These days, cases in court are managed bureaucratically. There is a process that must be followed regardless of the nature or circumstances of an application. That process is often implemented without nuance, consideration, or interest. Discretion is exercised on occasions of conflation and ignorance. Empathy, initiative, intelligence and efficiency are rare and endangered beasts in bureaucracies.
If we file an application to apply for something in court, a first case management date will be fixed for it. If the application is served on the relevant litigant’s solicitors before the date, which should be the rule, the court would give its directions thereby ‘case managing’ the application.
The court gives its directions through senior assistant registrars (SARs). An SAR is the most junior judicial position on the judicial hierarchy, like a magistrate. The fresh, young and junior occupy the SAR position. Naturally, they studied law for their degree, usually in the infancy of their legal career, and have little in the way of experience. Their equivalent is a young lawyer starting out in the profession.
The SAR will give standard directions. First is a schedule for affidavit exchanges. There will almost always be a supporting affidavit to the application. Naturally, if the application is opposed, the other side is given an opportunity to file a reply affidavit. The applicant has the right to reply to the reply affidavit.
Most applications can be confined to three affidavits – an affidavit to explain why the application should be granted, an opposing affidavit and a reply to the opposing affidavit. This is on the condition that lawyers prepare affidavits in a way that does not broaden the fight. The purpose of affidavits are to identify factual and legal areas of agreement to narrow the dispute. Lawyers are meant to narrow and contain the areas for dispute, not allow them to fester.
After the exchange of affidavits is completed, the SAR gives another standard direction for the filing of written submissions to the court. These are the written arguments. Filed together with them will be the bundle of authorities. There are two ways this could go. The first way is sequential filing. The applicant starts, respondent replies, and applicant replies. The other way is simultaneous filing. Applicant and respondent file and serve their submissions at the same time, then subsequently file their reply submissions at the same time also. Each court has its preference.
What all this amounts to is that the court has everything for the hearing before it starts. It has the application, all the affidavits and arguments complete with their legal authorities before it. Sometimes these are filed weeks if not months before the hearing. That means the court has the opportunity to consider the merits of the application in a reasonably thorough fashion before the hearing.
If the submissions are read, before I open my mouth to argue, the judge would know pretty much what I am going to say. In fact, they are likely to know everything I intend to say in the argument because litigators are known to file complete and thorough (i.e., prolix) written submissions out of abundance of caution.
The point here is this: Since we file the affidavits and submissions before the hearing, the court should read and consider all of it before the hearing. It should make notes about what matters it wants to clarify, elaborate on, or engage with the lawyer at the hearing. That way, lawyers arguing the application would not have to regurgitate, highlight, or repeat the filed submission. The hearing should not begin as if no submission was filed before the hearing. The lawyer should not begin the application with:
‘My lord, this is an application by the plaintiff for so and so. The grounds of the application are blah, blah, blah. This application should be allowed for the following reasons, my lord. Blah, blah, blah. The respondent has raised the following, my response to them is, blah, blah, blah.‘
This process often feels redundant and inefficient, as it compels lawyers to reiterate what has already been comprehensively addressed in their written submissions. When oral arguments simply restate prior points, it creates the impression that the written submissions have not been adequately considered. Highlighting or repeating my submission is simply to put me through a simulation of a hearing. I do not want the court to decide the matter based on just my highlights; it should do so based on full arguments, which are already in the submission.
Where full submissions are filed before a hearing, the court should give direction to the hearing. At the outset, it should immediately identify the areas or legal issues for which it wants clarification, elaboration, or engagement. This is how I imagine an idealised court hearing would start. The judge would say something like:
‘I have read the papers. I would like clarification on three issues, which are the following…. I would like counsel to address me on these issues.’
The advantage of this approach is that firstly, it shows the court has considered what was filed. Identifying the issues for clarification, etc. suggests a previous thoughtful engagement with the material. Secondly, it gives direction to the lawyer conducting the hearing. He knows what the court wants to listen to as opposed to having to figure out from the silence of the bench what it wants to hear. He doesn’t feel the need to recite his whole argument. Thirdly, this makes hearings more efficient and shorter. It is narrow and confined to the issues identified by the court. Fourth, it puts the court in control of the proceedings. It is less likely to be drawn into irrelevancies of lawyers. Fifth, it enables meaningful staggered hearings to be implemented.
There are some judges that make a practice of stating the issues they want to hear at the outset. I am very grateful for them. They are usually the hardworking, conscientious, intelligent and thoughtful ones. These are the same ones that are likelier to have prepared their written grounds of judgment when they deliver their decisions. I recognise that this approach requires the judges to read and consider the submission before the hearing, but that is the logical and natural consequence to having us file everything pre-hearing.
The other point is this: if the judge is not the sort that is going to read the submission before the hearing, be upfront about it and don’t direct the filing of written submissions. Such judges should hear oral arguments first at the hearing. They can direct further oral or written submissions after the hearing on specific, narrow issues, if need be. Routine applications are appropriate to be dealt with this way, such as amendments, summary judgment, third-party proceedings. The law is trite and is concerned with the application of law to fact. That way, lawyers do not waste time preparing submissions that nobody wants to read for purposes of complying with a process.
It is time to recalibrate how hearings are conducted and how submissions are utilized in court. The current practice of treating written submissions as a mere formality, only to repeat them in oral arguments, undermines the efficiency and purpose of the judicial process. By adopting a more focused approach—where judges engage with submissions beforehand and guide the hearing through specific issues—the system can become more efficient, fair, and meaningful.
This shift would benefit all stakeholders. Lawyers would feel their work is respected and purposeful, while judges would have greater control over proceedings, ensuring that hearings are concise and relevant. Most importantly, litigants would gain confidence in a system that values substance over procedure.
Ultimately, courts exist to deliver justice efficiently and thoughtfully. A modernized approach, where written and oral arguments complement each other instead of duplicating effort, is not just an ideal—it is a necessary evolution. We owe it to the system, and to those who rely on it, to make this change.
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2 thoughts on “Rethinking the Written, Oral Submissions and Approach to Hearings”
The current practice of treating written submissions as a mere formality… increases cost as well. But cost is given, usually as if the effort put into the written submission is negligible.
“The other point is this: if the judge is not the sort that is going to read the submission before the hearing, be upfront about it and don’t direct the filing of written submissions. Such judges should hear oral arguments first at the hearing. They can direct further oral or written submissions after the hearing on specific, narrow issues, if need be. Routine applications are appropriate to be dealt with this way, such as amendments, summary judgment, third-party proceedings. The law is trite and is concerned with the application of law to fact. That way, lawyers do not waste time preparing submissions that nobody wants to read for purposes of complying with a process.”
Precisely, my thoughts too.