7
The Civil Process

Jarndyce [v] Jarndyce drones on. This scarecrow of a suit has, in the course of time, become so complicated that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce [v] Jarndyce, without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant, who was promised a new rocking horse when Jarndyce [v] Jarndyce should be settled, has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into grandmothers; a long procession of Chancellors has come in and gone out… there are not three Jarndyces left upon the earth perhaps, since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce [v] Jarndyce still drags its dreary length before the Court, perennially hopeless.

(Charles Dickens, Bleak House, 1853)

Many critics believe that the adversarial system has run into the sand, in that, today, delay and costs are too often disproportionate to the difficulty of the issue and the amount at stake. The solution now being followed to that problem requires a more interventionist judiciary: the trial judge as the trial manager.

(Henry LJ, Thermawear v Linton (1995) CA)

7.1 Introduction

The extent of delay, complication and therefore expense of civil litigation may have changed since the time of Dickens’ observations about the old Court of Chancery, but how far the civil process is as efficient as it might be is a matter of some debate. The civil justice budget was reduced by 25 per cent between 2010 and 2015.

7.2 The Need for Reform

According to the Civil Justice Review (CJR) 1988, delay in litigation ‘causes continuing personal stress, anxiety and financial hardship to ordinary people and their families. It may induce economically weaker parties to accept unfair settlements. It also frustrates the efficient conduct of commerce and industry.’ Despite some of the innovations in the five years following that CJR, the problems continued.

Historically, change has come very slowly and gradually to the legal system. The report of the CJR was largely ignored and, with the exception of a shift in the balance of work from the High Court to the County Court (under the Courts and Legal Services Act (CLSA) 1990), no major changes came from its recommendations. The whole process began again with the Woolf review of the civil justice system. In March 1994, the Lord Chancellor set up the Woolf Inquiry to look at ways of improving the speed and accessibility of civil proceedings, and of reducing their cost. Lord Woolf was invited by the government to review the work of the civil courts in England and Wales. He began from the proposition that the system was ‘in a state of crisis… a crisis for the government, the judiciary and the profession’. The recommendations he formulated – after extensive consultation in the UK and in many other jurisdictions – form the basis of major changes to the system that came into effect in April 1999. David Gladwell, head of the Civil Justice Division of the Lord Chancellor’s Department (LCD), stated (Civil Litigation Reform, 1999, LCD, p 1) that these changes represent ‘the greatest change the civil courts have seen in over a century’.

The CJR 1988 recommended unification of the County Courts and the High Court. It accepted the need for different levels of judiciary, but argued that having different levels of courts was inefficient. This recommendation carried what Roger Smith, then director of the Legal Action Group, called an ‘unspoken sting’, namely, that a divided legal profession could hardly survive a unified court. The Bar rebelled and the judiciary were solidly opposed to such change. The recommendation was not legislated.

The CLSA 1990, following other recommendations in the CJR, legislated for large numbers of cases in the High Court being sent down to the County Courts to expedite their progress. No extra resources were given to the County Courts to cope with the influx of cases and so, not surprisingly, there has been a growing backlog of cases and a poorer quality of service in the County Courts. This problem may well have worsened rather than been helped by the introduction of the Civil Procedure Rules (CPR), as more cases are now heard in the County Courts.

7.3 The Civil Process

Following the Civil Procedure Act 1997, the changes have been effected through the Civil Procedure Rules (CPR) 1998, which came into force on 26 April 1999. These rules replaced the Rules of the Supreme Court 1965 and the County Court Rules 1981. The Rules are divided into parts and practice directions. There are also pre-action protocols. Each part deals with a particular aspect of procedure and within each part is a set of rules laying down the procedure relating to that aspect. Also, under most parts can be found practice directions that give guidance on how the rules are to be interpreted. In addition, the rules are kept under constant review and there are regular updates. By the end of 2014 the 77th update was issued; 2015 saw five further updates and on 3 October 2016 the 86th was introduced. Many of the updates are only minor, but some are substantive. Changes introduced in the 2015 updates included that for money claims where the defendant was an individual the case would be heard, if a hearing were necessary, in the defendant’s local hearing centre, otherwise it would be the claimant’s preference. The principal change in the eighty-sixth update relates to Part 52 appeals and supporting practice directions. Companies Acts proceedings are now commenced in the Central London County Court rather than the High Court. The pilot electronic working scheme set up in 2014 has been replaced for two years from 16 November 2015 with a new scheme. It has been extended to include the Chancery Division, Commercial Court, Companies Court, Mercantile Court, Probate, Technology and Construction, Arbitration, Intellectual Property, Estates, Trusts and Charities, Financial List, and the Admiralty Court, unless specifically excluded by the revised practice guides. It applies to existing proceedings and those started on or after 16 November 2015.Pre-action protocols are listed in 7.3.4.

A new not-for-profit company, MedCo Registration Solutions, was set up on 6 April 2015 to deal with soft tissue injuries arising from Road Traffic Accidents (RTA). All medico-legal experts and medical reporting organisations (MRO) will need to be registered with MedCo in order to provide medico-legal reports for RTA soft tissue injury claims. The qualifying criteria was updated 25 October 2016. Medco is awaiting the outcome of the Ministry of Justice consultation, which closes on 6 January 2017, on proposals to reduce the unacceptably high number of whiplash claims.

Of major importance has been the accessibility of the CPR, which can be found on the LCD website, including practice directions and updates. A further method of improving the civil process has been the introduction of pre-action protocols for certain types of case, which are designed to increase the opportunity for settling cases as early in the proceedings as possible by improving communication between the parties and their advisers. The rules are quoted as, for example, ‘rule 4.1’, which refers to Part 4, r 1 of the CPR.

The main features of the civil process are as follows.

The case control

The progress of cases is monitored by using a computerised diary monitoring system. Parties are encouraged to co-operate with each other in the conduct of the proceedings; which issues need full investigation and trial are decided promptly and others disposed of summarily.
The documentation and procedures

Most claims will be begun by a multipurpose form and the provision of a response pack, and the requirement that an allocation questionnaire is completed is intended to simplify and expedite matters.

7.3.1 The Civil Procedure Rules

The CPR are the same for the County Court and the High Court. The vocabulary is more user-friendly, so, for example, what used to be called a ‘writ’ is a ‘claim form’ and a guardian ad litem is a ‘litigation friend’.

Although in some ways all the fuss about the CPR being so far-reaching creates the impression that the future will see a sharp rise in litigation, the truth may be different. The Queen’s Bench Division of the High Court is the court that deals with all substantial claims in personal injury, breach of contract and negligence actions. According to official figures (Judicial and Court Statistics 2011, Ministry of Justice, 28 June 2012), 153,624 writs and originating summonses were issued by the court in 1995. By 2013, however, the number of annual actions issued was down to 13,035 (HM Government website of quarterly court statistics). The number of claims issued in the County Courts (which deal with less substantial civil disputes in the law of negligence) has also fallen. In 1998, the number of claims issued nationally was 2,245,324 but in 2014 it was 1,595,441 with 44,804 hearings or trials and in quarter 3 of 2016 claims were 494,148 with 12,675 hearings.

7.3.2 The Overriding Objective (CPR Part 1)

The overriding objective of the CPR is to enable the court to deal justly with cases. It applies to all of the rules, and the parties to a case are required to assist the court in pursuing the overriding objective. Further, when the courts exercise any powers given to them under the CPR, or in interpreting any rules, they must consider and apply the overriding objective. The first rule reads:

1.1(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.

Costs are now fundamental to litigation and all parties, unless unrepresented, must file and exchange costs budgets in form H verified by a statement of truth. Under CPR 3.17, when making any case management decision, the court will have regard to any available budgets of the parties and will take into account the costs involved in each procedural step.

This objective includes ensuring that the parties are on an equal footing and saving expense. When exercising any discretion given by the CPR, the court must, according to r 1.2, have regard to the overriding objective and a checklist of factors, including the amount of money involved, the complexity of the issue, the parties’ financial positions, and how the case can be dealt with expeditiously and fairly, and allot an appropriate share of the court’s resources while taking into account the needs of others.

7.3.3 Practice Directions

Practice directions (official statements of interpretative guidance) play an important role in the civil process. In general, they supplement the CPR, giving the latter fine detail. They tell parties and their representatives what the court will expect of them in respect of documents to be filed in court for a particular purpose, and how they must co-operate with the other parties to their action. They also tell the parties what they can expect of the court; for example they explain what sort of sanction a court is likely to impose if a particular court order or request is not complied with. Almost every part of the rules has a corresponding practice direction. They supersede all previous practice directions in relation to the civil process.

7.3.4 Pre-Action Protocols

The pre-action protocols (PAPs) are an important feature of the reforms. They exist for cases of clinical disputes (formerly called medical/clinical negligence, but now extended to cover claims against dentists, radiologists and so on), personal injury, disease and illness, construction and engineering disputes, defamation, professional negligence, housing disrepair, housing possession following rent arrears, housing possession following mortgage arrears, low value personal injury claims in road traffic accidents, low value personal injury (employers’ and public liability) claims, dilapidations at end of lease or tenancy of a commercial property and judicial review. Further protocols are likely to follow.

The protocols were drafted with the assistance of The Law Society, the Clinical Disputes Forum, the Association of Personal Injury Lawyers and the Forum of Insurance Lawyers. Most clients in personal injury and clinical dispute claims want their cases settled as quickly and as economically as possible. The spirit of co-operation fostered by the Woolf reforms should mean that fewer cases are pushed through the courts. The PAPs are intended to improve pre-action contact between the parties and to facilitate better exchange of information and fuller investigation of a claim at an earlier stage.

At the early stage of proceedings, when a case is being allocated to a track (that is, small claims, fast track or multi-track), after the defence has been filed, parties will be asked whether they have complied with the relevant protocol, and if not, why not. The court will then be able to take the answers into account when deciding whether, for example, an extension of time should be granted. The court will also be able to penalise poor conduct by one side through costs sanctions – an order that the party at fault pay the costs of the proceedings or part of them.

7.4 Case Control (CPR Part 3)

Case control by the judiciary, rather than leaving the conduct of the case to the parties, is a key element in the reforms resulting from the Woolf review. The court’s case management powers are found in Part 3 of the CPR, although there is a variety of ways in which a judge may control the progress of the case. A judge may make a number of orders to give opportunities to the parties to take stock of their case-by-case management conferences, check they have all the information they need to proceed or settle by pre-trial reviews, or halt the proceedings to give the parties an opportunity to consider a settlement. When any application is made to the court, there is an obligation on the judge to deal with as many outstanding matters as possible. The court is also under an obligation to ensure that witness statements are limited to the evidence that is to be given if there is a hearing, and expert evidence is restricted to what is required to resolve the proceedings. Judges receive support from court staff in carrying out their case management role. The court monitors case progress by using a computerised diary monitoring system which:

Whether there has been compliance or not, the court staff will pass the relevant files to a procedural judge (a Master in the Royal Courts of Justice, or a district judge in the County Court), who will decide if either side should have a sanction imposed on them.

In the current system, the litigants have much less control over the pace of the case than in the past. They will not be able to draw out proceedings, or delay in the way that they once could have done, because the case is subject to a timetable. Once a defence is filed, the parties get a timetable order that includes the prospective trial date. The court now has a positive duty to manage cases. Rule 1.4(1) states that ‘The court must further the overriding objective by actively managing cases’. The rule goes on to explain what this management involves:

1.4(2) Active case management includes –

  • (a) encouraging the parties to co-operate with each other in the conduct of the proceedings;
  • (b) identifying the issues at an early stage;
  • (c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;
  • (d) deciding the order in which issues are to be resolved;
  • (e) encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate;
  • (f) helping the parties to settle the whole or part of the case;
  • (g) fixing timetables or otherwise controlling the progress of the case;
  • (h) considering whether the likely benefits of taking a particular step justify the cost of taking it;
  • (i) dealing with as many aspects of the case as it can on the same occasion;
  • (j) dealing with the case without the parties needing to attend court;
  • (k) making use of technology; and
  • (l) giving directions to ensure that the trial of a case proceeds quickly and efficiently.

It is worth noting here that district judges and deputy district judges have had extensive training to promote a common approach. Training is being taken very seriously by the judiciary. District judges now occupy a pivotal position in the civil process.

Part 3 of the CPR gives the court a wide range of substantial powers. The court can, for instance, extend or shorten the time for compliance with any rule, practice direction or court order, even if an application for an extension is made after the time for compliance has expired. It can also hold a hearing and receive evidence by telephone or ‘by using any other method of direct oral communication’.

This part of the CPR also gives the court powers to:

Part 3.9 of the CPR has been strengthened to make it more difficult to obtain relief from sanctions for failing to adhere to the strict timetables set by the courts. However, some judges have not applied the rule so strictly, as in the cases of Wyche v Careforce Group plc (2013) and Raayan Al Iraq Co Ltd v Trans Victory Marine Inc (2013).

There is, though, a certain flexibility built into the rules. A failure to comply with a rule or practice direction will not necessarily be fatal to a case. Rule 3.10 of the CPR states:

Where there has been an error of procedure such as a failure to comply with a rule or practice direction:

  • (a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
  • (b) the court may make an order to remedy the error.

The intention of imposing a sanction will always be to put the parties back into the position they would have been in if one of them had not failed to meet a deadline. For example, the court could order that a party carries out a task (like producing some sort of documentary evidence) within a very short time (for example, two days) in order that the existing trial dates can be met.

7.4.1 Case Management Conferences

Case management conferences may be regarded as an opportunity to ‘take stock’. Many of these are now conducted by telephone. There is no limit to the number of case management conferences that may be held during the life of a case, although the cost of attendance at such hearings against the benefits obtained will always be a consideration in making the decision. They will be used, among other things, to consider:

7.4.2 Pre-Trial Reviews

Pre-trial reviews will normally take place after the filing of listing questionnaires and before the start of the trial. Their main purpose is to decide a timetable for the trial itself, including the evidence to be allowed and whether this should be given orally; to determine instructions about the content of any trial bundles (bundles of documents including evidence, such as written statements, for the judge to read); and to confirm a realistic time estimate for the trial itself.

Rules require that, where a party is represented, a representative ‘familiar with the case and with sufficient authority to deal with any issues likely to arise must attend every case management conference or pre-trial review’.

Both the Chancery Guide and the Queen’s Bench Guide provide that where it is estimated that a case will last more than 10 days or where a case warrants it, the court may consider directing a pre-trial review.

7.4.3 Stays for Settlement (CPR Part 26) and Settlements (CPR Part 36)

Under the CPR, there is a greater incentive for parties to settle their differences. Part 36 sets out the procedure for either party to make offers to settle. A Part 36 offer can be made before the start of proceedings and also in appeal proceedings. While there is no prohibition against a party to litigation making an offer to settle in any way they like, there can be advantages in making a formal offer to settle which complies with the rules of court (a ‘Part 36 offer to settle’). Part 36 offers to settle in the prescribed form aim to encourage parties to try to settle a dispute. They set out the costs and other consequences that a party will face if it refuses a reasonable offer to settle. Making a Part 36 offer to settle should not be regarded as a sign of weakness but an appropriate way of putting pressure on an opponent to settle. What is a Part 36 offer to settle and when can one be made?

To be compliant with the rules of court, a Part 36 offer to settle must:

  • be a genuine offer to settle;
  • be made ‘without prejudice except as to costs’ (it cannot be referred to the judge having conduct of the proceedings until the conclusion of the matter);
  • comply with the strict requirements of Part 36 of the rules of court.

Part 36 offers to settle can be made in the following instances:

  • in both money (including claims for provisional damages) and non-money claims;
  • in respect of the whole or part of the claim or in relation to an issue that arises;
  • in respect of liability alone, thus leaving the issue of the amount of any damages to be dealt with later;
  • in respect of counterclaims and any additional (Part 20) claim.

Part 36 offers to settle can be made by both a claimant and a defendant in a dispute, at any stage of a dispute before or after proceedings have commenced and in appeal proceedings. Part 36 offers to settle can be made prior to the commencement of court proceedings.

The party making the offer is called the ‘offeror’ and the party receiving it is called the ‘offeree’. Under the revised Part 36 rule, where an offer relates to settlement of a money claim it is no longer possible to accompany the offer with the payment of funds into court. This provision applies irrespective of who the offeror is and whether that party has the means or assets to pay. When a Part 36 offer is accepted by the claimant the defendant must pay the sum offered within 14 days (unless the parties agree to extend the time period), failing which the claimant can enter judgment.

The court will take into account any pre-action offers to settle when making an order for costs. Thus, a side that has refused a reasonable offer to settle will be treated less generously in the issue of how far the court will order their costs to be paid by the other side. For this to happen, the offer must be one which is made to be open to the other side for at least 21 days after the date it was made (to stop any undue pressure being put on someone with the phrase ‘take it or leave it, it is only open for one day then I shall withdraw the offer’).

If an offer to settle is to be made in accordance with Part 36 it must be made in writing and state that it is intended to have the consequences of Part 36. Where the defendant makes the offer, it must specify a period of not less than 21 days within which the defendant will be liable for the claimant’s costs if the offer is accepted. In addition, either party’s offer must state whether it relates to the whole or part of the claim, or to an issue which arises in it and if so to which part or issue and whether any counterclaim is taken into account. The revised Part 36 rule allows the parties to withdraw any offer after the expiry of the ‘relevant period’ as defined in Rule 36.3.1.c without the court’s permission. However, before the expiry of the ‘relevant period’ it is possible for a Part 36 offer to be withdrawn or its terms changed to be less advantageous to the ‘offeree’ only with the court’s permission.

Several aspects of the rules encourage litigants to settle rather than take risks in order (as a claimant) to hold out for unreasonably large sums of compensation, or try to get away (as a defendant) with paying nothing rather than some compensation. The system of Part 36 payments or offers does not apply to a claim allocated to the small claims track but, for other cases, it seems bound to have a significant effect. Part 36 applies prior to a small claims track allocation and on reallocation from this track to the other two tracks.

Thus, if at the trial a claimant does not get more damages than a sum offered by the defendant, or obtain a judgment more favourable than a Part 36 offer, the court will, unless it considers it unjust to do so, order the claimant to pay any costs incurred by the defendant after the latest date for accepting the payment or offer without requiring the court’s permission, together with interest on those costs.

Similarly, where, at trial, a defendant is held liable to the claimant for a sum at least equal to the proposals contained in a claimant’s Part 36 offer (that is, where the claimant has made an offer to settle), the court may order the defendant to pay interest on the award at a rate not exceeding 10 per cent above the base rate for some or all of the period, starting with the date on which the defendant could have accepted the offer without requiring the court’s permission. In addition, the court may order that the claimant be entitled to his costs on an indemnity basis together with interest on those costs at a rate not exceeding 10 per cent above base rate for the period from the latest date when the defendant could have accepted the offer without requiring the court’s permission.

The court has a general and overreaching discretion to make a different order for costs than the normal order under Part 44.

District Judge Frenkel has given the following example:

Claim, £150,000 – judgment, £51,000 – £50,000 paid into court. The without prejudice correspondence shows that the claimant would consider nothing short of £150,000. The claimant may be in trouble. The defendant will ask the judge to consider overriding principles of Part 1: ‘Was it proportional to incur the further costs of trial to secure an additional £1,000?’ Part 44.3 confirms the general rule that the loser pays but allows the court to make a different order to take into account offers to settle, payment into court, the parties’ conduct including pre-action conduct and exaggeration of the claim ((1999) 149 NLJ 458).

Active case management imposes a duty on the courts to help parties settle their disputes. A ‘stay’ is a temporary halt in proceedings, and an opportunity for the court to order such a pause. Either party to a case can also make a written request for a stay when filing their completed allocation questionnaire. Where all the parties indicate that they have agreed on a stay to attempt to settle the case, provided the court agrees, they can have an initial period of one month to try to settle the case. If the court grants a stay, the claimant must inform the court if a settlement is reached, otherwise at the expiry of the stay it will effectively be deemed that a settlement has not been reached and the file will be referred to the judge for directions as considered appropriate.

The court will always give the final decision about whether to grant the parties more time to use a mediator or arbitrator or expert to settle, even if the parties are agreed they wish to have more time. A stay will never be granted for an indefinite period.

7.4.4 Applications to be Made when Claims Come before Ajudge (CPR Part 1)

The overriding objective in Part 1 requires the court to deal with as many aspects of the case as possible on the same occasion. The filing of an allocation questionnaire, which is to enable the court to judge in which track the case should be heard, is one such occasion. Parties should, wherever possible, issue any application they may wish to make, such as an application for summary judgment (CPR Part 24), or to add a third party (CPR Part 20), at the same time as they file their questionnaire. Any hearing set to deal with the application will also serve as an allocation hearing if allocation remains appropriate.

7.4.5 Witness Statements (CPR Part 32)

In the Final Report on Access to Justice, Lord Woolf recognised the importance of witness statements in cases, but observed that they had become problematic because lawyers had made them excessively long and detailed in order to protect against leaving out something that later proved to be relevant. He said ‘witness statements have ceased to be the authentic account of the lay witness; instead they have become an elaborate, costly branch of legal drafting’ (para 55).

Witness statements must contain the evidence that the witness will give at trial. They should be drafted in lay language and should not discuss legal propositions. Witnesses will be allowed to amplify on the statement or deal with matters that have arisen since the report was served, although this is not an automatic right and a ‘good reason’ for the admission of new evidence will have to be established.

7.4.6 Experts (CPR Part 35)

The rules place a clear duty on the court to ensure that ‘expert evidence is restricted to that which is reasonably required to resolve the proceedings’. That is to say that expert evidence will only be allowed either by way of written report, or orally, where the court gives permission. Equally important is the rules’ statement about experts’ duties. Rule 35.3 states that it is the clear duty of experts to help the court on matters within their expertise, bearing in mind that this duty overrides any obligation to the person from whom they have received instructions or by whom they are paid.

There is greater emphasis on using the opinion of a single expert. Experts are only to be called to give oral evidence at a trial or hearing if the court gives permission. Experts’ written reports must contain a statement that they understand and have complied with, and will continue to comply with, their duty to the court. Instructions to experts are no longer privileged and their substance, whether written or oral, must be set out in the expert’s report. Thus, either side can insist, through the court, on seeing how the other side phrased its request to an expert.

7.5 Court and Track Allocation (CPR Part 26)

Part 7 of the CPR sets out the rules for starting proceedings. A restriction is placed on which cases may be begun in the High Court. The County Courts retain an almost unlimited jurisdiction for handling contract and tort claims (that is, negligence cases, nuisance cases but excluding a claim for damages or other remedy for libel or slander unless the parties agree otherwise). Issuing proceedings in the High Court is now limited to:

The civil system works on the basis that the court, upon receipt of the defence, requires the parties to complete ‘allocation questionnaires’ (giving all the relevant details of the claim, including how much it is for and an indication of its factual and legal complexity). Under Part 26 of the CPR, the case will then be allocated to one of three tracks for a hearing. These are: (a) small claims track; (b) fast track; and (c) multi-track. Each of the tracks offers a different degree of case management. The multi-track has, since 6 April 2009, a minimum limit of £25,000.01.

The small claims limit is £10,000, although personal injury (which in 2017 will increase to £5,000 for soft tissue injury and subject to consultation all injury claims) and housing disrepair claims for over £1,000, and illegal eviction and harassment claims are excluded from the small claims procedure. The limit for cases going into the fast-track system is £25,000. Applications to move cases ‘up’ a track on grounds of complexity will have to be made on the allocation questionnaire (see below). All small claims up to £5,000 will now be dealt with by mediation.

Directions (instructions about what to do to prepare the case for trial or hearing) will be proportionate to the value of the claim, its importance, its complexity and so on. Each track requires a different degree of case monitoring, that is, the more complex the claim, the more milestone events there are likely to be (i.e. important points in the process, like the date by which the allocation questionnaire should be returned). Time for carrying out directions, no matter which track, may be extended or shortened by agreement between parties, but must not, as a result, affect any of the milestones relevant to that track. The time for carrying out directions will be expressed as calendar dates rather than periods of days or weeks. Directions will include the court’s directions concerning the use of expert evidence.

7.5.1 The Small Claims Track (CPR Part 27)

There is no longer any ‘automatic reference’ to the small claims track. Claims are allocated to this track in exactly the same way as to the fast track or multi-track. The concept of an ‘arbitration’ therefore disappears and is replaced by a small claims hearing. Aspects of the old small claims procedure that are retained include their informality, the interventionist approach adopted by the judiciary, the limited costs regime and the limited grounds for appeal (misconduct of the district judge or an error of law made by the court).

Key features of the small claims track are:

Parties can consent to use the small claims track even if the value of their claim exceeds the normal value for that track, but subject to the court’s approval. The limited cost regime will not apply to these claims, but trial costs are at the discretion of the court and will be limited to the costs that might have been awarded if the claim had been dealt with in the fast track. Generally, the parties will be restricted to a maximum one-day hearing.

The milestone events for the small claims track are the date for the return of the allocation questionnaire and the date of the hearing.

7.5.2 The Fast Track (CPR Part 28)

The fast track provides a streamlined procedure for the handling of cases not suitable for the small claims track and where the value of the claim does not exceed £25,000. It is appropriate where:

the trial is likely to last for no longer than one day; and oral expert evidence at trial will be limited to –

  • (i) one expert per party in relation to any expert field; and
  • (ii) expert evidence in two expert fields.

The procedures will ensure that the costs remain proportionate to the amount in dispute. The features of the procedure which aim to achieve this are:

Directions given to the parties by the judge will normally include a date by which parties must file a listing questionnaire. As with allocation questionnaires, the procedural judge may impose a sanction where a listing questionnaire is not returned by the due date. Listing questionnaires will include information about witnesses, and confirm the time needed for trial, parties’ availability and the level of advocate for the trial.

The milestone events for the fast track are the date for the return of allocation and listing questionnaires and the date for the start of the trial or trial period.

7.5.3 The Multi-Track (CPR Part 29)

The multi-track is intended to provide a flexible regime for the handling of claims over £25,000, or lower, more complex claims if not appropriate for the fast track.

This track does not provide any standard procedure, such as those for small claims or claims in the fast track. Instead, it offers a range of case management tools – standard directions, case management conferences and pre-trial reviews – which can be used in a ‘mix and match’ way to suit the needs of individual cases. Whichever of these is used to manage the case, the principle of setting a date for trial, or a trial period at the earliest possible time, no matter that it is some way away, will remain paramount.

Where a trial period is given for a multi-track case, this will be one week. Parties will be told initially that their trial will begin on a day within the given week. The rules and practice direction do not set any time period for giving notice to the parties of the date fixed for trial.

7.6 Documentation and Procedures

One of the main aims of the Woolf reforms is to simplify court forms. Under the old system, there were various forms that needed to be completed at the outset of a claim – different types including summonses, originating applications, writs and petitions. Under the current system, most claims will be begun by using a ‘Part 7’ claim form.

7.6.1 How to Start Proceedings – the Claim form (CPR Part 7)

A Part 7 claim form has been designed for multipurpose use. It can be used if the claim is for a specified amount of money (the old term was liquidated damages) or an unspecified amount (replacing the term unliquidated damages). The form can also be used for non-monetary claims, for example, where the claimant just wants a court order, not money. The person issuing the claim form is called a claimant (plaintiff in old vocabulary) and the person at whom it is directed will continue to be known as a defendant.

Under the current rules, the court can grant any remedy to which the claimant is entitled, even if the claimant does not specify which one he wants. It is, though, as Gordon Exall has observed ((1999) SJ 162, 19 February), dangerous to start a claim without having a clear idea of the remedy you want. The defendant might be able to persuade the court not to allow the claimant a certain part of his costs if he (the defendant) finds himself having to consider a remedy that had not been mentioned prior to the trial.

There is now the facility to make a money claim online, which reduces the cost of commencing proceedings. A helpful free guide to starting and defending small claims produced by the Civil Justice Council is available at www.judiciary.gov.uk.

7.6.2 Alternative Procedure for Claims (CPR Part 8)

Part 8 of the rules introduced the alternative procedure for claims. This procedure is commenced by the issue of a Part 8 claim form. It is intended to provide a speedy resolution of claims that are not likely to involve a substantial dispute of fact, for example applications for approval of infant settlements, or for orders enforcing a statutory right such as a right to have access to medical records (under the Access to Health Records Act 1990). The Part 8 procedure is also used where a rule or practice direction requires or permits its use.

The main differences between this and the Part 7 procedure are as follows:

7.6.3 Statement of Case – Value (CPR Part 16)

The ‘value’ of a claim is the amount a claimant reasonably expects to recover. Unless the amount being claimed is a specified amount, a claimant will be expected (Part 16) to state the value band into which the claim is likely to fall. The value bands reflect the values for the different tracks (for example, £1 to £10,000 for small claims). Value is calculated as the amount a claimant expects to recover, ignoring any interest, costs, contributory negligence or the fact that a defendant may make a counterclaim or include a set-off in the defence. If a claimant is not able to put a value on the claim, the reasons for this must be given.

7.6.4 Statement of Case – Particulars of Claim (CPR Part 16)

Particulars of claim may be included in the claim form, attached to it, or may be served (that is, given or sent to a party by a method allowed by the rules) separately from it. Where they are served separately, they must be served within 14 days of the claim form being served. The time for a defendant to respond begins to run from the time the particulars of claim are served.

Part 16 is entitled Statements of case (replacing the term pleadings). Statements of case include documents from both sides: claim forms, particulars of claims, defences, counterclaims, replies to defences and counterclaims, Part 20 (third party) claims and any further information provided under CPR Part 18 (replacing the term further and better particulars). Part 16 also sets out what both particulars of claim and defences should contain.

Part 16 states:

  • (1) The claim form must –
    • (a) contain a concise statement of the nature of the claim;
    • (b) specify the remedy which the claimant seeks;
    • (c) where the claimant is making a claim for money, contain a statement of value in accordance with rule 16.3;
    • (cc) where the claimant’s only claim is for a specified sum, contain a statement of the interest accrued on that sum; and
    • (d) contain such other matters as may be set out in a practice direction.

The Woolf Report was against obliging the claimant to state the legal nature of the claim, as this would prejudice unrepresented defendants. If the nature of the claim is uncertain, then the court can take its own steps to clarify the matter.

Where a claimant is going to rely on the fact that the defendant has been convicted for a crime arising out of the same circumstances for which the claimant is now suing, then the particulars of claim must contain details of the conviction, the court which made it, and exactly how it is relevant to the claimant’s arguments.

It is optional for the claimant also to mention any point of law on which the claim is based and the names of any witnesses which he proposes to call. All statements of case must also contain a statement of truth.

7.6.5 Statements of Truth (CPR Part 22)

A statement of truth is a statement that a party believes that the facts or allegations set out in a document, which they put forward, are true. It is required in statements of case, witness statements and expert reports. Any document that contains a statement of truth may be used in evidence. This will avoid the previous need to swear affidavits in support of various statements made as part of the claim.

Any document with a signed statement of truth that contains false information given deliberately, that is, without an honest belief in its truth, will constitute a contempt of court (a punishable criminal offence) by the person who provided the information. Solicitors may sign statements of truth on behalf of clients, but on the understanding that it is done with the clients’ authority, and with clients knowing that the consequences of any false statement will be personal to them.

7.6.6 Response to Particulars of Claim (CPR Part 9)

When a claim form is served, it will be served with a response pack. The response pack will contain an acknowledgement of service, a form of admission and a form of defence and counterclaim. The response pack will be served with a claim form containing the particulars of claim, which are attached to it or, where particulars of claim are served after the claim form, with the particulars. A defendant must respond within 14 days of service of the particulars of claim. If a defendant ignores the claim, the claimant may obtain judgment for the defendant to pay the amount claimed. A defendant may:

  • pay the claim;
  • admit the claim, or partly admit it;
  • file an acknowledgement of service; or
  • file a defence.

Requirements have also been introduced regarding the content of a defence. A defence that is a simple denial is no longer acceptable and runs the risk of being struck out by the court (that is, deleted so that it may no longer be relied upon). A defendant must state in any defence:

  • which of the allegations in the particulars of claim are denied, giving reasons for doing so, and must state their own version of the events if they intend to put forward a different version to that of the claimant;
  • which allegations the defendant is not able to admit or deny but which the claimant is required to prove;
  • which allegations are admitted; and
  • if the defendant disputes the claimant’s statement of value, the reasons for doing so and, if possible, stating an alternative value.

These rules mark a significant change of culture from the old civil procedure rules. Under the old rules, a defendant could, in their defence, raise a ‘non-admission’ or a ‘denial’. The first meant that the defendant was putting the plaintiff (now claimant) to proof, that is, challenging them to prove their case on the balance of probabilities. The second meant that the defendant was raising a specific defence, for example, a ‘development risks defence’ under the Product Liability Act 1988. Defendants were allowed under the old rules to keep as many avenues of defence available for as long as possible. Under the rules, the defendant must respond according to the choices in the four options above. According to r 16.5(5), if the defendant does not deal specifically with an allegation, then it will be deemed to be admitted. However, where a defendant does not specifically deal with an allegation, but in any event sets out in their defence the nature of their case on that issue, it will be deemed that the matter be proved.

7.6.7 Service (CPR Part 6)

Where the court is to serve any document (not just claim forms), it is for the court to decide the method of service. This will generally be by first-class post. The deemed date of service is two days after the day of posting for all defendants, including limited companies. Where a claim form originally served by post is returned by the Post Office, the court will send a notice of non-service to the claimant stating the method of service attempted. The notice will tell the claimant that the court will not make any further attempts at service. Service therefore becomes a matter for claimants. The court will return the copies of the claim form, response pack and so on, for claimants to amend as necessary and re-serve.

Claimants may serve claim forms, having told the court in writing that they wish to do so, either personally, by post, by fax, by document exchange (a private courier service operated between law firms) or by email or other electronic means. A claimant who serves the claim form must file a certificate of service within seven days of service with a copy of the document served attached.

7.6.8 Admissions and Part Admissions (CPR Part 14)

The possibility of admitting liability for a claim for a specific amount and making an offer to pay by instalments, or at a later date, applies to both County Court and High Court cases. Where the claim is for a specific amount, the admission will be sent direct to the claimant. However, if a claimant objects to the rate of payment offered, there are changes that affect the determination process, that is, the process by which a member of a court’s staff or a judge decides the rate of payment.

Cases involving a specific amount where the balance outstanding, including any costs, is less than £50,000, will be determined by a court officer. Those where the balance is £50,000 or more, or for an unspecified amount of any value, must be determined by a Master or district judge. The Master or judge has the option of dealing with the determination on the papers without a hearing or at a hearing.

A defendant in a claim for an unspecified amount of money (damages) will be able to make an offer of a specific sum of money in satisfaction of a claim, which does not have to be supported by a payment into court. A claimant can accept the admission and rate of payment offered as if the claim had originally been for a specific amount. The determination procedure described above will apply where a claimant accepts the amount offered, but not the rate of payment proposed.

If a claimant does not accept the amount offered, a request that judgment be entered for liability on the strength of the defendant’s admission may be made to the court. This is referred to as judgment for an amount and costs to be decided by the court (replacing interlocutory judgment for damages to be assessed). Where judgment is entered in this way, the court will, at the same time, give case management directions for dealing with the case.

Where a request for such a judgment is received, the court file will be passed to a procedural judge. The judge may: allocate the case to the small claims track and give directions if it is of appropriate value; ask that the case be set down for a disposal hearing; or where the amount is likely to be heavily disputed, order a trial. Directions will be given as appropriate. A disposal hearing in these circumstances may either be a hearing at which the court gives directions, or at which the amount and costs are decided.

7.6.9 Defence and Automatic Transfer (CPR Part 26)

Claims for specified amounts will be transferred automatically to the defendant’s ‘home court’ where the defendant is an individual who has filed a defence. The defendant’s home court will be the court or district registry, including the Royal Courts of Justice, for the district in which the defendant’s address for service as shown on the defence is situated. This means that, where a solicitor represents the defendant, this will be the defendant’s solicitor’s business address.

Where there is more than one defendant, it is the first defendant to file a defence who dictates whether or not automatic transfer will take place. For example, if there were two defendants to a claim, one an individual and one a limited company, there would be no automatic transfer if the limited company was the first defendant to file a defence.

7.6.10 Allocation Questionnaire (form N150)

The purpose of this document is to enable the judge to allocate in which track the case should be heard. When a defence is filed, the issuing court will send out a copy of the defence to all other parties to the claim, together with an allocation questionnaire, a notice setting out the date for returning it, and the name and address of the court (or district registry or the Royal Courts of Justice (that is, High Court), as appropriate) to which the completed allocation questionnaire must be returned. A notice of transfer will also be sent if the case is being automatically transferred.

The allocation questionnaire will not be served on the parties when a defendant files a defence if r 14.5 or r 15.10 applies or if the court decides to dispense with its service.

When all the parties have filed their allocation questionnaire, or at the end of the period for returning it, whichever is the sooner (providing the questionnaires have not been dispensed with or the case stayed under r 26.4), the court will allocate the claim to a track. If there is sufficient information, the judge will allocate the case to a track and a notice of allocation and directions will be sent out to each party. Where the judge has insufficient information, an order may be made for a party to provide further information. In particularly complex cases, for those allocated to the multi-track, the judge may first list the matter for a case management conference to formulate directions.

Where only one party has filed a questionnaire the judge may allocate the claim to a track, providing he or she has enough information, or will order that an allocation hearing be listed and that all parties must attend. Where none of the parties has filed a questionnaire, the file will be returned to the judge, who will usually decide to impose a sanction by ordering that the claim and any counterclaim be struck out unless a completed questionnaire is filed within three days from service of the order.

The questionnaire asks a number of questions, for example:

  • Do you wish there to be a one-month stay to attempt to settle this case?
  • Which track do you consider most suitable for your case (small claims, fast track or multi-track)? A party wishing a case to be dealt with on a track that is not the obviously suitable track must give reasons.
  • At this stage, you are asked whether you have complied with any relevant protocols, and if not, why not and the extent of the non-compliance.
  • You are asked for an estimate of costs to date and the overall costs up to trial.
  • You are asked if you wish to use expert evidence at the trial, whether expert reports have been copied to the other side, who the expert is and, if the parties have not agreed upon a common expert, why not.

The purpose of this questionnaire is to make both sides have a clear overview of the case at an early stage, so it becomes very difficult for lawyers to bumble along buffeted by developments in a case. To reduce delays and therefore costs, it is desirable that a lawyer should be able to purposefully stride through a case along a planned route.

7.6.11 Default Judgment (CPR Part 12)

If a defendant (to a Part 7 claim) files an acknowledgement stating an intention to defend the claim, this extends the period for filing a defence from 14 to 28 days from the date of service of the particulars. Failure to file an acknowledgement with the court or, later, failure to file a defence can result in ‘default judgment’. That means the court will, without a trial, find in favour of the claimant, so the defendant will lose the case.

If the defendant does not reply to the claim, a claimant may apply for default judgment for the amount claimed if the amount claimed is a specified amount, or on liability if the amount claimed is unspecified, after the 14-day period from service has elapsed.

There are a number of cases in which it is not possible to obtain judgment in default, notably in claims for delivery of goods subject to an agreement controlled by the Consumer Credit Act 1974.

7.6.12 Summary Judgment (CPR Part 24)

Summary judgment is available to both claimants and defendants. Where either party feels that the other does not have a valid claim or defence, they can apply to the court for the claim or defence to be struck out and for judgment to be entered in their favour. The applicant, either claimant or defendant, must prove to the court’s satisfaction that the other party has no real prospect of success and that there is no other compelling reason why the case or issue should be dealt with at trial.

Application for summary judgment cannot be made without the court’s permission (replacing the term ‘leave’) or where a practice direction provides otherwise, before an acknowledgement of service or defence has been filed. Where the claimant makes an application before a defendant files a defence, the defendant against whom it is made need not file a defence. If a claimant’s application is unsuccessful, the court will give directions for the filing of a defence.

7.7 Public and Private Hearings (CPR Part 39)

Under the rules, the distinction between ‘public’ and ‘private’ hearings is not whether a claim or application is heard in a courtroom or the judge’s room (formerly called chambers), but whether members of the public are allowed to sit in on the hearing wherever it takes place.

Courts are not required to make any special arrangements to accommodate members of the public, for example, if the judge’s room is too small to accommodate more than those directly concerned with the claim. However, where a hearing is ‘public’, anyone may obtain a copy of the order made upon payment of the appropriate fee.

Rule 39.2 states that:

7.8 Appeals (CPR Part 52)

The appeal system is covered in Chapter 6.

There is generally no automatic right to appeal under the CPR, except as provided for in r 52.3 or statute. The exceptions include situations where the appeal is against:

Generally, parties need permission to appeal and this will be granted only where:

Permission to appeal will usually be made to the lower court at the hearing against which it is to be appealed. Alternatively, an appeal can be made to the appeal court in an appeal notice usually within 14 days after the date of the decision to be appealed unless directed otherwise by the lower court.

The important procedural points and the routes to appeal will vary depending on whether the matter involves a final decision.

Generally, an appeal will lie to the next court above. From a district judge of the County Court, appeal lies to a circuit judge; from a Master or district judge of the High Court, or a circuit judge, appeal lies to a High Court judge; and from a High Court judge, appeal lies to the Court of Appeal. In almost all cases, permission is needed in order to appeal.

Paragraph 2A.1 of the Practice Direction to Part 52 provides:

Where the decision to be appealed is a final decision –

  1. in a Part 7 claim allocated to the multi-track; or
  2. made in specialist proceedings (under the Companies Act 1985 or 1989 or to which sections I, II, or III of Part 57 or any of Parts 58 to 63 apply)

the appeal is to be made to the Court of Appeal (subject to obtaining any necessary permission).

A final decision ‘is a decision of a court that would finally determine (subject to any possible appeal or detailed assessment of costs) the entire proceedings whichever way the court decides the issues before it’. A decision will not be deemed a final decision where an order is made on a summary or detailed assessment of costs or on an application to enforce a final decision. In these circumstances the appeal will follow the general appeal route.

If a decision of a circuit judge is in relation to fast-track claims, claims on the multi-track except for final decisions, and Part 8 claims including final decisions but excluding final decisions in specialist proceedings, appeal lies to the High Court. However, a Part 8 claim that is a final decision and is treated as allocated to the multi-track may be sent direct to the Court of Appeal if the court considers appropriate.

Under CPR 52.14 a lower court may order the appeal to be sent directly to the Court of Appeal, where it considers that the appeal would raise an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it.

Generally an appeal will be limited to a review of the decision of the lower court unless a practice direction provides otherwise or the court considers that in the circumstances of the particular appeal it would be in the interests of justice to order a rehearing. The appeal court will not hear any oral evidence or new evidence unless it orders otherwise. An appeal will be allowed where the decision in the lower court was wrong, or unjust due to a serious procedural or other irregularity in the lower court’s proceedings.

When the court deals with appeals it must have regard to the overriding objective in CPR 1.1. Consequently, the appeal court is only likely to deal with appeals where they are founded on an error of law, against a finding of fact, in respect of the exercise of a discretion, involving new evidence or a change of circumstances or where a serious procedural or other irregularity arises causing injustice.

Appeals from the Court of Appeal lie to the Supreme Court, but the appellant must be granted leave either by the Court of Appeal or by the Supreme Court. The application for leave must first be made to the Court of Appeal, and then if refused, by petition for leave to appeal, which will be heard by the Supreme Court sitting in public. Only cases involving points of public importance reach the Supreme Court and there are usually fewer than 50 civil appeals heard by the Supreme Court each year. It is possible, under the Administration of Justice Act 1969, for the Supreme Court to hear an appeal direct from the High Court, ‘leapfrogging’ the Court of Appeal. The agreement of both parties and the High Court judge is required. Such cases must concern a point of statutory interpretation (including the construction of a statutory instrument), which has been fully explored by the High Court judge, or concern a point that he or she was bound by precedent to follow.

7.9 Remedies

The preceding sections of this chapter have examined the institutional and procedural framework within which individuals pursue civil claims. What it has not addressed is the question why people pursue such claims. Taking a claim to court can be expensive, time-consuming and very stressful, but people accept these costs, both financial and personal, because they have a grievance that they require to be settled. In other words, they are seeking a remedy for some wrong they have suffered, or at least that they believe they have suffered. In practice, it is the actual remedy available that the litigant focuses on, rather than the finer points of law or procedure involved in attaining that remedy; those are matters for the legal professionals. It is appropriate, therefore, to offer a brief explanation of remedies, although students of the law will engage with the details of remedies in the substantive legal subjects, such as contract and tort. As will be seen, it is essential to distinguish between the common law remedy of damages, available as of right, and equitable remedies, which are awarded at the discretion of the court (see above, 1.3.2).

7.10 Damages

As has been said, the whole point of damages is compensatory: to recompense someone for the wrong they have suffered. There are, however, different ways in which someone can be compensated. For example, in contract law, the object of awarding damages is to put the wronged person in the situation they would have been in had the contract been completed as agreed; that is, it places them in the position they would have been in after the event. In tort, however, the object is to compensate the wronged person, to the extent that a monetary award can do so, for injury sustained; that is, to return them to the situation they were in before the event.

7.10.1 Types of Damages

7.10.2 Damages in Contract

The estimation of what damages are to be paid by a party in breach of contract can be divided into two parts: remoteness and measure.

Remoteness of damage

What kind of damage can the innocent party claim? This involves a consideration of causation, and the remoteness of cause from effect, in order to determine how far down a chain of events a defendant is liable. The rule in Hadley v Baxendale (1854) states that damages will only be awarded in respect of losses that arise naturally, that is, in the natural course of things, or which both parties may reasonably be supposed to have contemplated, when the contract was made, as a probable result of its breach.

The effect of the first part of the rule in Hadley v Baxendale is that the party in breach is deemed to expect the normal consequences of the breach, whether they actually expected them or not.

Under the second part of the rule, however, the party in breach can only be held liable for abnormal consequences where they have actual knowledge that the abnormal consequences might follow. In Victoria Laundry Ltd v Newham Industries Ltd (1949), the defendants contracted to deliver a new boiler to the plaintiffs, but delayed in delivery. The plaintiffs claimed for normal loss of profit during the period of delay, and also for the loss of abnormal profits from a highly lucrative contract, which they could have undertaken had the boiler been delivered on time. In this case, it was decided that damages could be recovered in regard to the normal profits, as that loss was a natural consequence of the delay. The second claim failed, however, on the grounds that the loss was not a normal one, but was a consequence of an especially lucrative contract, about which the defendant knew nothing.

As a result of the test for remoteness, a party may be liable for consequences which, although within the reasonable contemplation of the parties, are much more serious in effect than would be expected.

In H Parsons (Livestock) Ltd v Uttley Ingham and Co (1978), the plaintiffs, who were pig farmers, bought a large food hopper from the defendants. While erecting it, the defendants failed to unseal a ventilator on the top of the hopper. Because of lack of ventilation, the pig food stored in the hopper became mouldy. The pigs that ate the mouldy food contracted a rare intestinal disease and died. It was held that the defendants were liable for the loss of the pigs. The food affected by bad storage caused the illness as a natural consequence of the breach, and the death from such illness was not too remote.

Measure of damages

Damages in contract are intended to compensate an injured party for any financial loss sustained as a consequence of another party’s breach. The object is not to punish the party in breach, so the amount of damages awarded can never be greater than the actual loss suffered. The aim is to put the injured party in the same position they would have been in had the contract been properly performed. Where the breach relates to a contract for the sale of goods, damages are usually assessed in line with the market rule. This means that, if goods are not delivered under a contract, the buyer is entitled to go into the market and buy similar goods, and pay the market price prevailing at the time. They can then claim the difference in price between what they paid and the original contract price as damages. Conversely, if a buyer refuses to accept goods under a contract, the seller can sell the goods in the market and accept the prevailing market price. Any difference between the price they receive and the contract price can be claimed in damages.

Non-pecuniary loss

At one time, damages could not be recovered where the loss sustained through breach of contract was of a non-financial nature. The modern position is that such non-pecuniary damages can be recovered. In Jarvis v Swan Tours Ltd (1973), the defendant’s brochure stated that various facilities were available at a particular ski resort. The facilities available were in fact far inferior to those advertised. The plaintiff sued for breach of contract. The court decided that Jarvis was entitled to recover not just the financial loss he suffered, which was not substantial, but also for loss of entertainment and enjoyment. The Court of Appeal stated that damages could be recovered for mental distress in appropriate cases, and this was one of them.

7.10.3 Damages in Tort

Economic loss

There are two categories of economic loss that may form the basis of a claim in negligence. First, there is economic loss arising out of physical injury or damage to property and, second, there is what is known as ‘pure economic loss’, which is unconnected with physical damage. Following recent developments, only the former is recoverable unless the claimant can show that there was ‘a special relationship’ between them and the defendant (Williams v Natural Life Health Foods Ltd (1998)).

7.11 Equitable Remedies

Equitable remedies are not available as of right and are awarded only at the discretion of the court. They will not be granted where the claimant has not acted properly. There are a number of maxims that relate to the awarding of equitable remedies. Thus, for example, it is frequently stated that ‘He who comes to equity must come with clean hands’, which simply means that persons looking for the remedy must have behaved properly themselves (D & C Builders v Rees (1966)). The actual remedies are as follows.

Specific performance

It will sometimes suit a party to break their contractual obligations and pay damages; however, through an order for specific performance, the party in breach may be instructed to complete their part of the contract. An order of specific performance will only be granted in cases where the common law remedy of damages is inadequate, and providing the matter does not fall into a category where the courts will not order specific performance. It is not usually applied to contracts concerning the sale of goods where replacements are readily available. It is most commonly granted in cases involving the sale of land, where the subject matter of the contract is unique.

Generally, specific performance will not be available in respect of contracts of employment or personal service. However, in light of C H Giles & Co Ltd v Morris and others (1972), it would appear that the courts may be prepared to depart from this principle in certain circumstances.

Specific performance will not be granted if the court has to constantly supervise its enforcement. In Ryan v Mutual Tontine Westminster Chambers Association (1893), the landlords of a flat undertook to provide a porter, who was to be constantly in attendance to provide services such as cleaning the common passages and stairs, and delivering letters. The person appointed spent much of his time working as a chef at a nearby club. During his absence, his duties were performed by a cleaner or by various boys. The plaintiff sought to enforce the contractual undertaking. It was held that, although the landlords were in breach of their contract, the court would not award an order of specific performance.

The reason given was that to enforce the contract would require constant supervision by the court. In addition, it was held that damages were an adequate remedy and hence the only available course of action. By comparison, in Posner and others v Scott-Lewis and others (1986) an order for specific performance was granted. In this case, the landlord had covenanted (so far as it was in his power) with the tenants to employ a resident porter to carry out certain specified tasks. The court held that the covenant was specifically enforceable as they could order the landlord to employ a resident porter within a specified time, as this would not require constant supervision by the court. If the landlord failed to adhere to the order, the tenants could go back to the court and take appropriate action.

Injunction

This is the term used in relation to the courts’ powers to order someone to either do something or, alternatively, to refrain from doing something. Injunctions are governed by s 37 of the Senior Courts Act 1981 and they may be granted on an interim or a permanent basis. Breach of an injunction is a contempt of court. Examples of specific injunctions are ‘freezing orders’, formerly known as Mareva injunctions, which are interim orders that prevent defendants from moving their assets out of the jurisdiction of the English courts before their case can be heard. Another well-known order is the search order, formerly known as an Anton Piller order, which prevents the concealment or disposal of documents that might be required in evidence at a later time. It can also authorise the searching of premises for such evidence.

In contrast, an injunction directs a person not to break their contract. It can have the effect of indirectly enforcing contracts for personal service. In Warner Bros v Nelson (1937), the defendant, the actress Bette Davis, had entered a contract that stipulated that she was to work exclusively for the plaintiffs for a period of one year. When she came to England, the plaintiffs applied for an injunction to prevent her from working for someone else. The court granted the order to Warner Bros. In doing so, the court rejected Nelson’s argument that granting it would force her either to work for the plaintiffs or not to work at all. An injunction will only be granted to enforce negative covenants within the agreement, and cannot be used to enforce positive obligations (Whitwood Chemical Co v Hardman (1891)).
Rescission

This action sets aside the terms of a contractual agreement and returns the parties to the situation they were in before the contract was entered into. The right to rescind a contract may be available as a result of fraud, misrepresentation of any type or the exercise of undue influence. The right can be lost, however, for a number of reasons, such as it being impossible to return the parties to their original position, affirmation, delay or the intervention of third party rights.

7.12 Costs (CPR Parts 44–48)

Fixed costs (CPR Part 45)

There are rates for the fixed costs allowed on issue of a claim and on entry of judgment where a party is represented by a solicitor.

The fee structure is designed so that fees become payable as the various stages of a claim are reached (a ‘pay as you go’ regime).

Courts are proactive in collecting fees, in particular those that are payable at allocation and listing stages, but without interrupting a case’s progress. There are sanctions for non-payment of allocation and listing questionnaire fees, which could lead to a party’s statement of case being struck out.

Assessment (CPR Part 47)

The terms taxed costs and taxation (which were previously used to denote that costs a lawyer was claiming had been approved by a senior officer of the court) are now redundant and have been replaced by assessment. Costs will either be assessed summarily, that is, there and then, or there will be a detailed assessment at some later stage where one party has been ordered to pay another’s costs.

Summary assessment

Judges will normally summarily assess costs at the end of hearings, both interim and final, and particularly at the end of fast-track trials. Parties will be expected to bring any necessary documentation to the hearing for this purpose. In this way, the need for detailed assessment of costs is avoided so far as possible.

7.13 What has the Replacement System Achieved?

The CPR, the most fundamental changes in civil process for over 100 years, have radically altered the operation of civil justice. Since the current rules came into force (26 April 1999), they have been regularly reformed, the latest being the eighty-sixth update, which came into force in October 2016.

Part of the rationale of the new rules was to expedite the way cases were dealt with and to allow more cases to be settled early through negotiation between the parties or ADR. In this respect, there was some early evidence of success. During the May to August period in 1999, there was a 25 per cent reduction in the number of cases issued in the County Courts compared with the same period the previous year. By the end of January 2000, there was a further fall of 23 per cent. Mr Justice Burton of the QBD presented an interesting assessment of the new rules. Speaking at the City law firm, Kennedys, he outlined five benefits of the reforms, five problems and what he referred to as ‘one big question mark’ ((2000) Law Soc Gazette, 10 February).

The five problems with the reforms were: the courts’ inflexibility in not allowing parties to agree extensions of time between themselves; the danger of the judiciary pushing time guillotines onto parties; the risk that lawyers and clients could exploit ‘standard’ disclosure to conceal important documents; single joint experts possibly usurping the role of judges; and summary assessments of costs leading to judges making assumptions replacing detailed costs analysis. The benefits were listed as: pre-action protocols; emphasis on encouraging settlement; judicial intervention; Part 24 strike-out provisions; and Part 36 offers to settle.

Mr Justice Burton said there had been three options for reforming appeals:

  1. to extend the present system in order to discourage more than one appeal;
  2. to refuse appeals without leave; or
  3. to abolish the present system, giving no right to re-hearings, only appeals.

He said he regretted that all three had been adopted (in the Access to Justice Act 1999). The consequence will be pressure on judges ‘to get it right first time’ and higher costs for parties.

The issue of costs is a recurring theme that has been commented upon by many notable people in the legal world. Ted Greeno, a partner at Herbert Smith, believed that the Woolf reforms would result in higher costs for commercial cases. He was of the opinion that the rise in costs has nothing to do with the court’s adversarial system but ‘is a result of the introduction of pre-action protocols, case management and unnecessary bureaucracy, as well as unrealistic timetables and the unpredictable threat of costs sanctions which cause lawyers to practise “defensively”’.

Sir Anthony Clarke has commented that ‘unless you are an extremely rich individual, a corporation or an organ of the state, no one can afford to litigate’. He believes that ‘the most important issue that the civil justice system needs to worry about is control over costs’ ((2006) Law Soc Gazette, 21 April).

Overall, it could be argued that the Woolf reforms can be seen as a triumphant step in the right direction as they have resulted in a wider proportion of society being able to achieve greater access to justice, especially where the problem is of a relatively small nature and can be dealt with quickly and cheaply in the lower courts. However, the reforms may not be so good where, for example, the problem involves complex commercial issues and/or where a matter goes to appeal, as costs rack up very quickly with the parties requiring the assistance of solicitors, barristers and experts and with the length of time it can take to resolve the more complex case. However, the Woolf reforms have been criticised by Dame Hazel Genn in her Hamlyn lectures (F. Gibb, ‘Woolf v Genn: the decline of civil justice’, The Times, 23 June 2009). Dame Hazel believed that the civil justice reforms were not about greater access or greater justice to society but rather a route to divert litigants away from the courts and instead direct them to mediation. Part of this rationale, she believed, was due to the self-financing of the civil court system and the government’s lack of commitment to civil justice in favour of the criminal justice system. Dame Hazel believed that while society had strong views on civil justice, they were not picked up due to ‘a lack of solid empirical evidence’. It was noted in this article that Lord Woolf has publicly commented upon Dame Hazel’s views and expressed dissatisfaction with her argument that not enough empirical evidence was put forward. This is because Dame Hazel was one of Lord Woolf’s review team when he was looking at proposed reforms to the civil justice system. In expressing criticism of Dame Hazel, Lord Woolf acknowledged that one commentator, Professor Michael Zander, was critical of his reforms but remained consistent with his views. Professor Zander did not consider that the government’s intention was to utilise the reforms to reduce resources to the civil justice system and his proposed reforms required directly the opposite, namely proper resourcing. While Lord Woolf acknowledged that the civil justice system is not high profile as far as government is concerned compared to the criminal justice system, he emphasised that this has nothing to do with judges. Lord Woolf also believed that mediation is a ‘proper functioning part of the justice system that does help in certain cases to achieve justice’.

7.14 Enforcement of Civil Remedies

It is one thing to be awarded a remedy by the court against another party, but it is another thing to actually enforce that remedy. Consequently, an effective enforcement system is essential to providing access to justice.

In March 2003, the LCD issued the White Paper Effective Enforcement, in which it claimed to set out a strategy for reforming the current system by:

On 12 June 2003 the Department for Constitutional Affairs (DCA) was created and took over the LCD’s responsibilities for the court system and judiciary. In July 2006, the DCA published the draft Tribunals, Courts and Enforcement Bill and on 19 July 2007 the Tribunals, Courts and Enforcement Act 2007 received Royal Assent.

The 2007 Act provides for the abolition of the right of distress for rent. This is a common law right that allows landlords to recover unpaid rent from tenants without using the courts. Landlords can seize control of goods in the tenanted premises and sell them, utilising the money raised to offset against the rent arrears.

Part 3 of the 2007 Act came into force on 6 April 2014 and it created a statutory right for the landlord of tenanted commercial premises to recover unpaid rent. The new system is known as Commercial Rent Arrears Recovery (CRAR). As the name suggests, this procedure will not apply to residential premises, only leases of commercial premises. Furthermore it only covers rent, VAT and interest. It does not cover other costs reserved as rent, such as insurance and service charges.

Attachment of earnings orders

An attachment of earnings order (AEO) is a means of securing payment of certain debts by requiring an employer to make deductions direct from an employed debtor’s earnings. Currently, the rate of deductions under an AEO made to secure payment of a judgment debt is calculated by a County Court using information provided by the debtor. The government identified weaknesses in the system and in particular the fact that information provided by debtors is often unreliable. The Act tackles this by making provision for a new method of calculation of deductions from earnings based on fixed rates, similar to the system used for council tax AEOs. Another weakness of the AEO system is that if a debtor changes job and does not inform the court of their new employer’s details, the AEO lapses. The Act therefore enables the High Court, County Courts, magistrates’ courts and fines officers to request the name and address of the debtor’s new employer from Her Majesty’s Revenue and Customs (HMRC) for the purpose of redirecting the AEO.

Charging orders

A charging order is a means of securing payment of a sum of money ordered to be paid under a judgment or order of the High Court or a County Court by placing a charge on the debtor’s property (usually a house or land or securities such as shares). A charging order can be made absolute or subject to conditions. Once an order is in place, a creditor can subsequently apply to court seeking an order for sale of the charged property. Under the old law, the court could not make a charging order when payments due under an instalment order made to secure that same sum were not in arrears. In certain instances this could prejudice the creditor, allowing, for example, a debtor with large judgment debts, who is meeting his or her regular instalments, to benefit from the sale of a property without paying off the debt. The Tribunals, Courts and Enforcement Act 2007 removes this restriction and enables access to charging orders in circumstances where a debtor is not yet in arrears with an instalment order. As a safeguard, the Act allows the Lord Chancellor to set financial thresholds beneath which a court cannot make a charging order or order for sale, in order to ensure that charging orders are not used to secure payment of disproportionately small judgment debts.

Chapter Summary: The Civil Process

The Need for Reform

The Woolf Inquiry into the civil justice system was set up by the government in 1994 to examine why civil litigation was generally very costly, protracted, complicated and subject to long delays.

The Inquiry published its final report in 1996 and its proposals resulted in the Civil Procedure Act 1997 and the Civil Procedure Rules 1998. The Civil Procedure Rules (CPR) are the same for the County Court and the High Court.

The Civil Process

The changes were effected through the Civil Procedure Act 1997 and the CPR 1998. These have been supplemented by practice directions and pre-action protocols.

The Overriding Objective (CPR Part 1)

The overriding objective of the CPR is to enable the court to deal justly with cases. The first rule reads:

1.1(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.

Practice Directions

Practice directions (official statements of interpretative guidance) play an important role in the civil process. In general, they supplement the CPR, giving the latter fine detail. They tell parties and their representatives what the court will expect of them in respect of documents to be filed in court for a particular purpose, and how they must co-operate with the other parties to their action. They also tell the parties what they can expect of the court.

The Pre-Action Protocols

The pre-action protocols (PAPs) are an important feature of the reforms.

They exist for cases of clinical disputes, personal injury, disease and illness, construction and engineering disputes, defamation, professional negligence, housing disre-pair, housing possession following rent arrears, housing possession following mortgage arrears, low value personal injury claims in road traffic accidents, low value personal injury (employers’ and public liability) claims, dilapidations at end of lease or tenancy of a commercial property and judicial review.

They are likely to be followed, over time, with similar protocols for cases involving other specialisms like debt.

Case Control (CPR Part 3)

Judges will receive support from court staff in carrying out their case management role. The court will monitor case progress by using a computerised diary monitoring system.

Active case management includes:

  • (a) encouraging the parties to co-operate with each other in the conduct of the proceedings;
  • (b) identifying the issues at an early stage;
  • (c) deciding promptly which issues need full investigation and trial and, accordingly, disposing summarily of the others;
  • (d) deciding the order in which issues are to be resolved.

Parties are required to adhere strictly to the timetable set by the courts, and r 3.9 has been strengthened to make it more difficult to obtain relief from sanctions. However, some recent cases have seen the courts not applying the rule so strictly.

Case Management Conferences

Case management conferences may be regarded as an opportunity to ‘take stock’. There is no limit to the number of case management conferences that may be held during the life of a case, although the cost of attendance at such hearings measured against the benefits obtained will always be a consideration in making the decision.

Pre-Trial Reviews

Pre-trial reviews will normally take place after the filing of listing questionnaires and before the start of the trial. Their main purpose is to decide a timetable for the trial itself (including the evidence to be allowed and whether this should be given orally), to determine instructions about the content of any trial bundles (bundles of documents including evidence such as written statements, for the judge to read) and to confirm a realistic time estimate for the trial itself.

Stays for Settlement (CPR Part 26) and Settlements (Part 36)

Under the CPR, there is a greater incentive for parties to settle their differences.

The court will take into account any pre-action offers to settle when making an order for costs. Thus, a side that has refused a reasonable offer to settle will be treated less generously in the issue of how far the court will order their costs to be paid by the other side. For this to happen, the offer, though, must be one that is made open to the other side for at least 21 days after the date it was made (to stop any undue pressure being put on someone with the phrase: ‘take it or leave it; it is only open for one day, then I shall withdraw the offer’).

Witness Statements (CPR Part 32)

Under the rules, witness statements must contain the evidence that the witness will give at trial, but they should be briefer than those drafted under the previous rules; they should be drafted in lay language and should not discuss legal propositions. Witnesses will be allowed to amplify on the statement or deal with matters that have arisen since the report was served, although this is not an automatic right and a ‘good reason’ for the admission of new evidence will have to be established.

Experts (CPR Part 35)

These rules place a clear duty on the court to ensure that ‘expert evidence is restricted to that which is reasonably required to resolve the proceedings’. That is to say, expert evidence will only be allowed either by way of written report or orally, where the court gives permission. Equally important is the rules’ statement about experts’ duties.

Court and Track Allocation (CPR Part 26)

Part 7 of the CPR sets out the rules for starting proceedings. A restriction is placed on which cases may be begun in the High Court. County Courts retain an almost unlimited jurisdiction for handling contract and tort claims (that is, negligence cases, nuisance cases, but excluding a claim for damages or other remedy for libel or slander unless the parties agree otherwise). Issuing proceedings in the High Court is now limited to:

  • personal injury claims with a value of £50,000 or more;
  • other claims with a value of more than £100,000;
  • equity claims where the property is worth at least £350,000;
  • claims where an Act of Parliament requires an action to start in the High Court; or
  • specialist High Court claims that need to go to one of the specialist ‘lists’, like the Commercial List, and the Technology and Construction List.

The civil system works on the basis of the court, upon receipt of the claim (accompanied by duly filled-in forms giving all the relevant details of the claim, including how much it is for and an indication of its factual and legal complexity), allocating the case to one of three tracks for a hearing. These are:

  • small claims;
  • fast track;
  • multi-track.

The small claims limit is £10,000, although personal injury and housing disrepair claims for over £1,000 and illegal eviction and harassment claims will be excluded from the small claims court. Personal soft tissue injury claims will be increased to £5,000 in 2017 and other injury claims may follow after consultation. The limit for cases going into the fast-track system is £25,000, and only claims for over £100,000 can be issued in the High Court. Applications to move cases ‘up’ a track on grounds of complexity will have to be made on the new allocation questionnaire.

Documentation and Procedures
How to Start Proceedings – the Claim form (CPR Part 7)

Most claims will be begun by using a ‘Part 7’ claim form – a form which has been designed for multipurpose use. It can be used if the claim is for a specified amount of money (the old term was liquidated damages) or an unspecified amount (replacing the term unliquidated damages) and for non-monetary claims.

The court can grant any remedy to which the claimant is entitled, even if the claimant does not specify which one they want.

Alternative Procedure for Claims (CPR Part 8)

Part 8 of the rules introduces the alternative procedure for claims. This procedure is commenced by the issue of a Part 8 claim form. It is intended to provide a speedy resolution of claims that are not likely to involve a substantial dispute of fact, for example, applications for approval of infant settlements, or for orders enforcing a statutory right such as a right to have access to medical records (under the Access to Health Records Act 1990). The Part 8 procedure is also used where a rule or practice direction requires or permits its use.

Statement of Case – Particulars of Claim (CPR Part 16)

Particulars of claim may be included in the claim form, attached to it, or may be served (that is, given or sent to a party by a method allowed by the rules) separately from it. Where they are served separately, they must be served within 14 days of the claim form being served. The time for a defendant to respond begins to run from the time the particulars of claim are served.

Part 16 of the CPR is entitled ‘statements of case’ (replacing the word ‘pleadings’). Statements of case include documents from both sides: claim forms, particulars of claims, defences, counterclaims, replies to defences and counterclaims, Part 20 (third party) claims and any further information provided under Part 18 of the CPR (replacing the term ‘further and better particulars’). Part 16 of the rules also sets out what both particulars of claim and defences should contain.

Statements of Truth (CPR Part 22)

A statement of truth is a statement that a party believes that the facts or allegations set out in a document, which they put forward, are true. It is required in statements of case, witness statements and expert reports. Any document that contains a statement of truth may be used in evidence. This will avoid the previous need to swear affidavits in support of various statements made as part of the claim.

Defence and Automatic Transfer (CPR Part 26)

Claims for specified amounts will be transferred automatically to the defendant’s ‘home court’ where the defendant is an individual who has filed a defence. The defendant’s home court will be the court or district registry, including the Royal Courts of Justice, for the district in which the defendant’s address for service as shown on the defence is situated. This means that where a solicitor represents the defendant, this will be the defendant’s solicitor’s business address.

Where there is more than one defendant, it is the first defendant to file a defence who dictates whether or not automatic transfer will take place. For example, if there were two defendants to a claim, one an individual and one a limited company, there would be no automatic transfer if the limited company was the first defendant to file a defence.

Allocation Questionnaire (form N150)

The purpose of this document is to enable the judge to allocate in which track the case should be heard. When a defence is filed, the issuing court will send out a copy of the defence to all other parties to the claim together with an allocation questionnaire, a notice setting out the date for returning it and the name and address of the court (or district registry or the Royal Courts of Justice – that is, High Court – as appropriate) to which the completed allocation questionnaire must be returned. A notice of transfer will also be sent if the case is being automatically transferred.

The allocation questionnaire will not be served on the parties when a defendant files a defence if r 14.5 or r 15.10 applies or if the court decides to dispense with its service.

When all the parties have filed their allocation questionnaire, or at the end of the period for returning it, whichever is the sooner (providing the questionnaires have not been dispensed with or the case stayed under r 26.4), the court will allocate the claim to a track. If there is sufficient information, the judge will allocate the case to a track and a notice of allocation and directions will be sent out to each party. Where the judge has insufficient information, an order may be made for a party to provide further information.

Where only one party has filed a questionnaire, the judge may allocate the claim to a track providing he or she has enough information or will order that an allocation hearing be listed and that all parties must attend.

Default Judgment (CPR Part 12)

If a defendant (to a Part 7 claim) files an acknowledgement stating an intention to defend the claim, this extends the period for filing a defence from 14 to 28 days from the date of service of the particulars. Failure to file an acknowledgement or, later, failure to file a defence can result in default judgment, that is, the court will find for the claimant, so the defendant will lose the case.

Remedies

It is essential to distinguish between the common law remedy of damages, available as of right, and equitable remedies, which are awarded at the discretion of the court.

Damages

Damages are compensatory, to recompense someone for the wrong they have suffered. There are, however, different ways in which someone can be compensated.

In contract law, the object of awarding damages is to put the wronged person in the situation they would have been in had the contract been completed as agreed: that is, it places them in the position they would have been after the event. In tort, however, the object is to compensate the wronged person, to the extent that a monetary award can do so, for injury sustained: that is, to return them to the situation they were in before the event.

Equitable Remedies
Specific performance

This remedy will only be granted in cases where the common law remedy of damages is inadequate. It is not usually applied to contracts concerning the sale of goods where replacements are readily available. It is most commonly granted in cases involving the sale of land, where the subject matter of the contract is unique.

Injunction

This is the term used in relation to the courts’ powers to order someone either to do something or, alternatively, to refrain from doing something.

Rectification

This award allows for the alteration of contractual documents.

Rescission

This action sets aside the terms of a contractual agreement and returns the parties to the situation they were in before the contract was entered into.

Court Fees

A new fee structure takes account of the different procedures, a movement towards a ‘pay as you go’ fees regime and the need for full cost recovery. ‘Pay as you go’ means that parties will be expected to contribute more in fees, the more court and judicial time they use, for example, if they do not settle and carry on to trial.

Food for Thought

  1. The English legal system has always been categorised as an adversarial system with the judge sitting as an umpire rather than a participant in cases. As a consequence the conduct of cases was to a large degree in the hands of the lawyers. Consider the consequences of such lack of judicial control for all the parties concerned in the case. Then consider how the Woolf reforms were designed to overcome these problems by instituting a process of greater judicial control.
  2. To what extent is it fair to claim that the reforms have been about saving time and money, both clients’ and the state’s? How exactly have these savings been pursued?
  3. Although referred to as the ‘new’ civil process, the Woolf reforms have been in operation for more than 15 years. Is it not time to assess how successful they have been? How would such an assessment be made?
  4. In relation to the small claims procedure, consider why there are different financial limits: £10,000 for the majority of claims but £1,000 for personal injury claims and housing disrepair actions. Why are the latter considered to need more judicial attention, and does this imply anything about possible shortcomings in the fast-track procedure?
  5. It is accepted that ‘justice delayed is justice denied’, but can the same not be said in relation to a failure to provide adequate enforcement of remedies?

Further Reading

Blackstone’s Civil Procedure (HH Judge William Rose (ed)), 2014, Oxford: OUP

Burns, R, ‘A view from the ranks’ (2000) 150 NLJ 1829

Genn, H, Hamlyn Lectures 2008: Judging Civil Justice, 2009, Cambridge: CUP

Genn, H, Hard Bargaining: Out of Court Settlements in Personal Injury Claims, 1987, Oxford: OUP

Gold, S, ‘Civil Way’ (2008) 158 NLJ 1370

Gold, S, ‘Civil Way’ (2008) 158 NLJ 1412

Harrison, R, ‘Cry Woolf’ (1999) 149 NLJ 1011

Kinley, A, ‘Preparing the way’ (2009) 153(40) SJ 8

Miller, F, ‘The adversarial myth’ (1995) 145 NLJ 743

New Law Journal, ‘Increase in Civil Cases in High Court’ [2007] 1628

Sime, S, A Practical Approach to Civil Procedure, 2014, Oxford: OUP

Solon, M, ‘Selecting the best’ (2008) 158 NLJ 1299

Squire, G, ‘No more hired guns’ (2009) 153(40) SJ 20

Thacker, R, ‘The new Supreme Court’ (2009) Legal Action 20

Zander, M, ‘Are there any clothes for the emperor to wear?’ (1995) 145 NLJ 154

Zuckerman, AAS, ‘A reform of civil procedure – rationing procedure rather than access to justice’ (1995) 22 JLS 156

Useful Websites

www.justice.gov.uk/civil/procrules_fin/menus/rules.htm
This site, hosted by the Ministry of Justice, contains all the Civil Procedure Rules, and is regularly updated.

www.judiciary.gov.uk/about-the-judiciary/advisory-bodies/cjc
The official website of the Civil Justice Council.

Companion Website ifig0001

Now visit the companion website to:

www.routledge.com/cw/slapper