You might perhaps be forgiven for thinking that the case management parts of the Civil Procedure amendments won’t really affect you. It is not just that their launch has been confused, to use a charitable term; those who came through the 1999 launch of the CPR found the courts willing to accept excuses for non-compliance thanks to a (largely unspoken) idea that the interests of justice required leniency in the face of “mere” procedural defects.
This is one of the points addressed by Lord Dyson, Master of the Rolls, in a speech delivered on 22 March to the District Judges Annual Seminar. The amendments, it is clear, do more than introduce specific procedural requirements; the change of culture from the post-1999 world – “the new philosophy” he calls it – which was the focus of the MR’s speech lies in this sentence:
“Tough rules but lax application; tough rules but a culture of toleration; and lax application and toleration are all fatal to the new philosophy”.
What Lord Dyson calls the “Mark II overriding objective” includes an express reference to “proportionate cost”. Proportionality has, in theory at least, underpinned the rules since 1999. In the context of disclosure, the narrow definition of a disclosable document, the restraints on the duty of search, and the reminder, in two important cases, that parties are not required to look under every stone, are all part of this. It is equally the case that the existing rules expect compliance, yet we now have a new Rule 3.9 which addresses (and not in a good way, some would say) relief from “any sanction imposed for a failure to comply with any rule, practice direction or court order”.
The Master of the Rolls asks rhetorically “Why then make explicit what is already implicit?” In answering this he refers repeatedly (curiously, without actually quoting it) to an obligation in the rules which is easily overlooked – that the overriding objective already requires that courts deal with a case by “alloting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”
This paragraph is easily overlooked – it is the last sub-point in the definition of the overriding objective in Rule 1.1 – and I have never heard of it being expressly relied on by a party or the court. I have a very vivid recollection, going back several years now, of showing US Magistrate Judge Paul Grimm (now District Judge Grimm) Part 1 of the CPR as a preliminary to a panel discussion on the differences between UK and US procedural rules. Judge Grimm’s eyes went straight to that sub-paragraph, which he immediately identified as a powerful tool for case managing judges. I cannot claim that I had really noticed it before then, and I was not the only one. Lord Dyson’s speech brings it to the forefront.
Selective quotation from the MR’s speech is no substitute for reading its nine brisk pages. Its capture of the “underlying philosophy of the Jackson reforms” is perhaps more important than the individual rule changes themselves because it offers no escape from the conclusion that the rules mean what they say and that judges will be required to stand by them.
What does it mean for litigants and their lawyers? It will, as the MR acknowledges, weigh heavily on some parties and appear unjust in some cases. It accepts that the court may have to reach conclusions on less than the full evidence, either because the cost of bringing that evidence to court is disproportionate or because parties leave it too late to adduce it. It offers no refuge to those who miss deadlines or otherwise fail to comply with the rules, and it imposes a heavy responsibility on the court (or, strictly, reminds judges that they have that responsibility) to manage proceedings efficiently.
As a corollary, it offers a powerful set of arguments to those who seek to use the rules, not just to wrong-foot less competent opponents, but to limit disclosure and the other procedural elements which can so easily get out of hand (that is, become disproportionate in time and cost).
Reading this speech, I was reminded of something said by Lord Justice Jacob in a case called Nichia Corp v Argos Ltd  EWCA Civ 741 (19 July 2007). This was, as it happens, the case which gave us the expression about not looking under every stone which was picked up and used by the judge in Digicel (St. Lucia) Ltd & Ors v Cable & Wireless Plc & Ors  EWHC 2522 (Ch) (23 October 2008) and which I include in one of my standard slides. The part which matters from Nichia in the context of Lord Dyson’s speech comes at paragraphs 50 and 51, which read as follows:
- “Perfect justice” in one sense involves a tribunal examining every conceivable aspect of a dispute. All relevant witness and all relevant documents need to be considered. And each party must be given a full opportunity of considering everything and challenging anything it wishes. No stone, however small, should remain unturned. Even the adversarial system at its most expensive in this country has not gone that far. …..
- But a system which sought such “perfect justice” in every case would actually defeat justice. The cost and time involved would make it impossible to decide all but the most vastly funded cases. The cost of nearly every case would be greater than what it is about. Life is too short to investigate everything in that way. So a compromise is made: one makes do with a lesser procedure even though it may result in the justice being rougher. Putting it another way, better justice is achieved by risking a little bit of injustice.
Lord Justice Jacob was in the minority in Nichia, and his reference to a “lesser procedure” and to “justice being rougher” was politely derided by one of his fellow judges. Whether or not Nichia itself was correctly decided is not the point; what Lord Justice Jacob said in 2007 is amply justified by Lord Dyson’s speech.
Lawyers walk a tightrope here. On one side lies the duty (no longer merely a right) to focus narrowly on what really matters, to leave out things which do not tend to justice as the MR describes it, and to keep costs down; on the other lies the duty to court and client to seek out the evidence on their own side and from opponents with appropriate care and vigour, being careful to avoid not just breach of the procedural rules but breach of the duty of full disclosure (in the broadest sense) and openness. We need a whole new set of skills to manage this new philosophy.