Q1
Part 7 and Part 8 of the CPR explain how to start a claim, but the two parts have significant differences. There are claims that can only be filed and Part 7 while there are those that can only be filed under Part 8. The main difference is that while Part 7 deals with resolving issues of facts, Part 8 claim allows an applicant to ask the court to determine an answer to a question of law or give a remedy to matters where there is no substantial dispute as to the facts. As Part 8.1 subsection 2 affirms, a claimant may use Part 8 where he seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact or where the nature of the proceeding requires a party to use Part 8 .
Unless the nature of the claim requires specifically Part 8, Part 7 is normally the conventional way of starting a claim. Proceeding under Part 7 commences when the court issues a claimant with a claim form, the claimant fills the particulars of the claim, and serves to the defendant. Upon receiving the claim form and its particulars, the defendant is required to respond to the claims unless a settlement has been reached. This is followed by the disclosure of the material facts of the claim and exchange of witnesses before a trial can begin. The applicant filing a claim under Part 7 must show that there is substantial evidence to conclude the case. If the court is convinced that the other party has no chances of defending, it may issue a summary judgement before the case proceeds to full trial.
Under Part 8 proceedings, the claim form is accompanied by the relevant evidence. When the defendant acknowledges receipt of the form, he does so by stating the evidence at the same time. Normally, the cases that commences on Part 8 are those involving structuring legal documents like contracts or the Tenancy Deposit Provisions of the Hosing Act 2004. There is no summary judgement to either the defendant or claimant in Part 8.
Q2
In 1999, the Woolf Report culminated into the new Civil Procedure Rules (CPR) . The report detailed the reforms that would see the English civil procedures attain just determination of litigation. The new rules were designed to make the courts more users friendly, and above that, efficient. In total the CPR has a series of 76 parts plus additional material expounding on the objective of each part. Overriding objective forms Part 1 of the CPR.
The overriding objective, as the CPR Part 1 states, is “to enable the court to deal with cases justly” . It is the guiding principle for all parts of the CPR. All courts must adhere to the overriding objective. In the first place, the overriding objective states that the courts must deal with a case justly as far as it is practicable by ensuring that the parties are on equal footing, saving expense and dealing with a case in a way that is proportionate to the cost involved, complexity of the issues and the financial ability of each party. In addition, the overriding objective is that all the courts must dispense the cases before them expeditiously and allocate the appropriate court resources to the case in relation to other pending cases.
The guiding principle contained in the overriding objective is what many have described as the most innovative of the Woolf’s report. According to Sorabji, they are the “the most significant reform” of the English civil procedure . Sorabji refers to the overriding objective as the first “explicit guiding principle” and the first explicit “all controlling policy objective” .
Before the coming into force of the CPR 1998, the English civil procedure was guided by The County Court Rules 1981 and The Rules of the Supreme Court 1965 (RSC). These rules made the civil litigation to be too expensive, too slow, too adversarial, too uncertain which made the court to fail in its noble objective: to deliver justice. Lord Woolf also argued that the RSC was full of complexities and terminologies that complicated the interpretation of procedural questions . The CPR aimed at simplifying litigation rules in accordance with the overriding objective. The situation made access to justice complicated for many. This background must have informed the title of the Woolf’s report, Access to Justice, which was widely welcomed and survived the change of government . The report begun by stating clearly in Part 1 that the new rules are “new procedure code with the overriding objective of enabling the court deal with cases justly”.
The term overriding objective had a deeper meaning . It is the guiding principle in applying and interpreting the CPR. It is an innovative way giving the courts a more active role in case management. The aim of an active case management is to speed up case determination not only justly but also efficiently and economically.
In order to achieve the aims of the overriding objective, Woolf’s report assigned every party in case a special duty. In Part 1 (2) of the CPR, the court is obligated “to give effect to the overriding objective” whenever it “exercises any power given to it by the rules” or any time it seeks to “interpret any rule”. Further, Part 1 (3) requires all parties (including lawyers) to help the court further the overriding objective.
The onerous responsibility for furthering aims of overriding objective rest with the court. What has been termed as the most innovative part of the CPR is the Lord Woolf’s creation of the concept of good and active case management. Although, the introduction of active case management in civil litigation is not a new concept, the way it is applied in the new civil procedure code has a wide and innovative meaning. As Sobraji notes, active case management as applied in RSC was implicit, but the new application in the CPR is explicit .
To achieve the aims of the overriding objective, Woolf’s reforms radically transformed the concept of active case management. In its simplest terms, active case management meant a change in how civil proceedings are carried out: from a party controlled litigation to court controlled litigation. The active case management referred here simply meant a court controlled litigation that ends with a determination of the case on its merit. Woolf’s reforms radically transformed this king of active case management to a one that focused on the destination of the case. According to Sobridji, the reforms have given litigation a new purpose and a new aim different from the precedent active case management . Sobridji argues that the overriding objective introduced a new concept into the English civil litigation. As Sobridji put it, it is “a concept of justice committed to proportionality rather than, as was previously the case; an unalloyed commitment to the achievement of what Woolf described as a substantive justice, that is, justice on the merits .
In Woolf’s reforms, active case management involves more than determining the pace of litigation. The concept goes further in dealing with the parties before the court to sifting the matters that come before the court for hearing. Active case management requires the court to encourage the litigating parties to co-operate in order to ease the determination of the case. This is a debut from the previous adversarial approach that characterized the proceedings prior to CPR 1998.
The overriding objective has in its aim the goal of speedy conclusion of cases in an economical and efficient manner. As a result the concept of active case management involves an earlier identification of cases before they come to full trial . The court can devote time to investigate cases that have substantial grounds while summarily dismissing others. Even if there are substantial grounds, the court should still encourage the parties to seek an Alternative Dispute Resolution mechanism where their cases can be dealt with cost effectively without engaging the expensive court system . This is in recognition that judicial time is valuable and need to be invested where it deserves.
In order to hasten the pace of litigation, active case management requires the courts to fix an efficient timetable and set a distinct order of how the issues before the court are going to be resolved. In addition, the overriding objective gives the court the power to decide whether to determine a case in full or a subset of the case. If a partial determination of the case is enough to deliver justice, then the court would rather go for it to save time and resources in relation to other disputes.
The overriding objective requires courts to embrace technology to fasten determination of cases. An active management of cases also requires the courts to help the parties in understanding civil procedures . To speed determination cases, the court can deal with many aspects of a case at the same time. Further the court may determine cases without requiring the parties to be necessarily physically present in court.
To minimize the cost of determining cases, the overriding objective directs the court whether a particular step to a case is worth the cost. As such, courts are required to take steps that are cost effective. Where possible, the court may help the parties settle part or whole of their dispute own their own.
The overriding objective places a special responsibility on the parties, including lawyers. As Part 1 (3) states, all parties should help the court to further the overriding objective. The most important Part 1 (3) requires parties, including their solicitors to co-operate in the civil proceeding. Part of the co-operation is helping the court into the jinx of the dispute as easily as possible. This may include being truthful and stating the facts as they are. Part 3.1-3.11 gives the court power to penalize any uncooperative party or struck out false information. In Part 3.1, the court may take “any other step or make any further order for the purpose of managing the case and furthering the overriding objective”.
In a direct relation to the overriding objective, the parties are required to deal with disputes in a way that is proportionate to the cost involved, the complexity and importance of the case as well as the financial position of the other party . To further this objective, the parties are made aware that even if they win, their award will still be subjected to the proportionality test .
On the other hand, the parties are required to be reasonable in their approach to dispute. In proposing this direction, Lord Woolf was aware that some parties are used to exaggerate dispute or creating mountains from an anthill. Some parties may approach dispute on a monetary and other benefits angle which may end subverting justice.
The other responsibility of the parties is to be conversant with the court procedures and honestly observing the set timetable. Further, the concerned parties are required to furnish their lawyers with the relevant information and documents to facilitate the speedy conclusion of cases. In order to keep the parties on their toes on these responsibilities, the court has the power to penalize any sluggishness or any other omission or commission that may have an effect on the overriding objective.
In addition to the responsibility of the parties and the courts as contained in Part 1, all the other parts of the CPR are as well designed to further the aims of the overriding objective. Part 7-20 in particular sets out the pre-action protocol. These are the conditions that parties should fulfil before starting a claim. For instance, Part 7 and Part 8 indicate the form to fill for certain claims. Pre-action protocols detail such things as disclosure of information, the contact between the parties and the full investigation of the case. Although the protocols are not compulsory, the court may take them into consideration when allocating the costs.
Q3
The consideration for granting a relief from sanction are set out in Part 3.9 of the CPR under the court case management powers. Among other factors, the court will consider the interest of the administration of justice, the time of the filing of the relief, whether the sanctions were imposed on an intentional conduct and whether the applicant has a good explanation for the failure to comply. Where the non-compliance was intentional, the court will take it as outright disregard of the rules. In addition, the court will dig in the previous conduct of the defaulter in relation to observing other rules, obeying court orders, practice directions and observing the pre-action protocol . Where the court finds that the applicant had been disobeying the rules all along, the court is likely to object to the application.
Other factors to consider include are whether the failure to comply was the fault of the party or his solicitor, the effect that the relief will have on the trial date and how the relief may affect the other party . If granting the relief will have a significant effect on the trial date, the court may object the application. The court will also consider the evidence put forward to support a relief.
In recent times, the Civil Procedure Rule Committee has contemplated reviewing the consideration factors for granting relief. The Committee intends to simply the rules governing relief and making relief for non-compliance an exception rather than the norm. This follows the argument that the court need to be less tolerant to unjustified applications that have the effect of causing delays and disregard of orders. The proposed reform argues that a strict regulation of the relief from the sanction is going to enable the court to have a firm management of the case. Such issues arose from the case of JSC BTA Bank v Ablyazov where the court was misled to grant a relief from sanction under an “unless order”, the court may revoke the relief without necessarily revisiting the case.
Work Cited
Andrews, Neil. The Modern Civil Process: Judicial and Alternative Forms of Dispute Resolution in England (Manchester: Mohr Siebeck, 2008)
Civil Procedure Rules 1998
Dwyer, Deirdre. The Civil Procedure Rules Ten Years On (Oxford: OUP Oxford, 2009)
Garland, Fae. “Embracing the overriding objective: difficulties and dilemmas in the new criminal climate”, The International Journal of Evidence & Proof 16, no.3 (2012):233-262.
Grainger, Ian, Michael Fealy & Martin Spencer. Civil Procedure in Action (London: Routledge, 2000)
JSC BTA Bank v Mukhtar Ablyazov [2010] EWHC 1779 (Comm)
Lord Woolf. Access to Justice: Final Report (London: Stationery Office, July 1996)
Slapper, Gary, & David Kelly. The English Legal System (London: Taylor & Francis, 2011)
Snijders, Henk, Henricus Snijders & Stefan Voenauer. Content and Meaning of National Law in the Context of Transnational Law (Stockholm: Sellier, 2009)
Sorabji, John. “The Road to New Strett Station: Fact, Fiction and the overriding Objective”, European Business Law Review, no 21 (2011): 1-19
Stack v Dowden [2007] UKHL 17
