THE UNITED REPUBLIC OF TANZANIA

MINISTRY OF JUSTICE AND CONSTITUTIONAL AFFAIRS

POSITION PAPER

ON

THE REVIEW OF THE CIVIL JUSTICE SYSTEM

PREPARED by the Law Reform Commission of Tanzania under the

BEST PROGRAMME

DECEMBER 2006

TABLE OF CONTENTS

PAGE

TABLE OF CONTENTS………………………………………………………………………… i LIST OF ABBREVIATIONS…………………………………………………………………. iii FOREWORD BY THE CHAIRMAN OF THE LAW REFORM COMMISSION OF TANZANIA…………………………………………………………………………. ………… v EXECUTIVE SUMMARY………………………………………………………………………. x CHAPTER ONE 1. REFORMING THE CIVIL JUSTICE SYSTEM 1.1 Background……………………………………………………………………………………. 1 1.2 State of Civil Justice in Tanzania Today…………………………………………….. 1 1.3 Reforms Goals………………………………………………………………………………… 1 1.4 Principles of Civil Justice…………………………………………………………….. 2 1.5 Proposals to avoid litigation where possible………………………………………. 4 1.6 Making litigation to be less adversarial and more cooperative…………….. 7 1.7 Making litigation to be less complex………………………………………………… 8 1.8 The need to make cost of litigation more affordable, more predictable and more proportionate to the value and complexity of individual cases……. 9

1.8.1 Advocate’s Fees………………………………………………………………………… 9 1.8.2 Courts Fees………………………………………………………………………………. 12 1.9 The need to make time scale for litigation shorter and certain…………….. 13 1.10 Conclusion……………………………………………………………………………………. 17 CHAPTER TWO 2. PROPOSALS ON REFORMING THE MANAGEMENT AND STRUCTURE OF THE COURT SYSTEM 2.1 Introduction………………………………………………………………………………… 18 2.2 Enabling Parties with limited financial means to conduct litigation on a more

equal footing………………………………………………………………………………. 18 2.3 The need for clear lines of judicial and administrative responsibility for the

civil justice system……………………………………………………………………….. 19 2.4 Designing the structure of the courts and the deployment of Judges/

Magistrates to meet the needs of litigants……………………………………. 19 2.5 Improving effective deployment of Judges and Magistrates so that they can manage litigation effectively…………………………………………………………. 20 2.6 Utilization of information and communication technology…………………. 20 CHAPTER THREE 3. CODE OF CONDUCT AND ETHICS FOR ADVOCATES 3.1 Introduction………………………………………………………………………………… 22 3.2 Regulatory Institutions…………………………………………………………………. 22 3.3 Permitted Structures of Legal Practice…………………………………………… 23 3.4 Principles of Good Regulation……………………………………………….......... 24 3.5 Regional and International Considerations……………………………………… 24 3.6 The Objectives of a Regulatory Framework for Legal Services…………. 25 3.7 Regulatory Models………………………………………………………………………. 25 3.8 The Changing Role of the Profession……………………………………………. 26

3.9 Sources for Professional Standards for Conduct…………………………….. 27 3.10 Adversarial System and Regulation of Legal Practice ……………………. 27 3.11 The effectiveness of a Code of conduct and Ethics for Advocates….. 28 3.12 The Structure of a Code of Conduct and Ethics for Advocates……….. 29 3.14 The Content of a Code of Conduct and Ethics for Advocates…………. 30 TABLE 1…………………………………………………………………………………………. 14 APPENDIXES Appendix 1……………………………………………………………………………………….. 32 Appendix 2……………………………………………………………………………………….. 35 Appendix 3……………………………………………………………………………………….. 37

LIST OF ABBREVIATIONS ABA - American Bar Association ADR - Alternative Dispute Resolution AG - Attorney General AJAC - Access to Justice Advisory Committee (Australia) BEST - Business Environment Strengthening for Tanzania BoT - Bank of Tanzania BRELA - Business Registration and Licensing Agency BRU - Better Regulatory Unit Cap - Chapter CEO - Chief Executive Officer CJ - Chief Justice CJTWG - Civil justice technical working group CPC - Civil Procedure Code CIDA - Cultural Industries Development Agency DAG - Deputy Attorney General DPP - Director of Public Prosecution Ed - editor(s) etc - et cetera ( and the rest or and all others) FoL - Faculty of Law G.N - Government Notice GoT - Government of Tanzania GTZ - Deutsche Gesellschaft fur Technische Zusammenarbeit ( Germany Technical Cooperation) HMSO - Her/His Majesty’s Stationery Office Ibid - Ibidem (same thing) ICT - Information and Communication Technology i.e - id est (that is) IFC - International Finance Corporation KPMG - Klynveld Peat Marwick Goendeler LRCT - Law Reform Commission of Tanzania LSRP - Legal Sector Reform Programme MITM - Ministry of Industry, Trade and Marketing MoJCA - Ministry of Justice and Constitutional Affairs No. - Numero (number) NOLA - National Organisation for Legal Aid P. - page PCB - Prevention of Corruption Bureau PS - Permanent Secretary PWC - PriceWaterhouseCoopers RULEE - Revised Edition Rtd - Retired SIDA - Swedish International Development Cooperation Agency SMEs - Small Scale and Medium Enterprise TBA - Tanzania Bankers’ Association TIC - Tanzania Investment Centre TLR - Tanzania Law Reports TLS - Tanganyika Law Society TPC - Trade Practices Commission (Australia) UDSM - University of Dar- Es- Salaam

U.K - United Kingdom UNICEF - United Nations Children’s Fund UNDP - United Nations Development Programme v. - versus WSD - Written Statement of Defence

FOREWORD BY THE CHAIRMAN OF THE LAW REFORM COMMISSION

This position paper has been prepared on the basis of the concept paper prepared by a team of Consultants led by Prof. S. E. Mchome of the Faculty of Law University of Dar- Es -Salaam dated August, 2006. A copy of the concept paper is available at the Law Reform Commission of Tanzania (LRCT), Ministry of Justice and Constitutional Affairs (MoJCA), the Tanganyika Law Society (TLS), the University of Dar- Es - Salaam, (UDSM) Faculty of Law ( FoL) and the LRCT Website.

This paper was prepared by the Task Force of the Civil Justice Technical Working Group (CJTWG) composed of Mr. Charles Rwechungura (President of the Tanganyika Law Society – TLS), Dr. Fauz Twaib (TLS), Mr. Felix Kibodya (Tanzania Bankers’ Association), Mr. Ebenezer Mshana (UDSM, FoL), Mr. Edwin Fussi (Judiciary), Ms. Flora Tenga ( LRCT) and Ms. Annamary Kavishe (TLS).

It is a preliminary document of reform recommendations relating to the review of the Civil Justice System currently being undertaken by a CJTWG comprised of officers of MoJCA , the Judiciary, TLS, the Tanzania Bankers’ Association, (TBA) the LRCT, the UDSM-FoL chaired by the Chairman of the Law Reform Commission, Judge Anthony Bahati (Rtd).

The Review of the Civil Justice System is one of a number of reform initiatives being undertaken by the Government of Tanzania (GoT) under the Business Environment Strengthening for Tanzania (BEST) Programme which aims to;

• Reduce the burden of doing business in Tanzania, especially among SMEs by reforming and eliminating regulatory, procedural and administrative barriers

• Enhance efficiency in service delivery by the Government to the private sector, including timely resolution of commercial disputes

• Promote and maintain better partnership between public and private sectors

The Review of the Civil Justice System under the BEST Programme has been designed to complement the initiatives under the Legal Sector Reform Programme, but it is funded and administered by MoJCA and the Judiciary as a separate programme.

The Review seeks to improve the machinery of civil justice in Tanzania by means of reforms in jurisdiction, procedure, regulation of private legal practice and court administration and in particular to reduce delay, cost and complexity.

It aims to do so by undertaking a radical review of the business of the civil courts and private legal practice, and to make recommendations for the more efficient disposal of civil cases in keeping with public needs and expectations. The aim of the reform recommendations is to change the whole culture of civil litigation.

CJTWG aims to conduct the Review of the Civil Justice System by adhering to certain fundamental guidelines, the most important of which are the principles (hereinafter the “Civil Justice Review Guiding Principles”);

• ensuring that the Review of the Civil Justice System has the support of key figures in legal sector;

• ensuring that the review does not result in ‘reform for reform’s sake’ or wholesale ‘lifting’ of reforms from elsewhere;

• focusing on the needs of court users and particularly the private sector in relation to length, expense and complexity of the litigation process;

• ensuring that there is wide-spread consultation at every stage of the review;

• ensuring that publicity is used to establish maximum possible information on review and participation;

• ensuring that there is consensus within the legal community (Judges, Registrars, Magistrates, Advocates, court brokers, process servers) of the need for reform; and finally,

• ensuring the use of international best practice so as to get the benefit of comparative legal experience in other common-law jurisdictions in the Commonwealth and beyond.

The Review of the Civil Justice System explores ways in which the Civil Justice Review Guiding Principles can be achieved. The position paper addresses how this can be done by answering three interrelated and interdependent questions:

(1) How can the rules of civil procedure and regulations governing advocates and other court officials be reformed to ensure that the Civil Procedure Review Guiding Principles are achieved?

(2) How can the management and structure of the court system be improved to ensure that the Civil Procedure Review Guiding Principles are better served?

(3) How can information technology be used by the courts to ensure that the principles of the Review of the Civil Justice Guiding Principles are better served?

In this regard the statutes that have been reviewed in this paper are the following:

• The Constitution of the United Republic of Tanzania1

• The Magistrates Courts Act2

• The Advocates Act3

• The Tanganyika Law Society Act4

1 [ Cap. 2 RE 2002] 2 [Cap. 11 RE 2002] 3 [Cap. 341 RE 2002]

• The Civil Procedure Code5

• The Arbitration Act6

• The Evidence Act7

• The Government Proceedings Act8

• The Government Proceedings (Procedure) Rules9

• The Appellate Jurisdiction Act10

• The Tanzania Court of Appeal Rules11

• A number of rules made under the Judicature and Application of Laws Act12 such as:

o Appearances by Officers of the Government Rules13

o Courts Vacations Rules 14

o Court Fees Rules15

o Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules16

o Court Brokers and Process Servers (Appointments, Remuneration and Discipline) Rules17

o High Court Registries Rules18

o Language of Courts Rules19

o Commercial Court (Fees) Rules20

• Statutes relating to probate and administration of estates which are part and parcel of the civil justice system.

There are many issues that relate to reforms of the civil justice system such as resources and staffing levels in the justice institutions among others. However, the Review will essentially restrict itself to the three questions referred to herein before. Other issues will be dealt with through other

4 [ Cap. 307 R.E 2002]

5 [Cap 33 RE 2002] 6 [Cap 15 RE 2002] 7 [Cap. 6 R.E 2002 ]

8 [Cap. 5 R.E 2002]

9 [G.N. No. 376 of 1968]

10 [Cap. 141 R.E 2002]

11 G.N. No. 102 of 1979

12 [ Cap. 358 R.E 2002]

13 G.N. No. 306 of 1964

14 G.N.No.307 of 1964

15 G.N No. 308 of 1964

16 G.N. No 312 of 1964

17 G.N No 315 of 1997

18 G.N. No. 164 of 1971

19 G.N No. 115 of 1981

20 G.N No. 275 0f 1999

government processes, some of which are already in progress such as the Legal Sector Reform Programme.

The review has four stages with timelines. Stage one was the preparation of this Position Paper, which began with the preparation of the Concept Paper Stage two will be a meeting of key Legal Sector decision makers (CJ, AG, DAG/PS, Registrar of Court of Appeal, Registrar of the High Court, and the CEO - BRU) organized by the Law Reform Commission on the draft Position Paper in the late January, 2007 . Stage three will involve a wide-spread consultation process of the Position Paper This process will entail workshops, seminars, and collection of written submissions by April, 2007. The fourth stage will involve the writing of the final report and drafting of the relevant legislation to be forwarded to the AG.

The position paper is designed to raise issues on civil justice and, in accordance with the Civil Justice Review Guiding Principles, provide a mechanism upon which the reform of the civil justice process can take place. Based on this understanding, it is important that stakeholders of the civil justice process become engaged in the process at the very beginning of the process. It is on this understanding that the position paper was compiled after a number of preliminary interviews with the stakeholders.

The position paper has now been developed. This takes us to the next stage of consultations and discussions between stakeholders and the LRCT. It is expected that the consultation will be both structured (formal meetings and correspondents) and unstructured (inputs through emails, letters etc). It is expected that there will be a meeting to discuss the reform of the civil procedure on the dates mentioned above. This forum will be used to discuss a number of issues, some of which are addressed in the position paper. Otherwise, stakeholders can submit their views directly to the Law Reform Commission through the following address:

Chairman,

Law Reform Commission,

P.O. Box 3580

Dar es Salaam.

Email: lrct@lrct-tz.og

Telephone. 2123533.

I think that most of the judicial officers, advocates and court users would agree that the rules of procedure may have their problems but if they were adhered to strictly, the problems would be greatly reduced. Our aim under the Civil Justice Review is therefore to propose a complete new mindset on the part of the key players in court. We argue that this will involve both a

simplification of the rules of procedure and a transformation in the court conduct of the judiciary, advocates and court users in order to hasten the process of access to justice.

We hope that the readers of this position paper will treat it in the spirit it was drafted. It is meant as a starting point for a debate on the reforms of the Civil Justice System in Tanzania.

EXECUTIVE SUMMARY

This position paper makes a number of proposals to improve the civil justice system. These proposals are directed to all stakeholders in civil justice. The Civil justice technical working group (CJTWG) seeks comment on these proposals by April 2007.

The CJTWG has examined the civil justice system in Tanzania at the request of the Law Reform Commission under the auspices of the BEST Programme. The CJTWG’s task has been to carry out analysis and make recommendations that will kick-start a focused discussion aimed at making the civil justice system faster, more accessible, simplified, and less expensive. The starting point for drafting this position paper is the premise that the civil justice system is not easily accessible to, nor well understood by, many Tanzanians.

The principles of civil justice in Tanzania are essentially derived from the provisions of Article 107A of the Constitution of the United Republic of Tanzania. These include the following:

i) Delivery of justice without regard to the litigants’ social or economic status.

ii) Delivery of justice on a timely manner or without undue delay

iii) Provision of adequate compensation in case of injuries caused by others

iv) Facilitating and encouraging amicable settlement and dispute resolutions

v) Delivery of justice without undue technicalities

This is not a unique claim for Tanzania. Other Civil Justice systems had to deal with similar problems in the past decades and some are continuing to do so at the moment. For example, the United Kingdom formed a committee to look at similar problems in 1998. This committee was led by Lord Woolf, a senior judge of the House of Lords and later Master of the Rolls. Lord Woolf’s terms of reference were to conduct a review of civil justice to consider whether existing proposals (in the UK) for reform were the right way to reduce the cost, delay and complexity of civil litigation, and in particular to consider whether the civil justice reforms could be implemented without imposing costs which outweighed savings both for potential litigants and the courts. After reviewing the civil justice system in the United Kingdom, Lord Woolf hoped that his recommendations would mean that a reformed justice system would be Just, fair, comprehensible, certain and reasonably expeditious.

The focus of the CJTWG’s recommendations relate equally to the duties of advocates and litigants to the courts and in the duties of the courts to litigants. No reforms will be successful without changing the rules, behaviours and mindsets relating to each key actor .The CJTWG has therefore taken the principles laid down in article 107 (A) of the Constitution as a starting point for its recommendations. The CJTWG has also been inspired by Lord Woolf’s recommendations which have also been used as guidelines for reforms in

other common law jurisdictions. The CJTWG is also mindful of the fact that its recommendations should not be reform for the sake of reform. The challenge is to identify areas where reforms are needed while maintaining a just system.

The recommendations that follow in chapter two to chapter five are meant to provide a starting point towards improving civil justice in Tanzania, and are summarised for purposes of the executive summary as follows:

1. Proposals to avoid litigation:-

1.1 Encourage greater use of Alternative Dispute Resolution (ADR) by:

1.1.1 Enhancing the training on ADR of judicial officers and advocates in relation to both ADR and tribunal adjudication;

1.1.2 Undertake public awareness campaigns of ADR and tribunal adjudication targeted at potential litigants

1.1.3 Redesign of ADR process and recruitment by courts with a team of ADR experts to manage ADR Process. ADR system should continue being court-annexed but mandatory mediation should be done away with.

1.1.4 Undertake a review of the resource allocation practices to the justice

system at all levels and categories of justice institutions.

1.2 Proposals on Pre-action Protocols;

1.2.1 Steps should be taken, in cooperation with interested business, professional, consumer and other groups, to develop pre-action protocols suitable to Tanzania conditions with a view to establishing standards of reasonable pre-action conduct in relation to specific types of dispute.

1.2.2 Rules should be adopted allowing the court to take into account the

parties’ pre-action conduct when making case management and costs orders and to penalize unreasonable non-compliance with pre-action protocol standards.

1.2.3 The operation of the protocols should be monitored and their detailed

provisions modified so far as is necessary in the light of practical experience.

2 Proposals to encourage Litigation to be less adversarial and more cooperative

2.1 Holding training, seminars/ workshops/media campaigns targeting judicial personnel and members of the public to raise awareness of rules relating to pre-trial conferences and determination of material issues and encourage judicial personnel and advocates to use such rules.

2.2 Making pre-trial settlement and scheduling conferences a condition precedent to the commencement of full-fledged court litigation processes. This can be done by embedding the conferences in a reinvigorated case management system.

2.3 Judges and magistrates should be obligated to be in charge of court proceedings and run the show.

2.4 The CJTWG cautions against a radical departure from the current adversarial system. However the CJTWG recommended adoption of some aspects of civil code system especially those which empower the judge or magistrate to exercise full control over the proceedings.

3 Proposals to simplify the process of Litigation

3.1 Legislation should be reviewed to avoid very long and convoluted sentences that are problematic to understand.

3.2 The use of technical terms in the provisions of procedural and substantive laws should be reviewed with intention of keeping such technical term to the minimum.

3.3 The CPC should be translated to Swahili language which is familiar to almost all the Tanzanians population.

4. Proposals to make cost of litigation more affordable, more predictable and more proportionate to the value and complexity of individual cases.

4.1 Reviewing the Advocates Act and regulation made under it along the lines proposed in chapter two.

4.2 Financing and encouraging legal aid schemes. The current existing schemes are mostly based in urban areas and suffer from lack of resources of human and financial.

4.3 Modification of the adversarial system to suit local condition as proposed in chapter two.

4.4 Institutionalizing and operationalising a full-fledged system of closely regulated paralegals as envisaged in the Medium Term Strategy of the reform of the legal Sector Reform.

4.5 Code of Conduct and Ethics for Advocates should include a rule setting out the factors relevant to the determination of whether legal fees charged are reasonable.

4.6 TLS should encourage its members to undertake litigation on fixed fees as it is practised in the United Kingdom and Germany.

4.7 TLS and other appropriate regulatory bodies should give priority to the development and implementation of a code of conduct and ethics for advocates.

4.8 The law Reform Commission in collaboration with the Advocates Committee should convene a working group to discuss the draft on the Code of Conduct and ethics currently being prepared by the law Society. Legal academics and officers of legal complaints handling authorities should be included in the working group.

4.9 TLS should develop a commentary which can be used as part of or supplement to the Code of Conduct and ethics for Advocates.

4.10 TLS and the Advocates Committee should ensure that the proposed Code contains rules concerning practitioners ‘obligations to further the proper administration of justice. In so doing the proposed code should, among others;

• Incorporate a rule consistent with Rule 11 of the United States Federal Rules of Civil Procedure, which requires practitioners and unrepresented parties to consider the purpose and content of pleadings and other papers before presentation to the court or tribunal. The standard applied should be `to the best of the practitioner's knowledge and information'.

• require practitioners to limit presentation of their case to genuine issues and to complete work in time constraints set by the court and occupy as short a time in court as is reasonably necessary to advance and protect the client's interests

• the proposed Code should inter alia includes a clear indication of accepted standards of conduct and practice in relation to advising and assisting clients in matters, including standards that practitioners shall, as early as possible, advise clients of relevant non-litigious avenues available for resolution of the dispute which are reasonably available to the client.

4.11 Legal ethics training should be required for all lawyers and law students. Attendance at legal ethics continuing legal education also should be required for practitioners in order to renew practicing certificates.

4.12 The court fees especially those at the High Court (Commercial Division) should be reviewed downwards. Fees should be structured in such a way that they should not discourage litigants with large claims from accessing the Commercial Court. It is proposed that there should be a maximum of fees or a progressive threshold where the fees will be reduced. i.e. the more the claim the lesser the percentage.

5. Proposals to shorten the time scale for litigation.

5.1 Courts must be equipped with the required human resource and other necessary court facilities so that the required documents for appeal purposes are made readily available once the judgment is pronounced or shortly thereafter, preferably within three days.

5.2 There should be time limit for determining appeals. This can be done either by referring to the speed tracks in which the case was placed by the trial court or by having new speed tracks at the appeal stage.

5.3 Appellate courts should be required to examine records which are the basis of appeal to ascertain if there are any justifiable reasons for the appeal to be preferred.

5.4 The appellate court should be empowered to summarily reject or dismiss an appeal that is a straightforward case and has no prospect of success from the face of the records.

5.5 Things that should be done at the same sitting should be done immediately. For instance, the first pre-trial conference can be combined with the first ADR session. Also where mediation fails the file could be taken straight away to the judge in charge who will assign the matter to another judge who will then set the date for final pre-trial conference. This has been the practice in the Commercial Court and has cut down significantly on the time spent.

5.6 Amendment of CPC on the following areas;

5.6.1 Rules governing the order of address by parties or their advocates should be changed to the effect that a party who is not addressing the court is entitled to intervene when the other is addressing the court for the purpose of clarifying issues and facts presented.

5.6.2 The rules should make it clear that witnesses summoned should all be material witnesses for relevant evidence. This will allow the court and parties to determine the relevancy of their testimony, whether or not there is need to call them for oral evidence and or cross examination.

5.6.3 The laws on interlocutory matters are relatively weak and would need improvement to make them serve the ends of justice rather than the interests of scrupulous parties or advocates. Interlocutory disputes should be discouraged.

5.6.4 The CPC should be amended to expand the application of summary procedure to other type of suits.

5.6.5 The CPC should be amended to provide very clear grounds for the court to adjourn a case.

6. Proposals on reforming the Management and Structure of the Court system;

6.1 Enabling parties with limited financial means to conduct litigation on a

more equal footing.

6.2 The need for clear lines of judicial and administrative responsibility for the

justice system.

6.3 Designing the structure of the courts and the deployment of judges/ magistrates to meet the needs of litigants.

6.4 Improving effective deployment of Judges and Magistrates so that they

can manage litigation efficiently.

7. Improving effective deployment of Judges and Magistrates so that they can manage litigation efficiently by;

7.1 Increasing the number of competent Judges and Magistrates in order to reduce their workload and deploy them effectively which in turn will help to achieve better case management in the Court of Appeal, High Court and subordinate courts.

7.2 Specialization is a necessary step towards improving the efficiency of Judges and Magistrates.

7.3 Providing intensive training to Judges and Magistrates on all aspects of case management and proper remuneration for them.

7.4 High Court Judges should have stenographers to assist in taking notes during proceedings and qualified lawyers assigned to them as legal assistants to assist in doing research for the judge(s)

8. Proposals on the Utilization of Information and Communication Technology in court management systems;

8.1 Judicial officers should undergo a comprehensive training on ICT

8.2 Greater use of ICT in:

• Automating the case flow and caseload management within courts and tribunals operating in Tanzania. This entails the development of standard litigation support technologies and software.

• Recording and transcribing systems as is done in relation to Parliamentary proceedings.

• Facilitating legal research.

• Setting up of the necessary technological infrastructure for electronic filing of case documents and electronic communication in the judiciary.

CHAPTER ONE

REFORMING THE CIVIL JUSTICE SYSTEM

1.1 Background

A.1 In this part, the CJTWG evaluates the key issues relating to the state of civil procedure in Tanzania as well as the reforms that have been undertaken since the civil procedure system was introduced in relation to evidence, advocates, arbitration and civil procedure rules and determine their efficacy to date. In doing so, the CJTWG is minded that although it is relatively easy to criticise the current system and conclude that the status quo is unacceptable, it is more difficult to determine the best way forward. The purpose of this position paper is obviously not to provide answers to every conceivable problem besieging the civil justice system in Tanzania, but to raise issues as gathered from consultation and discussion with stakeholders and where possible to offer suggestions based on best practices that can be identified from other jurisdictions.

1.2 State of Civil Justice in Tanzania Today

A.2 The CJTWG has assumed that the legal stakeholders who will read this Position Paper will be familiar with the structure of the civil justice system in Tanzania. For this reason, the CJTWG has not set out in the body of this Position Paper an exhaustive list of the statutes, constitutional norms and a history of the reforms that constitute the civil justice system in Tanzania today. However, appreciating the fact that the past should inform any plans for a way forward, an analysis of the structure of civil procedure system and processes in Tanzania and a history of reforms to the civil justice system since independence was done by the Consultants and for purposes of reference the reader may refer to Chapter One of the Concept Paper.

1.3 Reform goals

A.3 In preparing this Position Paper CJTWG asked itself what are the goals to be pursued if reforms were to be undertaken.

A.4 All successful reform endeavours require adequate empirical information. As it has been stated elsewhere, data on the justice system however is often thin and would require substantial time to collect, analyse and make recommendations as appropriate. The CJTWG is of the view that some investment on time would make this exercise more useful and accomplish the tasks envisaged in the process.

A.5 The CJTWG considered the possibility of avoiding litigation where necessary, making litigation less complex and more cooperative than adversarial, minimizing the cost of litigation, lessening the time

litigation takes to conclude. The CJTWG concluded that all these hinge on the efficiency and accessibility of the civil justice system. In principle, these are not necessarily independent but interrelated issues. Accessibility implies that dispute resolution processes are available, explicable and affordable. Yet, litigants may still lack confidence in or harbour anxiety about the way the justice system might treat their claim or afford them a remedy, hence the issue of efficiency. Without being philosophical, for many, such subjective factors are the key barriers to access to justice.

A.6. Justice resists easy definition but is taken to be equated with fair, open, dignified, careful and serious processes. The justice system should be affordable, efficient and timely concerned with both the substance of justice and the specific procedures put in place to achieve it.

1.4 Principles of Civil Justice

A.7. Access to court is a constitutional right as very well provided for under the provisions of Article 13 of the Constitution of the United Republic of Tanzania. In the same context, access to justice is guided by certain fundamental principles which are also in the Constitution.

A.8 The principles of civil justice in Tanzania are essentially derived from the provisions of Article 107A of the Constitution of the United Republic of Tanzania. These include the following:

i) Delivery of justice without regard to the litigants’ social or economic status.

ii) Delivery of justice on a timely manner or without undue delay

iii) Provision of adequate compensation in case of injuries caused by others

iv) Facilitating and encouraging amicable settlement and dispute resolutions

v) Delivery of justice without undue technicalities

A.9 These principles underpin the concepts of “justness” and “fairness” to litigants. Lord Woolf while addressing the UK system identified the principles which should underpin the civil justice system in his Interim Report. His subsequent findings were based around these principles, namely that:

a. The system should be just in the results it delivers.

b. It should be fair and be seen to be so by:

� ensuring that litigants have an equal opportunity, regardless of their resources, to assert or defend their legal rights;

� providing every litigant with an adequate opportunity to state his own case and answer his opponent's;

� treating like cases alike.

c. Procedures and cost should be proportionate to the nature of the issues involved.

d. It should deal with cases with reasonable speed.

e. It should be understandable to those who use it.

f. It should be responsive to the needs of those who use it.

g. It should provide as much certainty as the nature of particular cases allows.

h. It should be effective: adequately resourced and organised.

A.10 The Woolf Committee agreed that the overriding objective of any reforms of the Civil Justice system were to enable the Court to deal with cases justly. For the Committee, this meant the following principles were fundamental:

a) ensuring that the parties are on an equal footing;

b) saving expense;

c) dealing with the case in ways which are proportionate to:

• the amount of money involved;

• the importance of the case;

• the complexity of the issues; and

• the financial position of each party;

d) ensuring that cases are dealt with expeditiously and fairly; and

e) allotting to each case an appropriate share of the Court's resources while taking into account the need to allot resources to other cases.

A.11 The Committee went on to argue that the parties to an action have a duty to help the court to further the overriding objectives listed above. In return the court has a duty to provide active case management which includes:

• Encouraging the parties to cooperate with each other in the conduct of the proceedings;

• Identifying the issues at an early stage;

• Deciding promptly which issues need full investigation and trial and, accordingly, disposing summarily of the others;

• Deciding the order in which issues are to be resolved;

• Encouraging the parties to use an alternative dispute resolution procedure if the Court considers that appropriate and facilitating use of such procedure;

• Helping the parties to settle the whole or part of the case;

• Fixing timetables or otherwise controlling the progress of the case;

• Considering whether the likely benefits of taking a particular step justify the cost of taking it;

• Dealing with as many aspects of the case as it can on the same occasion;

• Dealing with the case without the parties needing to be present at Court;

• Making use of technology; and

• Giving directions to ensure that the trial of a case proceeds quickly and efficiently.

A.12. The CJTWG noted that most of the Woolf principles are accommodated in the constitutional provisions of Article 107A. Yet, the quality of justice that results does not really match with the constitutional principles stated in Article 107A.

1.5 Proposals to avoid litigation where possible:

1.5.1 Pre-action protocols

A.13 Pre-action protocols are statements of understanding between legal practitioners and others about pre-action practice and which are approved by a relevant practice direction. One of the innovations of the Woolf reforms has been to establish pre-action protocols which are codes of practice on how disputes should reasonably be handled before instituting proceedings.

A.14 The CJTWG approach to civil justice is that disputes should, wherever

possible, be resolved without litigation. Where litigation is unavoidable, it should be conducted with a view to encouraging settlement at the earliest appropriate stage.

A.15 In Lord Woolf’s Final Report, he proposes the introduction of pre-action

protocol “to build on and increase the benefits of early but well-informed settlements which genuinely satisfy both parties to a dispute.”21

This is something of a new departure since it involves the court assuming a degree of control (albeit ex post facto) over the parties’ conduct which occurs before the start of the proceedings and so before the court’s jurisdiction is invoked. Once a protocol has been adopted, the parties' compliance (or failure to comply) with it will be taken into account when the court is dealing with the future conduct of the case. In particular, if one party has unreasonably refused to accept a pre-action offer to settle, that will have consequences in costs once litigation has started.

21

Woolf Final Report, p 107.

A.16 Such protocols are intended to be developed in specific areas of practice and drawn up with the active cooperation and agreement of business, professional, consumer and other groups interested in litigation in that area. Pre-action protocols are intended:- “(a) to focus the attention of litigants on the desirability of resolving

disputes without litigation;

(b) to enable them to obtain the information they reasonably need in order to enter into an appropriate settlement; or

(c) to make an appropriate offer (of a kind which can have costs consequences if litigation ensues); and

(d) if a pre-action settlement is not achievable, to lay the ground for expeditious conduct of proceedings.”22

A.17 Under the current law of civil procedure the courts have little to say

about how the parties should conduct themselves before the start of proceedings. It has however increasingly come to be realized that the parties’ pre-action attitudes and conduct have an important bearing on the progress and outcome of the dispute.

A.18 Sometimes parties are too quick off the mark and institute proceedings

before properly exploring ways of resolving the dispute without going to law. Once litigation has been set in motion, the parties may feel locked in to the litigation, running up costs and burdening the system, when in reality, both sides want to settle and probably could have settled without starting proceedings. Others may start an action without having made sufficient inquiry of their own or the other side’s case, later regretting having sued at all, or having brought the proceedings on an incorrect or flawed basis.

A.19 Both parties may wish to settle but feel unable to do so until they have

fuller information about the other side’s case which may not emerge until significant levels of costs have been incurred.

A.20 Article 107A of the Constitution requires the courts to encourage and facilitate amicable settlement of disputes. The principle is echoed in the provisions of the CPC which relate to ADR and in the provisions of the Arbitration Act23 in relation to arbitration. Also many laws such as those pertaining to tribunals embrace the principle of amicable settlement of disputes out of court.

A.21 In spite of the above provisions, ADR has not been as successful as expected in fostering amicable dispute settlement due to the following reasons:

22

Ibid. 23 Arbitration Act, Cap. 15 RE 2002.

a. Few judicial officers to conduct ADR thereby making it difficult to assign the case to another judicial officer in case of failure of the ADR.

b. Only a few judicial officers have ADR training.

c. Most advocates dislike ADR for reasons of purported low economic returns and hence they do not actively and purposively encourage their clients to pursue ADR.

d. Litigants quite often abandon ADR process midway and opt for normal adversarial litigation.

e. Mediation has also run into problems because sometimes judicial officers conduct themselves as authoritative Judges and magistrates other than mediators.

f. Judicial officers regard ADR as another burden added to their already overwhelming workload.

g. Mandatory mediation has been pointed out as a contributory factor to delay of cases when parties grant it half-hearted support and thus attend mediation just as a matter of procedure.

h. The dual function of the court as a mediator and adjudicator is not well understood by the parties. Thus in the eyes of the litigants, the role of the Judges and magistrates in mediation and adjudication is not easily distinguishable.

i. Parties normally come to court as a matter of last resort since usually they must have attempted mediation and conciliation and failed prior to moving the court. Thus the parties’ willingness to engage in further mediation effort (now in court) is regarded as superfluous.

A.22 To address the above problems identified at the ADR system, the CJTWG makes the following proposals:

a) Training on ADR

Judicial officers and advocates should undergo comprehensive training on ADR and tribunal adjudication.

b) Public awareness

Members of the public being potential litigants should undergo public awareness on ADR and tribunal adjudication.

A.23 With regard to pre-action protocols, the CJTWG makes the following recommendations: a) Steps should be taken, in cooperation with interested business, professional, consumer and other groups, to develop pre-action protocols suitable to Tanzania conditions with a view to

establishing standards of reasonable pre-action conduct in relation to specific types of dispute.

b) Rules should be adopted allowing the court to take into account the parties’ pre-action conduct when making case management and costs orders and to penalize unreasonable non-compliance with pre-action protocol standards.

c) The operation of the protocols should be monitored and their detailed provisions modified so far as is necessary in the light of practical experience.

1.6 Making Litigation to be less adversarial and more cooperative

A.24 The CJTWG appreciates the existence of divergent views on the adversarial system of dispute settlements that applies in Tanzania. Critics of this system point out that litigants resort to partisan and unfair litigation tactics to win the “legal battle” at whatever costs. However, proponents of the status quo argue that the adversarial system fosters judicial impartiality, independence and consistency.

A.25 As already observed earlier on the Constitution of the United Republic of Tanzania 1977 gives room for dispute settlement in a less adversarial manner.

A.26 The CJTWG is of the view that a mere call for change to the adversarial system can sometimes oversimplify the problems in the country’s litigation system and solutions to those problems, at least as far as this debate concerns civil matters. The debate somehow assumes that the problems associated with say, the costs, delay or unfairness in the system, are attributable to the adversarial character of the system and that these problems can be cured by borrowing from or at least realigning the system to the inquisitorial or civil code systems. Lord Woolf when diagnosing the British system noted that litigation problems in England and Wales derive to a large extent from the unrestrained adversarial culture of their legal system.24 The solution to this problem, he recommended, is to put Judges in charge and run the show.25

A.27 The CJTWG points out that not all shortcomings obtaining in civil justice system in Tanzania are the effect of an extremely adversarial

24 Lord Woolf, Access to justice: Interim report to the Lord Chancellor on the civil justice system in England and Wales, Lord Chancellor's Dept, London, 1995, 7. Without effective judicial control . . . the adversarial process is likely to encourage an adversarial culture and to degenerate into an environment in which the litigation process is too often seen as a battlefield where no rules apply.

25 G Watson, `From an adversarial to a managed system of litigation: A comparative critique of Lord Woolf's interim report' in R Smith (ed) Achieving civil justice: Appropriate dispute resolution for the 1990s Legal Action Group, London, 1996, 65; Lord Woolf Access to justice: Interim report to the Lord Chancellor on the civil justice system in England and Wales Lord Chancellor's Dept London 1995, 26: `in order to achieve both the overall aim and the specific objectives, there is no alternative to a fundamental shift in the responsibility for the management of civil litigation in this country from litigants and their legal advisers to the courts.

system. Some problems such as judicial apathy, unethical behaviour of advocates and judicial officers, corruption and delay in case disposal may trace their causes elsewhere.

A.28 As regards the debate on the adversarial system vis-à-vis the civil law system the CJTWG makes the following proposals:

a. Judges and magistrates should be obligated to be in charge of court proceedings and run the show.

b. The CJTWG cautions against a radical departure from the current adversarial system. However the CJTWG recommend adoption of some aspects of civil code system especially those which empower the judge or magistrate to exercise full control over the proceedings.

1.7 Making Litigation to be less complex

A.29 Article 107A (2) (e) of the Constitution makes it clear that justice should not be premised on technicalities. Unfortunately the laws of the land have not yet been realigned to this principle since the principle was enunciated in 2005. Complaints have been raised that the civil procedure laws and substantive rules currently in force are complex in nature especially for a layman to understand reasonably well. The underlying reason is that the CPC provisions are couched in sophisticated and elaborate English language such that persons lacking law training have difficulty in construing the rules. Indeed, some judicial officers and advocates confessed to the CJTWG that satisfactory understanding of the CPC provisions is a common problem amongst the players in the legal profession. In view of the concerns raised about the complex nature of the CPC provisions, the CJTWG recommends as follows;

a) there is need to look at our laws in totality and reflect them along this principle. The legal provisions should be reviewed to avoid very long and convoluted sentences that are problematic to understand.

b) the use of technical terms in the provisions of procedural and substantive laws should be reviewed with the intention of keeping such technical terms to the minimum. It is the Team’s position that technical terms should only be preserved in the CPC and other laws only when highly necessary. In so doing, litigants without training in law would be brought to a virtually equal footing (as regards understanding the CPC) with their law-trained counterparts.

c) the need to translate the CPC to the Swahili language which is familiar to almost all Tanzanians needs to be carefully considered. The CJTWG is of the view that the production of a Swahili version of the CPC would go along way in rendering litigation less complex to Swahili speakers.

1.8 The need to make Cost of litigation more affordable, more predictable and more proportionate to the value and complexity of individual cases;

1.8.1 Advocate’s Fees

A.30 In many countries, advocate costs usually are based on the amount of time spent by a lawyer in providing services to a client. In Tanzania, a percentage system based on prescribed scales is used to determine costs in accordance with the Advocates’ Remuneration and Taxation of Costs Rules26. Critics of the present system assert that the rules based as they are on percentage of remuneration are simply unworkable. As a result, most advocates do not follow the rules and instead agree up front on a fee structure with their clients.

1) Scales

A.31 Scales indicate what costs should reasonably be charged by practitioners acting on behalf of clients. They also provide information to clients and lawyers about fee rates and provide a standard for costs assessment or taxation. Universally, there is continuing discussion on the merit of fee scales, particularly focused on whether they reduce legal expenses and provide information to parties with which to compare their own costs.

A.32 The United Kingdom: In the United Kingdom a fixed cost regime for straightforward cases is being implemented. For more complex cases, estimates of costs are to be published by the court or agreed by the parties and approved by the court27. For uncomplicated and predictable litigation courts are to issue guideline costs28.

A.33 Germany: In Germany there is a fixed costs regime where costs follow the result of litigation and the loser pays the winner's costs and expenses, including court fees29. Lawyers' fees and even court fees are determined in proportion to the party's success in the claim. For

26 G.N. No. 515 of 1991. 27 Woolf final report. The Law Society (England & Wales) supported a fixed costs regime for fast track cases for fixing party-party costs only, but said it would be contrary to government policy to control solicitor and own client costs in the market: Law Society Volume 1: Fast track, housing, multi-party actions, expert evidence, costs -- Responses by the Law Society Civil Litigation and Courts and Legal Services Committees Law Society London March 1996, 3. 28 Three tracks were proposed by the Woolf final report (principally on the basis of the value of the case): a small claims track, a fast track and the multi-track. This system of three tracks is one of the key elements of a reform package being implemented in England and Wales: Lord High Chancellor Modernising justice: The Government's plans for reforming legal services and the courts Lord Chancellor's Dept London 1998, para 4.3.

29 A. Zuckerman Lord Woolf's inquiry: Access to justice -- Research conducted for the final report to the Lord Chancellor, July 1996 -- German litigation costs: Survey of German practitioners Lord Chancellor's Dept London July 1996, 8-9; D Leipold `Limiting costs for better access to justice: The German approach' in A Zuckerman & R Cranston (eds) Reform of civil procedure Clarendon Press Oxford 1995, 268-9.

instance, a plaintiff who recovers only 80% of his or her claim will recover only 80% of the costs. In divorce cases each party bears his or her own costs plus half the court fees.

A.34 Australia: In Australia the Access to Justice Advisory Committee (AJAC)30 and the Trade Practices Commission (TPC)31 have recommended that fee scales be abolished. Scales are said to be anti-competitive because they reduce market pressures to compete on price or adopt innovative practices, and they place a floor under market prices for legal services.

A.35 In Australia, a lump sum fee scale has been suggested for the federal jurisdiction by the Report of the review of scales of legal professional fees in federal jurisdictions (the Williams report)32. The Williams report considered the present scales to be unsatisfactory because;

i. they create uncertainty about the amount a successful litigant will recover

ii. Parties may litigate (rather than settle or control expenditure) in the belief they will recover most of the increased expenditure and

iii. they reward certain work (such as engrossing, drawing and photocopying) which may bias the activity of solicitors towards such work33.

A.36 The CJTWG supports the concept of event based lump sum scales as they may be beneficial in promoting certainty and predictability of costs. Event based scales, in particular, give clients a better indication of total costs where information on the events involved in a matter is also available.

2) Information

A.37 Consumers who are informed and educated about the range of legal services available and the likely charges and time commitments are obviously in a better position to make informed agreements about fees. Many institutional consumers such as government departments and agencies and large corporations are repeat players which assist them to compare, assess and negotiate fees. Their bargaining power permits them to set their own fees. Most people are `one-off' users of legal services. There is little publicly available information to guide less experienced users of the legal services market.

30 AJAC report para 5.24-5.26. 31 Trade Practices Commission Study of the professions -- legal Final Report TPC Canberra 1994, 157 (TPC final report).

32 P Williams Report of the review of scales of legal professional fees in federal jurisdiction Attorney-General's Department (Commonwealth) Canberra 1998.

33ibid 15-20.

3) Agreements on costs and fee disclosure

A.38 In various jurisdictions lawyers and clients may enter into agreements regarding the amount and manner of payment of charges. Generally there is no private recourse to taxation of costs where a valid costs agreement is in place. Rules regulate the transaction arrangements for costs agreements.

A.39 A number of jurisdictions have adopted practice rules which require lawyers to inform clients of potential costs as soon as practicable after receiving instructions, and in some cases provide a review of costs. Court scale of costs, the procedure for handling disputes about costs, and information about the availability of independent legal advice concerning the agreement.

4) Reasonable fees

A.40 Fee disclosure and an improvement in comparative costs information will assist a client to determine whether the fees charged by their lawyers are reasonable.

A.41 The Law Society of Western Australia's Professional Conduct Rules state that:

[a] practitioner shall charge no more than is reasonable by way of costs for his services having regard to the complexity of the matter, the time and skill involved, any scale costs that might be applicable and any agreements to costs between the practitioner and his client34.

A.42 In Tasmania, a practitioner may charge a `reasonable' fee for work done, and a list of factors that may be taken into account when determining the fee applies in the absence of a cost agreement between practitioner and client35.

A.43 A number of other jurisdictions have practice rules that provide a list of relevant factors to consider when determining whether a fee is reasonable. For example, the American Bar Association Model Rules of Professional Conduct state that:

A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:

• the time and labour required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

34Law Society Western Australia Conduct rules, r. 16.5. 35 Rules of Practice Tasmania, r. 85.

• the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

• the fee customarily charged in the locality for similar legal services;

• the amount involved and the results obtained;

• the time limitations imposed by the client or by the circumstances;

• the nature and length of the professional relationship with the client;

• the experience, reputation, and ability of the lawyer or lawyers performing the services; and

• whether the fee is fixed or contingent36.

A.44 The CJTWG is of the view that such a rule should be included in Tanzanian Code of Conduct and Ethics for Advocates. It is important that practitioners and professional disciplinary bodies have clearer guidelines on what are reasonable charges, and on gross overcharging as misconduct.

A.45 The CJTWG is aware that the TLS has worked on a draft of Remuneration Rules and had submitted the same to the AG and the CJ for consideration. The draft rules have taken into account the shortcomings of the current rules and proposed the adoption of remuneration structure that recognizes mutual arrangements between advocates and clients, proportionality between the amount of legal fees, the value of the subject matter, and the professional inputs required and expended.

1.8.2 Court fees

A.46 Court fees can have an adverse effect on access to justice if they render the costs of litigation out of proportion to the remedy sought. For instance court fees at the High Court (Commercial Division) are excessively high. This deters litigants of limited financial means to access the Commercial Division .The CJTWG is of the view that the fees at the Commercial Division should be structured in such a way that they would not discourage litigants with large claims from accessing the Commercial Court. It is proposed that there should a maximum of fees or a progressive threshold where the fees will be reduced. i.e. the more the claim the lesser the percentage.

A.47 The CJTWG wishes to make the following proposals:

36 American Bar Association Annotated model rules of professional conduct 3rd ed ABA Chicago 1996, r 1.5.

i) The Code of Conduct and Ethics for Advocates should include a rule making it a professional misconduct to charge unreasonable fees and set out the factors relevant to the determination of whether legal fees charged are reasonable. The American Bar Association model rule on reasonable fees should serve as a guide in drafting such a rule.

ii) It should be a professional obligation for advocates, before they are retained in connection with litigation, to explain to the prospective client how their charges for litigation are to be calculated and what the overall cost might be; and for them to give reasonable notice where that estimate is likely to be exceeded and the reason for this.

1.9 The need to shorten timescale for litigation.

A.48 Article 107A of the Constitution contains the principle that in determining civil cases courts should deliver justice on a timely manner or without undue delay. It should provide as much certainty as the nature of particular cases allows.

A.49 This constitutional principle is implemented by the provisions of the CPC which set time limits for parties and courts to do certain activities once a case has been filed. These are rules that provide time limits for assignment of cases, service of pleadings and summons, filing of written statement of defence and reply thereto, the holding of pre-trial and scheduling conferences, mediation, hearing and delivery of judgements.

A.50 The table below summarizes the duration within which cases should be determined under the four speed tracks.

TABLE 1

Track Days for WSD

Days for Reply

Days for Further Pleadings

Days for Hearing

Days for Judgment

Allowed Time (Days)

1st (Summary Cases) 21 7 7 175 90 300

2nd (Simple non summary cases) 21 7 7 240 90 365

3rd (Difficulty but not Complex 21 7 7 295 90 420

4th (Complex Cases) 21 7 7 605 90 730

Explanations of the rules relating to timeframe for litigation are set out in Appendix 2

A.51 It is clear that adherence to timescales for litigation according to appropriate speed track of a case renders the period of litigation shorter and certain in the sense that parties can ascertain as to when the case will be finally determined. There is a consistent public outcry and concern about delays in the disposal of civil suits. Such delays are the outcome of several factors ranging from weaknesses in the CPC, procedural skirmishing by parties themselves and the courts.

i) Weaknesses in the CPC

A.52 There are loopholes in the CPC that give room for delays in disposing of civil suits.

a) Different rules govern the timing and the order in which Advocates or parties address the Court during civil trials. In general, the defence may not comment until after the close of the plaintiff's case and similarly the plaintiff cannot do so during defence until witnesses have been examined. This means an opportunity for narrowing the issues is lost until a substantial part of the trial has been completed.

b) Parties are free to call witnesses and sometimes without telling the court the benefits that would accrue in relation with the case if a particular witness testifies. As a result, some cases may have too many witnesses whose justification is not clear. There is no rule that requires that witnesses summoned should all be material witnesses for relevant evidence.

c) In civil cases parties commonly apply for interlocutory orders like injunctions requesting the court for orders to preserve rights prior to trial. These proceedings can be time consuming and expensive. Moreover, the whole process may be duplicated at

trial when the same issues are canvassed again at a slower speed at times.

ii) Delays caused by parties

A.53 Parties to a case are sometimes the cause of delay. This is the outcome of various reasons, such as:

a) Parties or their advocates keep on requesting for adjournments for various reasons such as being unprepared for the case, Advocates having other cases in other courts, absence of parties or witnesses, etc .

b) In some cases party or parties might be ignorant of the next step to take after getting the summons or finalizing the pleadings or during the hearing.

iii) Delays caused by the courts

Despite the provisions of the CPC setting out the time scales for various stages for processes of litigation there have been many instances where the courts have failed to apply them hence causing delays in the disposal of cases. Among those instances are:

a) Courts have adopted a practice of mentioning of cases instead of following the stages provided by the CPC. This practice unnecessarily lengthens the process of litigation

b) Cases drag on for long before courts owing to unnecessary adjournments. The proviso to O. XVII rule 1(2) of the CPC requires that once a case has been set down for hearing, proceedings should continue uninterrupted until all the witnesses in attendance have been examined. That practice however indicates that cases do not proceed as such as courts do allow adjournments up to months hence contributing to the delays and increased backlog of cases.

c) Courts do not apply to a satisfactory extent the provisions of the CPC that can determine suits within very short time. These are orders O.VII rule 11 on summary rejection of a plaint, O.X on oral examination of parties to determine what is admitted or denied by the parties, O.XII on admissions, O.XIV rules 6-7 on settlement of issues in particular the aspect of agreement by parties after going through the issues, O.XV on disposal of suits at the first hearing and O.XXIII rule 3 on compromise of suits. The cumulative effect of these provisions is to allow parties and the courts to settle disputes and issues within them without having to exhaust the entire court process on litigation. The problem is that these rules are rarely used.

d) Limitations in the application of the procedures relating to summary judgment. Summary procedure is only available for cases in which there are no serious questions to be tried. Currently summary suits apply to only seven types of suits listed O XXXV rule 1. The courts have been too prepared to accept flimsy defences and allow the case to go for full trial.

e) Courts appear not strict enough in ensuring compliance with the scheduling orders

f) Inadequate/limited judicial intervention in the process of determining cases as per adversarial system. The traditional, limited role of the court impedes the fact finding process hence a contributing factor to the delays. In Tanzania that system has been modified as pointed out by the Court of Appeal in Director of Public Prosecution v Peter Ronald Vogel [1987] TLR100. It was observed that the object of a civil trial is to do justice to the parties and determine the dispute between them judiciously in accordance with the law. This can only be achieved if the judge or magistrate plays an active role.

g) Constraints that court face. These include pressure of work, inadequate resources and poor infrastructure.

A.54 To address the above problems that have been identified as obstacles to shorter duration for litigation and certainty in litigation the CJTWG makes the following proposals:

a) Rules governing the order of address by parties or their advocates should be changed to the effect that a party who is not addressing the court is entitled to intervene when the other is addressing the court for the purpose of clarifying issues and facts presented.

b) The rules should make it clear that witnesses summoned should all be material witnesses for relevant evidence. This must be verified at the pre-trial conference before the matter goes to full trial. Such verification can be achieved by requiring each party to file statement of witnesses on whom he will rely to prove his case. This will allow the court and parties to determine the relevancy of their testimony, whether or not there is need to call them for oral evidence and/ or cross examination.

c) The laws on interlocutory matters are relatively weak and would need improvement to make them serve the ends of justice rather than the interests of scrupulous parties or advocates. Interlocutory disputes should be discouraged. Where the court is of the view that an interlocutory application is frivolous or vexatious the unsuccessful party, and where appropriate, his advocate should be condemned to pay costs.

iv. Appeals

A.55 The right to appeal against an adverse decision to a higher court is an established feature of the Tanzania justice system. Appeals, however, can significantly extend the case duration to a longer period until a final resolution of the case is achieved. Some litigants who have not been successful at the trial simply refuse to accept the result and proceed to appeal even where there is no prospect of success.

i) Time limit for the aggrieved party to appeal is 30 days from the date of judgment. This limit appears impracticable because O XXXIX rule 1 requires the memorandum of appeal to be accompanied by a copy of the decree appealed from and of the judgment on which it was founded. That being the position there is a substantial delay in filing an appeal, since time limit starts to run against the party wishing to appeal from the date when both judgment and decree are ready. In many courts, it takes more than 30 days for the two documents to be ready.

ii) Appeals are not classified into speed tracks in accordance with their relative complexity and within what period appeals in particular category should be finalized. That being the position, there is no time limit for determining the appeals.

A.56 To address the above problems that contribute to the delay in disposing civil cases at the appeal stage, the CJTWG makes the following proposals:

a) Courts must be equipped with the required human resource and other necessary court facilities so that the required documents for appeal purposes are made readily available once the judgment is pronounced or shortly thereafter, preferably within three days.

b) There should be time limit for determining appeals. This can be done either by referring to the speed tracks in which the case was placed by the trial court or by having new speed tracks at appeal the stage.

1.10 Conclusion

A.57 In summary, the civil justice system in Tanzania is generally sound. However it has certain shortcomings. It is not easily accessible to, nor well understood by most people including some legal professionals. Cases drag on for many years due to statutory, systemic and ethical problems. In these circumstances, it is not easy to predict the outcome of a case, how long a case will take, and what the whole process will cost. The parties’ differing abilities to obtain legal assistance, information and money to pay legal costs make the system unfair. Consequently, the rich appear to have a better justice system than the poor.

CHAPTER TWO

REFORMING THE MANAGEMENT AND STRUCTURE OF THE COURT SYSTEM

2.1 Introduction

B.1 Civil justice system should, inter alia, be fair and be seen to be so by, litigants and the public at large .The CJTWG noted that in many cases parties to litigation do not have equal opportunity to assert or defend their rights because of referring financial capabilities. It was further noted that the judicial and administrative function of judicial officers are in most cases exercised by the same persons. The structure of the courts and deployment of Judges and Magistrates do not meet the needs of litigants and the civil justice system is not sufficiently responsive to the needs of litigants. In addition, the CJTWG observed that while the Bar have embraced the importance of ICT in providing legal service to clients the courts fall far behind in this regard.

2.2 Enabling Parties with limited financial means to conduct litigation on a more equal footing

B.2. As earlier stated civil justice system should, inter alia, be fair and be seen to be so by, among others, ensuring that litigants have an equal opportunity, regardless of their resources to assert or defend their legal rights. The question that requires attention is why does the financial means of parties remained an issue in conducting litigation? There are several reasons that make financial means of parties to litigation crucial.

B.3 The present civil justice system is too unequal. Many litigants are forced to engage in litigation without any formal legal because they cannot afford the high and often disproportionate costs of legal representation. If one party to a case is not able to hire an advocate to represent him/her while the other party is able, there is a possibility of unequal footing.

B.4. There are several fees and costs in the process of conducting litigations that must be paid. This means that parties with limited financial means might find it difficult to meet such expenses. The costs involved include costs of filing pleadings, obtaining judgements and other court documents and bringing witnesses to court.

B.5. The CJTWG opines that the process of conducting civil litigation can never be free of charge. To minimize the impacts of financial inequality, the following must be done;

a) Reviewing the Advocates Act and regulations made under it along the lines proposed in chapter one.

b) Financing and encouraging legal aid schemes. The current existing schemes are mostly based in urban areas and suffer from lack of financial and human resources.

c) Modification of the adversarial system to suit local condition as proposed in chapter one.

d) Institutionalising and operationalising a full-fledged system of closely regulated paralegals as envisaged in the Medium Term Strategy of the Legal Sector Reform Programme.

2.3 The need for clear lines of judicial and administrative responsibility for the civil justice system

B.6. The CJTWG proposes that the new system of case management will require much greater judicial control over individual cases and over the deployment of court resources. It is noted that currently there is no clear lines of judicial and administrative responsibility for the civil justice system. The most productive form of administration of the court system is one in which both Judges and administrators are involved. There needs to be a partnership between the judiciary and the administrators where the partners have distinct roles but work together to further an agreed policy.

B.7. The CJTWG is of the view that in order to have clear lines of judicial and administrative responsibility for the civil justice system the current judicial and administrative functions must be separated. This is by having a department within the judiciary to deal with purely administrative matters affecting the judiciary. This requires clear guidelines for specifying the duties of such administrators and to who are they responsible; and their relationship with the Judges/Magistrates. This gives Judges/Magistrates more time for dealing with cases than administrative matters.

2.4. Designing the structure of the courts and the deployment of Judges/magistrates to meet the needs of litigants

B. 8 There are three levels in the judicial hierarchy within Tanzania. Primary Court Magistrates preside in the Primary Courts. Primary Courts are courts of first instance in all civil cases where the law applicable is customary law or Islamic law and matrimonial proceedings.

B. 9 The next level higher in the hierarchy is the District and Resident Magistrates Court which deals with civil disputes involving up to Tshs. 40,000,000/=

B. 10 Next in the ladder is the High Court of Tanzania which is headed by the Principal Judge The High Court deals with civil disputes involving more than 40,000,000/-

B. 11 The highest level of the Court system is the Court of Appeal of Tanzania which is headed by the Chief Justice and not less than five Justices of Appeal.

B.12 The CJTWG is aware that there is a deliberate move by the Government to establish specialization by creating divisions within the High Court. The divisions established so far are the Commercial, Land and Labour Divisions.

B.13 It is important to note that these formal Court structures are not the only means for dispute resolution. A wide variety of tribunals and other courts deal exclusively with single subject areas such as Tax Appeals Board/Tribunal, Fair Competition Tribunal, Commission for Mediation and Arbitration.

B.14 Among the shortcomings of this structure is poor infrastructure and inadequate resources

B.15 The CJTWG suggests that efforts should be taken to speed up the implementation of the Legal Sector Reform Medium Term Strategy 2005/06 to 2007/08 that has far reaching reforms on the courts and their structures as well as the whole question of access to justice.

2.5 Improving effective deployment of Judges and Magistrates so that they can manage litigation efficiently:

B.16 The CJTWG noted that there is a shortage of Judges and Magistrates in the judicial system.

B.17 Therefore there is the need for increasing the number of Judges and Magistrates in order to reduce their workload and deploy them effectively which in turn will help to achieve better case management in the Court of Appeal, High Court and subordinate courts.

B.18 The CJTWG appreciates and therefore recommends that specialization is a necessary step towards improving the efficiency of Judges and Magistrates.

B.19 The CJTWG recommends intensive training of Judges and Magistrates on all aspects of case management and proper remuneration for them

B.20 It is proposed that High Court Judges should have stenographers to assist in taking notes during proceedings and qualified lawyers assigned to them as legal assistants to assist in doing research.

2.6 Utilization of information and communication technology

B.21 The CJTWG noted with appreciation that most law firms operating in Tanzania have embraced ICT as a necessary tool for productivity and value in legal practice. Majority of law offices have computer facilities connected to the internet. Invariably, some firms run their own web sites and a handful of them have internal servers where they keep and share important legal documents such as statutes and precedents. A

few law firms have taken ICT a notch higher by establishing the necessary infrastructure for electronic billing.

B.22 Conversely, the state of ICT in the Tanzania judiciary is far from satisfactory. Court proceedings are literally paper-based and Judges and Magistrates usually take down notes using long-hand when the court is in session. There are no ICT facilities for recording audio and graphical materials that are presented to court as part of deponed evidence. Only a limited number of computers that are connected to the internet are available for use by judicial officers. Only few Judges and magistrates are enthusiastic about the use of ICT. The ultimate effect of these shortcomings is inadequate use of ICT which contributes to poor case management resulting in delay in disposal of cases. In view of the above problems the CJTWG makes the following recommendations;

B.23 Greater use of ICT in:

• Automating the case flow and caseload management within courts and tribunals operating in Tanzania. This entails the development of standard litigation support technologies and software.

• Recording and transcribing systems as is done in relation to Parliamentary proceedings.

• Facilitating legal research.

• Setting up of the necessary technological infrastructure for electronic filing of case documents and electronic communication in the judiciary.

CHAPTER THREE

CODE OF CONDUCT AND ETHICS FOR ADVOCATES

3.1. Introduction

C.1. Issues relating to conduct and complaint in general touch in principle on the regulatory framework of an industry. The CJTWG is of the view that the problems with the country’s regulatory system for legal practitioners call not for a “pick and fix” but a broad based approach by looking at the entire system of lawyers’ regulations.

C.2. Universally, professional practice rules fulfil a number of roles. They provide a base for education, practical guidance to practitioners, and an agreed standard of behaviour to which disciplinary bodies can refer. For professional practice rules to be useful, the rules should represent attainable aims and be objective in dealing with the continuing ethical dilemmas of professional life, command respect and be enforceable.37 Practitioners and those who stand to benefit if the rules were in place, need to know the rules, take them seriously, apply them and understand the consequences of enforcement.

C.3. The CJTWG considers that the legal profession should be proactive in defining its obligations to clients, the courts, tribunals, opposing parties and witnesses. The lawyer's obligation to pursue vigorously the interests of clients is an important one. This is balanced against competing, overriding obligations to the court and to the proper administration of justice. Courts, tribunals and governments have a role in regulating lawyers' conduct, but the interests of clients and the profession may be compromised if the legal profession is not the primary player in defining and securing appropriate practice standards, as well as implementing them.

C.4 The CJTWG noted that on the basis of the annual reports of TLS Ethics Committee there was an erosion of ethical standards within the Bar. The CJTWG therefore considers that there is need to evolve comprehensive rules enshrining lawyers' obligations to clients, courts and other service users to deal justly with cases. This needs commitment by the profession to evaluate, coordinate and elaborate its practice rules and disciplinary processes and to provide appropriate guidance on the rules in the form of, say, commentary appended to the rules.

3.2 Regulatory Institutions

C. 5. There is a number of bodies with regulatory powers over lawyers, which make up the regulatory framework. These include:-

a. President of the United Republic of Tanzania on scale of fees

b. Chief Justice on admissions, fees, and striking out from the Roll

37 I Freckelton “Enforcement of ethics” M Coady & S Bloch (Eds) Codes and ethics and the professions Melbourne University Press Melbourne 1996, 164.

c. Council for Legal Education (CLE) on admissions

d. Advocates Committee on misconduct

e. Attorney General on disciplinary process for State Attorneys

f. Judiciary based on inherent powers and court rules

g. TLS through its Committees

h. Public Service Management on public service lawyers

C. 6. As it can be seen, these bodies come with different powers and functions. Some like the TLS combine regulatory functions and representative functions. Broadly, the regulatory functions of these bodies can be categorised under five headings. The first concerns conditions of entry, induction, training and continuing education issues. The second concerns etiquette and professional rule making functions. The third concerns monitoring of professional standards. The fourth covers complaints. The fifth concerns disciplinary issues. All these functions are not necessarily in harmony with each other hence creating complications in their realization.

C. 7. Above the professional bodies stand a number of super-regulators. The Chief Justice assisted by the CLE has broad regulatory oversight powers, including the right of admission to the Roll, over the TLS.

C. 8. In addition to the more direct forms of regulation, legal service providers are subject to less obvious regulation in the form of procedure rules made by the various rule making bodies (e.g. civil procedure rules) and practice directions which may be issued from time to time by the Chief Justice among others. These control the manner in which any person, including legal professionals, will operate when conducting litigation or exercising advocacy functions in court.

C.9 Moreover, there is a number of consumers of legal services who are able to impose service conditions on providers of legal services by virtue of their financial power mainly through retainers and consultancies.

3. 3 Forms of Legal Practice

C.10 There are no specific rules on this aspect. However a number of Advocates operate on a legal firm basis as partners and employing a number of lawyers and sometime other professionals such as human resources and business managers. Most Advocates operate on a solo basis. Whichever practice option an advocate takes, his legal practice is regulated by the general regime regulating Advocates as shall be discussed below.

C.11 Employed lawyers in legal entities may give legal advice to their employers but, generally, they are not permitted to give advice to third parties unless their employment terms require them to do so.38 Some

38 For example those employed by Tanzania Investment Centre (TIC) may give legal advice to potential investors.

of the multi-practices companies such as Price Waterhouse and Coopers and Deloitte and Touché employ lawyers who give legal advice to clients on a number of issues such as tax and other compliance issues. However, lawyers operating on this basis are outside the regulatory web of lawyers and are handled using the entities or company’s internal disciplinary rules.

3.4 Principles of Good Regulation

C.12. There is no single model for best practice in regulation of an industry that can be copied. Nevertheless, The CJTWG is of the view that regulation should be:-

a) proportionate: regulators should only intervene when necessary and that remedies should be appropriate to the risk posed, and costs identified and minimised;

b) accountable: regulators must be able to justify decisions, and be subject to public scrutiny;

c) consistent: rules and standards must be joined up and implemented fairly;

d) transparent: regulators should be open, and keep regulations simple and user friendly;

e) targeted: regulators should be focused on the problem, and minimise side effects. 39

C.13 In the CJTWG views the existing system barely meets these thresholds and there is need to develop a more vibrant mechanism to address legal practitioners in their various activities.

3.5 Regional and International Considerations

C. 14. There are a number of regional and international considerations that will need to be borne in mind in devising a sound regulatory framework. Those already identified as having a potential impact on the development of proposals include:-

a) EAC initiatives to promote cross border practice of law within the Community; and

b) International trade obligations, for instance those stipulating basic principles governing domestic regulation and designed to ensure that the benefits of international liberalisation of world services markets are not negated by overburden some regulatory systems at the domestic level.

39 Some have added that guidelines should have clear objectives, the ingredients of regulation (rules; monitoring and enforcement including the imposition of sanctions; and a redress mechanism), a dedicated structure, a system for independent representation, monitoring compliance, public accountability, good publicity, effective sanctions, and performance indicators as well as adequate resources, wide consultation, well-publicized complaints procedures and regular reviews.

3.6 The Objectives of a Regulatory Framework for Legal Services

C.15 A decision to regulate a market (in this case the legal services market) arises from the decision that leaving the activity unchecked could lead to undesirable consequences and that the benefits that will flow from regulation will outweigh the costs of that regulation. Apart from increasing trust and confidence in institutions and the sector generally, regulation can also lead to greater certainty of outcome for both consumers and providers. Regulation also has an important role to play in protecting the consumer, ensuring there are no unjustifiable restrictions on competition, that appropriate standards of education, training and conduct are maintained, and that there are appropriate redress mechanisms.

C.16 But there is a potentially negative side to regulation in that it can be inefficient, with rules resulting in not much more than an increase in bureaucracy and additional costs and sometimes disadvantaging smaller operations which have fewer resources to deal with additional obligations.

C.17 The first step in defining any regulatory regime is to make it clear what the objectives of the regime are. This is critical for those charged with regulatory responsibility, since the objectives represent the criteria against which they must determine the appropriate regulatory action; and against which they will be held accountable. Objectives also need to be clear to those being regulated and other interested parties. The CJTWG is also of the view that the following objectives are also central to the regulatory system:

a) maintaining confidence in the legal system;

b) promoting public understanding of the legal industry;

c) securing the degree of protection for consumers of legal services;

d) helping to reduce inappropriate conduct by practitioners..

3.7 Regulatory Models

C.18 Five core functions of regulation are commonly recognised as:-

a. Entry standards and training: setting minimum standards of entry qualifications and Continuing Legal Education (CLE)

b. Rule making: formulation of rules by which members are expected to work and to adhere.

c. Monitoring and Enforcement: checking the way in which members carry out their work, in the light of the prescribed rules, and enforcing compliance if rules are broken.

d. Complaints: systems for consumers to bring complaints about providers who have served them poorly, focused on redress to the consumer.

e. Discipline: powers to discipline members in cases of professional negligent, misconduct or other breach of professional rules, focusing on action against that individual.

C.19 A fundamental issue is whether it is appropriate to combine the regulatory functions of a professional body, where the public interest has primacy, with the representative functions, where the interest of the members has primacy. Scepticism arises where bodies introduce new rules, or hold on to existing rules, which reflect the clearly expressed interests of their members; and then argue that such rules are in the public interest.

3.8 The Changing Role of the Profession

C.20 In theory, the predominant public image of a lawyer is a person engaged in advocacy work before a court. In reality, only a small percentage (about 20%-25%) of practitioners hold themselves out as courtroom advocates. The trend is towards the creation of larger firms, with increasing percentages of practitioners employed in firms with 2 or more partners. There are also increasing numbers of practitioners employed by government agencies or corporations. At the same time there also are significant numbers of sole practitioners. The professional profile is one dominated by firms, sole practices and employed corporate and government lawyers. Further changes are anticipated with the globalisation of legal practice and the probable advent of multi-disciplinary practices such as those run by institutions like PriceWaterhouseCoopers (PWC), Deloitte & Touché, KPMG, Massawe, Ernst & Young, among others.

C.21 These shifts in the working practices of the profession parallel other changes in the legal professional ethos engendered by the global economic and legal market. One such change, which has been the subject of much academic and judicial commentary, is characterised as a shift in professional practice from a ‘service” ideal to one based on business imperatives.40 This shift has occurred in order to meet the needs of a changing business environment in which the profession must operate.

C.22 There have been wide spread complaints about the falling of ethical standards among legal practitioners.41 Unlike when the profession was small, Tanzania is also experiencing a similar decline in professional standards. Now the legal profession is no longer a small, homogenous association of people undertaking similar types of work. Legal work is a competitive business; practitioners generally work in a number of undertakings for variable returns.

40 M Solomon “Client relations: ethics and economics” (1991) 23 Arizona State Law Journal 155; D Dawson “The legal services market” (1995) 5 Journal of Judicial Administration 147; M Kirby “Legal professional ethics in times of change” Paper St James Ethics Centre Forum on Ethical Issues Sydney 23 July 1996. 41 See A. Kronman The lost lawyer -- failing ideals of the legal profession, Harvard University Press Massachusetts 1993.

C.23 The increasing legal practice in a free and competitive economy creates a need for particular and detailed guidance for the profession. However, there is a need for further research into the practice norms of different specialty groups within the legal profession and the development of better practice models. It is in this context of change to the legal profession and the civil justice system that the CJTWG has considered legal professional standards.

3.9 Sources for Professional Standards of Conduct

C.24 Generally, professional ethics are values held in common by members of a profession. In professions, members are taken to be linked by common values and interests; the requirement of specialised skills and knowledge; and a ‘service” ideal stemming from other people’s dependence on the skills and knowledge held by the profession.42

C.25 Global trends indicate that while the legal profession has traditionally developed its own practice standards, there is a trend towards regulating practitioner conduct by other methods. The use of court rules and legislation to regulate practitioner conduct has generally occurred in situations where existing professional practice standards are inconclusive or silent on the matter. In the United States in particular, practitioner conduct is increasingly regulated by court rules. The new Civil Procedure Rules introduced in the United Kingdom as a result of the Woolf Report also incorporate practitioner standards into court rules, and thus greater reliance on Judges to oversight practitioner conduct.

3.10 Adversarial System and Regulation of Legal Practice.

C.26 The CJTWG is of the view that the culture of general legal practice encourages adversarial legal relationships because lawyers are trained to protect their clients' own interests and generally take a defensive rather than a co-operative attitude towards another party. The culture of the legal profession and particularly, of litigators, is adversarial as the culture in litigation is to distrust the opposing party and not to divulge information or openly discuss matters for fear that it may prejudice their clients' interests in a later hearing. The behaviour of the profession is often directed towards ensuring their clients' position is not prejudiced in the event of a hearing, rather than working cooperatively towards settlement of a matter.

C.27. In the Woolf Report, much of the blame for `adversarial excesses' in the system was laid at the feet of lawyers and their clients43. Lord Woolf saw judicial case management as the solution to inhibit the worst of `excessively adversarial' conduct by parties and their legal

42 See for example D Weisbrot Australian lawyers Longman Cheshire Melbourne 1990, 4. See also R Fullinwider `Professional codes and moral understanding' M Coady & S Bloch (Eds) Codes and ethics and the professions Melbourne University Press Melbourne 1996, 73. 43 Lord Woolf Access to justice: Final report to the Lord Chancellor on the civil justice system in England and Wales HMSO London 1996, section I.

advisers. Case management can be effective in limiting over servicing, tactical play and litigation excesses. To be effective, case management requires the cooperation, or at least compliance, of lawyers and litigants.

C.28 The Civil Procedure Rules (UK) include an obligation that parties and their legal advisers assist the court to deal with cases justly, by among other things dealing with a matter in ways proportionate to the value, importance and complexity of the claim and the financial position of each party44.

C.29 It is important to distinguish between the adversarial system itself and behaviour of lawyers or their clients described as `adversarial'. Much of the behaviour characterised as excessive adversarialism is probably unsatisfactory professional conduct or professional misconduct. It is not a necessary part of the adversarial system. Professional practice rules allow parties to compete vigorously as adversaries while ensuring maintenance of ethical standards. They also encourage negotiation and settlement. Changes are necessary to the substance of rules to militate against the pressures to `win' at all costs. Certainly such conduct can conflict with countervailing pressures to resolve disputes quickly, effectively and in a cost efficient manner.

3.11 The effectiveness of a Code of Conduct and Ethics for

Advocates

C.30 The CJTWG considers that a code of Conduct and Ethics for Advocates plays an important role in regulating the conduct of practitioners, and thus in contributing to the proper administration of justice. The Code itself does not, and cannot, provide a complete solution. Indeed, concerns have been raised in other jurisdictions about the distillation of ethical principles into legal practice rules, that:

[l]lawyers tend to see rules as things to be circumvented in the pursuit of the client’s interests. They may be honoured in the letter but ignored in the spirit. This is a potentially dangerous situation, for if lawyers approach codes of professional ethics in the same way they approach, say, revenue law then the underlying aim soon become avoidance rather than compliance.45

C.31 Quick research in this area indicates the existence of the following problems concerning legal practitioner conduct:

1. fostering or encouraging litigation for financial benefit

2. Undercharging leading to abandoning clients before the retainer runs out.

44 Civil Procedure Rules 1998 (UK) Part 1, 1.1, 1.3. 45 K Crispin, Professional Ethics and the Prosecutor, DPP, Canberra 1992, 7.

3. pressuring client to accept a result that does not meet the client’s needs or desires

4. failing to act on the client’s instructions

5. competitive strategies to win the case at expense of efficacy and equity

6. frustrating the client and the legal process by conduct designed to maintain conflict

7. lack of understanding or sympathy for the client’s specific situation

8. failure and delay to inform the client about the progress or status of the client’s matter.

9. abuse of legal process by conniving with court staff

10. controlling, obstructing or discouraging communication between disputants which would have perhaps enabled the settlement of the case amicably

11. lacking relevant knowledge of issues or facts

12. ignorance of ADR processes

13. poor communication skills

14. poor mastering of specialist areas of practice

15. “win at all costs” attitudes.

16. Undercutting.

C.32 Concern about the use of rules of civil litigation as a delay tactic against financially or emotionally weaker opponents has also been raised in a number of submissions to the Team. Parties can, by tactical play, force settlement on terms unduly favourable to the stronger party, or create high costs for the weaker party. Common in this endeavour is the use of interlocutory and or security for cost procedures. The CJTWG suggest that an appropriate provision should be made in the CPC sanctioning by way of costs parties and their Advocates who use such tactic as frivolous and unnecessary.

3.12 The Structure of a Code of Conduct and Ethics for Advocates

C.33 The structure of the Code can impact upon the way in which the Code is perceived, understood and followed by lawyers. The Code may be prescriptive - duty-directed, stating specific duties, or aspirational - virtue-directed, stating desirable aims even though actual conduct may fall short of this ideal. The major function of aspirational codes is to educate and encourage high standards. Aspirational codes hardly mandate compliance. Compliance, deterrence, punishment, or protection can best be achieved through a prescriptive code. 46

46 See discussion in L Skene `A legal perspective on codes of ethics' M Coady & S Bloch (Eds) Codes and ethics and the professions Melbourne University Press Melbourne 1996, 111.

C.34 Professional practice rules in a number of overseas jurisdictions incorporate a “rule-commentary” approach. The New Zealand Rules of Professional Conduct for Barristers and Solicitors, the ABA Model Rules, and a number of practice rules in Canadian jurisdictions are examples of a rule-commentary approach. This approach provides for the combination of brief, prescriptive rules with an explanatory commentary which provides additional guidance as to how the rules may be interpreted in practical situations. In addition the ABA Model Rules include general ethical principles in a preamble to the rules.

C.35 The rules relating to communication between practitioner and client provide a useful comparison of the forms of different types of rules. The prescriptive form of the ABA Model Rules may be the same in many jurisdictions. However, the difference is the commentary attached to the ABA Model rule which provides guidance as to the application of the rule.

C.36 Commentaries which have been referred to above serve a useful and educational purpose. They guide in case of doubts. The CJTWG suggests that TLS revise its professional etiquette rules and adopts a principle-rule-commentary approach to the new professional conduct rules. A principal- rule - commentary approach to professional practice rules is not the equivalent of a codification47. Commentary provides guidance to practitioners, incorporating practical interpretations of the rules and possible examples of application. The CJTWG wishes to encourage TLS and recommend to it to use the principal - rule -commentary approach.

3.13 The Content of a Code of Conduct and Ethics for Advocates

C.37 The CJTWG does not consider that the Code should codify all aspects of professional conduct - this is neither possible nor desirable. The Code should be sufficiently comprehensive to feature the salient principles of practice and ethical obligations for negotiation, ADR practice, advice and advocacy. It is for the profession to ensure that the Code provides appropriate and sufficient guidance to practitioners by covering relevant areas of practice.

C.38 Professional practice rules are designed to delineate practitioner obligations to the court and to the client. When the CJTWG revisited the TLS etiquette rules on the ethical issues raised, the rules appeared generally clear and concise. However, on several matters relevant to the proper workings of the administration of justice, the rules are limited. The rules do not directly address particular practice problems including whether practitioners should encourage or assist litigation or claims which have limited or no merit, or which are instigated simply to win time. They tend to be directed to litigation and court advocacy

47 The Law Society of New South Wales, in its submission to the Advisory Council, expressed reservations regarding the Advisory Council’s proposal, stating that ethics cannot be regulated and any attempt to cover all situations in a code may result in practitioners adopting a legalistic, rather than an ethical, approach.

rather than the full array of advice and legal services undertaken by lawyers for clients.

C.39 The CJTWG noted with appreciation the specific recommendations as regards formulating rules for the intended Code of Conduct and etiquette as spelt out in appendix 3 to this report. The CJTWG recommends them to TLS and the Advocates Committee.

Appendix 1.

The tentative list of organisations/stakeholders to whom the consultation paper will be sent.

CATEGORY OFFICIAL TITLE

1. Chief Justice of Tanzania

2. Justices of Appeal

3. Principal Judge

4. Judges in charge, High Court

5. Judges, High Court

6. Chairman (Industrial Court)

7. Registrar Court of Appeal

8. Registrar High Court

Category A: Judiciary and other Tribunals

9. Resident Magistrates in charge

10. Attorney General

11. Deputy Attorney General

12. Director, Civil and International Law

13. Director of Public Prosecution

14. Chief Parliamentary Draftsman

15. Director, Constitutional Affairs and Human Rights

Category B: Attorney General’s Chambers

16. Director, Policy, Planning and Information

17. President, TLS

I8. President Tanzania institute of Arbitrators

19. Executive Director Legal and Human Rights Centre

20. Director NOLA

Category C: Stakeholders Institutions

21. The Faculties of Law

CATEGORY OFFICIAL TITLE

22. Commission for Human Rights and Good Governance

23. Retired Judges

24. President, Tanzania Chamber of Commerce and Agriculture

25. Executive Director, Tanzania Private Sector Foundation

26. Executive Director, Tanzania Bankers Association

27. Executive Director, Association of Tanzania Employers

Category D: Business Community

28. Director, Confederation of Tanzania Industries

29. Manager, Majembe Auction Mart Category E: Auctioneers and Brokers 30. Manager, Yono Auction Mart

31. Registrar of Titles

32. Commissioner for Lands

33. Commissioner for Labour

34. Governor, BoT

35. Executive Director, Tanzania Investment Centre

36. Director General, PCB

Category F:

Other government departments and agencies

37. CEO, BRELA

38. IFC

39. WORLD BANK

40. UNDP

41. UNICEF

42. GTZ

Category G; International Agencies

43. SIDA

CATEGORY OFFICIAL TITLE

44. CIDA

45. NETHERLANDS

INFORMAL SECTOR

46.Vibindo,

47.SACCOS

48. Mama Lishe

Appendix 2

CPC Provisions Relating to Timescale for Litigation;

o. IV rule 3 CPC of requires assignment of cases to take place within a period of 96 hours from the time of filing.

ii. Once the case has been assigned, it is the duty of the Judge or Magistrate to ensure that the Defendant is summoned in accordance with o.v rule 1 CPC unless the Defendant has suo motto appeared and admitted the claim by the Plaintiff in which case judgment ought to be entered in favour of the Plaintiff.

iii. Serving pleadings is the task reserved for the court itself in accordance with o.vi rule 2 CPC. However in practice, the parties or their advocates usually discharge the task of serving pleadings.

iv. o. vii rule 1 (2) of the CPC requires the defendant to file written statement of defence within a period of 21 days from the date of service of the summons to defend. The court further has authority, under the proviso to o.viii rule1 (2), to extend the period following an application for such extension by the defendant.

v. At the discretion of the court, the plaintiff is required to file a reply to the written statement of defence, if any, within 7 days from the date of receipt of the defence.

vi. o. viii (a) rule 3(1) of the CPC requires the Judge or Magistrate to whom a case has been assigned to hold and preside over a first scheduling and settlement conference to be attended by the parties or their recognised agents or advocates. This conference must be held within a period of 21 days after the conclusion of the pleadings for the purpose of ascertaining the speed track of the case, resolving the case through negotiation, mediation, arbitration or such other procedures not involving a trial.

Vii. o. viii (a) rule 3(2) of the CPC requires the presiding judge or magistrate in consultation with the parties or their recognised agents or their advocates to determine the appropriate speed track for a case and make a scheduling order. Scheduling Order is an order that sets out future events in the case from the date of the first conference. This is done through fixing dates and time for dealing with future events. This order specifies also if the case will proceed by way of arbitration, mediation or trial and by what dates are those steps to be completed having regard to the Speed Track of the case.

viii. Speed Track is the categorization of civil cases in accordance with their relative complexity and within what period cases in particular category should be finalized. There are four Speed Tracks as per o viii (a) rule 3(3), namely:-

a. Speed Track One accommodates cases that are relatively simple and which the interests of justice require to be disposed of fast. Such cases should be completed within a period not exceeding ten months from the date of the commencement of the suit.

b. Speed Track Two covers normal cases that can be disposed of within a period not exceeding twelve months from the date of the commencement of the suit.

c. Speed Track Three is for cases that are considered complex but are capable of being finalized within a period not exceeding fourteen months.

d. Speed Track Four reserved for special or very complex cases that do not fall within the other three categories of speed tracks. They must be concluded within twenty-four months.

ix. o. viii (a) rule 4 of the CPC prohibits a departure from or amendment of a scheduling conference order unless the court is satisfied that such departure or amendment is necessary in the interests of justice.

x. Section 28 and O. XX of the CPC requires the court to pronounce judgment in open court at once or on a future date in which case notice of the day should be given to the parties. This provision initially gave unnecessary leeway to courts to procrastinate the delivery of judgment after the completion of the hearing of a case. The CJTWG observes that the loophole moved Parliament to pass an amending provision that binds courts to pronounce judgment within 90 days from the date of closing hearing.

Appendix 3

Additional Observations on the Code of Professional Conduct and Ethics

1. The Duty to the Client

1.1 Justice Crispin has analysed the general principle that a lawyer’s obligation is to serve the client’s interests, and stated that the implications of this principle are that

1) the lawyer must act as if he or she assumes the justice of the cause: whatever his or her personal opinions, the case must be conducted from start to finish as if he or she were completely convinced of it

2) the lawyer must assume the accuracy of the client’s instructions: he or she is not entitled to permit any personal misgivings to influence the conduct of the case

3) the lawyer has an ethical obligation to ignore the interests of others, however vulnerable, to the extent to which they conflict with those of the client - even the interests of the wider community.48

1.2 The professional practice rules in Tanzania also set out duties to the client, including a rule or general principle that practitioners should serve their clients competently and diligently.

1.3 In a global sense, a number of rules require a practitioner to advance and protect the client’s interests to the best of the practitioner’s skill and diligence, uninfluenced by the practitioner’s personal view of the client or the client’s activities, and notwithstanding any threatened unpopularity or criticism of the practitioner or any other person. In that sense:

• a practitioner should not knowingly make a misleading statement to a court

• a practitioner should take steps to correct, as soon as possible, any misleading statement for which the practitioner or his/her client or witness was responsible

• practitioners shall ensure the court is informed of any relevant decision on a point of law or any legislative provision which maybe relevant, or any misapprehension by a judge as to the effect of an order being made.

1.4 Thus there would be circumstances when it is permissible for a practitioner to act otherwise than in accordance with a client’s instructions. In this case there should be a rule that include some

48 K Crispin Professional Ethics and the Prosecutor, DPP, Canberra, 1992, 26-29.

description of when there would be just cause for termination of service, particularly in situations where continuing to act would breach practice rules or conflict with the lawyer’s obligation to the court.

1.5 Similarly, the practice rules should also set out a number of limitations on conduct including positive duties, which are aimed at upholding the practitioner’s duty to the administration of justice. A number of rules in other jurisdiction exist to compel a practitioner to be more than a “mouthpiece” of the client or the instructing practitioner by using his or her own forensic judgement independently, after appropriate consideration of the client’s and the instructing practitioner’s desires.

1.6 In Australia for example, the Law Society of Western Australia specifically states that if a practitioner observes another practitioner making a mistake or oversight which “may involve the other practitioner’s client in unnecessary expense of delay”, that mistake or oversight should not be fostered and, unless it would prejudice his or her own client, a practitioner should draw the mistake or oversight to the attention of the other practitioner.49

1.7 In the rules of the Law Societies of Western Australia, the Northern Territory, and Queensland, additional practice rules specify that practitioners shall

(a) act with due courtesy to the court

(b) use their best endeavours to avoid unnecessary expense and waste of the court’s time.

(c) The following are included in the rules of the Law Societies of Western Australia and the Northern Territory only

(d) practitioners shall, when requested, inform the court of the probable length of the case

(e) practitioners shall inform the court of the possibility of settlement.50

1.8 Thus while a brief survey of the practice rules in Tanzania in the light of the above expose indicates that the duty to the administration of justice is recognised, the ambit and application of this duty is not sufficiently clear to most legal practitioners.

2 United Kingdom Civil Procedure Rules

2.1 This issue of trial tactics has been dealt with in the new United Kingdom Civil Procedure Rules.51 The Rules set down the overriding objective of case management, namely enabling the court to deal with cases justly. Rule 1.1 states that:

Dealing with a case justly includes, so far as is practicable-

49 Law Society of WA Conduct Rules, r 18.2. 50 Law Society of WA Conduct Rules, r 13.4(a); Law Society of NT Conduct Rules, r 16.5(a) – (d) 51 The Civil Procedure Rules 1999 (UK) commenced operation on 26 April 1999. Rules can be viewed at http://www.open.gov.uk/lcd/civil/procrules_fin/cprocfr.htm (15 July 1999).

f) ensuring that the parties are on an equal footing;

g) saving expense;

h) dealing with the case in ways which are proportionate--

� to the amount of money involved;

� to the importance of the case;

� to the complexity of the issues; and

� to the financial position of each party;

i) ensuring that it is dealt with expeditiously and fairly; and

j) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

2.2 Rule 1.3 states that the parties must help the court to further the overriding objective, thereby imposing a duty on lawyers (as representatives of parties) to assist the court to deal with cases justly.

2.3 There have been a number of criticisms of Lord Woolf’s proposals for reform. One critic viewed the reforms as permitting “ad hoc exercises of subjective, antagonistic and potentially prejudicial judicial discretion to meet the perceived exigencies of individual cases”.52 Certainly, in some cases it can be difficult to enforce the rule. For example, while the court can ensure that both parties comply with court rules and procedures, it can be difficult for a judge or magistrate to seek to ensure, so far as is practicable, that the parties are on an equal footing or that they are using the appropriate share of the court resources in the case.

2.4 Further some features in Rule 1.1 require consideration of the importance of the case, the complexity of the issues, and the financial positions of each party. The criteria raise as many questions as they answer - is it the importance of the case to society, to the parties, or to the development of the law and jurisprudence that is the determining factor? How are Judges or magistrates to decide such matters? How do Judges obtain information about the parties’ financial positions?

2.5 Thus some have argued that in its present formulation, this rule for litigation practice is not easily implemented by a judge or magistrate. Certainly, there is no doubt the litigation system would work better if lawyers and litigants worked cooperatively, undertook work proportionate to the claims, and engaged from points of relative parity. But how can such engagement be mandated and how does it sit with the lawyer’s obligation to be a partisan advocate for the client? These are some of the question that have been raised with regard to the system in the United Kingdom. In hindsight, it may be that an

52 N Andrews `The adversarial principle: fairness and efficiency' in A Zuckerman & R Cranston (eds) Reform of civil procedure: essays on `Access to justice' Clarendon Press Oxford 1995, 182.

obligation on practitioners to approach cases in a “proportionate” manner is more appropriate as a professional practice rule than as a rule of court.

3 United States’ Civil Procedure and Practice Rules

3.1 Rule 11 of the United States Country’s Rules of Civil Procedure is another example of how pre-hearing litigation behaviour and advice can be incorporated within a court rule. They requires a pleading, written motion or other paper to be signed by at least one attorney, or by the party if unrepresented. The rule then includes particular requirements relating to representations being made to the court.

3.2 By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances -

a) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or increase in the cost of litigation;

b) the claims, defences, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

c) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

d) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

The rule empowers the court with positive authority to impose sanctions against attorneys, law firms, or parties who have violated the rule.

3.3 The ABA Model Rules also include clearer, positive duties concerning litigation practice than do the rules in Tanzania. The obligations imposed on American lawyers include duties to desist from behaviour which may be contrary to the administration of justice. Commentary to the ABA Model Rules provides guidance as to the interpretation of the rule and its practical application.

rule 3.1. A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.

Comment. The advocate has a duty to use legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure . . . The action is frivolous . . . if the client desires to have the action taken primarily for the purposes of harassing or maliciously injuring a person or if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of the existing law.

rule 3.2. A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

Comment. Dilatory practices bring the administration of justice into disrepute. Delay should not be indulged merely for the convenience of the advocates, or for the purpose of frustrating an opposing party’s attempt to obtain the rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of the action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.53

3.4 Such professional practice rules can assist practitioners to have a clearer understanding of appropriate conduct. From submissions to the CJTWG from both practitioners and litigants, a rule in the form of rule 3.1 in that a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. Rule 3.2 likewise has clear relevance to civil practice. This is not to assume that tensions between a client’s instructions and the practitioner’s duties to the administration of justice will ever be easily overcome.

3.5 Thus, the Judiciary, TLS and other stakeholders should work toward formulating an appropriate rule, along the content of Rule 11 of the United States Country’s Rules of Civil Procedure, which requires practitioners and unrepresented parties to consider the purpose and content of pleadings and other papers before presentation to the court. Appropriate sanctions should be specified in the rule.

3.6 Further, TLS should ensure that model professional practice standards incorporate a rule, along the spirit of Rules 3.1 and 3.2 of the American Bar Association Model Rules of Professional Conduct and relevant

53 American Bar Association Annotated model rules of professional conduct 3rd ed ABA Chicago 1996, 297, 303.

commentary, providing circumstances in which proceedings are not to be commenced or assertions not made, and obliging practitioners to make reasonable efforts to expedite litigation.

4 Pre-Hearing Conduct and Conduct in Non-Litigious Matters

4.1 These areas look ill addressed by the existing rules. Pre-hearing conduct ought to have the same degree of attention in professional practice rules particularly now that we have ADR which in principle aims at resolve dispute amicably an preferably out of court.

4.2 In other jurisdictions, a number of rules require practitioners to communicate effectively and promptly with clients and to seek to assist the client to understand issues in the case, and to understand his or her rights and obligations, so as to enable the client to give proper instructions, particularly in relation to a compromise of the case.54 In the Australian Capital Territory in cases of unexpected delay, the practitioner is required to provide an explanation of such delay and whether or not the client may assist to resolve the delay.55

4.3 The rules of the Law Society of Western Australia state that a practitioner shall when in his client’s best interests endeavour to reach a solution by settlement out of court rather than commence or continue legal proceedings.56

4.4 United States and Canadian jurisdictions place greater emphasis on advising clients of options for dispute resolution, and require practitioners to attempt to use these processes. The Code of Professional Conduct of the Law Society of Alberta includes a rule stating that a lawyer must recommend that a client accept a compromise or settlement of a dispute if it is reasonable and in the client’s best interests.57 The commentary to this rule states that:

… it is to the general benefit of society and the administration of justice that lawyers discourage unmeritorious suits and seek the early resolution of disputes….Determining whether settlement or compromise is a realistic alternative requires objective evaluation and the application of a lawyer’s professional judgement and experience to the circumstances of the case. The client must then be advised of the advantages and drawbacks of settlement versus litigation. Due to the uncertainty, delay and expense inherent in the litigation process, it is often in the client’s interests that a matter be settled. On the other hand, because a lawyer’s role is that of an advocate rather than adjudicator, going to trial

54 See for example NSW Solicitors' Rules, r 23.A.17; Law Society of ACT Conduct Rules, r 17.2; LCA Model Rules, r 17.2; NSW Barristers' Rules, r 17; Qld Barristers' Rules, r 17; Vic Bar Rules, r 12 55 Law Society of ACT Conduct Rules, r 3.3. 56 Law Society of WA Conduct Rules, r 5.7. 57 Law Society of Alberta Code of Professional Conduct Law Society of Alberta ch 9 r 16.

is justified if the client so instructs and the matter is meritorious….In addition to conventional legal process, a lawyer should consider alternative dispute resolution.

4.5 While it can be acknowledged that many legal practitioners in Tanzania already conduct themselves in this way, the inclusion in the professional practice rules of specific obligations, such as those outlined above on settlements and delay, can ensure that practitioners are aware of the accepted standard of conduct in relation to advising and assisting clients in pre-hearing procedures and non-litigation matters. The standards should also address the need for timeliness of such advice and assistance.

4.6 In this context the CJTWG suggest the professional practice rules should include a clear indication of accepted standards of conduct and practice in relation to advising and assisting clients in pre hearing and non-litigation matters, including standards that practitioners shall, as early as possible

a) advise clients of relevant non-litigious avenues available for resolution of a dispute

b) when in their client’s best interests, endeavour to reach a solution by settlement out of court rather than commence or continue legal proceedings

c) must notify the client if, in the practitioner’s opinion, it is in the client’s best interests to accept a compromise or settlement and that, in the practitioner’s opinion, the compromise or settlement is a reasonable one

d) in cases of unexpected delay, provide an explanation of such delay and whether or not the client may assist to resolve the delay.

5 Conduct During Negotiation

5.1 Practitioners play a vital role in negotiating and settling matters, yet professional practice rules provide little guidance as to the conduct expected of practitioners when conducting such negotiations. This is of particular importance given that, to be most effective for the client, the approach to negotiation may variously require partisan and facilitative tactics and behaviour.

5.2 Negotiation, not subjected to the rigours of trial, provides an ideal cover for whatever unethical practices a party is able to engage in, provided these do not go as far as to put the other party on notice. Such practices are not subject to the scrutiny of court procedures and safeguards, like examination and cross-examination of witnesses - there is no forum for testing the veracity of contentions made. The unethical lawyer can therefore engage in such conduct, reasonably secure in the knowledge that it is unlikely that the conduct will ever be discovered. Should it be discovered, then there are really no effective sanctions available, in any event except perhaps to go to court and

litigate. Lack of sanctions in professional practice rules is said to result in lack of deterrent to such conduct and, perhaps, goes so far as to facilitate it.

5.3 Other jurisdictions such as Canada have rules on this. The Professional Conduct Rules of the Law Society of Alberta, for example, include a complete chapter on “The lawyer as negotiator”, which is headed by a general principle stating the lawyer’s duty to seek a resolution of a dispute in accordance with the client’s instructions, rules, and accompanying commentary. The rules are as follows:

A lawyer must not lie to or mislead an opposing party.

If a lawyer becomes aware during the course of a negotiation

that;

(a) The lawyer has inadvertently misled the opposing party, or

(b) The client, or someone allied with the client or the client’s

matter, has misled an opposing party, intentionally or otherwise, or

(c) the lawyer or the client, or someone allied with the client or the

client’s matter, has made a material representation to an opposing party that was accurate when made but has since become inaccurate, then (subject to confidentiality) the lawyer must immediately correct the resulting misapprehension on the part of the opposing party.

A lawyer must not make a settlement offer on behalf of a client

except on the client’s instructions.

(b) A lawyer must promptly communicate all settlement offers to the

client.

A lawyer must not negotiate an agreement that the lawyer knows

to be criminal, fraudulent or unconscionable.

When negotiating with an opposing party who is not represented

by counsel, a lawyer must:

(a) advise the party that the lawyer is acting only for the lawyer’s

client and is not representing that party; and

(b) advise the party to retain independent counsel.

5.4 Thereafter, the extensive commentary on these rules gives guidance to practitioners about appropriate and inappropriate conduct in relation to negotiations. For example, in relation to Rule 3, the commentary states

“… the issue of whether to settle a dispute is so fundamental to a lawyer’s representation that it must be the subject of

discussion with and direction from the client. Every offer received from an opposing party must be presented to the client for consideration, regardless of the client’s earlier instructions. Similarly, the client’s approval must be obtained before an offer originating with the lawyer is communicated to an opposing party”.

5.5 A number of indicia to assist in determining whether negotiations had been in good faith have also been developed, including

(a) unreasonable delay in initiating communications in the first instance

(b) the unexplained failure to communicate with the other parties within a reasonable time

(c) failure to follow up a lack of response from the other parties

(d) failure to take reasonable steps to facilitate and engage in discussions between the parties

(e) failing to respond to reasonable requests for relevant information within a reasonable time

(f) stalling negotiations by unexplained delays in responding to correspondence or telephone calls

(g) unnecessary postponement of meetings

(h) sending negotiators without authority to do more than argue or listen

(i) shifting position just as agreement seems in sight

(j) adopting a rigid non-negotiable position

(k) failure to make counter-proposals

(l) unilateral conduct which harms the negotiating process, for example, using inappropriate press releases

(m) refusal to sign a written agreement in respect of the negotiation process or otherwise

(n) failure to do what a reasonable person would do in the circumstances.58

5.6 In the considered view of the Team, it will be appropriate to include a requirement for practitioners to negotiate in good faith in all civil matters. In this context professional practice rules should provide guidance, by way of explanatory commentary, as to expected standards of conduct and practice of practitioners negotiating any civil matter on behalf of a client. The rules should require that where practitioners negotiate on behalf of a client, that they do so in “good faith”. The commentary to the rules should include a practical

58 See D Spencer `Complying with a requirement to negotiate in good faith' (1998) 9 Australian Dispute Resolution Journal 226, 224-225.

explanation of what is meant by “good faith” negotiations. This will also help in the area of ADR

5.7 In view of the above situation, the CJTWG wishes to make the following proposals:

1. Tanganyika Law Society and other appropriate regulatory bodies should give priority to the development and implementation of a code of conduct and ethics for advocates.

2. The mandate of the Council for Legal Education be enhanced and make it Council for Legal Education and Practice and consequently should convene a working group to coordinate the drafting of commentary to legal practice standards. Legal academics and officers of legal complaints handling authorities should be included in the working group. Tanganyika Law Society should develop commentary which can be issued as part of or a supplement to, the code of conduct and ethics for advocates.

3. The TLS and Council for Legal Education and Practice should ensure that the proposed Code contains rules concerning practitioners' obligations to further the proper administration of justice.

4. The TLS and Council for Legal Education and Practice should ensure that the Code:

(a) incorporates a rule consistent with Rule 11 of the United States Federal Rules of Civil Procedure, which requires practitioners and unrepresented parties to consider the purpose and content of pleadings and other papers before presentation to the court or tribunal. The standard applied should be `to the best of the practitioner's knowledge and information'.

(b) requires practitioners to limit presentation of their case to genuine issues and to complete work in time constraints set by the court and occupy as short a time in court as is reasonably necessary to advance and protect the client's interests.

5. Courts and tribunals should develop rules to require practitioners and parties to certify that any allegations, claims and contentions contained in pleadings or forms presented to the court or tribunal are supported by evidence and consequences should be attached to failure to do so or in case the certification is not true.

6. The Council for Legal Education and Practice should ensure that the Code includes a clear indication of accepted standards of conduct and practice in relation to advising and assisting clients in matters, including standards that practitioners shall, as early as possible, advise clients of relevant non-litigious avenues available for resolution of the dispute which are reasonably available to the client.

7. The Council for Legal Education and Practice should ensure that the Code provides guidance, by way of explanatory commentary, on expected standards of conduct and practice of practitioners negotiating

any civil matter on behalf of a client. Where practitioners negotiate on behalf of a client, the rules should require that practitioners act in `good faith'. The commentary to the rules should include a practical explanation of what is meant by acting in good faith in these circumstances. The commentary also should emphasise the practitioner's obligation to inform the client of every offer of settlement from the opposing party and to obtain explicit approval from the client before communicating an offer or acceptance to an opposing party.

8. Legal ethics training should be required for all lawyers and law students. Attendance at legal ethics continuing legal education also should be required for practitioners in order to renew practice certificates.