21 years of the Civil Procedure Rules
April 30, 2020
26 April 2020 marked the 21st anniversary of the commencement into force of the Civil Procedure Rules (CPR). Exchange Chambers’ Jonathan Lowe and Bill Hanbury reflect on the CPR and how the rules have operated over the years.
Some thoughts from Jonathan Lowe:
“As a solicitor with a few years’ experience under my belt the CPR came as an unwelcome drain on my spare time! The firm organised out of hours training, usually at weekends, over several weeks when I should either have been catching up on work not got to during the working week, or otherwise doing what a normal 20 something does at weekends.
One huge change was that old plaintiffs, now claimants, did not face the automatic strike out provision of the old order 17 rule 11, which was insurers’ playground for a long time. I remember attending many applications in all parts of the North West and beyond.
Otherwise, I seem to remember that things bedded in relatively easily and, as can still be the case, much depended on the judge. Some adopted the much to be applauded “need to know” approach advocated by HHJ Tetlow, others were far more troublesome! I always like the story about the cantankerous DJ in Macclesfield, can’t remember his name, always had a dog in his chambers, who threw what he had received from the MoJ in the bin!”
21 years of the CPR – a cause to celebrate?
26 April 2020 marked the 21st anniversary of the commencement into force of the CPR – hailed at the time as a revolution in civil litigation. Younger practitioners will not recall the terror of established professionals being told not only that they had to learn a new set of rules but had to unlearn the principles which had long applied under the old rules.
Professor Scott, who has edited the White Book throughout the period, was an advocate for applying existing principles to the new rules; surely a sensible approach, given that the old rules (the County Court Rules 1981 (CCR) and the Rules of the Supreme Court 1965 (RSC) had taken more than a century to perfect and were widely applied abroad, for example, in Cyprus and Hong Kong. But judges insisted that the new “overriding objective” meant that the CPR completely replaced what had gone begore so that cases decided, predominantly under the RSC, no longer applied to issues under the CPR. 1999 was “year zero”, therefore.
This was one of several regrettable developments brought in with the CPR. It was a development not wholly sanctioned by Lord Wolff himself, whose Final Report merely announced a “new procedural code” with the aim of creating a level playing field between sometimes unequal parties.
Two areas in the CPR are particularly unsatisfactory:
- The proliferation and duplication of rules and practice directions; and
- The lack of any clear distinction between the two.
Nowhere has this been more marked that in the rules, practice directions and guides relating to costs. It is easy to forget the pre-1999 both the CCR and the RSC gave the courts power to control costs, the problem was that they were not applied in practice and a culture had grown up of allowing costs to spiral without this being transparent to the parties.
It is hard to believe that the High Court survived with just one costs rule (Order 62) although there were specialist provisions in relation to, for example, probate proceedings. Now there are at least five rules that I can count, numerous practice directions, court guides and specialist guidance of one sort or another. Particularly confusing is the fact that if you are a White Book owner these are spread between volumes one and two.
The distinction between a rule and practice direction has never been satisfactorily established. Again, the old CCR and RSC largely survived without any practice directions. Section 5 of the Civil Procedure Act 1997, under which the CPR were created, provides that the practice direction may deal with any matter which could have been dealt with by the rules. There are additional rule-making made under part 1 of schedule 2 of the Constitutional Reform Act 2005 but most practice directions are made under the 1997 Act. In practice I cannot recall a case where a practitioner has argued that the practice direction carries any less weight than a rule. If this is so, why not simply call the practice directions rules? Is it simply that there is an over proliferation of similar language in relation to a conduct in the rules and practice directions which is expected to “ram the point home”?
More satisfactory have been the rules on expert evidence. Again, the power to control expert evidence existed under the old rules but it was not often applied. A proliferation of experts was considered a litigant’s right. This was in essence a constitutional right – the fundamental principle of justice being that each party had the right to fully present his case before the court unconstrained by the need for “proportionality”. Therefore, the application on rules on “proportionality” are, perhaps, the greatest piece of legislative intervention with the freedom of litigants to spend their money on litigation, including experts, if they wish.
Finally, a reflection on the summary judgement power in CPR 24. Those of us who grew up pre-CPR had a staple diet of summary judgement applications (Order 14 of the RSC – Order 9, rule 14 of the CCR) -the test being simply: was there a “arguable defence”? Summary judgment was only available to plaintiffs, as they were then called, but could, as a result of an amendment to the rules, be based on a point of law. The replacement of the concept of “a real prospect” and “no other reason” why the case should proceed to trial have severely limited summary judgment to only the clearest possible cases of failed analysis, lack of evidence and lack of any cause of action. The latter case is more likely to be subject of attack under CPR 3.4 in any event. In large cases a summary judgment application may still succeed but inevitably will result in an appeal, multiply the costs spent and it will not lead to the intended result- a quick outcome to the litigation.
We now have had the CPR and the Jackson reforms. The high watermark of those wanting to restrict the freedom of litigants to expend money on lawyers of their choosing coming in the in Mitchell v News Group Newspapers Ltd  EWCA Civ 1537 case followed by the reining back in the Denton v TH White Ltd and another, Decadent Vapours Ltd v Bevan and others and Utilise TDS Ltd v Davies and another  EWCA Civ 906 case. Now we are in the middle of the coronavirus epidemic and cooperation as the order of the day. The principles of civil justice are usually applied cooperatively by practitioners. The courts are encouraging this again. So were the CPR really worth all the fuss!?
Happy litigating for another 21 years!