8.6 Appendix to Recommendation No. R (84) 5

Normally, the proceedings should consist of not more than two hearings, the first of which might be a preliminary hearing of a preparatory nature and the second for taking evidence, hearing arguments and, if possible, giving judgment. The court should ensure that all steps necessary for the second hearing are taken in good time, and in principle no adjournment should be allowed except when new facts appear or in other exceptional and important circumstances.

Sanctions should be imposed when a party, having perhaps received notice to proceed, does not take a procedural step within the time-limits fixed by the law or the court. Depending on the circumstances, such sanctions might include declaring the procedural step barred, awarding damages, costs, imposing a fine and striking the case off the list.

The court should be able to summon the witnesses and appropriate sanctions (fines, damages, etc.) should be applied in cases of unjustified non attendance of such witnesses. When a witness is absent, it is for the court to decide whether the case should continue without his evidence. To facilitate the taking of evidence, provision should be made for the use of modern technical means, such as the telephone or video, in appropriate circumstances.

If an expert appointed by the court fails to communicate his report or is late in communicating it without good reason, there should be appropriate sanctions. These might take the form of a reduction of fees, the payment of costs or damages, as well as disciplinary measures taken by the court or by a professional organisation, as the case may be.

When a party brings manifestly ill-founded proceedings, the court should be empowered to decide the case in a summary way and, where appropriate, to impose a fine on this party or to award damages to the other party.

When a party fails to observe the duty of fairness in its conduct of the proceedings and clearly misuses procedure for the manifest purpose of delaying the proceedings, the court should be empowered either to decide immediately on the merits or to impose sanctions such as fines, damages or declaring the procedure barred; in special cases it should be possible to require the lawyer to pay the cost of the proceedings.

Professional associations of lawyers should be invited to make provision for disciplinary sanctions in cases where one of their members has acted in the manner described in the foregoing paragraphs.

they were not known at first instance;

the person presenting them was not a party to the proceedings at first instance;

there is some special reason for admitting them.

Moreover, particular rules or sets of rules should be instituted in order to expedite the settlement of disputes:

To this end, one or more of the following measures could be utilised: simplified methods of commencing litigation; no hearing or convening of only one hearing or, as the occasion may require, of a preliminary preparatory hearing; exclusively written or oral proceedings, as the case may be; prohibition or restriction of certain exceptions and defences; more flexible rules of evidence; no adjoumments or only brief adjoumments; the appointment of a court expert, either ex officio or on application of the parties, if possible at the commencement of the proceedings; an active role for the court in conduc-ting the case and in calling for and taking evidence.

These particular rules or set of rules might, according to the circumstances, be compulsory, available on the application of any of the parties or be subject to the consent of all parties.