VOL 18 NO 310 REGD NO DA 1589 | Dhaka, Friday February 5 2010

Alternative dispute resolution for Bangladesh

M S Siddiqui

THE courts in Bangladesh are overburdened with cases. Shortage of judges and courts
make the problem more acute. Increasing the number of judges and courts requires time
and money. The public and private universities are not producing enough law graduates
to meet the shortage of judges and lawyers.

According to records, about 750,000 cases are pending with the courts of judicial
magistracy. The Supreme Court sources say about 500,000 cases, both civil and criminal,
are pending with its Appellate Division and at least 300,000 other cases, including writ
petitions, are pending before the High Court Division.

The government is working to reform the legal system to introduce mandatory alternative
dispute resolutions (ADR) in certain types of civil and criminal litigations. The litigants
would go to court, as a last resort, once alternative dispute resolution is in place. It would
save their costs and facilitate quicker dispute resolution. It would relieve the legal system.
Mandatory ADR can resolve disputes involving compoundable offences like defamation.
It is equally easy for ADR to sort out social disputes, cases of hurting religious
sentiments, unlawful restraining or confinement of individuals, unlawful confinement to
extract confession, forcible property restoration, assault, unlawful compulsory labour,
criminal trespass and house trespass.

The experience of different countries in alternative dispute resolution of commercial and

civil offences could be useful. Litigants in the UK, in particular, take the benefit of pre-
action protocol. Pre-action protocol is the bedrock of the Lord Woolf reforms introduced
in the UK in 1999. The pre-action protocols now cover eight types of civil disputes,
including professional negligence, personal injury, and housing and repair. Australian
state Queensland adopted it for personal injury disputes. The Queensland rules require
the parties to exchange offers as well as information to settle their disputes. The cost
consequences have to be borne by parties who reject reasonable offers.

The UK alternative dispute resolution does not allow mediation after proceedings are
drawn. It does not consider it to be an effective way to encourage settlement. The statute
requires the parties in some types of dispute in England to 'put their cards on the table'
even before the litigation has commenced. The process is intended to encourage early
settlement of disputes, avoiding recourse to the courts. The process is stipulated in the
'Pre Action Protocol', which forms a part of the Civil Procedure Rules 1999.

The protocols stipulate pre-action procedures with which the prospective claimant and
prospective defendant should comply. The protocols require the claimant to send the
defendant a letter, setting out the reasons for the dispute, prior to commencing
proceedings, known as the 'letter before action'. It requires the claimant to allow the
defendant a minimum of 21 days to respond to the letter. The protocols cover settlement
of cases of clinical negligence,personal injury, defamation, construction and engineering
disputes and professional negligence.

The Pre-Action Protocol is designed to promote an open approach. It requires each party
to prepare and exchange information about the case prior to the issue of proceedings. The
claimant or plaintiff is also required to enclose copies of essential documents on which
the claimant relies so that the dependant can prepare his or her defence. The defendant
can request for copies of essential documents that he requires. The documents cannot be
used for any purpose other than resolving the dispute. The claimant needs to convey, in
the correspondence, the option of preferring mediation or another form ofalternative
dispute resolution . He must also state that the court proceedings will follow if a full
response is not received within the stipulated time limit.

The pre-action process allows both the parties to be better informed as to each other's
position and to review the merits of their respective claims and defences, all of which is
directed towards encouraging early settlement of cases prior to issuing proceedings.

In case of introduction of Pre-action Protocol, the process starts with correspondence or

communication between the parties. Once the Particulars of Claim have been served
through letter or other formal manners, a defendant in the UK gets 14 days to respond.
The defendant has several options available: to admit the claim, admit part of the claim,
file an Acknowledgement of Service and serve a defence or challenge the jurisdiction of
the court.

If the defendant admits all or part of the claim he should give written notice to the
claimant. The claimant may then enter judgment against the defendant. If the defendant
wants time to pay, a request for time to pay should be filed with the admission. This
enables the defendant to propose a date for payment or request payment in installments.
The defendant should file an Acknowledgement of Service where he is unable to file a
Defence within the time limit. Filing an Acknowledgement of Service will give the
defendant an additional 14 days in which to file and serve its Defence. The parties may
also agree to extend the period for filing the Defence by up to 28 days. The period can be
extended further with the permission of the court.

Once the Defence has been served, the claimant may file a Reply to the Defence in order
to deal with any disputed issues of fact in the Defence. Although in England the Claim
Form and Particulars of Claim are usually signed by the claimant himself and
accompanied by statements of truth, occasionally he is signed by the claimant's solicitors.
In course of communications the parties exchange documents and other evidences in
favour of their claim, counter claim and defence. The disclosure is the process by which
the parties exchange documents relevant to the case. In a court litigation the disclosures
by exchange of documents and evidences will usually be ordered early in the litigation
after the statements of case have been filed at court, to enable each party to make a
realistic assessment of its case sooner rather than later. Each party is required to produce
a list of those documents which it has, or has had, in its possession which support or
adversely affect its own case, or which support or adversely affect another party's case.
The documents disclosed have to be relevant to the issue.

Each party has a duty to conduct a reasonable search to identify those documents and
sign a disclosure statement to confirm that it has complied with its duty of disclosure.
Once the parties have exchanged lists, either party has the right to inspect and request
copies of any documents listed which are in the disclosing party's possession. However,
the disclosing party may have a right or duty to withhold inspection, for instance, if a
document is covered by privilege.

In England, an order for pre-action disclosure may be obtained before proceedings have
been commenced.

The court has discretion, at the request of one of the parties, to issue a witness summons
requiring a person to give evidence or to produce documents to it.

The pre-action protocol is very much appropriate for Bangladesh since it is successful in
UK and Australia. Bangladesh has the old version legal system created by the British
colonial rulers for this land.

There is much to be gained from the system that requires the parties to exchange
information prior to the commencement of proceedings.

The Pre-Action Protocol as it exists in England would eliminate delays the litigants
experience and reduce the cost of dispute settlement.

A Pre-Action Protocol clarifies issues within a statutory framework providing the parties
with the necessary protections concerning confidentiality of documents and it encourages
the parties to fully assess the merits of their case before proceeding to litigation.

A Pre-Action Protocol could also ensure that parties take into account, at an early stage,
the interests of all of those who may be affected by the dispute and focus on whether any
application needs to be made for relevant documents from a third party.

Pre-Action Protocol of which alternative dispute resolutions (ADR) is a part, would

benefit Bangladesh. Bangladesh can adopt it by amending the Code of Civil Procedure
1908.
A part-time teacher at Leading University, the writer could be reached

at: shah@banglachemical.com

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