Managing to stay relevant: can active case management by courts modernise our most traditional form of dispute resolution?

Litigation is the most traditional form of dispute resolution available in most jurisdictions today. Plagued by accusations of inefficiency, high cost, unnecessary bureaucracy, lack of access, lack of privacy, lack of flexibility and jurisdictional limitations; litigation has been fighting a rear guard action against its more recent competitors such as arbitration, mediation, conciliation and negotiation. in many jurisdictions, including Australia and the United Kingdom, courts are increasingly expected to take an active role in case management. This paper will consider how case management, at least in theory, is a tool which empowers courts to customise the litigation process and deliver greater flexibility and efficiency to litigants. The paper will explore how, in the 21st Century, civil procedure in both the United Kingdom and Australia has been influenced by legislative requirements for judges, lawyers and parties to prioritise procedural efficiency through active case management. The paper will then consider the impact of this increased focus on procedural efficiency on the common law requirement to afford litigants procedural fairness. Finally, this paper will consider whether active case management and the resultant increase in judicial discretion in Australian and the United Kingdom reflects a global trend in litigation.