ABSTRACT
The reference to a ‘new procedural code’ is clearly intended to emphasise that the Jamaican CPR replaces the former Judicature (Civil Procedure) Code in its entirety. It may also serve to support the view that, in applying the new Rules, judges should not ‘look over their shoulders’ to the former Rules and the case law interpreting them, and that cases decided under the old Rules are ‘no longer generally relevant’ to the CPR, a point that Lord Woolf himself made in Biguzzi v Rank Leisure plc1 when considering the identical wording of the English CPR. It is submitted, however, that the courts in Caribbean jurisdictions need to take a somewhat different approach from that advocated by Lord Woolf and other English judges, for a number of reasons. First, although the Jamaican and other Caribbean Rules are broadly modelled on the English CPR, they differ from the latter in many important respects, and judicial pronouncements on the effect of the English CPR will not necessarily be useful, even as persuasive authorities, in the Caribbean context. Secondly, the radical approach to civil procedure reform in England and Wales has been driven to some extent by the need to bring the approach to civil justice in the UK into line (in admittedly limited respects) with the inquisitorial method of adjudication employed in the civil law systems of the UK’s European Union partners – a factor which is not present in the Commonwealth Caribbean. Thirdly, the radical reforms of the civil justice system in England and Wales have been made possible only with substantial financial input from government sources, by the provision of extensive information technology support, and by the fact that law firms in England have been willing to embrace the ‘new culture’ of the CPR. These factors will not necessarily be present in Caribbean jurisdictions, which could remain affected by the same lack of resources and by the same cultural and professional constraints that existed under the old system. Fourthly, some of the case law on civil procedure in Caribbean jurisdictions that developed under the old Rules, was concerned with situations that are unique to Caribbean jurisdictions and, in the absence of evidence that those situations have changed in material respects, some of the decisions of Caribbean courts under the old Rules may well retain their validity under the new CPR regime. Fifthly, if, in their wisdom, the Rules Committees in the Caribbean decided to use in a particular new Rule wording that was almost identical to that of the equivalent provision in the old Rules, there would be a strong argument for treating
1 [1994] 4 All ER 934, at p 941. It has been held in a recent English case, however (Omega Engineering Inc v Omega SA (2003) The Times, 29 September), per Pumfrey J, that ‘while it is generally impermissible to refer to the Rules of the Supreme Court in construing the Civil
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Caribbean case law interpreting the old Rule as being of at least persuasive authority in interpreting the new. Sixthly, unlike in England and Wales where dozens of practice directions have been handed down in order to supplement and to give detailed guidance as to the application of the new English Rules, so far there are few practice directions on the Jamaican Rules; accordingly, in the absence of such practice directions, guidance as to the application of the new Rules could be sought from case law decided under the equivalent sections of the old Rules. Lastly, it is worth bearing in mind that many of the most important powers of the court in matters of civil procedure are derived not from the Civil Procedure Rules but from statute, or from the inherent common law or equitable jurisdiction of the Supreme Court. Examples are the power to award security for costs against impecunious corporate claimants under the companies legislation,2 and the jurisdiction to grant interlocutory,3 Mareva (‘freezing’),4 and Anton Piller (‘search’) injunctions,5 and Norwich Pharmacal orders.6 Moreover, civil procedure is significantly affected by many rules of substantive law developed by the common law courts, such as the doctrine of forum conveniens,7 the ‘cheque rule’,8 ‘without prejudice’ communications,9 and legal professional privilege.10 The significance of this in the present context is that case law dealing with any such powers or principles which are derived from sources other than the CPR is unaffected by the introduction of the new Rules, and decisions that were considered binding or persuasive before the introduction of the new CPR will remain binding or persuasive to the same extent.
