NLC Report Finalv3

SRI LANKA THE PATH AHEAD TOWARDS A MORE
EFFICIENT AND EFFECTIVE DISPUTE RESOLUTION

REGIME
This Report is made possible by the generous support of the American people through the United States Agency for
International Development (USAID). The contents are the responsibility of the respective Authors and do not
necessarily reflect the views of USAID or the United States Government.
National Law Conference Report 2016 page 1
National Law Conference Committee 2016

Mr. M.U.M. Ali Sabry, PC. (Chairman)
Mr. Nishan Premathiratne (Convener)
Ms. Himali Urugodawatta (Convener)
Mr. Harshana Ranasinghe (Treasurer)
Mr. Nadun Wijayasriwardena (Secretary)
Mr. Pravi Karunaratne (Head of Logistics)
Ms. Shehani Alwis (Head of Finance)
Mr. Naveen Hettiyadurage (Conference Coordinator)
Mr. Amal Randeniya (Conference Advisor)
Mr. Sanjaya Fonseka (Conference Advisor)
Ms. Ishara Gunawardene (Conference Advisor)
Mr. Indika Perera (Conference Advisor)
Mr. Seneka De Seram (Conference Advisor)
Mr. Nuwan Bopage
Mr. Ruwantha Cooray
Mr. Nalin Samarakoon
Mr. Kaneel Madumage
Mr. Yajish Thennakoon
Ms. Dinusha Mohanasunderam
Mr. Sampath Perera
Mr. Lasantha Thiranagama
Ms. Sudharshini Namasivayam
Ms. Lasanthika Hettiarachchi
Mr. Yasith Hirimburegama
Mr. Janith Fernando
Mr. Lahiru Welgama
Ms. Samanthi Dias
Session Heads of the National Law Conference
Mr. J Shanaka L Cooray

Mr. Amrith Rajapakse
Ms. Ishara Gunawardena
Mr. Dashinth Thabrew
Ms. Umeshika Dalpatadu
Mr. Chamath Fernando
The National Law Conference Committee would like to extend a special thanks to Mr. Harith De
Mel and Mr. Migara Cabral for their assistance in the compilation of this report
CONTENTS
Pg No.
1. Introduction 3
2. General Problems contributing to Laws Delays in Sri Lanka 7
3. Review on the Civil Case Management 19
4. Commercial Law 33
5. What ails Arbitration in Sri Lanka? Clearing the Path Ahead 46
6. Criminal Law 53
7. First Steps towards Reforms 68
8. Executive Summary 70
9. Conclusion 76
10. Sources 77
INTRODUCTION
It has often been said that an effective legal system is pivotal for good governance and an
effective democratic structure of any country. Sri Lankas court system is primarily structured
around the 1978 Constitution and the procedural legislation that existed at the time. The
primary procedural law is governed by the Criminal Procedure Code, Civil Procedure Code and
other related legislation and rules promulgated by Parliament and the Supreme Court of Sri
Lanka. And thus, the sovereignty of the people is exercised by Parliament through the courts as
contemplated by Article 4 of the Constitution of Sri Lanka:
Article 4 (c) the judicial power of the People shall be exercised by Parliament through
courts, tribunals and institutions created and established, or recognized, by the
Constitution, or created and established by law, except in regard to matters relating to the
privileges, immunities and powers of Parliament and of its Members, wherein the judicial
power of the People may be exercised directly by Parliament according to law;
Thus the citizens of Sri Lanka seek to rely not merely on justice but effective justice from our
courts.
The constitutional importance of a fully-fledged and functioning legal system cannot be

overstated as it one of the arms of the State, the others being the Executive and the Legislature.
Thus, it must be noted that not only is this Report, and the recommendations therein, a matter
for those within the legal system but also for the entire citizenry of Sri Lanka, as its concerns
and ready implementation seeks to spill over into the entire social fabric for generations to
come.
The National Law Conference Committee attempted to shock the conscience of each and every
attendee at the inauguration of the conference by portraying a real grievance encountered by a
typical litigant in the Sri Lankan legal system through a short cinematographic presentation
where the following figures were presented-
1. The average time to enforce a contract in Sri Lanka is 1318 days.

2. Sri Lanka has been ranked 161 out of 189 countries for the enforcement of contracts.
3. The Sri Lankan legal system is ranked 5th out of 8 in South Asia.
4. Land, Partition and Testamentary cases on average take a generation to be settled.

5. A criminal offence takes on average 9 years to conclude in the original court.
6. A criminal matter on average will take a year to be fixed for appeal and 3-4 years for the
said appeal to be completed.
Warren E Burger, an oft-quoted Chief Justice of the United States of America, in his address to the
American Bar Association in 1970, had this to say;
A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free
people and three things could destroy that confidence and do incalculable damage to society: that
people come to believe that inefficiency and delay will drain even a just judgment of its value; that
people who have long been exploited in the smaller transactions of daily life come to believe that
courts cannot vindicate their legal rights from fraud and over-reaching; that people come to believe
the law in the larger sense cannot fulfil its primary function to protect them and their families in
their homes, at their work, and on the public streets.
This is a window to instill that confidence lost and degraded and to cause introspection into the
current status quo of the Sri Lankan legal system and it is the goal of the National Law
Conference Committee 2016 to identify issues, propose reforms and assist in the final
implementation of the same.
His Excellency the President, the Hon. Prime Minister and all other stakeholders of the
government of Sri Lanka today are committed to make Sri Lanka a financial and
economic hub in South East Asia. While the said stakeholders are focusing on
macroeconomic factors to achieve such a goal, one of the fundamental prerequisites to
achieving such status, is for Sri Lanka to have an independent, competent, efficient and
speedy judicial system.
Though successive governments and other stakeholders have concentrated on the protection of
the independence of the judiciary, all stakeholders, including the legal profession itself, have
overlooked the need for Sri Lanka to have a competent, efficient and speedy judicial system.
This has led to a total collapse of the legal system in Sri Lanka and a lack of infrastructural
facilities, which include human resources, modern methods of case management, modern
procedure to summarily dispose of cases and the attractive use of new modes of information
technology for judicial processes, for the last 40 years.
Furthermore, in the following analysis of the root causes of delay in the Sri Lankan legal system,
the National Law Conference Committee has also sought to look inwards at the causes of delay
brought about by the failings of members of our profession as voiced by Mr. Romesh de Silva,
Presidents Counsel, a leading lawyer of the Bar, in his speech at the inauguration of the National
Law Conference -
We as lawyers are guilty of many wrongs. Mea culpa, mea culpa. Dates on personal
grounds are asked for incorrectly, fees charged work not done, fraudulent deeds attested,
negligence in the performance of duties, deterioration of standards, callousness as
captured by the video. These are but few of the wrongs.
The neglect of the judicial system for such a long time has resulted in the judicial system having
to cope with new legal challenges using old and archaic legislation and procedures. These
inherited drawbacks in the system have led to tremendous delay in the dispensation of justice in
Sri Lanka. The situation is of such a magnitude that most persons in Sri Lanka have completely
lost faith in the judicial system. Corporates and foreign investors prefer to refer their disputes to
foreign entities through the process of arbitration or to avoid Sri Lanka entirely when investing
in the future. The financial loss due to this mentality is a death knell to any prospect of Sri
Lanka becoming a financial and economic hub in South East Asia.
Comment at this stage must be made on the methodology adopted by this Committee in
preparing this Report. This Committee made much endeavor in the preparation of material
prior to the National Law Conference 2016 and interviewed several distinguished personalities
for an insight into the areas of discussion pertaining to the main topic. Thereafter there was
much insight and deliberation through the National Law Conference, both through the
participants and the resource persons, paving way for a much broader scope of thought. The
Committee then put all such views and insights together and did research of its own as to other
jurisdictions as well as the Sri Lankan legal system itself and based on that collection of
material, presented an overview of the problems and the recommendations the Committee
considers appropriate to be deliberated by a specially appointed committee or body.
The first part of this Report has been dedicated to the analysis of the general problems plaguing
our legal system which include but are not limited to problems with infrastructure, inherent
delays in procedure, continuous increase in litigation, an inadequate number of judges and
unethical conduct of Attorneys-at-law.
The second part of this Report which has been titled A Review on the Civil Case Management
is dedicated to identifying and resolving issues plaguing the civil law courts such as inefficient
management of the cases/court system by the judiciary, continuous increase in litigation, the
issue of procrastination by lawyers as well as judges and the lack of court resources.
The third part of the Report focuses on identifying and resolving the prevalent issues in
commercial litigation such as inordinate delay in commercial litigation, outdated laws, a lack of
specialized judges and the need to improve the overall infrastructure of commercial dispute
resolution.
The fourth part of this Report will focus on issues pertaining to the criminal law courts of our
country such as the Judicial officers and courts being inundated with work, lengthy and
inefficient trial procedures, inefficient investigation/prosecution and the problems faced by the
officers of the Attorney Generals Department.
The fifth part of this Report focuses on the culture of arbitration in Sri Lanka which is a matter
of grave concern for its international image as a jurisdiction within which alternative dispute
resolution has turned out to be a hassle and discontent struggle.
Several Committees have come and gone and several Reports have been made but sadly, due to
a lack of will and determination, little has been done to enhance the speed and efficiency of our
legal system. This fact must be emphasized to the relevant stakeholders and they must be
mindful of it so that at least this Report will act as a catalyst for the transformation of the overall
legal framework, instead of being forgotten like the previous ones. What this Committee hopes
to achieve by this Report is to effect a lasting change which will in turn result in the betterment
of the legal system of Sri Lanka thereby guaranteeing that effective and efficient justice will be
meted out to the citizens of Sri Lanka.
PART 1
General Problems Contributing to Laws Delays in Sri Lanka
Prior to embarking on a detailed analysis of specific matters in respect of each of the various
areas of law contributing to delay, it is important to consider the inherent problems plaguing
the Sri Lankan legal system which contribute to delay in general. Addressing these general
issues at the very outset would result in an overall increase of efficiency in our dispute
resolution mechanism and restore public confidence in the legal processes.
I. Problems In Relation To Infrastructure
It has long been acknowledged that the court houses in Sri Lanka are more often than not
in a state of disrepair with leaking roofs, cracked floors, defective or broken sound
equipment and non-functioning computers and are in many occasions found to be lacking
in the most basic amenities needed for the day-to-day functions of court such as trained
court staff, seating, lighting, etc.
This is evident even in court houses situated in Colombo and as one court official recently
admitted to the Daily Mirror Newspaper:1
The buildings used for High Courts, District Courts, Magistrates Courts and Labour
Tribunals at Hulftsdorf and Fort have been built during the colonial time and they are in a
dilapidated condition,
However, to date, no positive steps have been taken in this regard and thus the
Committee wishes to propose the following recommendations.
1
http://mirrorcitizen.dailymirror.lk/2015/10/15/rs-15-bn-courts-complex-in-fort/ -Accessed on 09/07/2016
Recommendations
[a] This Committee recommends that in each court house in Sri Lanka, a non-judicial
Court Room Manager should be appointed and be given the express duty of
providing for and monitoring the needs of the court. These Court Room Managers
must have designated qualifications and must function under a person appointed
by the Judicial Services Commission such as a Judge carrying out Executive
Managerial Overview.
[b] These Court Room Managers should be assisted by a separate logistical company
which would be tasked with handling the logistical needs of each court house. A
private public partnership is encouraged in this regard.
[c] Furthermore, it is recommended by this Committee that those same logistical

companies also be called upon to provide facilities such as multimedia equipment
to produce evidence and live video conferencing for trial proceedings in court
houses as may be required and they could even be called upon to aid in the
digitizing of case records to minimize waste. Here, the Committee recommends
that the measures implemented by the Administrative office of the U.S Courts be
considered in adopting a suitable system to reduce waste and mismanagement.2
[d] The introduction of a case management system to further expedite litigation is

recommended.3 It is noted that most often the role and procedure of Court is
managed according to the convenience of practitioners. There are very few
established management systems with regard to the administration and function
of the Court and even if existent, such systems are ad hoc and based on a few
efficient personnel rather than being systematic. It is in this context the
Committee recommends consideration of Case Management. This system will
result in better usage of time and resources, predictability in the functionality of
Court, orderliness in administration of justice and less wastage and expense for
litigants. It is however noted that Case Management should not be introduced
unless the full support of the Bench and the Bar is adopted. It is recommended
that a Bench and Bar Committee is created to consider a suitable Case
Management System and to initially implement the same as a trial prior to formal
introduction. It is also recommended that Case Management must not be subject
to the tardy process of legislation but implemented through the practitioners by
way of Practice Direction. Legislative provision however, will be required to bring
in Practice Directions to the legal system.
[e] This committee, while recognizing the burning need to establish efficient and
effective record rooms for all courts, recommends that the 5S system be put in
place and all basic amenities be provided for the record rooms of all courts.
2
http://www.uscourts.gov/file/2928/download Court room technology manual August 1999
[f] In respect of Colombo, there has been a long term proposal by the Ministry of
Justice that a 3-acre court complex be built in Colombo encompassing the
Magistrates Court, High Court, District Courts and Labour. It is the
recommendation of this Committee that this proposal be acted upon and the
requisite facilities be established.4
[g] The Committee also encourages a formalization of the Bench-Bar Committees for
each Court without the current ad-hoc informal system so as to coordinate with
authorities on communicating the specific needs of the respective court house.
[h] The Committee notes that often, blame for the situation of the legal system is
pinned on the lack of funds or budgetary allocation. It is the view of the
Committee that for investment in the legal system, the administration of justice as
the main pillar in the institution of democracy must first and foremost be
prioritized by the governments. However, the Committee also notes that in
certain jurisdictions, innovative measures have been taken to indirectly bolster
the central funds or the budgetary allocation to enhance the administrative and
logistical requirements of the court.
[i] This Committee recommends a private public partnership for the establishment
of an institute to train personnel for providing court services such as translation,
transcription, stenography and Computer Systems Management. This institution
can be used to certify, audit and monitor Service Providers. This Committee
recommends that there should be expedited services for higher costs, which
creates incentive and replaces a typical public service mentality.
[j] This Committee recommends that an Infrastructure Committee must be formed

to review the entire Court System, Court Administration System, Registry System
and Court Services System and a prototype of a proposed model must be first
implemented as a trial to implement a new system. This can then be improved by
creating Court Practice Directions applicable to all stakeholders subject to the
approval of the Committee.
4
Supra
II. The Lack of Support Staff and efficient Support Services
With the increased workload due to the increase in litigation, it is crucial that a support
system of support staff and research assistants be introduced to aid Judicial officers and
to this end, the Committee recommends that-
Recommendations
[a] A paralegal institute or a paralegal college be established, which may have similar
objectives of the judicial college mentioned hereinafter. The said institution may
also conduct training programs to increase the efficiency of paralegal staff. This
can also be an alternative route for lawyers and a solution for the overcrowding
of the profession.
[b] Specific training institutes can be set up for the training of persons as
Professional Mediators, Court Registrars, Court Sergeant at Arms, all of which are
essential to an independent and self-sufficient court. It is important to have
Administrative Staff who are capable of acting without the need to refer at every
instance to the judge-made appropriate administrative orders and they help to
reduce the administrative backlog of the Courts of Justice. The Singaporean
experience suggests that training and development can greatly assist in
implementing Pre Trial and Pre Action Protocol and Case Management systems.
[c] Apprentices, lawyers and paralegals may also be employed to assist the judges in
conducting their research. A High Court Judge, for example, may be allowed to
employ two apprentices /lawyers/paralegals to assist them in research, while a
Supreme Court/Court of Appeal Judge may have three
apprentices/lawyers/paralegals to assist in legal research. This system is a well-
tried and tested method in many other jurisdictions of improving the quality of
judgments by enhancing human resources for judges. This can also be an indirect
method of creating further jobs in the legal field.
[d] A further solution is recommended: to introduce Judicial Clerkship so as to

provide assistance to judges to handle and manage their heavy workload. It is
recommended that graduates of Law of a particular level of practice in the Bar
have the option of entering Judicial Clerkship. This will create a permanent
employee to assist a Judge and even to assist an incoming Judge with regard to
the matters at hand. It is also suggested that Judicial Clerkship be recommended
as an entry route to the Judiciary.
III. Inadequate Numbers Of Judges
As mentioned above, due to the recent surge in litigation, it has been observed that more
often than not, judges of most courts in Sri Lanka are inundated with cases as the
number of Judicial officers in Sri Lanka has not been increased to counter the increase in
litigation5.
The prime example of a forum where the number of judges is woefully inadequate is the
Supreme Court. Article 119 (1) of the Constitution provides for the appointment of 11
Supreme Court Judges for Sri Lanka whereas Article 137 of the Constitution provides for
the appointment of 12 Court of Appeal Judges for Sri Lanka. Since 1978, the Supreme
Court has been vested with additional appellate jurisdiction such as, for instance, a
direct right of appeal in terms of High Court of the Provinces (Special Provisions Act) No.
10 of 1996 as well as High Court of the Provinces (Special Provisions Act) No. 54 of
2006. It is seen in practice, that this inadequacy has a serious effect on the ability of the
Supreme Court to exercise its other exclusive jurisdictions such as fundamental rights
jurisdiction and consultative jurisdiction as well as the supervisory powers exercised
overall over the judicial system by the Supreme Court. It is therefore of great importance
that more judges be appointed to the Supreme Court to handle the large number of
matters that are causing a very heavy backlog.
5
Supreme Court list for 28th October, 2016:
http://www.supremecourt.lk/index.php?option=com_content&view=article&id=1354:28thoctober2016&catid
=116:october2016&Itemid=121 accessed 30/10/2016
With the passing of time, it has become more and more apparent that the above
numbers of judges cannot humanly be expected to hear the sheer volume of cases placed
before the apex courts. However, to date, no measures have been taken to amend the
numbers of judges sitting in the apex courts of Sri Lanka and we, to this date, only
appoint the above stated number of Judicial officers as mandated by the 1978
constitution.
Furthermore, Article 111 of the Constitution, read together with Section 4 of the
Judicature Act, provides for the creation of the High Courts and appointment of the High
Court judges and Commissioners of the High Court. Presently, there are a mere 75 High
Court Judges and 1 Commissioner for the functioning of the same.
The Commercial High Court Holden in Colombo is the only Commercial High Court in Sri
Lanka. Therefore, all the cases in terms of the High Court of the Provinces (Special
Provisions) Act, No. 10 of 1996, are referred to the Commercial High Court Holden in
Colombo. As a result, many cases are taken up in the Commercial High Court. To date,
only three judges are in duty at the Commercial High Court Holden in Colombo. The
number of judges is pivotal to achieve an expeditious litigation in Sri Lanka.
Recommendations
[a] This Committee states that there is a pressing need to increase the number of
sitting judges both in the original and appellate courts, especially in respect of the
number of judges in the Supreme Court.
[b] This Committee also recommends that there be a review of whether certain
Provinces and Judicial Zones utilize the number of judges that are allocated to such
areas as opposed to certain Provinces and Zones which are over-burdened with
work. Accordingly, there must be a better utilization of the judges in their
respective Provinces or Zones.
[c] This Committee also recommends that temporary judges be appointed to stem the
tide of pending litigation and to clear any backlog of cases.
[d] This Committee recommends that there be a review of the entire appellate
structure in the legal system. Areas such as IT infrastructure, E-Filing and E-
Resources, and Appeals Management Systems to create higher costs payable to the
court system as a disincentive to prevent frivolous appeals whilst aiming to

balance the access to justice issue, must be introduced.
[e] Appeal Case Management is a much needed element to prevent wasting of the
valuable time of judges and lawyers, by studying systems such as those in Malaysia
and Singapore, where through an E-Registry, the backlog of work is very well-
monitored and managed. The Committee notes that in an ordinary day, the
Supreme Court lists a large number of cases for hearing, out of which many cases
are not taken up for lack of time. Practices such as Judicial Clerks weighting briefs
in terms of time and complexity, imposition of strict time limits for certain
matters, imposition of heavy costs and penalties for taking postponements in the
Supreme Court for instance without due notice, having a single Judge take up
Mention matters or having the Registrar take up such matters with the necessary
power to refer it to the Court for a ruling will manage the appellate case backlog
much better.
IV. Unethical Conduct of Attorneys-at-Law
The conduct of lawyers also results in laws delays postponing cases or taking long
dates. Further, some lawyers tend not to settle the case, but to delay the settlement and
keep it going in order to obtain fees continuously from the client.
Recommendations
[a] BASL to draw up a code of conduct for Attorneys-at-law which can be introduced
to all those who enter the Bar.
[b] The Bar Association is required to maintain a Professional Ethics Best Practices
Manual to provide practical guidelines to those who engage in reference.
[c] The Professional Ethics Committee of the Bar Association of Sri Lanka requires
massive reform in the following areas:
The system of only Peers reviewing Peers has failed due to obvious conflict
of interests.
There must be a Special Bench for hearing Rule Matters alone or special
dates on which such matters are exclusively taken up.
Rule Matters must be concluded by the Supreme Court within a designated

time frame with strict rules as to procedure and possibly Case Management
to prevent such matters being dragged on.
The administration of the Professional Ethics Committee must be aided by a

professional staff consisting of Management, Human Resources and Legal
Background.
The composition of the Committees must also include full-time members

who do not engage in active practice and are either retired practitioners or
judges as well as other professionals of eminence in their respective fields.
[d] The Bar Association must take steps to keep litigants informed of their rights and
duties owed upon the engagement of an Attorney- at-Law. Litigants must be
informed of the ethical and professional boundaries of Attorneys-at-Law and their
rights against an Attorney-at-Law. The BASL can adopt a sample format to be
provided to any client upon retaining an Attorney-at-Law. This is an essential
element for implementing an effective disciplinary system for Attorneys-at-Law
especially using the public at large.
[e] The Committee also believes that the time is ripe to reconsider the habit of
obtaining postponement without due notice. The Committee is of the view that
new trends in several jurisdictions show that postponement of a matter is a very
rare occurrence and that too at a cost. It is noted that the ill practice that has now
taken over the legal system of Sri Lanka is detrimental to all stakeholders within
the court system including litigants, judges and lawyers and must be remedied by
strict rules which have to be complied with. The Committee also believes that
actual costs instead of scheduled costs must be imposed as a sanction for
postponement.
V. The Need for the Creation of a Presidential Task force (PTF)
This Committee recognizes the need to establish a PTF to look into the pertaining
matters in relation to laws delays in the Sri Lankan legal system and to constantly
keep abreast of matters contributing to laws delays.
This Committee recommends that the following persons be appointed into the said
PTF-
I. A representative of the Judicial Services Commission

II. The Secretary to the Ministry of Justice or his nominee
III. A Member to be nominated by His Excellency the President from his official
staff
IV. A Member to be nominated by the Prime Minister from his official staff
V. A representative of the Honourable Attorney General
VI. The President of the Bar Association of Sri Lanka or his nominee.
VII. A representative of the Legal Draftsmans Department
VIII. A number of eminent professionals representing the general public which
should amount to at least 3 of the Committee.
IX. At Least 3 Members from the Private Bar.
X. The President of the Law Commission or his nominee
In carrying out their mandate, the PTF may consult and seek the guidance of His
Lordship the Chief Justice, the Hon. Minister of Justice and the Hon. Attorney General
and take into consideration any suggestions or advice given.
It is recommended that the said PTF should meet once a week to formulate reforms
and should meet with the President of Sri Lanka once a month to discuss the process
of the implementation of reforms to eradicate laws delays. It is also recommended that
the Committee be aided with expert consultancy from other jurisdictions to study and
consider the feasibility of implementing reform as has taken place in other
jurisdictions.
We suggest that there be legislation and/or an Extraordinary Gazette enacted for the
appointment and the functioning of this Committee on an ongoing basis. The same will
make sure that the legal system be constantly modernized to meet the future needs of
Sri Lankan society. Until such legislation is promulgated, the said Committee should
function immediately without delay.
The Committee should have due regard to several Commissions, Reports and studies
conducted in the history of the Sri Lankan legal system. The Committee must be
updated and made aware of Reform Processes and manners of rectifying laws delays
in other jurisdictions to create an apt knowledge.
In this regard, inspiration can be drawn from previous Commissions, such as the Civil
Courts Commission in 1950, which consisted of eminent persons from the profession
and which was given a specific mandate from the Executive of the time. Similarly, it is
recommended that this Committee be given specific timelines for short-term, medium-
term and long-term goals.
The Civil Courts Commission also had an administrative team to carry out the
necessary logistical and secretarial work and engaged in an island-wide public review
of comments and suggestions and incorporated the same in the form of a Report with
proposed legislation. However, we note one pitfall has been despite these efforts, little
substantial implementation has taken place since such Reports were promulgated.
It is therefore recommended that the Task Force created be also entrusted with a
permanent office in the implementation of the reforms so as to create a connection
between the Report and the implementation of same.
PART 2
REVIEW ON THE CIVIL CASE MANAGEMENT: MODEL,
MEASURES TO PREVENT DELAYS
INTRODUCTION
Civil Procedure has been, and can fairly be said to be, one of the core components of the
procedural law. Being long-deprived of sufficient reforms has led to serious repercussions
including considerable delays in dispensing justice, thereby depriving the citizens the final port
of call to seek justice.
Therefore, it has now become necessary to canvass for reforms to the Civil Procedure Code and
the civil justice system as it is the only means of justice which can properly vindicate the rights
of the ordinary citizens.
This arm of the law faces severe criticism for the palpably evident failure to provide justice
expeditiously or at most, without delays, thus depriving many who seek redress through the
civil justice system and leaving them badly battered.
Looking at the most effective civil case management reforms which have taken place in several
countries around the world, the most effective remedy identified to curb the impeding delays
has been to shift the responsibility of the management of litigation from parties to the court.
During the rest of this paper, we will outline some of the useful models adopted elsewhere in
the world and suitable reforms we could adopt to put in perspective our civil justice system,
which will provide useful tools for redefining the civil justice system in Sri Lanka to be
considered as a more effective and efficient model for dispensing justice.
Towards the conclusion of this paper, we will highlight some of the in-depth work already done
by legal luminary in Sri Lanka but which had been swept under the rug without any action being
taken by the stakeholders who are responsible for effecting reforms to the system.
COMPARATIVE JURISDICTIONS
Under this topic we have selected to discuss and refer in prcis the civil justice reforms in the
United Kingdom, Hong Kong and Singapore, jurisdictions which have evidently worked
tirelessly to put right the defects in their system.
UNITED KINGDOM
Under the British system, the most commonly spoken reforms were the reforms which came
to being as the Woolf Reforms; these reforms were the cornerstone for todays efficient and
effective system of civil litigation in the United Kingdom. The new reforms, which are now in
place, envisaged:
a. Litigation to be avoided whenever possible;

b. If it could not be avoided, to make the system less adversarial, more co-operative and
less complex;
c. Time scales to be shorter and certain;
d. Cost of litigation to be more affordable and more proportionate to the value and the
complexity of the case;
e. There would be clear lines of judicial and administrative responsibility for the civil
justice system;
f. The structure of the courts and the deployment of judges would be designed to meet
the needs of the litigants;
The means of reaching these overarching objectives of civil justice reforms were in the form
of amendments to the Civil Procedure Code. The reformed new code consists of a new set of
rules divided into a number of parts. Each part would be supplemented by what is alien to
our system, which is commonly referred to as practice directions. Practitioners and the
court users would be encouraged to agree to the procedures for identifying and disposing of
issues without recourse for litigation, which are known as pre-action protocols. The failure
to settle in to these protocols would result in severe sanctions or penalties.
HONG KONG
After almost a decade of reforms, Hong Kong was able to effect much awaited further
reforms to the Civil Procedure Code in or around the 2nd of April 2009.
Under the new regime, the court must consider and give effect to a list of underlying
objectives whenever it exercises its powers and interprets the rules or practice directions.
To enable the court to further the underlying objectives, the court will have considerable
case management powers. Instead of allowing parties to run the case as they think fit, the
court will determine the progress and how proceedings should be conducted.
The existing system was replaced by a Case Management Summons and Conference
under which parties are required to provide detailed information about their case in a
questionnaire upon the close of pleadings. The court will then set a timetable for steps in the
proceedings tailor-made for each case, including setting milestone dates. These are dates
fixed for a case management conference, a pre-trial review and the trial or the period within
which the trial is to take place, which can only be varied in exceptional circumstances.
The new code promotes sanctioned offers and payments as a tactical procedure that may
be employed to provoke settlement of disputes. Whilst a defendant may still make a
payment into court (now called sanctioned payment) in respect of monetary claims, it may
now also make a sanctioned offer on non-monetary claims. In addition, a plaintiff may also
make a sanctioned offer in respect of both monetary and non-monetary claims.
Failure to accept a sanctioned offer or payment may result in a party being ordered to pay
the other partys costs on an indemnity basis and payment of additional interest on those
costs at an enhanced rate of up to 10% above the judgment rate. The defendant also risks
being ordered to pay interest on the whole or part of the judgment sum at the enhanced rate
for the period after the date the sanctioned offer could have been accepted.
Under their system, practice direction on mediation requires parties of legal proceedings to
consider mediation as a means of alternative dispute resolution. The onus is on lawyers to
advise their clients as to whether a case is suitable for mediation. If a case is suitable for
mediation and a party refuses to mediate and the matter proceeds to trial, even if the party
succeeds at the trial, the court may decline to award him legal costs if it considers that his
refusal to mediate was unreasonable.
To deter unreasonable or unnecessary interlocutory applications, the court can disallow an

award of costs even if a party succeeds in an interlocutory application. The court will also
have the power to order costs against a person who is not a party to the litigation, such as a
person who has a personal benefit in funding the litigation.
The new regime will result in a fundamental change in the way litigation is conducted. It will
require parties to be more upfront and transparent about their cases and to be more open to
alternative dispute resolution so that only deserving cases will proceed to trial.
SINGAPORE
Singapore, like the other jurisdictions we have outlined above, has also concentrated on a
model which has been broadly defined as a system surrounding the concept of Active Case
Management.
The said system of active case management covers a wide range of possible approaches and
methods such as harnessing the benefits of technology and information to manage a life
cycle of a case more effectively.
Under the present system of post-civil justice reforms, Singapore actively promotes the use
of alternative dispute resolution (ADR). In Singapore, even if the ADR does not result in a
full and final settlement of all the disputes and/or difference between parties, the process
on its own would still have benefited the parties because it would have assisted in
narrowing down the disputes.
Slimming down on the trial, as in other jurisdictions referred to above, is largely done
through pre-trial conferences. The pre-trial conferences will seek to bring the lawyers on
both sides to narrow down the dispute, consider settlement and offer an assessment of their
preparation and readiness for trial.
Singapore also as a last resort introduced what are now commonly known as unless orders
as means of pushing the strict adherence to practice directions. These are orders which are
made when parties have on few instances failed to adhere to the courts directions without
good and sufficient reasons.
Taking into consideration the soft analysis of the reforms in the comparative jurisdictions
referred to above, before we move in to discuss the possible remedies, we will now seek to
discuss the deficiencies which are presently prevailing in our civil justice system.
DEFICIENCIES
It is manifestly unfair for litigants to wait for a decade to vindicate their rights. The legal process
at whatever the stage, including the trial and/or appeal, should not consume so much time.
Although delays in the original court proceedings have been identified and spoken of for several
years in the civil justice system, little has been done to remedy it. For years, legal practitioners
and scholars have disregarded or placed little emphasis on remedying these issues which come
in the form of reforms as pointed out at the commencement of this paper.
Some of the causes for the delays in our system, though not exhaustive, can be outlined as
follows;
1. Inefficient management of the cases/court system by the Judiciary

2. Increase in litigation
3. Philosophy of procrastination by the lawyers as well as judges
4. Lack of court resources
5. Drawbacks arising from archaic laws, particularly in respect of procedure
DESIRE TO CHANGE IN PRACTICE
Certainly over time, with regard to the administrators of courts, the judges have learnt the
importance of effectively managing their cases. This change of attitude would have been
triggered by years of discussion and confrontation by various stakeholders of the civil justice
system impressing the need to put things right. However there had been a slight change in the
attitude of some of the judges: a realization that a lack of certainty in the system in the form of
written reforms had led to uncertainty and that not enough importance was being placed on
putting things right to make the process more expeditious and user-friendly to the litigants so
that the rights of parties can be vindicated efficiently both in terms of time and cost.
LEAD UP TO THE REFORMS
It is important to identify that the Civil Procedure Code is the single vehicle which manages the
civil litigation in Sri Lanka. Although it is comprehensive, it is outdated, with several reforms
needed to equip it with the teeth required to address the dire conditions faced by the litigants,
especially those who are haunted by delays and red tape. It is also clear that the Civil Procedure
Code, as it is, is clearly unsuited for modern trends of Case Management and Pre Trial Processes,
which are distinctly non- adversarial methods of dispute resolution to a great extent.
Benchmarking several reforms which have already been adopted elsewhere in the world, we
will move on to outline some of the possible suggestions that can be taken on board in the quest
towards a more efficient civil justice system in Sri Lanka.
Introduction of Pre-Action Protocols
First and foremost, before we discuss the reforms which can be done to actively manage the
cases, it is important that we change the litigious nature of the new breed of the present day
litigants and the lawyers, and look in to various avenues which can be used to settle cases even
before they reach the very preliminary stage of filing of an action. It must be understood that
any change to the existing procedure must come through consultation with the Judiciary, and
the Bar to an extent, keeping however in mind that strong leadership is also required to displace
the consistent dissent for reform.
The theory behind the post-Woolf civil litigation we discussed stemming from the United
Kingdom, is a system which is based very much upon trying to settle a dispute before running
off to court. One method of achieving this end is for the court to encourage parties' use of Pre-
Action Protocols. Briefly, this Protocol sets out that a would-be claimant should write to a
would-be defendant before commencing proceedings. In doing so, the potential claimant should
set out the basis upon which he says he has been wronged and is owed money. The potential
defendant then writes back, setting out whether he agrees or disagrees with the claim, and if he
disagrees, the reasons for disagreeing. Next, the parties meet to discuss the possibility of settling
the dispute. There are only limited circumstances in which the Protocol does not apply such as
where the claim involves an adjudicated claim.
The Committee is of the view that any implementation of Pre-Action Protocol has to be after a
full study of same and a trial implementation of same and a fuller study is warranted.
In Cundall Johnson & Partners LLP v Whipps Cross University Hospital NHS Trust (2007)
the claimant disclosed little information of substance during the Protocol and the defendant
alleged that the claimant had failed to follow the Protocol. The court agreed with the defendant.
In such circumstances, the court may make an adverse costs order against the claimant, or, it
may stop the proceedings, to allow the Protocol to be complied with (i.e. to allow an exchange of
information, etc). The court chose the latter course of action. One of the reasons given for
stopping the proceedings was that it is unfair on the defendant to proceed immediately with
litigation when a proper summary of the claim has not been notified in advance. A claim by the
claimant that the construction and engineering Protocol did not apply at all because the nature
of the dispute was not a construction and engineering dispute as it was a straightforward debt
recovery action was also dismissed. A claim by the engineers for their fees was an engineering
dispute. This case demonstrated two points, namely: a claimant must spell out its case to its
opponent in clear terms before commencing proceedings, and, non-compliance with the
Protocol in a substantial way is likely to lead to the court stopping the proceedings, and possibly
making a costs order adverse to the claimant.
Pre-Action Protocols in practice
Cases covered by the Pre-Action Protocols
In England, in order to achieve the pre-action procedure, the Ministry of Justice has published
twelve Pre-Action Protocols covering personal injury, low value road traffic, clinical negligence,
disease and illness, rent arrears, housing disrepair, mortgage possession, commercial property
dilapidation, construction and engineering and defamation. Compliance with regard to an
applicable protocol will be considered the normal and the reasonable approach by a party
litigant. Any failure may be met with sanctions imposed by court for failure to follow the Pre-
Action Protocol.
Published protocols listed above in England do not cover some of the areas such as commercial
and contractual claims or some other types of litigation. Such areas are governed by the general
pre-action conduct which is covered by a practice direction for general pre-action conduct.
Cases not covered by Pre-Action Protocol
For cases which are not covered by the approved protocols, the courts will expect the parties, in
accordance with the overriding objectives, to act reasonably and to exchange information and
documents relevant to the claim and in general, in trying to avoid unnecessary litigation. This
means the parties should be seen to have followed a reasonable procedure.
In practice, the reasonable procedure would involve the to-be claimant writing a detailed letter
setting out the facts and the basis of the claim. This should composite what the claimant wants
from the defendant and also essential documents which are relied upon by the claimant in
support of the claim. Thereupon, the defendant should be given reasonable time to reply based
on the complexity of the case.
At this stage, if the respondent/defendant denies liability, he/she must give a detailed reasoning
and list all essential documents in support of the denial. At this stage, the parties under the CPR
are entitled to request for documents which shall strictly be used only for the purpose of
negotiation of the claim.
Sanctions for non-compliance
Although in all cases, the pre-action stage is being made mandatory, there will be cases where
the parties will be unable to reach a consensus of the issues. In such instance where the failure
to reach settlement is found to have arisen from slackness or deliberate flouting, a claimant may
be justified in commencing proceedings without going through the rest of the procedure laid
down in the protocol, and either party in such instance may find they are penalized by the court
at a later stage.
Taking in to effect of the overall conduct of the party, the court may on instance decide to
impose such sanctions as outlined in the practice directions on Pre-Action Protocols which are
aimed at discouraging the parties from deliberately failing to exhaust the Pre-Action Protocols.
Methods of provoking settlement of actions
Throughout the Civil Procedure reforms which are defined above, there is specific reference to
the need to encourage settlements and there are a range of methods adopted in those reforms
to encourage settlement.
In England, prior to the amendments to the Civil Procedure Code that was in place, it was seen
as an effective weapon of forcing the claimant to come to settlement: the payment in to court of
a sum of money in full settlement of the claim. The draconian prospect of a party failing to beat a
payment in having to pay costs even though they have won the case. But this situation was seen
to be unequal as the claimants were not in an equivalent position to a pay-in-system. This is an
appropriate observation for the social context of Sri Lanka.
To supplement the said lacuna, was the introduction of Part 36 offers. Part 36 of the CPR was a
key element in levelling the playing field and producing equality of arms between parties to
litigation, one of the key objectives of the Woolf reforms. In particular, by a claimant's offer to
settle, the claimant indicates, without prejudice, an amount of money, which the claimant will
accept in settlement of the claim, plus costs. If the offer is accepted, the case settles at this point.
If the offer (or any renewed offer) is refused, then the matter proceeds to trial. If at trial the
claimant beats their offer, that is, the judge awards more, then three consequences can occur:
[a] The claimant receives indemnity costs rather than standard costs. Normally, the
successful party will receive standard costs which are likely to cover a substantial part
but not all of the costs the successful party has to pay to their own solicitor. Indemnity
costs are assessed on a more generous basis and are likely to cover virtually the entire
bill of the successful party.
[b] The defendant pays an interest penalty on the damages.
[c] The defendant pays interest on costs. Whilst these additional awards are not automatic,
they are likely to be awarded.
In England, the Part 36 process, and the sanctions attached to it, was acknowledged as being
effective by the respondents, with the particular advantage of opening up the discussion at an
earlier stage in the process. It was even considered useful in commercial work, where
practitioners had experience of both claimant and defendant offers. Even where offers were not
accepted it was felt to be useful, as it helps to generate negotiation possibilities.
Empirical evidence suggests that Part 36 offers for settlement had worked effectively and had
caused parties in some courts to settle up to 80% of its matters either immediately before
coming to court and/or immediately pursuant to filing of action.
The lesson which can be learnt from the tried-and-tested means of settlement as referred to
above, is that, under our system, the litigants on the instructions of their lawyers shoot a letter
of demand for mere compliance requirements. Thereafter without adequately or at all
exhausting the avenues available, the parties rush to court in a haste seeking to file action.
This system has proven litigious and in several instances it had been seen that some matters are
settled on the notice-returnable day before court. Although, one may argue that the said
systems effectively coerce a party litigant to settle matters without dragging them before court.
Therefore, we could seriously look in to the possibility of amending the Civil Procedure Code to
incorporate a stricter regime which would effectively provoke the settlements, if possible prior
to the institution of an action, and to put in place sanctions for failure to exhaust the remedy by
either party before proceeding with an action and/or trial.
It must also be commented that a non-adversarial system cannot be superimposed on a

profession and practice built and trained in adversarial nature. It will be key that legal
education in the future will have both professional and academic training and resources for
future entrants to the Bar to have a knowledge of the non-adversarial methods of dispute
resolutions as well as the requisite set of skills. This education and training can filter into the
mindset of the future Bar and Bench, which can then be transformed into practice. It is noted
and conceded that much of the adversity for reforms as advocated above remains within the
Bar.
Introduction of Case Management Conferences
The Case Management Conferences represent the practical and philosophical expression of
court control in the case-managed track. They are a flexible device normally presided over by
District Judges, however particularly difficult, important and/or specialized cases can be
conducted by High Court judges and/or a specialist judge (ex: company, intellectual property,
admiralty, etc). In ordinary cases, directions can be given after allocation without a Case
Management Conference, but in any complex case the Case Management Conference is the
venue which brings together the legal advisers and the procedural judge, who then shapes the
future conduct of the matter. Fast-track cases (cases forming within the summary procedure)
can proceed on written and, normally, standard directions but in other cases the parties can be
called in for what becomes, in effect, a Case Management Conference.
In the parallel jurisdictions which are highlighted above, one of the most successful reforms
came in the form of introduction of the Case Management Conferences to the Civil Procedure
Code. It is seen that, although the Case Management Conference and the related procedure may
look directive, it is still a subtle attempt to discipline the process. The procedural judges who
will preside over the Case Management Conferences may retain wide discretion to make case
management orders and will typically be equipped with the power to confine the cause of
action, issues before the trial, agree on the evidence to be led, the form of the evidence to
be led, decide on joint expert evidence before court and timetable the trial procedure so
that the parties will have a certainty over the time period which will be taken before their rights
are vindicated by courts.
How to put in place case management guidelines
The professional bodies are to draw up new guidelines for the pre-trial proceedings conduct of
lawyers who must adopt a new ethos of co-operation. There must be, within such guidelines,
separate guidelines for the lawyers and the judges. It is also important to note that the litigants
must be well-informed of the same. The proposals should seek to ensure that the pleadings are
much more forthcoming so that the true nature and scope of the case can be identified. Relevant
documents can be attached to pleadings and some evidence can be served as well. The pleadings
are to be considered at the Case Management Conference shortly after close of pleadings and
the aim will be to produce a statement of the issues which is expected to take over from the
pleadings. In essence, the tactics of the pleading stage of the case could change quite
significantly and certainly he who wants to hide his case should find it that much more difficult.
Standard discovery will be compulsory with additional discovery only to be given if the court so
orders. Some changes in production of witness statements should be proposed which are
intended to limit the time spent on them by the lawyers.
Expert evidence is to be more tightly controlled to try to ensure that the expert's true and
complete view is available to the court in a reliable and effective way. Provision is to be made
for costs orders to be used in a much more constructive and flexible way which should reflect
both the merits of the arguments and the conduct of the parties. Hopefully, the management
regime should limit many of the problems, such as that of the party running many lines of
argument, losing on most and yet winning on one, but certainly the intention appears to be to
reflect the unfairness of this sort of conduct in costs orders.
An interesting feature of Case Management Systems show that Civil Litigation will become top-
heavy as the preparation for a case involves a great deal of effort. Experience in some
jurisdiction shows that there is difficulty, for instance, with such a system in managing periods
of limitations of actions. Litigants find the initial burden of lawyers fees as a deterrent to litigate
as opposed to lawyers fees distributed evenly during a period of time. Another aspect of this
system is that it does not necessarily suit the Attorney engaging in a sole practitioner capacity
and is most suited for law firms engaging in partnership. This does therefore bring up a key
point that in the Sri Lankan context it may be advised that at the first instance these systems are
allowed for parties who as of consent wish to subject themselves to the said system with the
obvious benefit of an expeditious settlement of the dispute.
Judicial appraisal and judges training
Next, this paper seeks to discuss a possible judicial appraisal system to encourage judges to
develop their abilities and skills. A judicial appraisal system, if designed appropriately, helps
judges develop and motivates them to improve without undermining the fundamental
principles of judicial independence. Since managing cases actively and appropriately is one of
the abilities and skills required of judges, an appropriate judicial appraisal system can have a
positive effect on the development of case management practices.
At present, once appointed as full-time judges and unless they apply for another judicial
position, judges are not subject to assessment of their performance until they reach retirement
age. Therefore, it is important that a proper judicial appraisal system is in place to ensure the
right heads are placed to ensure effective management of the case. Depending on the severity of
the case and the complexity of the issues involved, the depth of experience would be useful to
ensure the case is understood by the judge.
The Committee recommends that the Judicial Services Commission considers a merit- based
system to also be relevant for promotion within the Judiciary. It is recommended that a set of
elements such as conduct in Court, management of the Court and administration, quality of
judgments, commitment to the ethical standards, educational qualifications, specialization,
training and development be added merits for any Judge.
The Singaporean experience suggests that placing senior judges at an executive level such as a
Court Director creates an administrative position with judicial expertise and sufficient seniority
commanding respect to call upon and review the performance and practice of certain Lower
Court Judges. In essence, the powers exercised by review and appeal can in fact be corrected by
this system of constant review and supervision by a supervising judge restricted only to general
directions having no implication on decided matters.
It is also recommended that data such as number of actions taken up, number of actions settled,
number of judgments successfully appealed from, number of judgments delivered, hours of trial
work put in, etc. be collected and analysed by the Supervising Judge with appropriate sanctions
for the non-performing judges. The Committee suggests that the State take necessary steps to
create the required infrastructural means to support the suggested supervisory function of
sitting judges.
Use of practice directions and court guides
In addition to the said procedural amendments to be introduced to the Civil Procedure Code as
part of the reforms to the civil litigation in Sri Lanka, we look at the possibility of the
introduction of practice directions for each chapter of the Civil Procedure Code.
In the United Kingdom, most of the parts of the Civil Procedure Rules (also known as the CPR)
are supplemented by one and/or more detailed practice directions. In the United Kingdom, the
practice directions are made by a Lord Chief Justice, or his nominee, with the agreement and/or
approval of the Lord Chancellor. Every rule in the Civil Procedure Code is largely supplemented
by practice directions which work as an aid to read the rules in conjunction with these
directions. Introduction of the practice directions have been largely successful and have
reduced the unwanted interim appeals in the pending of an action in as much as a practice
direction.
Several examples of practice directions can be found in the white book in England which is our
substitute for the Civil Procedure Code in Sri Lanka.
The Committee observes that even without these practice guidelines in place at the moment,
certain courts adopt the following practices for the purpose of expediting the litigation process:
[a] Issues and admissions are exchanged between parties one month prior to the trial
[b] The practice of leading evidence-in-chief through affidavit.
If practice guidelines are formally introduced, including the aforesaid matters, even matters
such as exchanging of marked documents between parties, effecting substitutions, obtaining
postponements/extension of time, costs applicable for interlocutory applications, processes for
obtaining certified copies from the court record, etc. can be streamlined in a consistent and
effective manner for promoting better practices.
Lack of Infrastructure to Conduct an Efficient Litigation
Infrastructure is pivotal and does not merely entail state-of-the-art court complexes or the use
of technology.
Delay in writing judgments owing to promotion of judges
An inherent problem faced in the entire legal process comes in to being when a lengthy hearing
of a matter is concluded and thereafter, when the delivery of the judgment is required, the
judges are promoted giving a short notice. Owing to this reason, several cases in the appellate
court are required to be reheard in full, as the respective Judge is unable to deliver the judgment
as he/she takes up duties in the higher court. It is alarming to see that there are cases in the
appellate courts which have been heard and reheard three to four times specifically owing to
this reason, taking time periods exceeding ten years. Judges should be given adequate time to
write the judgment. Even if the promotion is effected, rules should be amended permitting the
respective judge to deliver the respective judgments of the lower court from which they were
promoted. The Committee also suggests that the retirement process of judges should be
managed in a manner which would facilitate the respective judge to deliver all judgments in
respect of the cases which were heard before him.
PART 3
COMMERCIAL LAW
Overview
Commercial law encompasses a wide spectrum of rules and regulations in diverse fields.
Disputes in relation to commercial transactions are predominately administered by Commercial
High Courts, established under section 2 of the High Court of the Provinces (Special Provisions)
Act, No. 10 of 1996 (as amended) [High Court of the Provinces (Special Provision) Act],
and as such, currently the Commercial High Courts administer commercial disputes dealing
with Rupees 5 Million (LKR 5,000,000/=) or more to be heard in the Commercial High Courts
sitting in Colombo while any commercial transaction dealing with less than Rupees 5 Million
will be heard in the relevant District Court. In qualifying its diverseness, the scope of
commercial litigation has extended to include the fields of banking, export or import of
merchandise, services affreightment, insurance, mercantile agency, mercantile usage, and the
construction of any mercantile document over and above Rupees 5 million. Furthermore,
commercial disputes that deal with Rupees 250,000/= or less must be referred to Mediation
prior to being heard in the District Court.
Further to the above, when it comes to commercial and civil disputes, there is Alternate Dispute
Resolution [ADR] for resolution of disputes outside the courts system, i.e. arbitration,
conciliation and mediation.
In the light of the basic overview provided on the commercial litigation and the dispute
resolution mechanisms prevalent in Sri Lanka, there are numerous pragmatic problems that
hamper the smooth functioning of the system. We have, in a nutshell, identified and mentioned
below, certain issues that require urgent and swift solutions.
Issues prevalent in the system
Inordinate delay in commercial litigation;

Outdated laws;
Lack of specialized judges; and
Need to improve infrastructure of commercial litigation.
Expedition intended not achieved.
We have addressed the said issues in detail below with our recommendations.
1. Inordinate Delay
In this millennia, there is a high demand for commercial litigation due to various
reasons. The grassroots of such demands are the population growth and the economic
development in the country, that have increased business activities, and as such, the
complexities surrounding the business activities have paved the way in giving rise to
commercial disputes.
Commercial litigation is a form of resort where litigants look forward in settling

commercial disputes. In doing so, there is constant and continuous dissatisfaction
expressed by litigants in respect of inordinate delays in settling commercial disputes.
The primary reasons behind such inordinate delays are due to the backlog and high
volume of cases.
a. Backlog and High volume of cases
Sri Lanka is now rapidly emerging as a commercial hub in Asia. Foreign investment
has started pouring in and the tourism industry continues to flourish. Therefore,
against that current setting, it is evident that Sri Lanka necessitates a very well-
structured and efficient judiciary to keep pace with the countrys fast-moving
socioeconomics. Unfortunately, the existing system of judicial administration was
not designed with the fast-changing landscape in mind and it struggles to cope with
the increasing number of cases.
b. Delay in dispute resolution in terms of ADR
There are a number of reasons as to the delay in settling disputes through ADR. In
order to discuss the issues in depth, we have considered Arbitration. The main
piece of legislature governing arbitration in Sri Lanka is the Arbitration Act, No 11
of 1995 [Arbitration Act].
Arbitrators having the mentality of judges, arbitrators having very little control
over the process of the Arbitration and being subject to the normal procedures of
lawyers, lawyers engaging in Arbitration being unavailable during mornings and
afternoons and engaging in Arbitrations only in the evening, a lack of proper rules
to ensure expedition of Arbitration proceedings, a lack of proper facilities, the
absence of proper legislation, the enforcement of Arbitration Awards being subject

to heavy delay with judges not giving the due expedition deserved for an
Arbitration and the lack of specialized arbitrators in specialized areas, i.e.
engineering, architecture, etc. are a few of the reasons which have paved the way
for an inordinate delay in arbitration.
Recommendations
Our solution for backlog and high volume of cases
In addressing the court congestion and excessive delay in resolving disputes, our
Judiciary must necessarily adopt procedural reforms with regard to case management.
The judiciary of Singapore, in addressing the inordinate delays, has adopted facilitative
procedure to overcome this issue.
The court will help the parties to crystallise the issues in dispute and provide a
set of initial instructions to reduce unnecessary interlocutory proceedings and
to minimise delays and their attendant costs. The aims of this model are
typically achieved by holding one main pre-trial conference or case
management conference at a certain stage of the proceedings to establish a set
of comprehensive timelines for completing various key pre-trial milestones.6
According to the abstract provided above, the facilitative procedure reflects a pre-trial
conference. A pre-trial conference is morefully defined as a meeting between both
parties to a case, orchestrated by a Judge or another court official and that is held before
the commencement of a trial.7 Therefore, this denotes of an informal meeting before the
commencement of a proper trial which strive to narrow down the issues.
By going about this way, it will enable to simplify and shorten court trials as well as
avoiding them, if possible, by promoting an amicable settlement of the dispute between
the parties. The underlying presumption behind this attitude is that the majority of the
cases which are brought before the courts for trial may be frivolous, and that where an
appropriate forum is provided for the parties, they may settle their differences without
the necessity of undergoing the rigours of court room trials.
6
Foo Chee Hock, 'Civil Case Management In Singapore: Of Models, Measures And Justice'
<http://www.aseanlawassociation.org/11GAdocs/workshop2-sg.pdf> accessed 11 June 2016.
7
'EXPLORING THE BENEFITS OF PRE-TRIAL CONFERENCE PROCEDURE TO JUDICIAL PROCEEDINGS IN
NIGERIA' (2015) <http://www.eajournals.org/wp-content/uploads/Exploring-the-Benefits-of-Pre-Trial-
Conference-Procedure-to-Judicial-Proceedings-in-Nigeria1.pdf> accessed 11 June 2016.
On a separate note, we have morefully addressed the issues with regard to the backlog
of cases in point No. 4 herein under.
The Commercial High Court would be an ideal court to begin Pre Trial Conferences and
the practice of Pre Trial. There is much litigation that would greatly benefit from such
advances and many litigants who would be more than willing to achieve a settlement of
a dispute rather than engage in protracted litigation.
The judges of the High Court must also be benefitted by better court services such as
Scanning facilities, Text to Type Facilities, Transcription Facilities and proper and
effective Translation facilities. It is ironic that the Commercial High Court does not have
basic commercially necessary facilities to enable the expeditious carrying out of justice
and serious thought must be put in to achieve the true purpose of the Commercial High
Court.
Delay in dispute resolution in respect of ADR
Considering the contributory factors towards the inordinate delay in arbitral

proceedings, we understand the prime responsibility vests with all the stakeholders to a
proceeding.
From a legislative point of view, our laws should be amended to mitigate the inordinate
delay. Recently in India, there are significant amendments introduced to the Arbitration
and Conciliation Act of 1996. As per the said amendments, there are statutory
requirements introduced in connection with the time limits of the arbitral awards. As
such, an arbitral award, once referred in India must now conclude within twelve months
upon entering the reference8.
Section 17 of the Arbitration Act empowers parties to Arbitration to decide on the

procedure to adopt in an arbitral proceedings including the power to determine the
admissibility, relevance and weight of any evidence. If parties to the proceeding are
given such a wide power to determine the procedure, as discussed above, if legislation
could be interpreted to facilitate the time period with regard to commencement and
winding up of arbitration, parties and arbitrators are statutorily bound to conclude the
proceeding within the stipulated time frame. Therefore, parties to a proceeding have
the power and ability to ensure the smooth functioning of proceedings. It is suggested
that the autonomy of the parties provided for as a fundamental principle of Arbitration
8
Section 15 of the Arbitration and Conciliation (Amendment) Ordinance No. 9 of 2015
has now being hijacked to the autonomy of lawyers and thus the main objective of
Arbitration, that is, expeditious determination of disputes, has been side-tracked.
Stemming from the party autonomy principal discussed above, in order to circumvent
the inordinate delay, parties to transactions can incorporate a clause in contracts
limiting the time period of arbitral proceedings. It is now the emerging trend in most
developed countries to state a time period in respect of the commencement and
conclusion of arbitral proceedings. It is further important to activate and agree on a
Schedule of Costs applicable for Arbitrations and for due imposition in the event of a
delay or postponement caused by any party or his Attorney.
2. Outdated Laws
Overview
There should be a proper supervisory and a control mechanism implemented in order

for a country to be abreast of economic, political, and social changes. The authority for a
proper supervisory and control mechanism is derived from the regulations formulated
in this connection. Therefore, if a legal system cannot cater to rapid changes taking
place, the smooth functioning of the country gets clogged in every aspect. In this view,
in order to keep abreast, our commercial legislation necessary has to be overhauled on
the following areas. It is identified that the legislation in Sri Lanka creating the Law
Commission has not been effective in its goal and objective. It is essential that much
investment in research and development, and permanent staff specifically qualified to
consider reform of law, critically be fitted into the Law Commission. A study of the role
played by a foreign Law Commission can provide much better insight into the better
functioning of the Commission.
Completely outdated laws that require immediate amendments;

Certain laws that require amendments to overcome its shortcomings;
Laws and procedures that remains inoperative;
Unregulated areas; and
Improper and alternate procedures in practice
We have addressed the said issues, in detail below with our prepositions and recommendations.
Laws that require immediate amendments to overcome the practical

shortcomings
An explosion of international business opportunities has resulted in the emergence of

dispute resolution as an important dimension of the emerging global economy. The
commercial community, however, has now realized that Arbitration and other methods
of ADRs are much easier to solve commercial disputes.
It is a general observation that many Arbitration-related cases brought before the

Commercial High Courts involve applications with regard to setting aside Arbitration
Awards. According to section 32 of the Arbitration Act, an Arbitral Award can be set
aside by High Court, inter-alia, on application made therefore on public policy grounds,
within sixty days of the receipt of an Arbitral Award. However, it is apparent that our
judges consume time trying to interpret public policy. In India, following the
determination of the Saw Pipes case, the Indian Courts have restricted setting aside
Arbitral Awards on the grounds of public policy unless there is a violation or non-
consideration of a particular provision of law. Therefore, due to uncertainty and broader
interpretation of the aforesaid judgment, the Arbitration Act of India is amended
accordingly, stating a definition to public policy. An award which is in conflict with the
public policy of India is restricted to situations wherein the making of an award is
induced or affected by fraud, corruption or violation of section 75 or 81. If it is in
contravention with the fundamental policy of Indian law, it is in conflict with the most
basic notion of morality or justice9.
The Arbitration Act was intended to address the needs of the commercial community
and the country's economic regeneration by making dispute resolution quicker, less
expensive and less technical. However, the Arbitration Act does not permit a party to
move Court to obtain interim protection. Section 13 of the Act gives the power to the
Arbitral Tribunal to order, on the application of any party, to any other party to take
such interim measures of protection, as it may consider necessary to protect or secure
the claim, which forms the subject matter of the dispute. However, no provision has
been made giving jurisdiction to Court to give any order of interim measures of
protection either during the arbitral proceedings or pending the commencement of the
proceedings.
9
Section 18 (1) of ibid 3
A comparative analysis with international law, as per, Article 9 of the UNCITRAL Model
Law on International Commercial Arbitration [Model Law] provides that it is not
incompatible with an arbitration agreement for a party to request, before or during
arbitral proceedings from a Court, an interim measure of protection and for a Court to
grant such measure. Furthermore, section 44 of the English Act is more restrictive in
this connection, and stipulates that the Court shall act only if or to the extent that the
arbitral tribunal, and any arbitral or other institution or person vested by the parties
with power in that regard, has no power or is unable for the time being to act effectively.
It would seem that the provisions of section 44(5) have been specifically provided for a
situation where a tribunal has not been appointed although the dispute is in existence.
Recommendations
Interim reliefs to be directly obtained through court should be provided expressly in the
Arbitration Act.
In addition, in keeping with the international standards, interim applications and

applications made to set aside Arbitral Awards must be restricted to situations where
that is expressly provided in Arbitration laws of Sri Lanka. Hence, laws applicable in this
connection will certainly have to be amended to overcome the bottlenecks prevailing in
the system.
Outdated laws that require immediate amendments
One of the most unforeseen aspects of the introduction of the Arbitration Act was that
the arbitration agreements incorporated in leasing agreements. This has resulted in
thousands of cases being filed in the Arbitration Courts for either enforcement of or
challenging awards arising out of Finance Leasing agreements. On average, over one
thousand applications are now filed in the Arbitration Courts annually.
A careful study of the applications before the Arbitration Courts would show that the
majority of these applications deal with relatively small consumer related claims. In this
view, these applications have hampered the smooth functioning of Arbitration Courts
and most importantly the swiftness of resolution sought by the Act has been negated.
Therefore, any loopholes and out dated provisions in the law have to be amended in a
timely manner.
It can also be added that Sri Lankan legislation suffers from a semantics issue. This is
because of the legislative supremacy given to the Sinhalese version of a particular Act in
the event of an inconsistency. This provision can seem highly incompatible with
Commercial Law, Practice and Legislation as most of the laws are grown from
International Covenants and Legislation and interpreted in other jurisdictions with
particular regard to such language being English. This is an important matter to be
considered as there can be great disparity in promoting international competitiveness
when the laws of Sri Lanka do not give precedence to the international legislative norms.
Recommendations
Consumer Contracts should be made devoid of Arbitration clauses, as it is in several

other jurisdictions. The Arbitration Act should encompass that it does not apply to
Consumer Contracts.
Certain laws remain inoperative
There are certain rules and regulations which remain inoperative. For example, section
507 of the Companies Act, No. 7 of 2007 provides for the creation of a Companies
Disputes Board [Board]. This Board has not been constituted yet. The creation of this
Board allows for disputes arising out of the Act or disputes relating to the management of
a Company to be referred to the Board for Mediation prior to seeking a remedy in Court. If
this Board is constituted, it will lessen the burden on courts, and in return, courts will be
free to focus on the more complex issues.
At the same time, the Draft Take Overs and Mergers Code 2014 has been pending in the
Bill stage for a longer period of time without being processed any further. This clearly
outlines that there is lack of action and attention been paid by the relevant authorities to
expedite and carry out necessary amendments, as required. Therefore, legislature must
take necessary measures to implement such laws which can reduce the workload of courts
and ensure the smooth functioning of the system.
Unregulated areas
It is a known fact that with the growth of technology and evolvement of new business
ventures, Sri Lanka at its developing state, is trying to keep abreast with the rest of the
countries. In this fight, there are so many new avenues, including avenues which are
unregulated.
A primary example is that of data protection laws. In Sri Lanka, there is no legislative
instrument that governs data protection laws. Personnel data is collected, used and even
transferred to third party organizations for various reasons. This trend is expected to
grow exponentially with the spread of increasingly sophisticated technology. Therefore,
there is an urgent need to protect personal data. In this view, Singapore has adopted
Personal Data Protection Act 2012 in the year 2013. This Act ensures a baseline standard
of protection for personal data across the economy by complementing sector-specific
legislative and regulatory frameworks. This means that organizations will have to comply
with this Act as well as the common law and other relevant laws that are applied to the
specific industry that they belong to, when handling personal data in their possession.10
At the same time, we cannot overrule the commendable achievements of our Legislature.
Recently, the Right to Information Bill was passed unanimously in Parliament. The main
purpose of the Bill is to provide for the Right of Access to Information, to specify grounds
on which access may be denied, to establish the Right to Information Commission, to
appoint Information Officers and to set out the procedure and for matters connected in
this regard. However, it is far too early to comment on the application of this brilliant
piece of legislation.
Improper and alternate procedure in practice
There have been numerous incidents reported recently, with regard to improper
procedure and practice adopted by the Legislature and a few respective institutions. Most
recently, the revised tax rates and amendments incidental thereto on Value Added Taxes
(VAT) and Nation Building Tax (NBT) were introduced with effect from 2nd May 2016.
The tax rates, which have been revised a few times in 2016, in return have an innumerate
impact on several transactions.
Additionally, according to the general and proper practice, the Minister of Finance has to
publish a Gazette notification giving effect to the revised rates and incidental amendments
thereto. However, in the recent past, everyone can vouch for the fact that this practice has
been deviated from in the established procedure and laws. The Commissioner General of
the Inland Revenue Department publishes a notice pertaining to the revised tax rates.
Consequent to such a publication, the Legislature passes respective amendment acts
enabling retrospective effect.
10
, 'Personnel Data Protection Commission, Singapore ' ( n.d.) <https://www.pdpc.gov.sg/legislation-and-guidelines> accessed
13 June 2016
A similar incident was reported where the Registrar General of Companies (RGOC)
issued a notice pertaining to annual levy. There stems a question whether the RGOC has
proper authority and power to publish and collect a levy even if such a preposition was
made in terms of the appropriation Bill passed in parliament.
3. Lack Of Specialised Judges And Qualifications Of An

Arbitrator
The fields of commercial litigation, as discussed above, encompass diverse spectrums.

Therefore, judges adjudicating the subject matter undoubtedly require necessary
training and specialization in the given fields. This remains a key challenge to overcome
as it hinders the effective commercial dispute resolution.
Judges in a well-functioning, well-trusted system should receive comprehensive initial

training. In addition, proper ongoing training should also be strongly encouraged, being
mandatory in appropriate cases, and a factor in judicial promotion. The training
curriculum should be shaped by higher courts or independent supervisory bodies. They
should cover all relevant substantive areas and vocational subjects such as decision-
writing and ethics. Initial judicial training should focus on a specific field of law. On-
going judicial training is also necessary as judges are not always kept up-to-date
regarding new legislation.
Quite apart from the above, in respect of Arbitration, with the highest respect to arbitral
judges, it is stated that most of the retired judges, appointed as arbitrators are too old,
where some are in their eighties or nineties and cannot comprehend the issues. A
number of retired judges tend to apply stringent and technical court procedures which
invariably results in inordinate delays in the system. We continuously see court
proceedings being pursued. For example, documents are furnished subject to proof.
There is a huge allegation on non-lawyers not being promoted as arbitrators and as

counsels. Expert personnel on the specific matters in issue are not given prominence to
be involved as arbitrators or representatives of the parties. For example, when it comes
to commercial contracts, inevitably, the assistance of experts in the subject matter, i.e.
engineers, architects and accountants, becomes paramount in arbitral proceedings. In
addition, we have witnessed that, quiet apart from the arbitrator in charge, the rest of
the stakeholders to the proceedings have a tendency of taking control of proceedings,
which hinges a huge lacuna in conducting proceedings.
Furthermore, we have witnessed that arbitrators and lawyers sit on proceedings for the
simple reason of earning some extra money, which has an adverse impact on the
conduct of affairs.
Recommendations
Having the said issues in mind, we have considered herein below certain procedures
and mechanisms adopted by developed jurisdictions in respect of training of judges.
Judicial reforms in Singapore outline the necessary measures taken to overcome issues
pertaining to attracting and retaining the best judges in this connection. A few of the
suggested reforms are as follows:
Judges salaries have been upgraded and made comparable to the salaries of the
private sector. Scholarships are provided to study in universities locally and abroad
(for example, to study advanced law and management in universities like Harvard and
Stanford). Individualized training programmes are created for career progression.
Participation in international conferences, seminars and workshops are encouraged.
Judges are encouraged to teach courses at universities. Also the ability of judges to
perform is based on proper supportive mechanisms like databases, libraries etc..11
The chapter on lessons learnt in respect of judicial and legal reforms published by the
World Bank, suggests, inter-alia, the following recommendations which are vital in
bringing a positive change to the system.
Legal and judicial reform projects should be conducted through a participatory

approach. Participation is needed to gain ownership and commitment from
stakeholders, which include different branches of government, bar associations, law
schools, NGOs, and citizens. Ownership, which can be achieved through workshops and
town meetings to plan the reforms, can contribute significantly to a projects success.
Thailand conducted such a process and in Guatemala, for example, judges led
community consultations. In addition, social assessments are being conducted in
countries like Argentina and elsewhere to better understand the impact of the reforms
11
Waleed Haider Malik, Judiciary Led Reforms In Singapore; Framework, Strategies And Lessons (1st edn, 2016)
<https://books.google.lk/books?id=t4OaWEpJRKQC&pg=PA49&lpg=PA49&dq=how+are+judges+trained+in+singapore&sourc
e=bl&ots=GuB5SOHOro&sig=Q7vhzRU560DnbioqlO3-ATY3gUs&hl=en&sa=X&ved=0ahUKEwjhnq-
d3NzNAhWBtRQKHWv4CO0Q6AEIRTAH#v=onepage&q=how%20are%20judges%20trained%20in%20singapore&f=false>
accessed 5 July 2016.
on stakeholders. Participation should include those at the grassroots level; legal and
judicial reform efforts should not overlook the needs of the marginalized segments of
society who lack the resources to enforce their basic rights. Voices that often go
unheard should be heeded during project preparation. The Judicial Reform Project in
Ecuador, for example, includes legal services for poor women to afford them access to
the judicial process and other dispute resolution mechanisms. Participation, together
with political consensus, should assist in achieving sustainable reforms12.
Also, with regard to arbitration, as you may already be aware, arbitrators lack
knowledge in the given fields. Therefore, instead of appointing three retired judges as
arbitrators, it is best to appoint an industry expert in respect of the subject matter of the
dispute. This will ensure that the arbitrators have a better understanding on the dispute
in question.
The recent changes introduced to the Indian Arbitration Act mandate that, in the event,
whereby an extension is sought by arbitrators to render an Arbitral Award, court can
grant an extension provided there be no fault on the part of the arbitrators. If the
extension sought is due to the fault of an arbitrator, then court has the power to reduce
the arbitrators fee by 5% per month if the delay is attributable to the arbitrator. This
way, arbitrators are bound to deliver awards without furthering any delay13.
There are jurisdictions which have adopted the rather harsh but highly effective
practice of personally naming and shaming arbitrators who do not deliver the Arbitral
Award within the requisite period of time. In the Chinese Arbitration Association in
Taipei, the name of the arbitrator gets published in the publication of the association
where there is delay in concluding Arbitration proceedings.
4. The Need To Increase The Infrastructure
One of the main reasons for the inordinate delay in justice is due to the lack of
infrastructure, i.e. insufficient number of court houses, judges and competent
administrative staff.
12
Initiative in legal and judicial reforms 2002 (World Bank 2016)
<http://siteresources.worldbank.org/BRAZILINPOREXTN/Resources/3817166-1185895645304/4044168-
1186409169154/18initiativesFinal.pdf> accessed 5 July 2016.
13
Section 15 (4) of ibid 3
Presently in Sri Lanka, only three commercial courts of Colombo are properly
functioning. Therefore, a limited number of resources and infrastructure remains as the
main reason for the laws delay.
Apart from the above, constant negative feedback is received in respect of the
administration of courts. Administrative staff of court houses are not equipped with
necessary skills, knowledge and training. For example, the capabilities of court
stenographers consume a lot of time of judges, lawyers and the entire system.
Recommendations
There must be immediate steps taken to increase the number of courts houses and
competent judges to expedite the backlog and the high volume of cases.
With regard to the delay in Arbitration, strict time frames should be introduced for an
Arbitration to be concluded. It is also recommended that new expedited rules should be
framed to apply to an Arbitration to reduce the ill effects of party autonomy. The culture of
Arbitrations being an evenings work over a piece of cake should be ended by promoting a
whole day of Arbitration over periods of time. It is best that Arbitration be concluded within
the maximum period of a month. Failure to do so should compel the arbitrator to provide a
valid reason, and also should be a good ground for the intervention of Court. If a witness is
examined, he/she should be examined by the parties on the same day.
PART 4
What ails Arbitration in Sri Lanka? Clearing the Path ahead
The Arbitration session in the National Law Conference, comprised of a panel of several local
and international experts on arbitration. Key problems and possible solutions were discussed as
borne out by the session report compiled by J Shanaka L Cooray, the panel moderator.
The alternate dispute resolution regime is tasked with reducing the workload of the Court
system by encouraging litigants to look for alternatives to litigation. Arbitration in particular is
significant since the victorious party receives of an arbitral award which is enforceable in law,
similar to a Decree awarded at the conclusion of litigation.
Unfortunately, litigants are opting to remove arbitration clauses from their agreements and
proceeding to regular litigation instead, because of the view that the delays associated with
arbitration are even longer than in litigation. The added burden of additional expenses over
litigation (such as arbitrators fees and the cost of facilities) which become compounded with
delay make arbitration even less attractive.
The main problems highlighted at the session were Delay in arbitration proceedings and Delay
in enforcement of Arbitral Award. The Singaporean arbitration system was analysed as a case
study and finally, a panel discussion was held.
Main Problems
DELAY IN ARBITRATION PROCEEDINGS

Factors contributing to delay include:
The practice of retired judges practicing as arbitrators- arbitrations become overly

technical and procedural, akin to a privately organized court case
Certain arbitrators are more focused on the number of sittings that can be held for self-
serving reasons, rather than attempting to conclude arbitrations expeditiously.
Arbitrations are only held in the evening for just a few hours duration to accommodate
lawyers who are busy with court work in the morning. This in turn results in long dates
in between hearings.
A lack of suitable specialist arbitrators such an engineers, architects and accountants,

particularly in respect of arbitrations involving construction contracts or complicated
financial matters.
Arbitrators not being in control of the proceedings.
Solutions to delay in arbitration ought to emanate from the parties themselves (party
autonomy) or else legislative intervention may be inevitable.
DELAY IN ENFORCEMENT OF ARBITRAL AWARD
I. Public policy objections
Article 5 of the Model law on which our Arbitration Act is based on, emphasizes that the
interference of Court is to be at a minimum. However, various objections are often taken
up by lawyers to prevent an arbitral award from being recognized and enforced, the
most common being that the arbitral award is violative of public policy (vide Sections 32
and 34 of the Act).
II. Section 25 objections
One popular objection is on the basis of the grounds contained in Section 25 of the Act:
that arbitral awards have not been signed or do not state the date or place of the award
or that no reasons have been given.
III. Procedural deficiencies
Delay in the issuance of notice on the Respondent.

With regard to the enforcement of the writ subsequent to judgement, the fact that a
writ is only valid for a period of 1 year and often this time period is insufficient in
practical terms for enforcement of the writ.
IV. Case management Rules
Detailed Case management Rules including rules for pre-trial procedure were drafted
by the Judges Training Institute with a view to mitigating the causes of delay. Sadly,
these Rules do not appear to have been seriously considered by the relevant decision
making bodies and it appears there has been no move to adopt the same.
Lack of stakeholder participation in the process:- The organizers made their best efforts
to ensure that the stakeholders would be well represented at the session, in order to
have a balanced and well-rounded session which would result in effective solutions to
solve the problem of delay. However, it is noted with regret that although several
attempts were made by the organizers, there was no representative from the Ministry of
Justice.
Proposed solutions
Arbitration stage
Arbitration agreement-Time limits and sanctions

It is felt that the majority of the bottlenecks which lead to delays during the arbitration
stage could be resolved by the direct incorporation in to the arbitration agreement of a
specific time limit for the arbitration to be held and the arbitral award to be delivered by
the arbitrators.
A timeline can be set either under Section 17 of the Arbitration Act No 11 of 1995 which
confers upon parties to an arbitration the power to decide on the arbitral procedure or
through the arbitration clause in the agreement which could specify a time period
within which to conclude.
Litigants should be educated with regard to their right to incorporate such provisions in
to their arbitration agreements. This could perhaps be done through agencies such as
the Bar Association of Sri Lanka and the Chamber of Commerce. Additionally,
institutions such as the Sri Lanka National Arbitration Center (SLNAC) and the Institute
for the Development of Commercial Law and Practice (ICLP) could publish and
disseminate to the public a model arbitration clause with provisions setting out time
limits. Parties would have to be firm with their arbitrator and their lawyers to ensure
that the time frame is adhered to, or legislative intervention may be the only recourse.
If further time is required, the arbitrator should seek an extension from the parties or by
the center administering the same while justifying his reason for such extension.
Arbitrators may be penalized for delay if such delay is attributable to them, via sanctions
such as fines.
Fixed fees
Parties to set out a fixed fee for each arbitration for an arbitrator, so that the arbitrator
would be genuinely motivated to conclude the arbitration at the earliest opportunity.
Documents only arbitration

Parties to incorporate in to the arbitration agreement, a clause directing that the
arbitration be documents only arbitration, especially in the event that the relevant
claim or dispute is below a certain value, to expedite proceedings and to keep the costs
of arbitration to a minimum.
Naming and praising and other modes of assessing arbitrators

Naming and shaming arbitrators who do not deliver the arbitral award within a
requisite period was suggested. In the interest of practicality, it is submitted that at least
initially, instead of a list naming and shaming arbitrators, that a list naming and
praising arbitrators who regularly adhere to time limits be centrally published and
updated from time to time, in order that parties can refer to such lists when deciding as
to which arbitrators to nominate.
Since arbitral awards can only be challenged on limited grounds (such as being contrary
to public policy) and not on merit, it is absolutely necessary to introduce a fool-proof
mechanism to ensure arbitrators carry out their duties with integrity and impartiality.
The institutions in Sri Lanka in consultation with similar institutions in other
jurisdictions such as Singapore must come up with a modality to ensure that the
arbitration process is transparent. Thus, if certain arbitrators possess an impeccable
track record in terms of their character, such details may also be referred to in the list in
order to aid the assessment of arbitrators.
Single arbitrator
Having a single arbitrator instead of three arbitrators as a method of saving time.
Inquiry being disposed of by written submissions

In order to speed up proceedings, Arbitration matters could be resolved by pleadings
and written submissions only, unless it is felt that oral submissions are necessary by the
judge who is hearing the same.
Legislative intervention-Time limits and sanctions

In the event that steps taken by the parties themselves (party autonomy) prove to be
ineffective over a period of time, Sri Lanka may have to introduce time limits in respect
of the arbitration and the delivery of award together with fines as sanctions by way of
legislative amendment.
Enforcement stage
Section 27
Section 27 of the Act provides for arbitrators being able to correct clerical errors or
omissions in their award. Several of the objections taken under Section 25 can be
corrected by the tribunal by way of Section 27, thereby reducing the number of
procedural objections that could lead to delay or rejection of the enforcement of an
arbitral award.
Limited judicial intervention

It is important that courts are aware of the fact that intervention should only be in
extremely limited instances. For example, in Singapore, there is a very high bar set that
has to be satisfied before Court will interfere with an arbitral award. It is suggested that
our Act be amended in order that heavy costs be specified in the event that a party is
unsuccessful in challenging an arbitral award in Court in line with the indemnity costs
provided for in Singaporean law, in order to dissuade frivolous applications.
Legislative intervention public policy

While some jurisdictions take a broad view of what constitutes public policy, others
take a narrower view. Therefore, the term public policy needs proper definition in Sri
Lanka, either by the Superior Courts or by way of legislative intervention, since too
many objections are brought under it.
Legislative intervention procedural matters

- The problem of delay in the issuance of notice on the Respondent could be
solved via the incorporation of certain provisions of the Debt Recovery law.
Additionally, in most commercial agreements, a particular address is set out for
the purpose of service of notices under such agreement. Any document posted
by registered post to such address is said to be deemed as sufficiently served. A
deeming notice provision could be incorporated in to the arbitration
agreement and thereby extended to notices served by Court for the purpose of
enforcement proceedings. However, this suggestion may need further
consideration.
- A suggestion to provide adequate time for enforcement of the writ to take place
is to increase the duration of the validity of a writ emanating from an arbitration
matter from 1 year to 3 years, by incorporating elements of the Debt Recovery
laws.
Case management rules/pretrial procedure

A copy of the Case management rules/pretrial procedure should be obtained from the
Judges Training Institute by the organizers and forwarded to the relevant stakeholders.
This could reduce delays not only in arbitration matters but in other situations as well.
Stakeholder participation
It is imperative that the relevant Ministry officials get actively involved in attempts at
reform, since legislative reform may play a crucially important role in making
arbitration attractive to litigants, and in order to explore the possibility of making Sri
Lanka a regional hub for dispute resolution.
Non-lawyers should also be allowed to participate in the discussion process so as to

obtain an alternative view on arbitration. In technical matters, a specialist arbitrators
familiarity with the subject would help speed up the arbitration process.
Learning from the Singapore Experience
Singapore is regarded as one of the most popular and sought after venues for international
arbitration the world over, due to having:
Top notch infrastructure facilities such as hotels, arbitration venues, efficient public
transport and telecommunication.
An efficient judiciary that is not corrupt: Singapore recently ranked as the 7th based on
the Transparency International Corruption Perception Index.
Singapore has two arbitration Acts; one Act designed to cater for domestic arbitrations and the
other specifically customized to deal with international arbitrations. The Acts provide that
parties can opt under either, giving flexibility and options to the parties. It is also interesting to
note the recent creation of the Singapore International Commercial Court, which can be
described as a hybrid between litigation and arbitration.
Conclusion
Over the years, several meetings and conference have been held to find solutions to the Laws
delays faced at present. However, this artificial hype has been temporary and has soon been
forgotten. It has to be seen that the time and tremendous efforts spent by the National Law
Conference Committee 2016 on compiling this report does not go to waste and follow
precedence of previous reports submitted.
It is noted that 70-75% of all arbitrations at SLNAC were in fact concluded within a period of 12
months. Thus, it was only the remaining 25-30% that required intervention by the parties or
failing which by legislature. It also has to be appreciated that a Civil Reforms Committee and a
Criminal Reforms Committee had been appointed to curb the issues at hand, however a separate
standalone Steering Committee should be appointed to overlook the reforms. Furthermore,
funding to the legal machinery of the country needs to be allocated every year where an agreed
upon quantum can be allotted for the betterment of the legal machinery in the country. If such
proposed solutions are incorporated it is certain that there would be a tangible reduction to
delay in arbitrations which would encourage litigants to introduce arbitration clauses in to their
agreements and thereby have a knock on effect in the reduction of litigation and thus laws
delays in general.
PART 5
Criminal law
[A] Introduction
A strong and efficient Criminal Justice System is one which provides for a swift and
determined response to crime. It is the backbone of an exemplary legal system. The efficacy
and implementation of which, directly impacts the access to the same by the masses.
Accordingly,14 a progressive Criminal Justice System would entail victims to have a louder
voice and clearer entitlements, development of digital work with a high level of
transparency and efficiency.
An era where crime is ubiquitous, begs the question do we need new laws, or should we
make better use of the existing ones?'. While Sri Lanka boasts, inter alia, of a comprehensive
Code of Criminal Procedure and Penal Code, in practice our Criminal Justice System lags
behind developed nations.
The National Law Conference of 2016 which dealt with 'Laws Delays' was aimed at
identifying, investigating and remedying the delays of a system that requires urgent reform.
Under the United Kingdom Criminal Justice implementations (2014) 15 efficacy of the justice
process have been developed through the enhancement of several aspects such as;
optimization of providing for the needs of the witnesses and victims through improvement
of services and adhering to norms of fair and respectful treatment of victims and witnesses.
creating a digital Criminal Justice System through increasing police forces, magistrates and
other courts to digitally deal with documents and digital management of case information
across the system
creating a faster system which is right the first time through ensuring that Police,
Magistrates and Judges are dealing with the right types of cases and offenders, to transform
summary justice so that cases take less time to resolve;
14
Transforming the Criminal Justice System, (2014): Presented to the Parliament by the Lord Chancellor and
Secretary of State of Justice by Command of Her Majesty.
15
ibid
The Sri Lankan framework and the need for development and reform was a key
consideration of The "Criminal Law Session" of the National Law Conference of 201616, it
was exemplified as followed;
A criminal case must be concluded as early as possible. If a criminal case is not concluded as
early as possible then what happens is that it has no impact, that it has no effect on the people.
- Mr Palitha Fernando P.C.
With a gradual decline in the efficacy of the system, it has been observed that most criminal
cases now take over a decade to be concluded;
What are the primary phases of any criminal justice system, particularly a criminal justice
system that is founded upon the common law tradition of adversarial justice? These are the
primary phases of any criminal justice system. In order to identify reforms, we need to
understand that these phases have to be modelled in a particular manner. The first phase is
criminal and forensic investigations.
At some stage during criminal and forensic investigations, the perpetrator of the crime, the
alleged perpetrator of the crime has to be arrested and then brought before a Magistrates
Court where criminal proceedings are initiated and marked that term initiated not instituted.
Criminal proceedings are initiated and pre-trial judicial proceedings take place. Remand or
granting of bail would take place during that phase of the criminal justice system. Then you
reach the completion of criminal and forensic investigations and thereafter, a very important
phase take place. Either viewing the police system or the relevant law enforcement system
maybe the excise, customs, forest, Consumer Affairs Authority whatever the law enforcement
agencies is or at our Department, the Attorney General Department and that being
consideration of the institution of criminal proceedings. Whether or not the suspect should be
either charged or indicted.
Thereafter, if a decision is in fact taken to institute the criminal proceedings either an

indictment is sent out or charges would be framed, and thereafter, the matter goes back to the
court. It could be either the High Court or the Magistrates Court where the trial takes place.
There can be a delay in each of these phases and in particular the phase relating to the conduct
of the trial which will of course at the end of the day lead to either the conviction or the
acquittal of the accused. If the accused is convicted, he is sentenced and then the sentence will
16
National Law Conference, Criminal Law Report
have to be carried out and that is in fact the final phase of criminal justice. The management of
the penal sanctions that take place primarily in prisons and finally the convict is released.
It takes 10 years and 2 months, an average of 10 years and 2 months for a full processing in a
High Court case from the date of the conviction, if you go back to the date of the offence, 10
years and 2 months and this is what we need to cure.
- Mr Yasantha Kodagoda P.C. Additional Solicitor General
[B] SCOPE AND THE NEED FOR REFORM
It is the duty of the State to protect fundamental rights of the citizens as well as the right to
property. The State has constituted the criminal justice system to protect the rights of the
innocent and punish the guilty.
In light of the Efficiency Report of the English Criminal Justice System17 the Criminal Justice
System is defined as the mechanism and the process that investigates, tries, punishes and
rehabilitates those convicted of suspected of crime. The system is made up of police forces,
Crown Prosecution service ( the Attorney Generals Department), bodies who can bring
prosecution, Courts, Tribunals, victims, alleged victims, witnesses, witness service,
defendants and convicted offenders, prisons, probation services, the judiciary and lawyers.
Accordingly, in order to reach optimal standards of efficiency in the Criminal Justice

System, each of these components with varying functions and accountabilities must
complete its operations on time, correctly. Thus it is imperative to identify the key
components which require reforms to be implemented and as such a performance
evaluating mechanism should be in place to determine, review and evaluate the
functionality and process of the system.
In examining the Sri Lankan system which has been devised more than a century back, has
become ineffective; a large number of those who are guilty go unpunished in a large
number of cases; the system takes years to bring the guilty to justice; and has ceased to
deter criminals. Crime is increasing rapidly everyday and types of crimes are proliferating.
Henceforth, it is necessary that the we look into tackling the areas of inefficiency and make
recommendations which aim to create an effective and improved cross- system working.
[C] KEY SECTORS REQUIRING REFORMS
17
Efficiency in the Criminal Justice System, 1 March 2016, Ministry of Justice, Report by the National Audit
Office
This segment of the report considers the Key sectors in which reforms have to be
implemented to tackle the inefficiencies and to improve the progression of cases through
the Criminal Justice System in Sri Lanka.
Through analysis and interviews conducted with several eminent personnel and the
shared experience of eminent officials spanning both, in the official and unofficial bar
focused directly on the importance of reforming and expediting the current system, the
key Sectors requiring reform was assessed as follows;
Administrative reforms in the Judiciary and Court processes

Administrative reforms in the Attorney Generals Department
Introductory provisions to be adopted in the Criminal Justice System
Enhancement and improvements in the police force and police investigation
[D] AREAS OF CONCERN & PROPOSED REFORMS:

COURT SYSTEM
(a) Judges overloaded with additional work
A key feature leading to delay and inefficiency in the Sri Lankan Criminal Court
process is directly related to judges being overloaded with cases.
Proposed Reform 1 Have the Registrar of Court complete the following tasks
pertaining to any given case in the High Court:
a. Marking the attendance of witnesses in a trial prior to the commencement

of court and verifying the ability of a case to be taken up for trial.
b. Marking the appearance of counsels prior to the commencement of court.
c. Ensuring the criteria of sureties comply with the judges prerequisites.
Proposed Reform 2 identify the need to have an increased number of judges.
a. Appointment of a Junior Judge for the purpose of taking up all mention

(calling) matters to deal with all procedural matters such as witnesses,
medical reports, etc. and ensure cases taken up in the trial court are ready
for trial.
in the year 1989, the Judicature Act was amended to provide for the
appointment of Recorders and Masters for the High Court and the District
Court. Recorders for the High Court and the Masters for the District Court to
attend to pre-trial and post-trial matters from their respective officers. To
date, for the last 27 years that amendment to the Judicature Act has not been
brought into force.
- Mr Yasantha Kodagoda P.C. Additional Solicitor General18
b. Accordingly, this may also be effectuated by the appointment of Senior

Counsels with wide experience and/or members of the Attorney Generals
Department from the Bar to act as judges for a period of 2- 3 years who can
in turn act as High Court Commissioners.
Proposed Reform 3 Appointment of Recorders for the High Court .Recorders for
the High Court are to attend pre-trial and post-trial matters from their
respective officers.
HIGH COURT
(b) High Courts inundated with work due to heavy case loads.
Proposed Reform 1 Increase the number of Court Houses and High Court
judges.
Proposed Reform 2 Appoint retired judges as High Court Commissioners.
Proposed Reform 3 When High Court judges are elevated to the Court of
Appeal, legal provision should be made to enable such judges to continue to
exercise their previous jurisdiction (as a Judge of the High Court), so that they
may, even after assuming duties as a Judge of the Court of Appeal, continue to
sit as a High Court Judge and conclude hearing part-heard High Court trials
previously heard by them.
(c) Lengthy Trial Processes in the High Court and the lack of efficiency
18
NLC Report
Proposed Reforms 1 - Appointment of a cadre of translators and to set up

educational programmes for their development. Further administrative
processors should be set up to appoint translators.
Proposed Reform 2 Certain trials, such as murder, taken up on a day-to-day

basis and concluded as provided for by the 2009 amendment to the Criminal
Procedure Code.
In New South Wales, as I told you there is a system immediately after the non-
summary inquiry, the accuse is asked as to whether he pleads guilty or not and
the accuse can say whether he pleads guilty to a lesser offence or if he pleads
guilty to the main offence, he can say so. If he says that he pleads guilty to a
lesser offence that does not mean that the Attorney General bound to send out
the indictment for the lesser offence. The Attorney General is entitled to send out
the indictment for the original offence but the accused is entitled to say that he
pleads guilty for that offence. Now if he pleads guilty to the offence, then he is not
committed to stand trial, he is committed only for sentence. So that prevents lot
of cases coming before court and going into trial, going through the whole trial,
because already you know what accuse wishes to do.
- Mr Palitha Fernando P.C.19
Proposed Reform 3 Non Summary Trials must be utilized to increase the

efficacy of the system and they must mandatorily be concluded within one
month
Proposed Reform 4 Creation of a supervisory system of the investigation and

prosecution of certain grave offences by way of an immediate reporting to
superior offices in the Justice System thereby expediting the entire process.
Proposed Reform 5 Prior to the commencement of a trial in the High Court, all
judges should, as a matter of routine practice, draw the attention of the
accused and their counsel to the provisions of section 420 of the Code of
Criminal Procedure Act, and encourage the recording of admissions.
19
NLC Report
MAGISTRATES COURT
(d) The inefficiency of the Magistrate Court process and delay
The process of action in the Magistrates Court can be summarised as follows;
MAGISTRATES COURT
Guilty Plea Guilty Judgment

Sentencing
Appeal/
Summary Procedure Non Guilty Plea Trial
Revision to
HIGH COURT
Acquit and
discharge
Non Guilty Judgment
Discharge Order
(Pre-Trial)
Non-
Non- Summary Procedure Summary Order to proceed to High Court
proceedings
Special Provisions /Acts

Determined according to
(Fire Arms Ordinance, Public the provisions of the Act
Property Act/ Poisons, Opium, and
Dangerous Drugs Ordinance/
immigration and emigration Act)
Inefficiency of the court process is found in several stages, according to the CJS
implementations in the United Kingdom it is assessed that changes in the several areas
of the court process can affect how quickly justice can be served.
Proposed Reform 1
Stenographers: Stenographers should be facilitated with voice recordings, and

facilities to computerize daily proceedings should be implemented to increase
efficiency and reduce delay.
Productions: Archaic systems of storing production have defeated the purpose of

criminal action. Accordingly, developing processes where video-recording and
photography can facilitate in establishing a production chain would result in the
efficacy of the storing of production process.
Furthermore, a digitalised process of filing and inter-department file transmission to

be introduced.
Proposed Reform 2 pre-trial practice of ensuring that cases are ready for court
through appointing a body to ensure that all necessary documentation are ready for
court.
The English experience is exemplified as follows;
The length of time spent preparing for magistrates court cases increased from 119 to
133 days (10%) between the year ending September 2011 and the year ending
September 2015. But the amount of time spent in court, including waiting for a court
date, reduced from 23 to 22 days. This may be because more effort is being invested
up-front to ensure cases are ready for court. The result of this is more cases are being
resolved on the first hearing (71% in the year ending September 2015 compared with
62% in the year ending September 2011) and on average cases are taking slightly
fewer hearings to be resolved20
Proposed Reform 3 setting up a separate forum with 2-3 judges and/or retired
judicial officers to hear the back log of cases on a day to day basis
Proposed Reform 4 introduced provisions for pre-trial and plea bargain (discussed
below)
20
ibid
(e) Less participation of victims and witnesses
To ensure efficiency in the Criminal Justice System it is imperative that victims and
witnesses have confidence in the system; the English experience can be summarized
as follows;
The impact of delays and collapsed trials on victims and witnesses can be significant
and undermine confidence in the system. Preparing to give evidence can be a difficult
and stressful process and frequent delays are one of the biggest sources of concern for
victims. Witnesses can wait on average around 2 hours to give evidence in the Crown
Court, and 1 in 5 witnesses wait for 4 hours or more. They may not be able to recover
all the costs they have incurred, such as childcare costs. Extended waits and
uncertainty about whether a case will go ahead can be distressing and create a
disincentive for witnesses to attend court in future. This may affect the likelihood of the
trial being effective. Only 55% of people who have been a witness or victim would be
prepared to act as a witness again, and those who have experienced the system as a
victim are less likely to believe that it is effective (43%) than those who have not
(49%).21
Through the implementations in 2013, Publishing the report : Transforming the CJS:
A Strategy and Action Plan for the Criminal Justice System22 new implementations
have been made as follows;
- published a new Victims Code which gives victims of crime clearer entitlements
from criminal justice agencies and better tailors services to individual need so they
get the right support at the right time;
- published a revised Witness Charter, which sets out the standards of service all
witnesses should receive, from the point of reporting a crime through to trial;
- improved the complaints process for victims and witnesses so that they know
who to contact and what to expect if things go wrong;
21
ibid
22
Transforming the CJS: A Strategy and Action Plan for the Criminal Justice System, Ministry of Justice, June
2013
- begun piloting pre-trial recorded cross-examination to help vulnerable

witnesses give their best possible evidence without subjecting them to the full
atmosphere of the courtroom. The first cross-examination took place in Liverpool on
28 April 2014;
- opened 13 new rape support centers since 2010;
- provided Police and Crime Commissioners with over 20m up-front funding to
prepare themselves and voluntary sector service providers for the transition to
local commissioning;
- created a Victims Panel, which met for the first time on 7 May 2014, so that
Ministers can hear first-hand from victims about what we can do better to help them
come to terms with and recover from the traumatic effects of crime; and
- adopted the TrackMyCrime IT system, which enables victims to view information

about the progress of their case, and exchange messages with the investigating
officer.
Proposed Reform 1 introduce a code of practice to better treatment and

efficiency for victims and witnesses
Proposed Reform 2- provide witnesses and victims with infrastructure facilities

to wait until the case are heard and provide a information counter to obtain
information and support on better readying them self for a case.
(f) Inefficacy of the Investigation and Prosecution.
Proposed Reform 1 implementations to facilitate the police force
a. Setting up of a separate police unit, who are trained in investigations and for
such body to be made responsible for collection, collation and dissemination
of criminal intelligence; maintenance and analysis of crime data and
investigation of important cases.
b. The Investigation wing should be separated from the Law and Order wing.
c. They should have an officer of the IGP rank in the State crime branch
exclusively to supervise the functioning of the crime police. The crime
branch should have specialized squads for organized crime and other major
crimes.
d. Fair and transparent mechanisms shall be set up in places where they do not
exist and strengthened where they exist.
e. Better training for police and investigative bodies.
f. Specialised Units/Squads should be set up at the State and District level for
investigating specified category crimes. Similarly, for ensuring effective and
better quality supervision of investigation, the number of supervisory
officers should be doubled in the next three years.
g. Infrastructural facilities available to the Investigating Officers especially in

regard to accommodation, mobility, connectivity, use of technology, training
facilities etc. are grossly inadequate and they need to be improved as a top
priority. It is recommended that a five-year rolling plan be prepared and
adequate funds be made available to meet the basic requirements of
personnel and infrastructure of the police.
h. Training infrastructure, both at the level of Central Government and State

Governments, should be strengthened for imparting state-of-the-art training
to the fresh recruits as well as to the in-service personnel. Hand-picked
officers must be posted in the training institutions and they should be given
an adequate monetary incentive.
i. Forensic science and modern technology must be used in investigations right

from the commencement of investigation. A cadre of Scene of Crime officers
should be created for the preservation of the scene of the crime and the
collection of physical evidence there from.
j. Forensic Medico Legal Services should be strengthened at the District and

the State/Central level, with adequate training facilities at the State/Central
level for the experts doing medico legal work. The State Governments must
prescribe a time frame for submission of medico legal reports.
k. A mechanism for coordination among investigators, forensic experts and

prosecutors. An apex Criminal Intelligence Bureau should be set up at the
national level for collection, collation and dissemination of criminal
intelligence. A similar mechanism may be devised at the State, District, and
Police Station level.
l. To set up a legal unit at the Police level with adequate training to ensure that
all matters forwarded to the Attorney Generals Department are legally
accurate with the relevant documentation.
"First of all, in a criminal matter the police have the power to investigate
the matter, whether they are in a position to do it in a proper way. What
they do is, they want somehow or other to people to be in remand so that
attitude should be changed. My humble request would be that Attorney
Generals Department, as well as the unofficial Bar should get together and
have a dialogue with the police and inform them the way they should
conduct the investigation"
-Mr. U. R. De Silva, Attorney-at-Law.
"Now today you have modern equipment. You have cameras, today if you
want to go and trap a person taking a bribe why dont you take a camera
with you? Why dont the investigators take cameras with them? So that you
can use the videos. What I think is, if you are talking of laws delays, you have
to remedy those starting from the investigations. And that requires reforms
of the police force".
-Mr. Saliya Peiris, Attorney-at-Law
Proposed Reform 2 Provide continuous guidelines, education and technological

advancements to the police and other investigative departments.
Proposed Reform 3 Put the investigative departments under the supervision of a

separate body or council, comprising of members of the official and unofficial Bar,
to monitor and ensure their efficacy is maintained and strict legal and ethical
guidelines are adhered to.
ATTORNEY GENERAL DEPARTMENT
(g) Lack of required personnel, resources and work space in the Attorney General's
Department.
Proposed Reform 1 An increase of the cadre of members in the Attorney

Generals Department.
Proposes Reforms 2- Promotions in the Attorney Generals Department to be

recommended on merit basis and not based on seniority.
Proposed Reform 3 Increase work space and resources for the Attorney
Generals Department, thereby facilitating the recruitment of required
personnel.
Proposed Reform 4 The Attorney Generals Department should be provided

with additional human resources to expedite the processing of files containing
notes of criminal investigations and expert Reports, enabling decisions on the
institution of criminal proceedings to be taken without any delay.
(H) Lack of pre-trial processes and case management mechanisms
Proposed Reform 1 Pre-Trial Procedure in Criminal Action should be introduced

in regard to certain criminal actions, the law should be amended to facilitate a
leave stage in summary trials.
Proposed Reform 2 - Plea Bargaining should be introduced wherein a suspect

can enter into a plea deal with the prosecution, which would result in cases
being concluded without the processes of an unwanted trial.
Plea bargaining is prevalent for practical reasons.
Defendants can avoid the time and cost of defending themselves at trial, the
risk of harsher punishment, and the publicity a trial could involve.
The prosecution saves the time and expense of a lengthy trial.
Both sides are spared the uncertainty of going to trial.
The court system is saved the burden of conducting a trial on every crime
charged.
Either side may begin negotiations over a proposed plea bargain, though
obviously both sides have to agree before one comes to pass. Plea bargaining
usually involves the defendant pleading guilty to a lesser charge, or to only one
of several charges. It may also involve a guilty plea as charged, with the
prosecution recommending leniency in sentencing. The judge, however, is not
bound to follow the prosecutions recommendation.
An insightful practice is noted from the Malaysian Legal System where a

Convention in the form of a pact has been entered into between the
Prosecuting Officers and the Defence Counsel to engage in a Pre Trial
Consultation where all evidence and witness statements available especially to
the prosecution is disclosed in confidence to the Defence Counsel. The Defence
Counsel will also be able to discuss his evidence and proposed defences
confidentially and off the record. This form of negotiation and discussion can
be led by a person with eminence on criminal law under the auspices of a
Board of eminent lawyers and judges who can regulate this function and act as
an advisory Board.
This brings in the true role of the Prosecution as the State which has a duty not
only to prosecute but prosecute duly. The Defence Counsel through this method
has the ability to assess and advice his client as to the prospects of succeeding
in trial after considering the relevant material discussed. This system can be
instrumental in preventing a massive number of cases from going ahead to
trial and parties being able to better advise themselves.
Proposed Reform 3- Diversion Programmes should be introduced to remove less serious

criminal matters from the full, formal procedures of the justice system. Typically, the
defendant will be allowed to consent to probation without having to go through a trial. If

he or she successfully completes the probation - e.g., undergoes rehabilitation or makes
restitution for the crime - the matter will be concluded.
Proposed Reform 4 -Pre-Action Protocol should be adopted under criminal law. Pre-
Action Protocols explain the conduct and set out the steps the court would normally
expect parties to take before commencing proceedings for particular types of claims,
accordingly facilitating speedy justice.
Accordingly mandatory provisions have to be implemented to facilitate the several

implementations
[E] CONCLUSION
These recommendations have been put forward as a response to mitigate the delay and
inefficiencies of the Criminal Justice System whilst taking cognisance of the need for a
transparent system in which the public can repose their trust and confidence in.
Accordingly, these recommendations which have been put forward in consultation with
eminent dignitaries, persons within the legal practice and other regulatory bodies seek to
provide a working mechanism in several aspects of the Criminal Justice structure to
enhance efficiency of the Criminal Justice System as a whole.
PART 6
First Steps Towards Reforms
Some suggestions from the Bar to expedite the processes involved in the administration of
justice until a comprehensive mechanism is introduced:
01 Judges to be given the mandate to effectively control the case proceedings and for a
mechanism to be put in place to monitor their performance.
02 Introduction of a comprehensive supervisory system to monitor overall performances

and proceedings conducted in original courts by the Judicial Service Commission.
03 Judges to be encouraged to have a pre-trial meeting with the lawyers representing both
sides (together with the litigants, if necessary) to ascertain the key issues, identify the
witnesses, requirements for commissions and agree upon a timetable, with a view to
concluding a case within 6-12 months.
04 To fix the case for hearing for several days during the aforementioned period of 6-12
months and to direct the judges to conclude the case within that particular period of
time, unless warranted by exceptional circumstances.
05 To plan in advance the infrastructural requirements such as stenographers, interpreters

and video-conferencing facilities according to the agreed-upon timetable.
06 Judges not to grant postponement of the agreed-upon dates, unless in exceptional

circumstances (since postponements, particularly on the personal grounds of lawyers,
are all too frequent). In the event that the senior counsel is unable to present, their
juniors should be encouraged to carry out the case for the day.
07 Judges not to allow dates for written submissions but to fix the matter for orders and
judgment instead and to direct the parties to file written submissions in the Registry.
08 To restrict the time period granted for filing pleadings such as answers and objections.
Judges ought to encourage parties to plead and to end evidence-in-chief by affidavit
evidence, unless in exceptional circumstances.
09 To present written issues in advance, so that judges can immediately dictate the issues
on the date of the trial.
10 To consider the possibility of introducing specific times for cases, for example allocating
fixed morning or afternoon hours.
11 The re-allocation of work in the civil appellate courts with a view to optimizing the
number of judges. As part thereof, to consider introducing two courts in Colombo as part
of the Civil Appellate High Court structure and to re-examine other Civil Appellate High
Courts with less work and to limit their sittings to a few days and directing those judges
to sit in Civil Appellate High Courts with a comparatively large number of cases.
12 Specifying fixed periods of time for judgments to be delivered by the judges.
13 To direct transitioning judges to write their judgments despite assuming duties in a

higher forum, in order to avoid the re-hearing of cases. JSC to closely monitor the
scheduled judgments of retiring judges and to facilitate the delivery of such judgments,
may relieve the judges of adjudicating cases immediately prior to their retirement.
14 To look into the introduction of time limits for submissions in appellate forums and in
order to do so, to ask the parties to submit written submissions/synopses in advance so
that the judges may get familiarized with the cases.
15 The introduction of research assistants for the original and appellate court judges: the
suggestions are at least 1 for District Court judges, 2 for High Court judges and 2-3 for
Court of Appeal and Supreme Court judges.
16 For mention matters in the Supreme Court to be taken up either before the Registrar or
a single judge of the Supreme Court early in the morning (for example, 9.30 a.m.) and to
keep down complicated matters so that a full Bench may be able to look into it.
17 To appoint Court Commissioners with a view to reducing the current backlog of the
pending cases in the District Courts and the High Courts as a temporary solution until
the pending cases are brought down to manageable proportions.
PART 7
Executive Summary
As explained above, although Sri Lanka has a fully-fledged legal system in place with codified
criminal and civil procedures, the processes involved in the administration of justice can be
improved much further.
As indicated in our report:
The average time to enforce a contract in Sri Lanka is 1318 days.

Sri Lanka has been ranked 161 out of 189 countries for the enforcement of contracts.
The Sri Lankan legal system is ranked No. 5 out of 8 in South Asia.
Land, Partition and Testamentary cases take on average a generation to be settled.
A criminal offence takes on average 9 years to conclude in the original court.
A criminal matter on average will take a year to be fixed for appeal and 3-4 years for the said
appeal to be completed.
An effective legal system is vital for good governance and democracy in any country. It is of
paramount importance that the citizens of a country do not lose faith in their legal system and
have confidence in the courts. However, many stakeholders appear to have overlooked this
need and their focus has been mainly on macroeconomic factors.
In order to identify the shortcomings in our legal framework, the Bar Association of Sri Lanka
addressed the theme of Laws Delays as the focal point of the National Law Conference 2016.
During the conference, having obtained the expertise of legal and non-legal persons from both
within and outside Sri Lanka, we analyzed the status quo and compared it with other
jurisdictions. We conducted research into more advanced systems currently in place in other
jurisdictions and compiled a Report by identifying the shortcomings within the legal sphere and
suggesting possible solutions.
Herein below, we present in summary the areas which were identified as being in need of
reform and the modes of reform that were proposed:
General Problems-
1. Problems In Relation To Infrastructure

Appointing a Court Room Manager to each court room.

Acquiring the aid of separate logistical companies for service provision
Updating court rooms with modern equipment (live video conferencing,
multimedia evidence)
Introduction of a case management system
Improve record rooms
Construction of a new court complex
Considering means to increase budgetary allocation.
Formalising Bench-Bar Relations Committees
Establishing an institute to train court personnel and certify, monitor and audit
Service Providers
Formation of an Infrastructure Committee
2. Judiciary
Preventing the promotion of judges from resulting in a delay in judgments.
Continuous Judicial Education and Development
Introduction of Judicial Clerkship and Paralegal Institutions to assist judges
Merit-based Promotion System for judges and Judiciary as an early career path
Increasing effectiveness of Court Support Services and Support Staff
3. Administration of Court
Introduction of Case Management Systems
Introduction of Appellate Management Systems
Introducing Colleges for Training Judicial Administrative Staff
Introducing Institutions for Support Services Training including Certification
and Review.
Increasing the number of sitting judges
Review how judges are currently allocated to Provinces and Zones
Appointing temporary judges to clear any backlog of cases
Civil Procedure Directives
Compulsory Mediation to make litigation a last resort
Pre-Action Protocols
Summary assessment of costs and assessment of actual costs
5. Unethical conduct of Attorneys-at-law

Supreme Court to take strong action against misconduct
BASL to revamp Professional Purposes and Ethics Committees to be more
transparent and active
BASL to ensure that litigants are well-informed of their rights and duties
Imposition of strong sanctions on postponements and moving for dates via a
rigorously imposed cost system.
6. Government
To form a Presidential Task Force to consider the matter of laws delays with a
time frame and terms of reference
To consider the manner of increasing funding for the legal system and indirect
means of creating fund for upkeep
To consistently hear the views of the public and keep abreast of the concerns the
public have regarding the legal system.
Civil Law-
1. Inefficient management of the cases/court system by the Judiciary

Pre-Action Protocols
Provoking settlements
Case management
Increase the number of judges in higher courts
The introduction of paralegals and support staff
3. Philosophy of procrastination by the lawyers as well as judges
Appraisal and training of judges
Practice directions and court guidelines
Better managing the system of promoting judges
Promotions on merit basis
4. Lack of court resources
Commercial High Court to be situated in an appropriate court complex
Logistical company to handle the logistical needs of a courthouse
Commercial Law-
Problems
Inordinate delay in commercial litigation

Outdated laws
The lack of specialized judges
The need to increase the number of courts hearing commercial matters
Recommendations
The introduction of pre-trial procedure

Alternate dispute resolution
Amending and creating new laws to keep Sri Lanka in step with the other countries of
the world
Regulating unregulated areas of law
Creating a pool of specialized judges
Increasing the number of courts hearing commercial matters
Improvements to infrastructure
Arbitration
Problems
Issue of arbitration being underutilized

Delay in arbitration proceedings- factors contributing to delay
Delay in enforcement of arbitral award
Lack of stakeholder participation in process
Recommendations
I. Arbitration stage
Arbitration agreement- time limits and sanctions

Fixed fees
Documents only arbitration
Naming and praising and assessment lists
Single arbitrator
Legislative intervention- time limits and sanctions
II. Enforcement stage
Use of section 27 of the Arbitration Act

Limited judicial intervention
Legislative intervention- public policy
Legislative intervention- procedural matters
Case management rules
Need for increased stakeholder participation

Singapore as a case study
Criminal Law-
1. Judges overloaded with additional work

Certain menial duties of a Judge to be given to a Registrar of Court
Increasing the number of Judges
Appointment of pre-trial and post-trial officers [point missing in the main
article]
2. High Courts inundated with work due to heavy case loads

Increasing the number of court houses
Appointing of High Court Commissioners
Judges to continue to hear part-heard matters even after promotion
3. Lengthy trial process in the High Court and the lack of efficiency
Appointment of a cadre of translators
Certain offences to be heard on a day-to-day basis
Non summary trials
Creation of a supervisory system of the investigation and prosecution of certain
grave offences
Judges to encourage the accused to record admissions
New technologies to be made available to stenographers
Changes to the system of productions
4. Inefficiency of the Magistrate Court process and delay

Stenographers to be facilitated with voice recordings
Do away with archaic systems of storing production
Adopt pre-trial practice of ensuring that cases are ready for court
setting up a separate forum with 2-3 judges and/or retired judicial officers to
hear the back log of cases
5. Reduced participation of victims and witnesses
introduce a code of practice to better treatment and efficiency for victims and
witnesses
provide witnesses and victims with infrastructure facilities
6. Efficacy of the Investigation and Prosecution

Setting up of a separate police unit who are trained in investigations
Providing continuous guidelines, education and technological advancements to
the police
Put the investigative departments under the supervision of a separate body or
council
7. Lack of required personnel, resources and work space in the Attorney General's
Department
Increasing of cadre of members in the Attorney Generals Department
Promotions in the Attorney Generals Department to be recommended on a
merit basis and not based on seniority
Increasing work space and resources for the Attorney Generals Department
Providing additional human resources to the Attorney Generals Department
8. Introductory Provisions
Pre Trial Procedure
Plea Bargaining
Diversion Programmes
Pre-Action Protocol
CONCLUSION
The face of the Sri Lankan legal system is marred by the issue of laws delays. It is arguably the
biggest problem within our legal framework. The aforementioned statistics in the Executive
Summary are truly worrying. If Sri Lanka is to be a serious, well-respected partner in the
international arena and if we wish to promote Sri Lanka as an attractive hub for investors, it is
essential that those statistics improve soon.
Numerous Committees have met in the past on frequent occasions and several Reports have
been submitted. Unfortunately, due to a lack of political will to implement the recommended
proposals and apathy on the part of the stakeholders, nothing has come out of it. Thus, to
prevent this Report from following the path of its predecessors, it is suggested that all
stakeholders within the system be given a clear, precise and specific task with stipulated
timelines in order to achieve the targets under the Presidential Task Force. A well-thought out,
clearly-mapped procedure must be set in place with a long-term vision in mind since ad hoc
proposals that do not correspond with this vision may in fact create further problems and
aggravate the current situation.
Sri Lanka is in critical need of an effective and efficient judicial service mechanism. Therefore, it
is of utmost importance that this Report be thoroughly examined and its proposals seriously
considered. We, the members of the Committee behind this Report, stand behind it and are
willing to offer our unstinted co-operation and support in the implementation of these
proposals.
SOURCES
General Problems
Rs. 15 bn Courts Complex in Fort: http://mirrorcitizen.dailymirror.lk/2015/10/15/rs-15-bn-
courts-complex-in-fort/
Court room technology manual August 1999: http://www.uscourts.gov/file/2928/download
Supreme Court list for 28th October, 2016:
http://www.supremecourt.lk/index.php?option=com_content&view=article&id=1354:28tho
ctober2016&catid=116:october2016&Itemid=121
Ceylon Sessional Papers 1955 Civil Courts Commission Part I, II and III
Do We Have a New Criminal Procedure Code?, By Abu Daud Abdul Rahim, Member, Criminal
Law Committee:
http://www.malaysianbar.org.my/criminal_law/do_we_have_a_new_criminal_procedure_c
ode_.html
Civil Law
ACCESS TO JUSTICE Final Report by The Right Honourable the Lord Woolf, Master of the
Rolls JULY 1996
Waleshttp://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/civil/final/index.
htm
Sime, Stuart (2008). A Practical Approach to Civil Procedure. Oxford: Oxford University Press.
ISBN 978-0-19-954253-6.
The Interim Report and Consultative Paper of the Chief Justices Working Party on Civil
Justice Reform was published on 29 November 2001 of Hong Kong
Civil Case Management in Singapore: of Models, Measures and Justice*, Mr. Foo Chee Hock,
http://www.aseanlawassociation.org/11GAdocs/workshop2-sg.pdf
DRAFT AMENDMENTS TO THE CIVIL PROCEDURE CODE ON JUDICIAL CASE MANAGEMENT,
2016 Judges institute Sri Lanka
Proposed Mediation Rules 2016 Judges Institute Sri Lanka
Commercial law
Foo Chee Hock, 'Civil Case Management In Singapore: Of Models, Measures And Justice' :
http://www.aseanlawassociation.org/11GAdocs/workshop2-sg.pdf
'EXPLORING THE BENEFITS OF PRE-TRIAL CONFERENCE PROCEDURE TO JUDICIAL
PROCEEDINGS IN NIGERIA' (2015): http://www.eajournals.org/wp-
content/uploads/Exploring-the-Benefits-of-Pre-Trial-Conference-Procedure-to-Judicial-
Proceedings-in-Nigeria1.pdf
Arbitration and Conciliation (Amendment) Ordinance No. 9 of 2015
'Personnel Data Protection Commission, Singapore ' ( n.d.) :
https://www.pdpc.gov.sg/legislation-and-guidelines
Waleed Haider Malik, Judiciary Led Reforms In Singapore; Framework, Strategies And
Lessons (1st edn, 2016):
https://books.google.lk/books?id=t4OaWEpJRKQC&pg=PA49&lpg=PA49&dq=how+are+judg
es+trained+in+singapore&source=bl&ots=GuB5SOHOro&sig=Q7vhzRU560DnbioqlO3-
ATY3gUs&hl=en&sa=X&ved=0ahUKEwjhnq-
d3NzNAhWBtRQKHWv4CO0Q6AEIRTAH#v=onepage&q=how%20are%20judges%20trained%
20in%20singapore&f=false
Initiative in legal and judicial reforms 2002 (World Bank 2016):
http://siteresources.worldbank.org/BRAZILINPOREXTN/Resources/3817166-
1185895645304/4044168-1186409169154/18initiativesFinal.pdf
Criminal Law
Transforming the Criminal Justice System, (2014) :Presented to the Parliament by the Lord
Chancellor and Secretary of State of Justice by Command of Her Majesty.
Transforming the CJS: A Strategy and Action Plan for the Criminal Justice System, Ministry of
Justice, June 2013.
Recommendations for Law Reform, Centre for Policy Alternatives May 2015.
Efficiency in the Criminal Justice System, Report by the Comptroller and Auditor General 26th
February 2016.

NLC Report Finalv3

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

NLC Report Finalv3

Uploaded by

Copyright:

Available Formats

SRI LANKA THE PATH AHEAD TOWARDS A MORE

EFFICIENT AND EFFECTIVE DISPUTE RESOLUTION

National Law Conference Committee 2016

Session Heads of the National Law Conference

Mr. J Shanaka L Cooray

2. General Problems contributing to Laws Delays in Sri Lanka 7

3. Review on the Civil Case Management 19

5. What ails Arbitration in Sri Lanka? Clearing the Path Ahead 46

7. First Steps towards Reforms 68

The constitutional importance of a fully-fledged and functioning legal system cannot be

1. The average time to enforce a contract in Sri Lanka is 1318 days.

4. Land, Partition and Testamentary cases on average take a generation to be settled.

I. Problems In Relation To Infrastructure

[c] Furthermore, it is recommended by this Committee that those same logistical

[d] The introduction of a case management system to further expedite litigation is

[j] This Committee recommends that an Infrastructure Committee must be formed

II. The Lack of Support Staff and efficient Support Services

[d] A further solution is recommended: to introduce Judicial Clerkship so as to

III. Inadequate Numbers Of Judges

court system as a disincentive to prevent frivolous appeals whilst aiming to

IV. Unethical Conduct of Attorneys-at-Law

Rule Matters must be concluded by the Supreme Court within a designated

The administration of the Professional Ethics Committee must be aided by a

The composition of the Committees must also include full-time members

V. The Need for the Creation of a Presidential Task force (PTF)

I. A representative of the Judicial Services Commission

a. Litigation to be avoided whenever possible;

To deter unreasonable or unnecessary interlocutory applications, the court can disallow an

1. Inefficient management of the cases/court system by the Judiciary

DESIRE TO CHANGE IN PRACTICE

LEAD UP TO THE REFORMS

Introduction of Pre-Action Protocols

Pre-Action Protocols in practice

Cases covered by the Pre-Action Protocols

Cases not covered by Pre-Action Protocol

Sanctions for non-compliance

Methods of provoking settlement of actions

[b] The defendant pays an interest penalty on the damages.

It must also be commented that a non-adversarial system cannot be superimposed on a

Introduction of Case Management Conferences

How to put in place case management guidelines

Judicial appraisal and judges training

Use of practice directions and court guides

[b] The practice of leading evidence-in-chief through affidavit.

Lack of Infrastructure to Conduct an Efficient Litigation

Delay in writing judgments owing to promotion of judges

Issues prevalent in the system

Inordinate delay in commercial litigation;

Commercial litigation is a form of resort where litigants look forward in settling

a. Backlog and High volume of cases

b. Delay in dispute resolution in terms of ADR

absence of proper legislation, the enforcement of Arbitration Awards being subject

Our solution for backlog and high volume of cases

Delay in dispute resolution in respect of ADR

Considering the contributory factors towards the inordinate delay in arbitral

Section 17 of the Arbitration Act empowers parties to Arbitration to decide on the

There should be a proper supervisory and a control mechanism implemented in order

Completely outdated laws that require immediate amendments;

Laws that require immediate amendments to overcome the practical

An explosion of international business opportunities has resulted in the emergence of

It is a general observation that many Arbitration-related cases brought before the

In addition, in keeping with the international standards, interim applications and

Outdated laws that require immediate amendments

Consumer Contracts should be made devoid of Arbitration clauses, as it is in several