Introduction of the civil procedure rules

An Insight In To The Introduction Of The Civil Procedure Rules 1999

The main aim of this chapter is to consider how the introduction of the Civil Procedure Rules (CPR) has affected dilapidations claims. It also explores the general changes to English litigation that were inflicted by the CPR, and why these changes were required. It is important to analyse the affect of these changes and decide if other dispute resolution methods are suitable to be utilised with dilapidations claims.

CPR was introduced as a new code of procedure at the time of its enactment in 1999. Since this time, it has evolved as being the first in a continuing program of amendments to litigation rules, of which it has played a major part.

In 1988 the Civil Justice Review (CJR) was undertaken in order to identify defects in the current civil law system. Expense, delay and complexity were named as the main problems. REF. Heilbron & Hodge (1993) agreed with the CJR and stated in their report that there was a need for a radical change of culture in the way that litigation was conducted, and that it was in urgent need of reform. ( Heilbron Hodge, Civil Justice on Trial: The Case for Change, 1993)

Innovations followed these reports but the problems continued. This led to Lord Woolf being appointed in 1994 to review and potentially reform the civil procedure system. He then produced two reports entitled ‘Access to Justice' and these provided the foundations for the serious amendments introduced in April 1999.

Lord Woolf agreed with the CJR 1988 and the Heilbron Hodge report of 1993, in that he identified high costs, long delays, and complexity as being the main defects of the old civil procedure system. He also described the system as unequal and unfair.

“The defects I identified in our present system were that it is too expensive in that the costs often exceed the value of the claim; too slow in bringing cases to a conclusion and too unequal: there is a lack of equality between the powerful, wealthy litigant and the under-resourced litigant. It is too uncertain: the difficulty of forecasting what litigation will cost and how long it will last induces the fear of the unknown; and it is incomprehensible to many litigants. Above all it is too fragmented in the way it is organised since there is no-one with clear overall responsibility for the administration of civil justice; and too adversarial as cases are run by the parties, not by the courts and the rules of court, all too often, are ignored by the parties and not enforced by the court” ( July 1996, Access to Justice: Final Report, Lord Woolf)

Along with Heilbron & Hodge, Woolf stated that he was particularly concerned with the oppositional ‘culture' which had become a key feature in English litigation processes. He believed that without effective judicial control this adversarial process and culture was likely to deteriorate into an environment in which the litigation process is too often seen as a battle field where no rules apply. (English Legal System, Gary Slapper, David Kelly)

Lord Woolf's opinion is backed up by Chancery Judge Mr Justice Lightman, who states that, “in cases before me I have had ‘blue chip' firms carrying on at their clients' expense feuds with each other in the form of vitriolic correspondence and total non-co-operation during the trial, where I have had to act as a mediator between them. If the price of impressing clients is indulging in these tactics, it is a price which no [practitioner] can afford to pay consistently with his duty to the Court, and the sanctions for breach of this duty must be real enough to deter recurrence.” (NO REF)

In his reports Lord Woolf branded the old civil procedure system as ‘wasteful' and noted that parties were fully investigating every aspect of the case, encouraging minor issues to entail excessive work and cost. (Access to Justice: Interim Report, Lord Woolf, 1995). He further states in his final report (1996), “I am particularly concerned about the level of public expenditure on litigation, especially in medical negligence and housing. Substantial amounts of public money which are now absorbed in legal costs could be better spent on enhanced medical care and on improving standards of public housing.”

“An efficient and cost effective justice system is also of vital importance to the commercial, financial and industrial life of this country” (Lord Woolf, "Access to Justice", Final Report Section 1)

In the Overview of his final report, Woolf advises of his proposals to create a ‘new landscape' of civil litigation in order to achieve his aim of creating a civil procedure system which is fundamentally different from the old system. ( (Lord Woolf, "Access to Justice", Final Report Section 1)

Details of his new landscape included his desire for “litigation to be avoided wherever possible”. Paragraph 9 advises that people should be encouraged to use ‘more appropriate' means of dispute resolution, and that court proceedings should be the last resort. In order to aid the use of alternative dispute resolution (ADR), he suggested that information on the same should be made available in all civil courts. To further discourage court proceedings, he recommends that legal aid funding is made available for those wishing to utilise ADR and other pre-litigation resolution methods. In addition, both parties will be able to make offers to settle the whole or part of a dispute before commencing court procedures. This is supported by a special regime as to costs and higher rates of interest if the offer is not accepted. In order to promote settlement, the court will be granted ‘additional powers' with regard to pre-litigation disclosure. This along with the introduction of protocols in relation to medical negligence, housing and personal injury, will enable parties to obtain information earlier. (Lord Woolf, "Access to Justice", Final Report Section 1).

Lord Woolf intended to make litigation “less adversarial and more co operative” by proposing that there should be “an expectation of openness and co-operation between parties from the outset, supported by pre litigation protocols on disclosure and experts”. The courts would be able to punish any parties who lack in co-operation prior to litigation. Also, the courts will be encouraged to “take in to account whether the parties have unreasonably refused to try ADR or behaved unreasonably in the course of ADR.” Experts will have a greater duty to the courts. Woolf suggests that experts should be used by each party whenever practicable. Opposing experts are encouraged to communicate as early as possible in order to resolve the issues between them. Courts will have the power to appoint an expert at its discretion. (Lord Woolf, "Access to Justice", Final Report Section 1).

Woolf's plans extended to reducing the complexity of litigation. He proposed that there should “be a single set of rules applying to the High Court and the county courts. The rules will be simpler, and special rules for specific types of litigation will be reduced to a minimum.” This meant that all proceedings would be commenced in the same way. Also, the claim and defence documents will not be technical. Under Woolf's system, the claim document will set out the facts alleged, the remedy which the claimant seeks, the grounds for seeking this remedy, and will be backed up by any points of law relevant to the case. To identify the real issues dividing the parties, the defence document will be a detailed response to the claim. To eliminate the possibility of tactical allegations the parties must each include certificates to verify the contents of their ‘statements of case'. (Lord Woolf, "Access to Justice", Final Report Section 1).

Claimants would be permitted to commence proceedings in any court. The court is responsible for directing the parties or transferring their cases to a more appropriate branch of the system, if necessary. Notably, during the course of proceedings the court will also have the power to “dispose of individual issues or the litigation as a whole where there is no real prospect of success”. Both parties are also permitted to apply for this type of action to be taken. Should any party wish to appeal, this would now be undertaken via a new unified code. This is opposed to the old system's style of appeal which can take many varied routes. Woolf supported a new standard test which promotes a more restricted disclosure of discovery. The old system scale of discovery would be made available but only in a minority of cases. Active judicial case management would be introduced in order to deal with multi party actions in a quick and fair manner. (Lord Woolf, "Access to Justice", Final Report Section 1).

Woolf's final report also states that “the timescale of litigation will be shorter and more certain”. In order to achieve this all cases would progress to trial in accordance with a timetable which had been devised and monitored by the court, with fast track cases having a timetable of no longer than 30 weeks. In Woolf's system it is the court which determines the procedure and length of the trial, instead of the litigants themselves. Parties who do not comply with the court's timetables or procedures will be issued with strict punishments by the court. (Lord Woolf, "Access to Justice", Final Report Section 1).

Next on Woolf's agenda is to reduce the cost of litigation to make it “more affordable, more predictable, and more proportionate to the value and complexity of individual cases.” He planned to separate cases into categories according to how valuable and how complex they were. The fast track cases will have fixed costs, multi track cases will have their costs estimated by the court or agreed by the parties and approved by the court. It will be more difficult for wealthier parties to gain a tactical advantage over their opponents as additional expenditure will be prevented. This will be achieved by providing judicial case management in multi track cases and limited procedures and tight timetables in fast track cases. The less complex or lower value cases will be incorporated into a streamlined track where the procedure will be simpler and the costs at an appropriate budget. Courts will issue guideline costs for cases which are less complex and predictable. (Lord Woolf, "Access to Justice", Final Report Section 1).

To further improve the balance of the scales of the civil system, Lord Woolf believed that “parties of limited financial means [should] be able to conduct litigation on a more equal footing”. This would lead to more effective punishments, including fines of a fixed sum which are to be paid immediately. In continuing with his attempts to balance the scales and make litigation fairer, Woolf suggested that legal representation should not be essential for litigants. Instead, they will be able to seek help from the courts and other advice services. A party's financial situation will be taken in to account by the procedural judges when allocation cases to fast track or small claims categories. In some cases, courts may propose that the wealthier party funds the extra cost required for a more elaborate procedure which has been deemed appropriate by the court. (Lord Woolf, "Access to Justice", Final Report Section 1).

Lord Woolf believed that the Head of Civil Justice should “have overall responsibility for the civil justice system in England and Wales” as part of a new administrative structure which aims to create a partnership between the courts and the judiciary. This formed part of Woolf's desire to establish “clear lines of judicial and administrative responsibility for the civil justice system”. He also believed that the litigation process should meet the needs of litigants. In order to achieve this Woolf redesigned the structure of the courts and the deployment of judges. This included providing courts with new technology to aid the monitoring of the progress of litigation. For example, litigants would be able to utilise telephone and video conferencing facilities in order to communicate with the courts. He stated that trials would only take place on the date for which they had been assigned, and that far-fetched appeals would be removed from the system at an early stage. Woolf confirmed the courts' responsibilities to ensure that complex civil cases were dealt with at trial centres with specialist judges, while local courts dealt with small claims, debt cases, housing claims, etc. (Lord Woolf, "Access to Justice", Final Report Section 1).

In addition to this, Woolf wanted to encourage judges to specialise in high problem areas such as medical negligence and housing disrepair, and provide them with the training required in order to fully understand all legal and technical issues associated with those areas. Judges would also be provided with support on administration and technology in order to manage their cases effectively. These ideas would help judges to be deployed effectively. (Lord Woolf, "Access to Justice", Final Report Section 1).

To create a civil justice system which will be “responsive to the needs of litigants”, Woolf stated that court staff are to provide information and assistance to litigants on how to progress their case. Examples of this could be through duty advice schemes, leaflets, telephone helplines, videos, or the internet. (Lord Woolf, "Access to Justice", Final Report Section 1).

Lord Woolf's Access to Justice Reports radically changed the face of English litigation, including cases relating to dilapidations claims. The effect of CPR 1999 on the dilapidations procedure is considered in detail in the next chapter.