Where officials, authorised to take decisions themselves, instead insist on unnecessary litigation before overcrowded courts, they could face costs orders – judge

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Many countries in Africa suffer from significant backlogs in court rolls, with criminal and civil cases taking far too long to be heard and decided. It’s a problem that is widely recognised, by the judiciary and the rest of the legal profession, by politicians and of course by the public, with everyone growing increasingly concerned at delays.

States that recognise the problem are trying various ways to reduce backlogs. These include the appointment of more judicial officers, a switch to a paperless system and strengthening alternative dispute resolution mechanisms to reduce the load on the courts.

But courts elsehwere, including Canada, are struggling with the same problem of backlogs and delays, and Canadian decisions increasingly deal with the judges’ frustrations at how court procedures are used by parties to cause delay for their own benefit, and sometimes for no-one’s benefit at all, except the lawyers concerned.

Unnecessary litigation

Now, from Canada, comes a judgment showing that the courts there are willing to use another way of cutting down on litigation that is, ultimately, unnecessary. The judge in this matter indicated that courts could issue costs orders where the litigation was needless and caused further delays.

The presiding judge in the case, Fred Myers, was dealing with an unopposed matter where fraudsters had forged signatures on a mortgage application for a property, owned by Mengchong Sun and Zhaoping Liu.

The mortgage application was made in the names of Sun and Liu, but they were able to show, convincingly, that they didn’t sign the application. The identification provided by the applicants was forged, so were the signatures on all the documents related to the application, and Sun and Liu didn’t receive any mortgage funds.

In addition, Ryan Mortgage Income Fund, the company approached by the fraudsters for a mortgage against the house, didn’t contest these facts. Nor did the director of titles, the official responsible for administering the registration of property. In other words, all the relevant parties were agreed that the mortgage registration application was fraudulent.

‘Satisfied on the basis of evidence’

Against this background, Sun and Liu wanted the mortgage registered against their property, to be declared fraudulent and for the director of titles to rectify the property register by removing the mortgage registration against their property.

Under the Land Titles Act, this meant that Sun and Liu would have to ‘establish’ that the director of titles, or the court, is ‘satisfied on the basis of evidence’ that the instrument registered over the property was fraudulent.

Clearly, in this case, the director of titles and the mortgage company had investigated the situation and neither contested the claim of Sun and Liu.

The judge concluded that the fraud had been ‘established’ and that it was a proper case in which to grant the order sought by Sun and Liu. He therefore found the mortgage was forged and ‘perpetuated a fraud’, and that the court should order the director of titles to fix the register.

Why didn’t they take the decision themselves?

But, said the judge – and this is the crucial point – the mortgage company and the director of titles had unnecessarily ‘required’ the applicants to bring court action to remove the fraudulent title. Sun and Liu had launched their application in October 2022, but because of the shortage of judges hearing civil matters, the case had to wait until February 26, the date of the judgment, for the matter to be heard.

It wasn’t clear to him, said the judge, why the company didn’t simply ‘discharge its mortgage’ once it accepted the existence of the fraud. Or why the director of titles didn’t act as the law allowed, and make the decision to declare the instrument a fraud.

‘Neither respondent opposes the relief sought. So why didn’t they act to remove the forged mortgage themselves?’

Why make the applicants ‘endure a 16-month backlog’?

‘If there was a reason that [they] were not willing to act, perhaps they ought to have told me.

‘Otherwise, there is no apparent reason why they felt it necessary to require the applicants to endure the court’s 16-month backlog and to incur unrecoverable costs to obtain the cover of a court order rather than making the decision themselves.’

Or both respondents could have consented to the relief sought, rather than saying they were ‘unopposed’, and if they’d done so, the case could have been dealt with on the papers a year before.

‘Cruel’ to make applicants wait for court action

‘Absent a good reason to require this matter to come to court, it appears to have been an unnecessary proceeding. Moreover, it seems cruel to have required the applicants to wait from October 2022 until today to obtain the relief that the respondents themselves could have granted without the cost or delay of this lawsuit.’

Since the court’s backlogs and inadequate resources were known publicly, the respondents’ decisions that Sun and Liu had to bring an ‘unnecessary proceeding’ could have led to ‘costs sanctions against them’ in terms of court rules.

‘Had I been asked and had notice been given, I would have considered a request to order the mortgagee and the director of titles to pay the applicants’ full costs. Both respondents had the ability to obviate the need for these apparently unnecessary proceedings.’

‘People want their day in court, not their years’

Concern about unnecessary delays and backlogs is being expressed by the judiciary in other cases too. In 2023, for example, another Canadian judge, Markus Koehnen, quoted a speech made 20 years earlier by Canadian supreme court justice, Rosalie Abella. She asked why it was that so many profound changes had been made since 1903 in the way people travel, live, govern and think, while civil trials are conducted ‘almost exactly the same as we did in 1906.’

‘With a few hours of instruction, a lawyer from 1906 would feel perfectly at home [in] today’s courtroom. Could we say that about a doctor from 1906 and today’s operating room? …

‘If the medical profession has not been afraid over the century to experiment with life in order to find better ways to save it, can the legal profession reasonably resist experimenting with old systems of justice in order to find better ways to deliver it?

‘People want their day in court, not their years.’

‘Dangerous state of civil justice system’

And if changes were made to the way things are done, said Abella, ‘We may find to our surprise that neither the rule of law, nor due process, nor clients, nor lifestyles will be impaired. There is even the possibility that our experiment may in fact improve justice’s performance.’

Koehnen also noted that courts, judges and counsel have, for years, ‘commented on the dangerous state of the civil justice system’ and the shift in legal thinking and culture that was needed to ensure ‘timely and affordable access’ to the courts.