSTICE& SECURITY PROGRAMME

JUDGES INDUCTION AND REFRESHERS TRAINING

JUDICIAL TRAINING INSTITUTE IN COLLABORATION WITH ASJP 27th AND 28th JUNE, 2016

PRACTICE AND PROCEDURE IN THE COMMERCIAL COURT

 

Statement by Hon. Justice Sengu Koroma JA.on the Practice and Procedure in the Commercial Court.

 

 

My Lord, the Chief Justice, my Lords, my ladies, I am here this afternoon to talk on the Practice and Procedure in the Commercial Court.

Background:

  1. The Commercial and Admiralty Division was established as a division of the High Court by the High Court (Divisions) Rules, 2007 (Constitutional Instrument No 1 of 2007). As the name indicates, this Division also has jurisdiction over admiralty matters.
  2. A thorough understanding of what is Commercial Law is important in the discussion of the Practice and Procedure in the Commercial Court.
  3. I will start by stating that commercial law as we know it in Sierra Leone is based on the English Common Law and Statutes. The Common Law has played a very significant role in the development of Commercial Law through its vitality, strength and agility in applying and adapting its principles to changes in trade and commerce. The origin of commercial law can be traced back to the middle ages, the law merchant, and for instance, the court of pie powder. The real area of development however is the 18th century when the law’s development was guided by Lord Mansfield. Applying the Common Law method to contract law, commercial law and insurance law, he put vast areas of the law upon a sound and principled footing. He ensured that the law was in step with commercial and market practices in a number of ways. He maintained a keen eye in a number of ways.  He maintained a keen eye on commercial practice, was immersed, often dining with leading merchants and traders to ensure that he kept up to date with the last developments in the markets.
  4. Commercial Law encompasses a wide range of legal areas. It might range from the principles of Contract Law, through banking and then Company Law, through insurance and reinsurance. It also covers mortgages, agencies, mining and Banking and financial services. Rule 3 of the Commercial and Admiralty Court Rules, 2010 provide for the scope of the jurisdiction of the Commercial and Admiralty Division. Rule 3(v) specifically includes in the list admiralty and shipping matters.
  5. The importance of laws governing trade and commercial cannot be underestimated. Clarity and predictability in the law, as well as its ability to develop in a principled manner, is the bedrock upon which businesses, just as much as individuals order their affairs and enter into binding agreements. It is a necessary pre-condition for understanding rights and obligations, something which is of crucial importance whether the person is an individual entering into an agreement to buy a refrigerator, a house or car or whether the person is a business entering into a debt finance agreement, an international sales Agreement or a reinsurance agreement. As Lord Salmon rightly noted in “THE LACONIA” (1977) AC 850 at 878, “certainly is of primary importance in all commercial transactions.”
  6. In conclusion on this point, the Commercial Courts seek to promote the development of law to keep pace with the ever increasing pace of change in both national and international markets, trade and commerce.

PRACTICE & PROCEDURE

 To be a successful commercial law practitioner, you must have a commercial mindset.

  1. Proceedings in the Commercial Court are governed by the commercial and Admiralty Court Rules, 2010. However, as a division of the High Court, the Commercial and Admiralty Court is also regulated by the High Court Rules, 2007 – unless the Commercial and Admiralty Court Rules specifically provide otherwise (Rule 4 of the C.A.C Rules).
  2. From my experience, the area not specifically dealt with by the High Court Rules, 2007 are those relating to the pre-trial settlement conference. Rule 5of the Commercial Court Rules, 2007provides that after a reply has been filed or if the time for reply has elapsed, the Deputy Master & Registrar shall, within three days assign the claim to a Judge who shall conduct a pre-trial settlement conference. A pre-trial settlement conference is a form of an Alternative Dispute Resolution Mechanism wherein the parties are given an opportunity to settle their disputes without going through a full trial. Where a claim is settled at the pre-trail settlement conference, the terms of the settlement in the form set out in the first schedule to the C.A.C Rules, 2010 are read over to the parties as a judgment of the Court. Enforcement of the said judgment is governed by Rule 18 of the C.A.C Rules, 2010. This provides that “all processes applicable to the enforcement of judgment of the High Court in respect of Civil Proceedings shall apply to the enforcement of settlements or awards entered as a judgment of the Court”. This means Orders 43, 45, 46, 47, 48, 49 and 50 of the High Court Rules, 2007 shall apply. There have been instances wherein a party to a settlement under Rule 8 of C.A.C Rules, 2010 would apply to the Court for variation of the settlement Order. My position in this has always been that both parties would have to agree to the proposed variation otherwise the only remedy available to such an applicant is to be found in Rule 17 of the C.A.C. Rules, 2010 which provides that “an appeal to a claim settled at a pre-trial conference shall be with the leave of the pre-trial Judge”-Rule 11 of the CAC Rules, 2010. This means that if a party wants to vary the terms of settlement, he needs to go the Court of Appeal after seeking leave to do so. This is not much different from the procedure under general civil practice. The only difference being that in general civil practice, such leave is required in the case of interlocutory order. In the instant case, the settlement under Rule 8 is a final judgment. The probable reason for seeking leave may be to give an opportunity to the pre-trial Judge to refuse leave in unmeritorious cases e.g. where a party wants to employ delaying tactics.
  3. If the parties fail to reach a settlement or arrive at a settlement at a pre-trial settlement conference, the matter shall be referred to the Deputy Master  & Registrar, who shall fix a date before another Judge for trial, on the issues laid down for trial by the pre-trial Judge. These issues shall be set out us the form set out in the second schedule to the C.A.C. Rules, 2010. From this point, provisions of the High Court Rules, 2007 relating to trials shall apply. The only divergence, probably, is that the Trial Judge may appoint not more than two persons as assessors, who at the end of the trial may state their opinions which shall not be binding on the Judge.
  4. After summing up the evidence of each party and the Assessors stating their individual opinions, the Court shall pronounce judgment forthwith or not more than 28 days thereafter.
  5. With the proliferation of construction disputes, I have often been torn between appointing experts under Order 42 of the High Court Rule, 2007 or that of Assessors under Rule 12 of the C. A. C.  Rules, 2010. I am yet to determine the relative strengths and weaknesses of both systems.
  6.  The C. A. C.  Rules, 2010 also identify another form of an ADR albeit within the PTSC system. Rule 7((1) provides that at the PTSC, the trial judge may, if the parties wish that a particular person or body settle the claim: 
  1. Refer the claim to that person
  2. Give directions and period for the settlement of the claim.
  1. Under this head, the preferred body or person shall be under the general supervision of the pre-trial judge and if the parties settle on their conclusions, the court shall invoke Rule 8 of the C. A. C.  Rules. Rule 7(1) gives an opportunity to the parties to have their dispute referred to an expert for an early determination.
  2. Finally, in order not to unduly prejudice the trial judge, all records relating to the pre-trial settlement conference must be removed from the Court and all documents, materials or items used as evidence shall returned to the parties or their representatives or legal practitioners, who produced them.

ADMIRALTY JURISDICTION

14.  The Admiralty Jurisdiction of the Commercial and Admiralty Division of the High Court is governed by the Order 56 of the High Court Rules, 2007 and the Merchant Shipping Act, 2003.

Order 56 Rule 2 (1) (a) provides that every action to enforce a claim for damages, loss of life or personal injury arising out of

  1. Collision between ships
  2. The carrying on the part of one of or more two or more ships, with the collision regulations;
  3. Every limitation action

shall be assigned to the Commercial and Admiralty Division.

  1. Admiralty law in ordinary parlance, often interchangeably referred to as maritime law, is a distinct legal regime which regulates maritime questions and offences. Its legal frameworks covers maritime activities at domestic levels, and in private international law, it applies to relationships between private entities which operate vessels on oceans. This Admiralty Law deals with matters relating to maritime commerce, marine navigation, ship sectors and the transportation of goods and passengers by Sea. This list is not exhaustive.

 

Action in Rem:

  1. Due to the transient nature of a ship’s presence within each Jurisdiction, a procedure for exercising a lien on a ship has developed. This is known as the “arrest”. Arrest here is defined as “the detention of a ship by judicial process to secure a maritime Claim.” Once a ship is arrested, the owners or persons in charge of it have the choice either of abandoning her or depositing money (up to the value of the Ship) pending the resolution of the dispute. The Warrant of Arrest serves both as notice of proceedings against the owners of the Vessel and service of the Writ on the said owners. This is provided for in Order 56 Rules 5 of the HCR, 2007. The foundation of an action in rem is the lien resulting from the personal liability of the owner of the res. Thus an action in rem, cannot brought to recover damages for injury caused to a ship by the malicious act of the Master of the Defendant’s ship or for damage done at the time when the ship was in control of third parties by reason of compulsory requisition.
  2.  On the other hand, ships allowed by their owners to be in possession and control of charterers have been successfully proceeded against to enforce laws whilst the ships were in control of such parties. The procedure for arrest of ship is by motion ex-parte supported by affidavit verifying the facts which require the Judge to act immediately. If the arrest is unlawful, the party arresting is liable for damages.  Once a vessel is arrested, it should be in custody of the Admiral Marshall and while it is arrested and detained, the matter must be heard expeditiously as the consequence of arrest may lead to untold hardship. The Courts should not allow ships to be turned into floating warehouses.

Action in Personam:

  1. The Black Dictionary 9th Edition defines an action in personam as:

“An action in personam is an action brought against a person rather than property.  Thus an in personam judgment is binding on the judgment debtor and can be enforced against all the property of the Judgment debtor.

  1. Generally, all actions which are aimed at the person requiring him to do or not to do or take or not to take an action or course of conduct must be and are actions in personam.
  2. Subject to the important exception of claims in respect of collision and similar cases, the Admiralty jurisdiction may in all cases be invoked by an action in personam. The exercise of the jurisdiction may, however, be inhibited by the operation of the rules of Court relating to service outside the jurisdiction (Order 56 (4) of the HCR, 2007). It does not apply to any action or counterclaim if the Defendant submits to the jurisdiction of the Court.

 

  •  
  1. Order 56 Rule 17 provides for an Intervener. Halsbury’s Laws of England 4th Edition at page 252 paragraph 375 describes an Intervener as “persons who may appear; the owners of property proceeded against and all persons directly interested therein may appear and defend without filing an affidavit and showing their interest at any time before judgment. Further, any person not named in the Writ may intervene in an Admiralty action in rem and appear by leave of the Court, obtained on application by affidavit showing that he is interested in the res under arrest or fund in the registry. Examples of persons having an interest are Mortgagees, trustees in bankruptcy, underwriters who have accepted abandonment, charterers, persons who have possessory liens, competing maritime liens, and generally persons who are Plaintiffs in other actions in rem against the same property. If, however, the intervention is unnecessary to protect the interveners’ rights, he will be refused his costs.

 

LIMITATIONS ACTS

  1. Order 56 Rule 39 makes provision for the constitution of limitations fund by the Plaintiff

 

I thank you for your attention.

 

Hon. Justice Sengu Koroma JA.