Case management procedures report

The Supreme Court of British Columbia is British Columbia's superior trial court. The civil procedures of the Supreme Court are governed by the Supreme Court Rules (B.C. Reg. 221/90). British Columbia has incorporated some initiatives into the Supreme Court Rules which are aimed at speeding-up the litigation process, under certain circumstances. These provincial initiatives are provided within Table 4. Unless otherwise indicated, all rules referred to below are from the Supreme Court Rules.

The Queen's Bench of Alberta is Alberta's superior trial court. The civil procedures of the Queen's Bench Court are governed by the Alberta Rules of Court (Alta. Reg. 390/1968). Alberta has incorporated some initiatives into the Alberta Rules of Court which are aimed at speeding-up the litigation process, under certain circumstances. These provincial initiatives are provided within Table 5. Unless otherwise indicated, all rules referred to below are from the Alberta Rules of Conduct.

The Supreme Court of Nova Scotia is Nova Scotia's superior trial court. The civil procedures of the Supreme Court of Nova Scotia are governed by the Civil Procedure Rules Nova Scotia. Nova Scotia has incorporated some initiatives into the Civil Procedure Rules Nova Scotia which are aimed at speeding-up the litigation process, under certain circumstances. These provincial initiatives are provided within Table 6. Unless otherwise indicated, all rules referred to below are from the Civil Procedure Rules Nova Scotia.

Note that the European Court of Justice is an EU supra-national court to which questions of law only are referred, in the context of trade mark infringement proceedings. It has no jurisdiction to decide cases and will refer its decision on the law to the referring court to apply it to the facts. Therefore, its relevance to case management provision applicable in trade mark infringement proceedings is very limited.

Consideration was given to making the election of an ADR proceeding mandatory in the Model Procedures. It was noted, however, that the European Union issued a Directive dated 21 May 2008 (Directive 2008/52/EC, OJ L 136/3, 24.05.2008) on certain aspects of mediation in civil and commercial matters that specifically calls mediation to be a voluntary process. The EU-Directive does not provide for substantive law but only forces the Member States to adopt national legislations inline with the Directive within a term ending on 21 May 2011. The Member States have to adopt the rules of the Directive as a minimum standard but may also provide for a mandatory process of mediation or ADR. The minimum standards to be complied with may be summarized as follows:

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  The Directive is limited to cross-border disputes in civil and commercial matters, being disputes between parties of different Member States involving rights and obligations which are at the parties’ disposal.
  
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  “Mediation” means a structured process conducted by a mediator, being an impartial third person, who may be a judge but not the one being responsible for any judicial proceeding concerning the dispute.
  
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  The mediation process shall be promoted and encouraged by the national laws. Furthermore, the Member States shall encourage the training of mediators in order to ensure an effective quality of mediation processes.
  
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  A court may at its discretion invite the parties to use mediation or at least to attend an information session on the use of mediation, if available. Any stricter approach is admissible, including making the use of mediation compulsory or subject to incentives or sanctions, provided that the national legislation does not prevent the parties from exercising their right of access to the judicial system.
  
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  The national legislation should ensure to make a written agreement between the parties enforceable.
  
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  The national law has to warrant confidentiality of mediation. Unless the parties agree otherwise, neither mediators nor those involved in the administration of the mediation process shall be compelled to give evidence regarding information arising out of or in connection with a mediation process except where matters of public policy are concerned and where disclosure of the content of the agreement is necessary in order to implement or enforce the agreement.
  
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  Finally, the Member States should ensure that parties who choose mediation are not prevented from initiating judicial proceedings or arbitration by the expiry of limitation or prescription periods.
  

Though engaging in ADR is voluntary, the reporting procedures incorporated into the report may help encourage use of ADR by the parties. The EU Directive further calls for mediation procedures to take place in a manner which respects confidentiality which feature is also adopted in the report.

The procedure of the Courts of England and Wales is governed by the Civil Procedure Rules (the CPR). The following highlights the key case management provisions of the CPR.

The Court must give effect to the overriding objective of dealing with all cases justly (and the parties must assist in that). This includes; (a) ensuring the parties are on an equal footing; (b) saving costs; (c) dealing with a case proportionately to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party (d) ensuring that the case is dealt with expeditiously and fairly; and (e) allotting an appropriate share of the Court's resources.

The Court must further the overriding objective by actively managing cases. Active case management includes: (a) encouraging the parties to co-operate with each other in the conduct of proceedings; (b) identifying issues at an early stage; (c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others; (d) deciding the order in which issues will be resolved; (e) encouraging the parties to use an alternative dispute resolution procedure if the Court considers that appropriate and facilitating the use of such procedure; (f) helping the parties to settle the whole or part of the case; (g) fixing timetables or otherwise controlling the progress of the case; (h) considering whether the likely benefits of taking a particular step justify the cost of taking it; (i) dealing with as many aspects of the case as it can on the same occasion; (j) dealing with the case without the parties needing to attend at court; (k) making use of technology; and (l) giving directions to ensure that the trial of a case proceeds quickly and efficiently.

2. CPR 3 – The Court's Case Management Powers

The Court's general powers of management include: (a) extending or shortening time for compliance with any rule or court order; (b) adjourning or bringing forward a hearing; (c) requiring a party or a party's legal representative to attend court; (d) holding a hearing and receiving evidence by telephone; (e) directing that any part of any proceedings can be dealt with as separate proceedings; (f) staying the whole or part of the proceedings either generally or to a specific date or event; (g) consolidating the proceedings; (h) trying two or more claims on the same occasion; (i) directing a separate trial of any issue; (j) deciding the order in which issues are to be tried; (k) excluding an issue from consideration; (l) dismissing or giving judgment on a claim after a decision on a preliminary issue; (m) ordering any party to file and serve an estimate of costs; and (n) taking any other step or making any other order for the purpose of managing the case and furthering the overriding objective.

Where a rule or enactment does not provide otherwise, the Court is able to exercise its powers of its own initiative. This power enables the Court to react to the particular issues of a case and move the case forward quickly and efficiently in accordance with CPR 1.

Where a party has failed to comply with a rule, practice direction or Court order the Court may impose sanctions.

Following completion of an allocation questionnaire a claim will be allocated to the one of three 'tracks'; small track, fast track and multi-track. Allocation will be based upon the value of the claim, the nature of the remedy sought, the likely complexity of facts, law or evidence, the number of parties, the value of any counterclaim, the amount of oral evidence that may be needed, the importance of the claim to non-parties, the views expressed by the parties and the circumstances of the parties.

Most trade mark infringement proceedings will be allocated to the 'multi-track' appropriate for larger cases.

4. CPR 29 – Multi-track Case Management

The general rule is that claims over £15,000 will be allocated to the multi-track. Following allocation to the multi-track, the Court may give full directions for the management of the case or order a Case Management Conference.

This takes place at an early stage in the proceedings shortly after the allocation. The Court will review the steps that the parties have taken in the preparation of the case, their compliance with Court orders, decide and give directions about future steps to be taken in order to comply with the overriding objective, and ensure that any agreements that can be made between the parties regarding the matters at issue and the conduct of the claim are recorded. Failure to comply with the case management procedures will not necessarily postpone the trial but may give rise to sanctions such as making a payment of monies into Court or having the whole or part of the case struck out.

This takes place at an early stage in the proceedings, shortly after the allocation. The pre-trial check list will be sent out by the Court to be completed by the parties no later than 8 weeks prior to trial, where the Court considers it appropriate. The purpose of the check list is to ensure that all case management directions have been complied with. Failure by either party to complete the check list will result in a listing hearing, the cost of which is borne by the defaulting party. Where neither party completes the pre-trial checklist the Court can order that the claim, defense and any counterclaim be struck out.

The Court may decide to hold a pre-trial review on receipt of the completed pre-trial checklists. A review will often (but not necessarily) take place where the trial is likely to last for more than 10 days. It will if practicable be conducted by the trial judge. It provides further opportunity for the parties to settle prior to trial and without incurring full trial costs or to prepare the trial agenda.

The general rule for disclosure is that a party is required to disclose documents upon which it relies and those which adversely affect its case or support the other party's case ('Standard Disclosure'). However, CPR 31.5 states that this rule may be dispensed with or limited at the discretion of the Court.

Under this rule the Court has wide powers to deal with evidence presented by the parties. The rule allows the Court to give directions relating to the issues for which it requires evidence, the nature of the evidence which it requires and the way in which the evidence should be placed before the Court. The Court may exclude evidence that would otherwise be admissible and it may limit cross-examination.

Historically, French judges have not taken an active role in the management of cases, but this is changing. Judges on the whole still set successive hearings to enable the parties to submit briefs and evidence, rather than use procedural timetables, but extensions are fewer and the use of timetables as a way to manage cases and as a measure of performance of the court is spreading. In particular, under pressure from competition from other European courts to become an attractive forum for complex intellectual property litigation, specialized chambers of the Paris Courts are implementing a judicial procedural schedule in order to shorten the time period between the writ and the judgment. More generally, vigorous measures have been implemented in order to streamline the management of procedures, including a more frequent and active use of judicial procedural timetables agreed to by the parties (Paris commercial court) and enforcement of shorter deadlines by granting less extensions, the judicial disposition of procedural issues at the outset of the case to reduce delays and multiple hearings on procedural issues in the course of preparing the case for trial.

France has two distinct hierarchies of Courts: judicial Courts and administrative Courts. Each Court system has its own Supreme Court (Cour de cassation; Conseil d'Etat)

The judicial courts include civil, criminal, commercial and labor courts. Under article L. 716-1 and articles L. 716-9 to L. 716-14 of the French Intellectual Property Code ("CPI"), all trade mark litigations must be brought before criminal or civil courts, with the exception of:

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  actions against regulations and administrative decisions (other than decisions granting, refusing or maintaining industrial property titles, which shall be submitted to the civil courts of appeal) of the administration in charge of industrial property, which are attributed to the administrative courts;
  
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  arbitration pursuant to the terms of articles 2059 and 2060 of the French Civil Code
  

In a nutshell, the defendant receives a writ which is also transmitted to the Clerk's office. Once a copy of the writ has been put on the court docket, the case is referred to the court. The parties exchange, under the supervision of the judge, their briefs as well as the documents submitted into evidence (claim, counterclaim and recapitulative claim which is a comprehensive recap of the legal grounds and claims). Following the closure of submission of briefs and evidence, the judge sets a date for the hearing of oral arguments. The judge renders a decision after hearing oral arguments. The judgment is served by one party on the other.

The writ is drafted by an attorney (avocat) and served by a bailiff to the defendant in order to inform it that an action is brought against it. To be valid, the writ must contain the following (art. 56 and 648 of the French Civil Procedure Code – "NCPC"-): identity of the parties, court in charge of the case, presentation of facts, purpose of the claim, list of exhibits.

Each party submits to the other the factual and legal grounds it intends to rely on, as well as the elements it submits into evidence. The choice of evidence is free but there is a hierarchy of proof. Communication of evidence must be spontaneous and complete. To render his or her decision, the judge is not entitled to take into account arguments and/or evidence that have not been communicated on time by one party to the other.

The judge renders a decision after due hearing of the parties. He or she invites the parties to present their observations on any legal grounds the court raises.

Before or after oral arguments, parties submit a litigation file which contains detailed developments of the arguments in the briefs together with supporting evidence and case law. Procedural objections (objection of lack of jurisdiction, pendency of case, invalidity, etc.) must be invoked in limine litis (before any argument on the merits or demurrer).

d. Appeal

Court of Appeal: the appeal is a second trial on the merits. The Court of Appeal makes its own findings of fact and law. The appeal must be exercised within one month of the service of process of the decision from a party to the other.

The French Supreme Court only decides issues of law. The Supreme Court can only cancel or refuse to cancel an appellate decision (it is not entitled to reverse the decision as a Court of Appeal would do) and remand to another Court of Appeal. The decisions of the French Supreme Court are not binding on courts of lower jurisdiction except when rendered en banc upon a second appeal to the Supreme Court. Appeals to the Supreme Court must be exercised within two months.

Currently, before the Paris first level civil court, lawsuits in IP cases average 18 to 24 months. Before the Paris Court of Appeal lawsuits average in IP cases two and a half to three years.

Nevertheless, under the pressure of competition with other European courts to become an attractive forum for complex intellectual property litigation, specialized chambers of the Paris Courts are implementing a judicial procedural schedule in order to shorten the time period between the writ and the judgment. More generally, vigorous measures have been implemented in order to streamline the management of procedures, including a more frequent and active use of judicial procedural calendars agreed to by the parties (Paris commercial court) and enforcement of shorter deadlines by granting less extensions, the judicial disposition of procedural issues at the outset of the case to reduce delays and multiple hearings on procedural issues in the course of preparing the case for trial.

g. Cost Awards

Legal expenses are borne by the losing party, unless the judge, by a reasoned decision, imposes the whole or part of it to another party (art. 699 NCPC).

Furthermore, in all proceedings, the judge orders the party bearing legal costs or the losing party to pay to the other party the sums disbursed but not included in the legal costs. For this purpose, the judge takes into account the rules of equity and the financial conditions of the party ordered to pay. Therefore, he may decide that there is no need for such order (art. 700 NCPC).

To summarize, French judges tend(ed) not to actively manage the procedure schedule of case, but this is changing. Judges on the whole still set successive hearings to enable the parties to submit briefs and evidence, rather than use procedural calendars, but extensions are fewer and the use of calendars as a way to manage cases and as a measure of performance of the court is spreading. Once the parties have transmitted to each other their brief and documents submitted into evidence in order to respond to the arguments raised by the other, the judge closes the submission of briefs and evidence.

French criminal procedure is made up of two phases:

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   an inquisitorial preliminary phase wherein the judge has wide investigative power to seek evidence; and
   
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   an accusatory judgment phase wherein the judge acts as an arbitror whose mission solely consists in supervising and ensuring the loyalty of the debate.
   

Otherwise, criminal action can be brought via direct summons. In this case, it is up to the plaintiff to gather evidence of the alleged facts.

Pursuant to article L. 411-4 of the CPI, decisions of the Director of the INPI granting, refusing or maintaining industrial property titles shall be submitted to the civil Courts of Appeal. The ten Courts of Appeal having exclusive jurisdiction on such matters are listed in article R. 411-19 CPI. The Court can only cancel or refuse to cancel the Director's decision. Appeals shall be exercised within one month of the decision (the plaintiff shall file a written statement –in duplicate - with the court Clerk's office).

The President of the court before which proceedings have been instituted, sitting in chambers, may provisionally prohibit a continuation of the alleged infringing acts, subject to a daily fine, or may subject such continuation to the provision of securities for the purpose of ensuring compensation to the owner of the trademark or to the beneficiary of an exclusive right of exploitation.

Action for prohibition or provision of securities shall be admissible only if the case appears well-founded and proceedings were instituted within a short time following the day on which the owner of the trademark or the beneficiary of an exclusive right of exploitation obtained knowledge of the facts on which they are grounded.

Such procedure is likely to be altered because of the forthcoming transposition of the EU Directive 2004/48/EC into French law. According to the French draft, preliminary injunctions may be requested before filing a complaint on the merits and may be requested unilaterally. Reasonable available evidence creating sufficient degree of certainty of a breach of the intellectual property right would suffice to bring this action.

An infringement seizure operation is a specific procedure aimed at gathering evidence of infringement. The seizure operation is carried out by a bailiff on order of the judge (subject matter jurisdiction is granted to the first level courts – tribunal de grande instance). There are two kinds of seizure operations: the descriptive seizure which simply consists in the description of the infringing products (with or without taking samples), and the effective seizure which enables to seize the integrality of the alleged infringing products. The judge can authorize the bailiff to be assisted by an expert. At the end of the operation, the bailiff draws up a seizure report which must bear the mentions provided in article 648 of the NCPC. The seizure operation is deemed null and void and the seizure report is excluded from the debate if the claimant has not delivered a writ or filed a complaint within 15 days of the seizure operation.

The civil court procedure in Germany is governed by the Civil Procedural Act. It should be differentiated between ordinary court proceedings and urgent proceedings (preliminary injunctions).

As the basic rule of civil proceeding it is the parties who control the life history of the lawsuit and its subject matter. Whether at all and what kind of legal proceedings are being established is, under German law of civil procedure, at the disposition of the individual party, particularly the plaintiff, who determines with his or her complaint the matter in controversy.

As far as the responsibility for fact-finding is concerned, German civil procedure adheres to an adversarial system, which is reflected in the principle of party control over statements, allegations and proof. The opposite principle of judicial investigation, pursuant to which the judge takes the initiative ex officio, applies only exceptionally in special cases of family law disputes and others. Thus, the civil procedure accepts the general constitutional principle of the autonomy and responsibility of the individual.

The principles of party control and of an adversary hearing provide for the duty of the parties to disclose all relevant facts. Thus, the court must not take facts into account in the judgment that the parties did not present in its allegations and pleadings. However, this system can only work if the parties are obliged to tell the truth and to allege all relevant facts completely. This duty however does not mean that a party must investigate the truth of any fact before alleging it since it is the task of the court to evaluate the factual basis after having heard the evidence.

Another principle of civil proceedings in Germany is the principle of orality, which is more a theoretical principle, since it is widely diluted by exemptions and the practice of the courts. In fact, all statements and pleadings are prepared by written arguments and observations. However, a decision of the court may only be issued after an oral hearing has taken place, in which the written statements will either be repeated or in which the parties simply refer to its written statements.

Being part of the principle of oral proceedings, the maxim of a continuous oral hearing reflects the desire to bring the proceedings to an end in a single oral hearing. In more complex cases however, it will hardly be possible to terminate a proceeding with one hearing only. In such cases, the preliminary hearing is then followed by the main hearing. The law considers all hearings as forming a union, thereby representing the continuous hearing.

The principle of immediacy means that the oral hearing has to take place before the same court that renders the judgment. This principle applies in particular to the taking of evidence as only the judges being personally present to the taking of evidence may render a judgment.

This principle means that civil procedures are generally opened to the public so that a court may only order the exclusion of the public in exceptional cases, especially when safety of the State may be endangered or public morals corrupted. Furthermore, the public may be excluded, if important business or industrial secrets may be disclosed and the owners prejudiced.

A speedy trial is one of the major goals of civil proceedings, although the meaning of a speedy trial is doubtful. It basically means that the court has the duty to promote the proceedings and to force the parties to timely complete their written statements in order to appropriately prepare the oral hearing and the final judgment. If the parties of the proceedings do not meet the time limits set by the court, they may be barred from any additional submissions at a later stage.

Civil proceedings can only be instituted by a plaintiff’s complaint and never ex officio by a court. In the complaint, the plaintiff must allege that his or her rights have been encroached upon. The plaintiff has to specify precisely what kind of relief is being sought based on particular facts. Consequently, a complaint without a distinctive claim or petition lacks an essential element and will be rejected by the court as incomplete and therefore inadmissible. Usually, a plaintiff brings an action for performance. Only if this will not be possible, an action for a declaratory judgment or an action requesting a change of a legal right or status are admissible.

Except for the municipal (local) courts, the plaintiff must be represented by attorneys admitted to practice before that court.

Furthermore, the court fees have to be paid with the filing of the complaint in advance. The claim has to contain the names of the parties, the claim together with the amount in controversy and the facts and evidence supporting the claim.

If the action meets all formal requirements, the claims will be served ex officio by the court to the defendant with the request to appoint an attorney at law (except for the proceedings at the municipal courts) for preparing and filing an appropriate defense. The court may adopt two different forms of procedure:

Either a written preliminary procedure or a procedure that involves an early oral hearing. Usually, the court makes an order accordingly and sends it to the defendant together with the writ of summons. The court should in any case chose the procedure that brings about the quickest conclusion of the matter on the basis of the statement of claim, thereby serving the maxim of economic proceedings.

d. Defense

Depending on the specific procedure the court has chosen for the individual case, the defendant has to indicate in the alternative of a written preliminary procedure within two weeks after service of the writ of summons whether the action will be contested. If it is to be contested, a written statement of defense must be forwarded to the court within another two weeks. This term is extendable.

If the court chooses to invite the parties to an early oral hearing, the defense has to be filed well-ahead before the hearing, unless the court provides for a specific time limit.

Within the defense the defendant may raise a number of objections against the plaintiff’s claims. These defenses may be qualified either by there merits, i.e. substantive exceptions, or as procedural exceptions. The defendant will certainly prepare the defense with great care regarding all the facts alleged by the plaintiff, because all facts, which are not expressly denied, are generally deemed to be admitted.

If formal requirements of the statement of claims are not obeyed, the court’s fees are not paid in advance or the plaintiff is not represented by an attorney where required, the court will either dismiss the claim as inadmissible or take no notice at all of the plaintiff’s action. But before doing so the court has to give the parties the chance to rectify the formal deficiencies.

Further sanctions should enable a speedy trial: The basic rule is that the party that did not perform a procedural act within the give time limits will be precluded from making up for it at a later stage. This applies in particular to the explicitly denoted statutory deadlines. But even where these time limits were missed it is still possible to make within two weeks a move for a restoration to one’s original position (reinstatement in the status quo ante) if the party without his or her fault was prevented to observe the time limit.

f. Evidence