Order 10A of the National Court Rules 1983 is headed National Court (Commercial List) Rules. It is short, practical, and quite different in style from the rest of the Rules.
Rule 1
The purpose of these rules is to establish a Commercial List to expeditiously resolve commercial matters. The Commercial List will commence to operate on a date promulgated by the Chief Justice.
Expeditiously. Everything in Order 10A follows from it — the dedicated Judge, the informality of pleading, the tight pre-trial timetable in Schedule B, and the adoption of the summary disposal procedure from the Listings Rules 2005.
It is the same object as Order 1 Rule 8, under which the Rules are to be applied with a view to the just, quick and cheap disposal of proceedings — but Order 10A supplies specific machinery to achieve it.
Rules 2 to 7
- Rule 2 — the Chief Justice will allocate a judge or judges to conduct the Commercial List.
- Rule 3 — the Commercial List will be maintained by a Commercial List Clerk in the Registry.
- Rule 4 — the Commercial List Judge will be responsible for the management of all pre-trial and listing matters.
- Rule 5 — the Commercial List Clerk will be the first point of contact and he may be contacted by telephone or facsimile.
- Rule 6 — all files for the Commercial List will be under the custody of the Commercial List Clerk who will be fully informed of the position of each matter.
- Rule 7 — all file references of matters on the commercial list shall bear the abbreviation “COMM” beside the file reference.
Very little else in the National Court Rules contemplates a practitioner picking up the telephone to the Registry. Order 10A does, and it is deliberate: the Clerk is the first point of contact and holds the file.
Rule 11(c)(i) reinforces it — prior to filing a listing motion the lawyer for the applicant must contact the Commercial List Clerk or the Associate to the Commercial List Judge and obtain a date and time for the hearing. The contact comes before the filing.
The Commercial List compared
| Ordinary civil proceeding | Commercial List | |
|---|---|---|
| Judge | Allocated in the usual way | The Commercial List Judge manages all pre-trial and listing matters, and where practicable hears the trial — r 15 |
| Case management | Mentions and directions under Order 10 Rule 9A | A first directions hearing with twelve heads of possible direction — r 17 |
| Pleadings | Order 8 formality | Points of claim and defence which should avoid formality — r 18 |
| Discovery | Available under Order 9 | Ordered only upon demonstrated need being established — r 19 |
| Pre-trial steps | As directed | The Schedule B standard order — expert reports, statements of evidence, document bundles |
| File marking | — | “COMM” beside the file reference — r 7 |
Two routes on
Rule 8 — any matter already filed and apparently involving a dispute concerning an amount greater than K500,000 arising out of a commercial transaction or in which there is an issue which has importance in trade or commerce, will be, if the Registry identifies the matter, automatically placed on the Commercial List.
And any other matter may be added to the List by application of a party, in accordance with this direction, or on the recommendation of the Registrar.
K500,000 is the trigger for automatic listing where the Registry identifies the matter. A smaller commercial case may still be listed on application, and a case above the figure that the Registry does not identify does not join the list by itself.
See what cases qualify and how to apply.
Rule 9(c)
The Commercial List judge has discretion as to whether a matter should be entered or retained on the Commercial List.
So no party is entitled to the list as of right, and a matter may be removed later — see removal from the list.
Rule 9(b) sets the limit from the other direction: proceedings which concern the above topics but exhibit no serious commercial element, or in which there is no real dispute, should not be listed on the Commercial List.
Rule 25
The summary disposal procedure set out in Rule 16 of the Listings Rules 2005 is adopted and shall apply to matters on the Commercial List.
The Listings Rules are reproduced as Order 10 Rule 9A of the Rules. Their summary disposal provisions allow the Court to deal with a matter that is not being prosecuted, or that discloses no reasonable cause of action, without a full trial.
Rule 15: upon entry, all interlocutory applications and motions and the trial of the proceedings, if practicable, shall be conducted by the Commercial List judge, subject to any direction from the Judge Administrator of the civil list — and the rules relating to motions in the National Court Rules shall apply to interlocutory applications.
So a notice of motion in a Commercial List matter is prepared under Order 4 Division 5 in the ordinary way. Order 10A supplements the Rules; it does not displace them. Mediation under the ADR Rules 2022 applies to commercial matters as it does to others.
Sources
- National Court Rules 1983 — O 1 r 8; O 4 Div 5; O 8; O 9; O 10 r 9A; O 10A rr 1–25, Schs A–C
- Alternative Dispute Resolution Rules 2022
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.