Procedure Notes

Procedure

Cranston: How Law Works (2006)

Chapter V: Procedure

Lindblom – “the science of muddling through”

The Woolf Report, and the changes it has brought about to civil procedure in England and Wales, fit more a big bang than an incremental model of public policy making.

Case management in particular constitutes a radical break with the adversary nature of civil procedure.

In its implementation, Lord Woolf had argued for an early and wholesale rather than a more staged introduction of the changes. The latter was the approach ultimately adopted. Nevertheless, big bang it remained.

Aspects of the reform such as the emphasis on speed and reduced cost accorded with the sense of crisis and the need for significant change felt by leading judged, practioners and court administrators e.g. Bingham and Lightman.

Lord Woolf was able to build a coalition favouring fundamental change to address these issues. His critics were routed since they had no ready solutions to the problems and were reduced either to defending the status quo or contending that radical change was impossible.

Zander – critic.

Overall the adoption of the bulk of the Woolf proposals has seen a fundamental change in legal practice and culture in a remarkably short space of time.

Unfortunately civil justice has been a Cinderella subject and not a great deal of research has been done.

Procedural change

Zuckerman – radical argument for a more truncated form of procedure along the lines of summary judgment (1995).

Procedural reform was central to the Woolf Inquiry. The Report laid the groundwork for a new procedural code, as well as making recommendations on specific matters such as the handling of disputes before actions. The report sets out Lord Woolf’s philosophy for a new procedural code. It is incorporated in the overriding objective of the civil procedure rules. Dealing with cases justly is the lodestar, but that is defined as a matter of reaching the right results in terms of the facts and the law, but mindful that resources are not unlimited and that decisions must be reached within a reasonable time.

Ensuring cases are on an equal footing procedurally takes shape in matters such as court fees, the treatment of litigants in person and in the responsibility on the court to ensure that one side does not use procedural devices such as excessive disclosure (discovery) to browbeat the other.

The overriding objective is based on the important assumption that cases do not all need the same preparation or same lengthy trial. Procedures must be proportionate to the type of case hence the three tracks – small claims track, fast track and multi track.

Zuckerman (1999) – the greater control over the resources allocated to individual disputes has rightly been categorised as a new philosophy of distributive justice in procedure, ensuring resources are allocated fairly to litigants and would be litigants and that the allocation of resources is proportionate to the importance of each dispute.

Simplification is one theme running through the Woolf reforms. It was a reaction to the complexity in the existing procedures and substantive law. complexity in Lord Woolf’s view facilitates the aggressive tactics of lawyers which he deprecates and indeed “is considered by many to require it”. Simplification is the goal for the new rules. A primary aim of the new rules is understandability. Not only is there now a single set of rules applying to the High Court and county courts, but there is a simplification of specific procedures e.g. the number of ways of commencing an action and the plethora of initiating documents have been abolished to be replaced by the issue of a claim form.

Lord Woolf – reducing the size of the rules and the number of propositions contained in them, using simpler and clearer language and adopting a simpler drafting structure are all aimed at “enabling the rules to perform their proper function once more.”

Perhaps the most radical innovation in procedure has been the emphasis on party cooperation, a distinct break from the adversary culture. In particular this has been furthered by the introduction of pre-action protocols. As a result, court procedure now reaches back to mould behaviour before the parties have even invoked court processes. Their aim is to encourage settlement and promote a culture where litigation is a last resort. Overall the protocols require the early exchange of information about a claim. Thus C’s must send a detailed letter about a prospective claim which D’s must respond to in full within a specified period. C’s must generally hold back from litigating in the meantime. Under the protocols parties must cooperate to varying degrees on such matters such as experts, and under them there is an obligation on the parties to demonstrate a willingness to settle. There are pre-action protocols for specific areas such as personal injury, clinical negligence, housing disrepair, defamation, disease and illness, and JR. Absent a pre-action protocol in an area parties are still expected to act reasonably in exchanging information and documents at an early stage and must generally seek to settle their dispute without recourse to litigation. The protocols are guides to good practice, although the courts take breach into account in giving case management directions and making orders for costs (Carlson).

Lord Woolf has seen the problem of cost as the most serious besetting the litigation system. One aspect is that costs can be used as an instrument of war, to drain or deter an opponent.

Under the overriding objective of the CPR, the court must consider whether the likely benefits of taking a particular step justify the cost of doing so. there is also a wide power for the court to take any step or make any order for the purpose of managing a case and furthering the overriding objective.

The costs practice direction sets out steps which lawyers must take to keep clients informed about their potential liability in respect...

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