Function Of Courts Case Management Summary Adjudication Notes

Case Management & Relief from Sanctions

CPR 3.9

Role of Courts – tension between objects

• Court provides law enforcement service underpinning rule of law

• To discharge that function and enforce rights – court must correctly apply law to facts – establishing the truth

• Balancing act – no entitlement to best possible – optimisation

  • Law enforcement (truth value) – need for accuracy

  • Time – need for expeditious enforcement

  • Resources – public policy

• Require ‘reasonable level’ – sufficient to inspire confidence in the system

Rationale

• Importance of case management

  • Fair rationing of resources

  • Otherwise present parties in particular dispute would consume inordinate resources

Court time as a (finite) resource

• Allocate evenly between cases

• Allocate in accordance with cost of cases? – emotional/personal value

  • Dworkin – whether investment in procedure should be proportionate to economic value

  • Harm caused as consequence of decision – necessary to expend more resources to get it right

  • When error occurs –

    • Economic cost of error

    • Moral harm – variable / connected to economic cost?

      • Particularly significant in criminal context – reason for higher standard of proof

• In accordance with complexity of cases

  • Viability of arguments? Prospects of success?

• “Three-dimensional justice”

  • Substantive fairness <> expeditiousness <> limited resources

  • Proportionate relationship between means (litigation expense) and ends (determination on merits)

  • And within reasonable time — justice delayed is justice denied

• Dworkin —

  • No litigant has a right to the most accurate procedures for determining disputes

    • Agree

  • Litigants have right to procedures that assess the risk & extent of moral harm if just outcome not reached, and equal distribution of resources on that basis

    • BUT this says nothing about the total amount of resources that should be devoted to justice within the State

    • IE Court resourcing not in a vacuum — eg possible that no of judges has to be increased

Court as a public service

• Not merely a private dispute settlement system

• Public significance & precedential value

• Analogy with medical services – or any other public service

  • Or telecom bandwidth, or water

  • All require management of resource distribution to end user

• Objective of management – CPR 1.1 “overriding objective of enabling the court to deal with cases justly”

Forces at work in allocation of resources

• Two levels

  • Formal level

  • Economic level

    • Economic activity follows the most rewarding path (not very altruistic…)

• Rules required to avoid arbitrary justice – procedural rules as well as substantive rules

Need to ensure compliance

• Defendant has motivation to delay

  • Doesn’t comply with rules, orders

    • Can have costs ramifications, in theory

  • Court has power to make ‘peremptory’ order – strike out of defence

  • Defendant resists strike-out application

  • Appeals

• Lawyers have economic incentive to prolong litigation

  • AZ suggests judges do as well…

• Consequences is other form of delay in form of satellite litigation

  • Not about formalities, but about procedure

• Effect of cost – limits access to courts

  • Cost of litigation unpredictable – depends on length

  • Costs not available until final determination

  • Legal aid available to impecunious litigants – no longer available in civil cases

Historical perspective

• Pre-Judicature Acts 1875

  • Claimants had to bring claim within particular form

    • No difference between substantive right & procedure

    • Focus on technicalities – protracted & expensive

  • Different courts for different actions – Chancery & Common law

  • Defendant would first try to find fault in the form – non-suited / strike out

• Judicature Acts

  • Forms of action abolished

  • All claims brought by writ

  • Focus on merits

  • Modern system of pleadings established

  • 1883 RSC O 7 r 1 – non-compliance with rules does not render proceedings void unless court so directs – can be set aside as irregular/amended/dealt with as judge thinks fit

    • provides wider discretion

    • loosens procedural strictures

• Sharp divide between pre-trial & trial

  • Pretrial – pleadings, disclosure

  • Trial – continuous, fact-finding & submissions

Position under old RSC

• Broad discretion to strike out or waive irregularity: Ord 2 r 1; Metroinvest Anstalt v Commercial Union Insurance

• Discretion only used very sparingly — Birkett v James [1978] AC 297, (delay by plaintiff – defendant applies to strike out claim for inordinate and inexcusable delay

  • Diplock LJ: Discretion to strike out should be exercised only where either:

    • (1) default intentional – conduct amounting to abuse of process or disobedience of peremptory order – challenge to court’s authority; or

    • (2) (a) inordinate and inexcusable delay and (b) delay will give rise to substantial risk that not possible to have a fair trial of the issues – eg deterioration of evidence

  • Relieves burdens of rules – or undermines the rules – regarding time limits for disclosure — essentially encouraged delays

  • Created uncertainty — further litigation about interpretation of standard

• Heavy emphasis on justice on the merits

  • But failure to police procedure permitted tactical litigation to dominant & obstruct a determination on the merits

• Court’s role was reactive rather than proactive

Reforms to ensure compliance with procedural orders

• Wolfe Report 1998 – current civil procedure rules enacted

  • Creates infrastructure for better management of system

  • Rise of case management

    • Achieve savings of resources & time

  • Difficulties now with distribution of resources to case management

  • Woolf hoped that CPR 3.9 would lead to change in culture

• BUT – Statistics

  • Following reform of 1875 – cost of litigation rose

  • Following Wolfe reforms – cost of litigation rose again

  • Causes

    • Formal – Mismanagement by judges

    • Economic – Financial incentives for protracting litigation remain

• Excessive discretionary factors in CPR 3.9 (relief from sanctions for non-compliance)

  • Leads...

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