Overriding Objective And Human Rights Notes

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

  • s2 - empowers CPR Comm to make rules

  • s1(3) - must be simple & simply expressed

  • 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

  • a) allocation stage - track; timetable

  • b) evidence to be adduced at trial - esp expert

  • c) listing for trial - set date/window; avoid delay

  • d) trial itelf

  • 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 & ; 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

  • 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

• BUT court has no power to prevent a party from instructing the legal representatives of his choice (even on the ground that he is able to afford more powerful representation than his opponent)

Proportionality

• at heart of CPR

• applications on minor matters may be seen as tactical posturing may be dismissed on prop grounds - TIP Communications LLC v Motorola

• e.g. taking point that particulars of claim 1 min late = unmeritorious in absence of prejudice - Kent Hospitals NHS Trust

• costs budgeting required at outset when disproportionate costs could be incurred - Lownds v SoS Home Dept [2002] EWCA Civ 365

  • likely value of claim

  • importance and complexity

Dealing w/cases expeditiously & fairly; saving expense

• keep litigation as cheap as poss

• Adan v Securicor - separate trials refused to avoid exposing insurer to liability for indefinite period

• court deals by

  • summary disposal of claims / issues within claims court saves expense and achieves expedition - Swain v Hillman [2001] 1 All ER 91

Allotting appropriate share of court's resources

• bad use of resources

  • Stephenson (SBJ) v Mandy CA - refused to consider merits of interim appeal as short time to trial

  • Adoko v Jemal - badly administrated/organised appeal dismissed, to avoid allotting more than fair share of court resources

• Impact on other cases of:

  • ...

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