OVERARCHING OBLIGATIONS IN LITIGATION – CIVIL PROCEDURE ACT 2010
The Civil Procedure Act 2010 imposes a mandatory framework of obligations known as “overarching obligations” and pre-litigation requirements on litigants and their lawyers, which the courts will manage.
The courts must ensure the just, efficient, timely, and cost-effective resolution of disputes. In doing so, the courts require:
a) Early settlement of disputes;
b) Efficient use of court time and resources, and
c) Minimal delay between commencement of proceedings and the trial.
The overarching obligations require each litigant and their lawyers to:
a) Act honestly at all times;
b) Only, pursue claims and defences that have a proper basis, on the factual and legal material available at the time;
c) Only, take steps reasonably believed to be necessary to resolve the dispute;
d) Co-operate with other parties;
e) Not, mislead and deceive;
f) Use reasonable endeavours to ensure costs are reasonable and proportionate to the complexity or importance of the issues, and the amount in dispute;
g) Use reasonable endeavours to resolve a dispute by agreement;
h) Minimise delay; and
i) Disclose ‘critical documents’ at the earliest reasonable time and on a continuous basis after becoming aware of their existence.
‘critical documents’ as those that a party would reasonably be expected to have relied on as forming the basis of the party’s claim when commencing the proceedings, as well as those the party knows will adversely affect their case.
Lawyers must provide at the time of filing the first substantive document in civil proceedings, certification of compliance with these obligations for their respective client who is party to the proceeding. Accordingly, lawyers can only file the required certification if their instructions appear to be consistent with these obligations. Litigants must ensure they provide their lawyers with full and correct instructions, information, and documentation to support their claim or defence, as the consequences can be fatal for non-compliance.
In the event that, the lawyer believes, the instructions are inconsistent with the overarching obligations; the lawyer cannot contravene, nor allow or cause the client to contravene the Civil Procedure Act. The lawyer should cease acting if the client does not comply or refuses to comply. The lawyer’s first duty is to the Court and not the client. The Civil Procedure Act sets out the order of the lawyers duties and obligations as follows:
a) Duty to the court;
b) Compliance with the overarching obligations, and then
c) Duty to the client
PRE-LITIGATION REQUIREMENTS – FOR ALL PROCEEDINGS COMMENCED ON OR AFTER 1 JULY 2011
For all proceedings commenced on or after 1 July 2011, lawyers must provide at the time of filing the first substantive document in civil proceedings, certification, by way of a dispute resolution statement (except in cases of urgency), that pre-litigation requirements have been met.
Each litigant and their lawyers must comply with all pre-litigation requirements before 1 July 2011 for any proceedings that is likely to be issued on or shortly after 1 July 2011, which require litigants to take reasonable steps to resolve the dispute by agreement or to narrow the issues in dispute before proceedings are issued. Reasonable steps include:
a) Exchanging correspondence, information and documents; and
b) Any genuine and reasonable negotiations or other dispute resolution options
Litigants must provide their lawyers with full instructions, information, and documentation to enable them to comply with their obligations under the overarching obligations and pre-litigation requirements.
Each party is to bear their own costs of these initial steps, but the Court has power to award these costs if satisfied that, it is reasonable to do so. The Court may take failure to comply with pre-litigation requirements into account and order the non-complying party to pay all costs, or not receive an award for costs.