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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.

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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


? 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


? 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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