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Neil Andrews of Clare College, Cambridge has asked me to disseminate the following information. He is the regional reporter for common law jurisdictions for a conference on "The Discretionary Power of the Judge" in Ghent, 22-25 April 2000. He is seeking national reporters for Ireland, Canada, the US and Australia. The reporter does not need to attend the conference but needs to write a short paper, hopefully by 1 October. There is a framework for the paper below. Anyone who is interested should contact Neil directly at <nha1000@cus.cam.ac.uk>.

Lionel

what is the nature of judicial discretion? (Why it it a good/bad thing, at least potentially, and what safeguards exist or should exist, in your opinion?)

what is the role of appeal courts to first instance discretion?

how closely do appeal courts scrutinise/moderate first instance exercises of discretion?

is this appellate regulatory approach the same across all types of claim and proceeding?

what are the main foci of judicial discretion (here invent your own typology), but my suggestions are:

THE DRAMATIS PERSONAE

selection of judges (judge/judge/jury); one assumes the parties appoint their own counsel

COMMENCEMENT AND ACCESS

Discretion can seep in perhaps at the commencement of proceedings: leave/allocation of case to particular level of court etc; limitation rules, eg, do they contain any discretionary elements? the international element, forum non conveniens, and lis alibi pendens

PRE-TRIAL PROCEDURE

framing of the case and case-management through to trial

discovery/disclosure rules and orders

TRIAL AND ENFORCEMENT

conduct of trial: notably sequence of issues; application of evidence (notably hearsay reforms?); selection of remedy;

costs (including any discretion to impose punitive or quasi-punitive costs against parties or lawyers)

enforcement of the judgment.