Civil Procedure Rules in Action
Civil Procedure Rules in Action
ByIan Grainger, Michael Fealy
Edition 2nd Edition
First Published 2000
eBook Published 23 May 2012
Pub. location London
Pages 778 pages
eBook ISBN 9781843141167
Grainger, I., Fealy, M. (2000). Civil Procedure Rules in Action. London: Routledge-Cavendish, https://doi.org/10.4324/9781843141167
First published in 2000. Routledge is an imprint of Taylor & Francis, an informa company.
TABLE OF CONTENTS
The core Rules are divided into 51 ‘Parts’. Each Part is sub-divided into rules and each rule into sub-rules. In the original published version of the CPR, there were no notes of the kind with which we had grown familiar in the White and Green Books. Authors and publishers are of course rapidly undoing that situation.
THE STRUCTURE OF THE CPR – PRACTICE DIRECTIONS AND FORMS THE STRUCTURE OF THE CPR – PRE-ACTION PROTOCOLS
The substance of a Part is usually supplemented by a practice direction. For example, Part 7 (‘How to start proceedings: the claim form’) is supplemented by a similarly headed practice direction. Anyone using the CPR has to be familiar not only with the terms of the relevant Part but also with the contents
INTRODUCTORY Not the least revolutionary aspect of the CPR is the way in which they begin with a statement of intent – a manifesto, as it were, of their aims and purpose. This follows a very early proposal of Lord Woolf’s. In FR chap 20, Lord Woolf decried the tendency of the old rules to provide for every eventuality, with
The general legislative intent behind the provision that the CPR are ‘a new procedural code’ seems tolerably clear. At a fairly abstract level, it was designed to emphasise the radical nature of the reforms. More practically, it was intended to discourage practitioners from citing old authorities decided under the old rules. However, while some of the effects of this provision have
The concept of case management was at the heart of Lord Woolf’s Reports and not surprisingly, therefore, underpins the entire structure of the CPR. The fundamental idea is that the ‘ultimate responsibility for the control of litigation must move from the litigants and their legal advisors to the court’ (FR chap 1, para 1). Linked to this is the idea that the court’s time should be
The allocation of a case to a particular management track has important consequences for the conduct of that litigation. In the most general terms, the pace at which a case must progress to trial and the degree to which it will be subjected to ‘hands on’ judicial management increases as one moves from the
In deciding whether to allocate a claim to its normal track, the court is required to have regard to a variety of specified matters. These are listed in court); the nature of the remedy sought; the likely complexity of the facts, law or evidence; the number of parties; the value and complexity of any
The system of small claims arbitration in the county court was one of the few features of the old rules that Lord Woolf regarded as meeting his objectives of resolving disputes in a proportionate, cost-effective and fair manner (IR chap 16, para 1). Accordingly, it is not surprising that the old system was essentially preserved in the form of the new small claims track. Indeed, the
INTRODUCTORY As already explained in Chapter 5, the fast track is the normal track for most defended claims worth between £5,000 and £15,000. Lord Woolf envisaged the fast track as a means of rapidly resolving disputes of relatively low value in a manner proportionate to the amount claimed (IR chap 7, para 1). He viewed
As explained above, unless the trial judge orders otherwise, the trial will be conducted in accordance with any order previously made (Part 28.7). As far as possible, therefore, procedural arguments of all kinds should be resolved before rather than at trial. The maximum duration of the trial is, of course, one day, though the last
The significance of the multi-track is somewhat obscured by its definition as ‘the normal track for any claim for which the small claims track or the fast track is not the normal track’ (Part 26.6(6)). It is, in truth, the track to which claims in excess of £15,000 will normally be allocated and it will therefore be the track along which most substantial High Court actions will proceed.
Originally, CPR Part 6 (and the related practice direction) dealt only with service of documents within the jurisdiction – service outside the jurisdiction being governed by a revised version of RSC Ord 11 and by a related practice direction. However, following the amendments introduced by SI 2000/221, service outside the jurisdiction will, as from 2 May 2000, also fall within Part 6.
From 2 May 2000, service out of the jurisdiction is dealt with in Section III of Part 6. The language of the relevant provisions has been very considerably simplified but in other respects, there is much that seems familiar. Certainly that is the case with the basic distinction between circumstances where service may be effected outside the jurisdiction without permission (Part 6.19) and
THE USUAL PROCEDURE (PART 7) The usual way of starting an action is the claim form (Part 7) procedure, which roughly corresponds to the old writ of summons procedure. (The alternative Part 8 procedure is to be used where the claimant seeks the court’s decision ‘on a question which is unlikely to involve a substantial dispute of fact’ or
Part 8 provides an alternative procedure for use where the claimant seeks the court’s decision ‘on a question which is unlikely to involve a substantial dispute of fact’ or where a practice direction permits or requires it (Part 8.1(2) and (6)). The procedure is therefore broadly similar to the old originating summons procedure and is suitable for claims turning purely on the
LORD WOOLF’S PROPOSALS AND THE CPR Lord Woolf said that the role of pleadings is ‘to set out the facts relied upon so that the court and the parties can ascertain what the dispute is about and the court can take appropriate decisions about its management’ (IR Chap 20, para
A(i) Claim form/particulars of claim Particulars of claim may either be contained in the claim form itself, or served with it, or served separately (Part 7.4(1)), but where practicable, the first course is to be adopted (PD16, para 3.1). If particulars of claim are served
Amendments to any statement of case can be made without leave at any time before it has been served (Part 17.1(1)). After service, amendments can only be made with the written consent of all other parties or with the court’s permission. Substantial amendments will, of course, have to be verified by a statement of truth (PD17, para 1.4). The practice as to whether and how to
In their original form, Parts 19 and 20 both made provision for the involvement in a claim of persons other than the original parties to that claim. Part 19 dealt with the addition or substitution of parties, while Part 20 provided for counterclaims, third party proceedings and the like. However, with effect from 2 May 2000, the scope of Part 19 has been widened. Section I
Part 20 seeks to promote the just and rapid resolution of related disputes – and incidentally to make the most efficient use of the court’s own resources – by permitting the determination, in one action, of all issues arising between the original parties, as well as of those related issues which involve a third
Default judgments are dealt with in Part 12 and the procedure for setting them aside or varying them in Part 13. DEFAULT JUDGMENTS In general terms under the new rules, a claimant may obtain a default
Part 13 draws a distinction between circumstances in which a default judgment must be set aside and circumstances in which the court has a discretion whether to set aside or vary. The court is obliged to set a default judgment aside where it has been wrongly obtained, that is to say in circumstances where any of the
Part 23 and the related practice direction will by now be bread and butter reading for all litigants. They contain the general rules about applications for court orders – dealing, for example, with such matters as the court to which an application should be made, the exceptional circumstances when an
LORD WOOLF’S PROPOSALS Case management involves stopping a weak case from dragging on, and reducing complexity and cost by the gradual elimination of issues. Not surprisingly, therefore, Lord Woolf took the view that the court should exercise its powers of summary disposal on a wider basis than at present. He
Summary judgment is now covered by Part 24. It is defined as ‘a procedure by which the court may decide a claim or a particular issue without a trial’ (Part 24.1). It thus covers both points of fact and points of law such as might previously have been dealt with under RSC Ord 14A. Summary judgment can be given against a claimant in any type of
All interim (farewell ‘interlocutory’!) remedies are now dealt with in Part 25. With effect from 2 May 2000, applications for security for costs also fall within this Part but are dealt with in a separate Section II. INTERIM REMEDIES In general terms, Part 25 is of interest not so much because the remedies
Security for costs was originally dealt with in RSC Ord 23, a scheduled rule. However with effect from 2 May 2000 and, as a result of SI 2000/221, it will be dealt with in Section II of Part 25. The relevant provisions have been much simplified. They are drafted in terms of a defendant seeking security for his costs but they will, by virtue of
The primary means of proving a fact at trial remains, as before, by oral evidence given in public (Part 32.2(1)). Even in the closing years of the old regime, that time-honoured system was, of course, significantly affected by the system of exchanging witness statements before trial and the attendant
At any hearing other than the trial, any fact which needs to be proved by the evidence of a witness is to be proved by his or her evidence in writing (Part 32.2(1)). Under the old rules, written evidence at such interlocutory hearings was usually by affidavit but the CPR have made an important change in this regard. Now, unless the court, a practice direction or any other enactment
Part 33 deals with Miscellaneous Rules about Evidence. It does not apply to cases on the small claims track – Part 27.2(1)(d). The principal matter covered is hearsay evidence (and various related applications). The 1995 Civil Evidence Act effected a fundamental change in the civil law of evidence by providing for the general admissibility of hearsay
THE BACKGROUND – LORD WOOLF’S PROPOSALS ON EXPERT EVIDENCE In his Interim Report, Lord Woolf found much to lament about the old system of expert evidence, or more precisely about the way it functioned in practice. He pointed to the central tension that many experts felt between their roles as
The new rules on expert evidence are contained in Part 35. We will consider the provisions of that Part under the following headings:
It follows from what we have said above that the court has control over the nature and amount of expert evidence that is to be given to it and over the means by which it is to be presented. However, that is not the end of the matter. The court is also concerned to control the quality of the expert evidence that it receives, to ensure in short that that evidence is objective and
The stress on narrowing the issues in a case and on co-operation between parties and court also underlies the new provisions on discussions between experts. The new rules are expressly in terms of ‘discussions’ – not ‘meetings’ as in the old RSC – so that telephone communications should suffice. However, it seems unlikely that ‘discussions’ would cover E-mail or other
On a first reading, Part 36 is far and away one of the least digestible parts of the new Rules. That is partly because of the technical matters with which it deals and partly because its structure does not entirely reflect what was proposed by Lord Woolf, whether in his Interim or Final Reports. Despite that
On one view, the new regime of active case management could well lead to an increased use of the procedure of discontinuance. At least in theory, allowing a claim to become dormant is simply not an option that is any longer available to a claimant who has thought better of his proceedings. A case will now be pushed forward to trial by the court, unless it is settled or the
PUBLIC/PRIVATE HEARINGS? It has long been recognised that there is the strongest possible public interest in ensuring public access to the courts. Publicity, in the words of Bentham, ‘keeps the judge himself while trying under trial’. Quite apart from all earlier
When the court sits in public, a member of the public may obtain a copy of any order made or a transcript of any judgment given on payment of the appropriate fee. However, where the order is made or judgment given in private, such documents cannot be obtained by a third party without the permission of the court (PD39, paras 1.11 and 1.12). The transcript of a public
There is another important innovation in Part 39(6). This follows the recommendations of Lord Woolf (FR chap 12, p 131 et seq) by permitting a company or other corporation to be represented at trial by one of its employees. An employee may represent a company where he is authorised to
A judgment or order of the court must comply with the formal requirements contained in Part 40.2. In most cases, a judgment must bear the name and judicial title of the person who made it. It must also state the date on which the order was made and be sealed by the court. In broad terms, the court itself will draw up a judgment or order, unless it
When the court makes an order for costs (other than for fixed costs), assessment of the amount payable can be either summary or detailed (Part 44.7). However, as a matter of principle, whenever the court makes a costs order of this kind, it should consider whether to make a summary assessment (PD44, para 4.3). The general rule is that there should be a summary
For us, as for most barristers, taxation has always been ‘another country’ – over the hills and far away. Given our own ignorance of the historical intricacies and the wealth of detail that still exists even under the new system, we confine ourselves to making certain points of general principle about detailed assessment.
Part 48 brings together a variety of disparate topics to do with costs. Section I is headed ‘Costs payable by or to particular persons’ and Section II ‘Costs relating to solicitors and other legal representatives’. The matters covered by Section I include costs orders in respect of applications for pre-action disclosure, or for disclosure by a non-party (Part
In this and the following chapter, we turn to consider personal injury and clinical negligence actions and how the matters dealt with in previous chapters impinge on them. Such actions are at present unique within the CPR in that they are the only ones where pre-action protocols have been approved
Where a claimant’s solicitor is instructed in a claim which includes an element of personal injury, his conduct of the claim will immediately be subject to the PIPAP. The PIPAP is primarily designed for fast track cases involving road traffic accidents, tripping and slipping accidents, and accidents at work with a value of less than £15,000. It is for such cases that its benefits are most felt
For cases involving allegations of clinical negligence, there is a separate protocol which has been compiled by a multi-disciplinary body known as the Clinical Disputes Forum. The CNPAP is similar to the PIPAP, but has the following differences:
Whether a party has complied with the pre-action protocols may have consequences for him when the case comes before the court under the CPR. We mention some of the more important provisions.
Once a decision has been made to issue a claim in a personal injury (or clinical negligence) case, the fact that it is such a case has certain consequences under the CPR. Under Part 2.3, a claim for personal injuries is defined as meaning ‘proceedings in which there is a claim for damages in respect of personal
The court’s powers to grant interim remedies are contained in Part 25. The power to award an interim payment has long been an important one in personal injury and clinical negligence actions – an injured claimant may well be in urgent need of funds to alleviate the burden on relatives and others who have to care for him, often without adequate assistance or equipment and in
As mentioned in Chapter 4 above, the fact that a claim is for personal injuries has consequences for the track to which a case is allocated. Whilst the small claims track is the normal track for claims for no more than £5,000, this is not the case where the damages claimed for pain, suffering and loss of amenity have a financial value of more than £1,000, even if the overall claim is still
These have already been considered in detail in Chapter 20 above, but certain provisions are specific to actions for personal injuries. These are the provisions relating to offers to settle claims for provisional damages (already mentioned above) and those relating to the deduction of benefits. In relation to the latter, Part 36.23 makes provision for a defendant who wishes to make a
The automatic stay of proceedings which have not come before a judge between 26 April 1999 and 25 April 2000 does not apply to personal injury cases where there is no issue on liability and the proceedings have been adjourned by court order to determine the prognosis (PD51, para 19(3)).
Service In the Commercial Court, claim forms will be served by the parties, not by the Registry (B5.1). (The same also applies to witness summonses – H1.10.) Allocation system does not apply
We cannot leave this section without two general reflections, which are respectively the ‘heads’ and ‘tails’ of the same coin. First, it may be suggested that there is some danger of fragmentation in the development of specialist rules that are markedly different from the generality of the CPR. We refrain from debating whether in the case of the
SCOPE OF THE CHANGES TO THE APPEALS SYSTEM The rules relating to all categories of appeals are to be consolidated and substantially changed, with effect from 2 May 2000. The relevant provisions are in Part 52 and its companion practice direction. These provisions apply to all appeals in the High Court and the county court (with the exception of
In broad terms, the effect of Part 52.3 would seem to be that permission is required to bring an appeal in almost all cases – regardless of the person making the order or the destination of the appeal. We say ‘would seem to be’ because Part 52.3 says that permission is required ‘where the appeal is from a decision of a judge in a county court or the High Court, except ...’. Ordinarily in
The permission of the Court of Appeal is required for any appeal to that court from a decision of a county court or of the High Court which was itself made on appeal. Permission for such second appeals will not be given unless an important point of principle or practice is involved, or unless there is some other compelling reason (Part 52.13).
We are not legal sociologists, nor statisticians, and anyone who wants an accurate analysis with supporting figures of the extent to which the anticipated effects of the CPR have become reality will have to look elsewhere than in this chapter. The ideas and conclusions here contained are entirely our own and are entirely impressionistic. Nevertheless, we feel that, at the end of
The Civil Procedure Rules attempt to modernise the language of the law by removing ‘expressions which are meaningless or confusing to non-lawyers’ or by using different expressions which ‘would more adequately convey what is involved’ (FR chap 20, para 13). The following list is put forward as a working tool for practitioners as they learn the new language. However, considerable
As at 2 May 2000, the following rules of the RSC (1965) remain scheduled in whole OR IN PART. (For full details, refer to Schedule 1 to the core rules, as amended by SI 2000/221.) Ord 10 Service of claim form in certain actions for possession of land.
As at 2 May 2000, the following rules of the CCR (1981) remain scheduled in whole OR IN PART. (For full details, refer to Schedule 2 to the core rules as amended by SI 2000/221.) Ord 1 (Application of RSC to county court proceedings).
STATUTORY INSTRUMENTS 2000 NO 1071 (L 10) SUPREME COURT OF ENGLAND AND WALES COUNTY COURTS, ENGLAND AND WALES
PART 1 OVERRIDING OBJECTIVE Contents of this Part
Contents of this Part Procedure for disputing the court’s jurisdiction
Contents of this Part
Contents of this Part