Civil Procedure Rules in Action

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 BACKGROUND – LORD WOOLF’S PROPOSALS ON DISCOVERY AND THE EXTENT TO WHICH THEY WERE ADOPTED Lord Woolf accepted the basic desirability of discovery, ‘because of its

So far, this chapter has considered disclosure between parties to existing proceedings. Parts 31.16 to 31.18 deal with certain other kinds of disclosure, namely: 31.16);

In this section, we consider a variety of topics, including: exchanging witness statements and summaries.

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

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

INTRODUCTORY Apart from the rules on payments into court and Part 36 offers (see Chapter 20 above), the new rules on costs are, for the most part, set out in Parts 43 to 48. The scope of these Parts is as follows: Part 43 Scope of costs rules and definitions

The court’s discretion over costs covers: We take each of these aspects in turn.

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

PD16 also makes specific provision in relation to personal injury actions generally, in paragraphs 4.1–4.3. The Particulars of Claim must contain: Furthermore:

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

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)).

This chapter contains a brief examination of Commercial Court proceedings after 26 April 1999, or, to be more accurate, an overview of the principal differences between the rules applicable to such proceedings and the CPR generally.

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

Another major change is in Part 52.11(1), which reads as follows:

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

Contents of this Part

Contents of this Part

Contents of this Part

Contents of this Part

Contents of this Part

Contents of this Part

Contents of this Part

Contents of this Part

Contents of this Part

Contents of this Part

Contents of this Part

Contents of this Part

Contents of this Part