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Overriding Objective And Human Rights Notes

BPTC Law Notes > BPTC Civil Ligitation Notes

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A more recent version of these Overriding Objective And Human Rights notes – written by City Law School students – is available here.

The following is a more accessble plain text extract of the PDF sample above, taken from our BPTC Civil Ligitation Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

OVERRIDING OBJECTIVE OVERRIDING OBJECTIVE (OO)

1.1 CPR (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost (2) Dealing with a case justly and at proportionate cost includes, so far as is practicable(a) ensuring that the parties are on an equal footing; (b) saving expense; (c) dealing with the case in ways which are proportionate(i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly; (e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases; and (f) enforcing compliance with rules, practice directions and orders.

? applies to courts and parties

'A NEW PROCEDURAL CODE' - SOURCES OF PROCEDURAL LAW Statutory Sources

? CA & HL - Senior Courts Act 1981
? CC - County Courts Act 1984
? Civil Procedure Act 1997 o s2 - empowers CPR Comm to make rules o s1(3) - must be simple & simply expressed o CPR 1998 = e.g. of these
? provisions from previous rules of court preserved for time being in Schs 1 and 2 to CPR Practice Directions and court guides

? made by LCJ/nominee w/ approval of LC or LCJ
? includes practice directions supplementing CPR & general ones made in past by courts
? detailed court guides w/ no formal status published for specialist courts Judicial sources

? CPR often loosely drafted, details worked out on case-by-case basis Lacunae in county court rules

? s76 CCA 1974 - HC practice can be applied to Coco if gap

Inherent jurisdiction HC

? inherent control of procedure and ensure no injustice - constitutional right
? if CPR does not cover, resort to inherent jurisdiction - cautious approach to expansion of principle

? if codified, inherent jurisdiction ceases CC

? Landley v NW Water Auth 1991 - est CC's inherent jurisdiction

ACTIVE CASE MANAGEMENT

? 1.4(1) CPR - court must further OO by actively managing cases
? List in 3.1(2) enables this active management General case management

? usu active judicial case management at following stages o a) allocation stage - track; timetable o b) evidence to be adduced at trial - esp expert o c) listing for trial - set date/window; avoid delay o d) trial itelf o e) costs - proportionality; penalise those breaching OO Specific instances of active case management

? proportionality of interim applications
? making directions; striking out unreasonable proceedings
? summary judgment (cases w/o chance of success)
? further info generally Technology

? more likely in heavy litigation
? only acceptable if saves time & PS; does not prejudice parties INTERPRETING THE CPR - CPR 2.3 - definitions General approach

? purposive
? CPR = SI ? Interpretation Act 1978 applies When are the pre-CPR rules of court relevant to the 'new procedural code'?
(a) old case law on substantive point e.g. test (b) lacuna in CPR ? authorities can be incorporated into CPR by r3.1 (general power to rectify error of procedure)

(c) wording of new rule is same as old

? otherwise, CPR = new procedural code ? old case law strictly not binding, but in reality used as a guide OO as guide to interpretation

? if no express words, court use interpretation which best reflects OO Natural meaning

? give effect to OO in interpreting any rule
? above doesn't apply is words clear HR as guide to interpretation

? additional words read into CPR rule to comply w/ 3(1) HRA Rules of precedent

? SC can sometimes depart from prev ruling
? CA and all lower bound by - SC, HL, CA

APPLICATION OF OO Dealing w/cases justly CPR r1.1(1)

? primary concern of ct = justice: dealing w/both sides' real case; if poss decide on merits
? BUT justice must be done at proportionate cost Equal footing

? unfair exploitation of superior resources, as opposed to failure to provide info -Henry v Newsgroup

? tackle lack of equality between under-resourced litigant and powerful wealthy litigant
? establish 'equality of arms'
? not just financial - experience at court
? exploit rules of court ? spin out proceedings and escalate costs
? respective access to expert evidence - general rule should be same amount of expert witnesses

? Where one party can afford to instruct a large firm of experienced and expensive solicitors, whereas the other can afford only small and relatively inexperienced advisers, the court may make orders designed to rectify this imbalance

o e.g. orders allowing the smaller firm more time to carry out necessary work, or requiring the larger firm to prepare bundles of documents needed for court hearings

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