Ten Years of the Civil Procedure Rules
By Adam Manning
The greatest shake up in the UK’s civil claims procedure for over one hundred years was ushered in, with little public fanfare, during April 1999. Out went the old Rules of the Supreme Court and in came the shining new Civil Procedure Rules (CPR) drawn up by Lord Woolf, Master of the Rolls.
The Woolf reforms, as they are sometimes called, were a response to a number of serious concerns about the reality of civil justice. In practise, many found making a claim in the County or High Court to be a very costly and lengthy process. If the length of time and the expense involved in a case seemed far greater than seemed reasonable, could justice really said to be done? It was these difficulties that the CPR sought to address.
The CPR encoded a number of new concepts for lawyers to contend with, either clarifying or restating previous principles or introducing new ideas. These included :
· the “overriding objective” of the rules, which was to ensure cases were decided justly
· greater emphasis on judges managing and running cases to ensure they proceeded in a timely fashion towards a settlement or ultimate trial
· allocation of each case into one of three “tracks”, a totally novel development, dependent in the main on the size of the claim
· each track of the Court providing a different regime of directions for the progression of the claim
· A greater emphasis on moving towards a settlement with a structured system for making offers under Part 36 of the rules
The rules also place a greater need on parties to a case to cooperate and swap information, particularly at the start of a claim. A complex health and safety claim involving an accident at work might entail large amounts of documentation. It is quicker and less expensive if this is disclosed early rather than, as sometimes happened before the CPR, much nearer the trial.
The intention here was to support efforts to settle a claim as early as possible to avoid legal costs becoming disproportionate.
The new spirit of promoting efforts towards a settlement was also implemented in the CPR with its reference to Alternative Dispute Resolution. Recently this has lead to encouraging the use of mediation to facilitate an agreement and parties may now be at a disadvantage later if they fail to take part in mediation. Whether the enforced use of mediation sits well within a system that is fundamentally adversarial in nature is an interesting point but it remains the case that this can be a useful means to settle a claim quickly, which is often a key requirement for many claimants.
The Woolf reforms are considered by many, lawyers and judges alike, to have tackled some of the practical deficiencies that seemed inherent in the previous regulatory framework. The enhanced case management powers conferred on the Courts are widely perceived as imposing discipline in the progression of a claim with lawyers no longer able to let claims languish with little fear of punitive action. Often once a claim has been allocated the parties will have an idea of when a trial is due and this structure helps focus attention on reaching a settlement rather than incur the uncertainties of a hearing in front of a judge.
Another positive development has been the clearer rules on the use of expert witnesses and ensuring their evidence is independent and for the benefit of the Court. The previous partisan nature of expert evidence has been curtailed with encouragement for parties’ experts to meet and produce documents embodying their areas of agreement and disagreement.
The greatest failing of the CPR is in the controlling of legal costs and some have taken the view that costs, particularly in lower value claims, have increased as a result of the CPR’s regime. With the substantial reduction of legal aid for civil claims since the late nineties the Conditional Fee Agreement (often referred to as the “no win no fee” agreement) was introduced to fill the gap. This has lead to a large amount of satellite litigation surrounding issues such as the size of the success fee (the enhancement claimant lawyers are allowed to charge if they are successful) and enquiries into the availability of legal expenses insurance.
Further consultations have taken place on how to better control legal costs so that they are more proportionate to the size of the claim. There have been additional reforms such as fixed costs for lower value road traffic claims. Nevertheless it would appear that the CPR, for all their attractive clarification of the rules of civil justice, have yet to efficiently regulate legal costs to the degree that the case timetable has. Perhaps the greatest achievement in this area has been to encapsulate the concept of proportionality into our law, meaning that at the very least the amount of legal costs ought to in some way be in keeping with the size of the claim or its complexity.
The Civil Procedure Rules were implemented to generally widespread support and to date judges and lawyers remain largely positive about the changes that they brought in. The rate of change to the rules shows no sign of letting up and this has important implications to the way the modern lawyer approaches claims management. Advising clients requires a lawyer to pro-actively look ahead and have a clear understanding of all the latest changes and how they impact on the progression of a claim.