These are interesting times in the history of legal practice in Nigeria as so much has changed within the last two weeks. Don’t get disappointed if for one moment you had thought this introductory sentence was leading to yet another perspective on the constitutionality or otherwise of recent happenings at the apex of the judicial hierarchy. Our point of interest here are the fundamental reforms that have just been put in place by the Lagos State judiciary.
Coming just a few months after the deft innovation to decongest the Courts through an Alternative Dispute Resolution (ADR) program branded as Backlog Elimination Programme, the Lagos State Chief Judge, Hon Justice Opeyemi Oke, has in a fresh move unveiled a new HIGH COURT OF LAGOS STATE (CIVIL PROCEDURE) RULES described in legal and commercial circles as the ultimate game changer. Under the new rules no civil litigation shall henceforth be initiated at the Lagos High Courts without attempts at an out-of-court settlement, through the platforms of alternative dispute resolution process. By these reforms, Lagos State has joined the global comity of frontline jurisdictions which make an attempt at amicable resolution of disputes a pre-condition to initiating lawsuits.
To underscore the new face of legal practice within the jurisdiction, the 2019 Civil Procedure Rules (CPR) is accompanied by two booklets on Practice Direction. These booklets are entitled ‘Expeditious Disposal of Civil Cases’. While ‘Practice Direction No1 of 2019’ deals with Backlog Elimination Programme for cases which overstay their welcome in the courtrooms, ‘Practice Direction No2 of 2019’ deals with pre-action protocols which must be adhered to by every disputant and his counsel before initiating an action in court
In its preamble, the 32-page practice direction on pre-action protocols states inter alia that ‘’Pre-Action Protocols explain the conduct and sets out the steps required of parties prior to the commencement of proceedings to which the High Court of Lagos State (Civil Procedure)Rules apply’. It provides that prior to the commencement of any civil proceedings; the court will expect parties to have engaged in pre-trial correspondence, sufficient to understand each other’s position. The parties shall also make efforts to resolve their issues or consider a form of alternative dispute resolution to assist with such settlement.
The claimant in each contentious matter is expected to forward to the respondent, a memorandum of claim setting out in concise details, his claims and the basis upon which they are made. He is also expected to put forward the reliefs and remedies sought, as well as include a proposal for the settlement of the dispute through ADR mechanisms such as negotiation, mediation, arbitration or Mediation-Arbitration (Med-Arb)
Express sanctions await litigants who fail to comply with provisions of the protocol and the time limit set out for such compliance. Sanctions are also laid out for persons who unreasonably refuse to use a form of ADR or fail to respond at all to an invitation to do so. Where a Claimant fails to comply with the pre-action protocols, his originating processes with supporting documents shall not be accepted for filing at the registry. That means no lawsuit can commence.
On the other hand, where a respondent fails to file a response as required by the protocol or unreasonably refuses an invitation to ADR, the claimant may proceed to litigation by filing the required processes and accompanying same with a spiral bound pre-action protocol bundle which shall contain all pre-action correspondence and obtain judgment against the respondent.
The rules provide however that where a party unreasonably or disproportionately fails or refuses to comply with the pre-action protocol but insists on proceeding to trial, the Court shall impose costs of a minimum NGN100,000(One Hundred Thousand Naira)only which shall be deducted or added to money reliefs awarded in the final judgment.
Not unexpectedly, a section of the Nigerian Bar Association (NBA Ikeja Branch) has kicked, claiming in the main that it was not carried along in the processes leading to the publication of the new rules. I do not consider this an appropriate platform to discuss the details. Suffice it to say however, that parties and their counsel have no cause to worry about steps to be taken under the new regime since these are well explained in the practice directions.
It can be rightly inferred that the intendment of the new rules is to make lawyers client-centered. It is also designed to encourage lawyers to appreciate the fact that every client who walks through the door has other motivations other than the available remedies at law. When lawyers painstakingly probe these and assist their clients to devise creative options for resolution, contentious issues will largely be resolved outside of court.
To attain proficiency in the foregoing, it becomes necessary that more lawyers undertake training in mediation advocacy. Mediation advocacy is the art of representing clients at mediation and other ADR processes. It is the core of what has been presented as Pre-Action Protocols under the new rules.