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The Lord Chancellor rose to move, That this House take note of Her Majesty's Government's proposals for Draft Civil Procedure Rules (contained in the document Access to Justice dated July 1998) as part of their proposals for civil justice reform.
The noble and learned Lord said: My Lords, in April 1999 I shall be introducing the most fundamental reform of the civil justice system since the Judicature Acts of the 1870s. That last great reform of the civil justice system took place under the direction of Lord Chancellor Selborne. It was driven by public dissatisfaction with the cost, delay and complexity involved in bringing cases before the courts. The majority of my civil servants who work directly to me do so out of Selborne House in Victoria. It is of course named after Lord Selborne. My programme of reform is motivated by the same concerns as affected him. It stems from the distinguished work undertaken by the noble and learned Lord, Lord Woolf, in his historic Access to Justice report. No one is more welcome than the noble and learned Lord to contribute to this evening's debate.
The reforms aim to provide a single system of civil justice based on the fundamental principles of proportionality, clarity and efficiency. The Government believe there should be an end to different procedures for the High Court and the county courts and greater consistency among county courts. The unified system will be the key which will unlock the door through which we will show out our enemies, excessive cost and complexity, and welcome in our allies, greater speed, fairness and certainty.
This is a rolling programme of reform. Uniformity will first be achieved in April 1999 with the introduction of the first phase of the Civil Procedure Rules--the unified code which will incorporate the newly drafted plain English rules that will apply both to the High Court and county courts which has been developed from
When in Opposition, as Shadow Lord Chancellor I tabled an amendment to the Civil Procedure Bill (Hansard, 20th November 1996; col. CWH26) aimed at ensuring that the Civil Procedure Rules would be approved by Parliament by affirmative resolution before they came into force. I was content to settle for the pragmatic compromise of my noble and learned predecessor, made in response to a report from the Delegated Powers Scrutiny Committee, that drafts of the new rules would be debated before they were signed off by the Rule Committee and the Lord Chancellor.
Tonight I am pleased to be able to deliver what I pressed for all that time--an opportunity for this House to debate the new draft rules. I shall not try to respond to all the points noble Lords will make this evening. I am here primarily to listen to your Lordships' views. I shall also make sure that the Rule Committee is aware of them and can take them into account before the rules are finalised.
The rules that I have brought before the House tonight reflect the most essential part of my reforms. These rules have been informed by the policy I settled after wide consultation with judges, legal practitioners, consumer groups, whose contribution has been most valuable, and individuals. I welcome the active role that many have played in helping to develop the rules and procedures and the support given to the reforms. I am particularly indebted to the Bar Council and the Law Society and their various working groups for the time and effort they have devoted to help ensure the reforms are a success.
I know that some consider that implementation should be delayed, particularly as full IT support will not be available from day one. However, I will not continue for any longer than is necessary systems which have shown themselves to be slow, inefficient and expensive. I have been persuaded by the noble and learned Lord, Lord Woolf, that we could gain a significant advantage by introducing the new rules in April 1999, even though the case tracking IT system will not be on stream before 2000. There would also be considerable risks in introducing the new rules at precisely the same time as new IT systems.
Litigants and practitioners should benefit at the earliest opportunity from a quicker, more predictable civil justice system, enhanced by all the improvements that increased case management will bring. It must also be remembered that any further delay in implementation would risk losing the momentum created so far. That was the view of the noble and learned Lord, Lord Woolf, and it is my view too. The timetable is challenging but achievable.
This supreme effort has made possible the transformation of the rules governing civil proceedings-- a transformation which has two parts. The first is a coherent set of rules to provide the framework for a wholly new approach to dealing with civil cases. The second is to achieve greater simplicity and clarity than has ever been achieved before or, I would add, attempted. The bid to turn some of the most technical aspects of the civil justice reforms into plain English is to be applauded. I know this aspect of the committee's work owes much to the influence of the representatives from the voluntary advice sector and consumer organisations. Their involvement in a committee of this kind is an innovation, and one that has proved highly successful.
The committee still has much work ahead of it before it seeks my approval and signature to the new rules, prior to laying them before Parliament. But the fundamental principles within these drafts are sufficiently settled for me to wish to invite your Lordships' views.
Before I do so, let me say a little about the key issues dealt with by the rules. Recognition of the principles of the reforms is given expression at the very beginning of the new rules. Part 1 articulates the overriding objective: to enable the court to deal with cases justly. This includes dealing with a case expeditiously and fairly in ways which are proportionate, and saving expense. The court must seek to give effect to this overriding objective when it exercises any discretion given to it by the rules or interprets any rule.
There will be a major transfer of power from lawyers to judges so that cases can be closely managed. For example, judges will be required to monitor the progress of a case by setting timetables and controlling compliance with those timetables by applying sanctions. They will ensure that cases will be heard by the appropriate level of judge. This increased level of responsibility for the control of cases and the maintenance of proportionality is vital to the overall success of the reforms.
Control and proportionality appear again in the rules dealing with evidence, witness statements and disclosure. New powers will allow the court to direct that evidence may be given by one expert only. Adapting to this will require a culture change. Rules will also spell out the expert's overriding duty to the court. These are all elements which will assist in the control of the amount of work done proportionate to the needs of the case.
Proportionality will be achieved by greater control over the content of witness statements. They must cease to be lawyers' reconstructions, bearing no similarity to the evidence the witness could give unaided from the
Part 27 includes powers which will enable courts to limit or even dispense with disclosure of documents. This will help judges bear down on work which is unnecessary for the value or complexity of the case.
My reforms provide three routes to justice through the courts. I am increasing the number of people who can benefit from the small claims jurisdiction by raising its limit to £5,000, while recognising the particular needs of those with personal injury, housing disrepair, harassment and unlawful eviction claims. For example, it should be possible for a litigant to pursue a claim for a minor injury--and we are speaking of cuts and bruises--without recourse to lawyers and legal representation. I consider the full-blown processes of the law disproportionate and unnecessary to this type of claim. Similarly, while the small claims regime is appropriate for the disposal of low-value housing disrepair cases, higher-value claims are likely to involve substantially more complex issues both of law and fact. As a result, the small claims limit for personal injury and housing disrepair claims has been set at £1,000. Housing-related harassment and unlawful eviction claims are to be excluded from the small claims regime altogether.
I am introducing the fast track for most types of claim between £5,000 and £15,000. Its features include a 30-week timetable from allocation to conclusion and a presumption against the use of oral expert evidence at the hearing.
I am introducing the multi-track for higher value, or more complex cases, where strict judicial control will govern the volume of work done by the parties in preparation for trial in line with the needs of the case.
To proceed to one or other of these routes, however, a case will need to be appropriately allocated when it is defended. Part 24 provides judges with the power to do just that. This is the point at which judicial case management commences and judges should take control of a case. This might include ordering a stay of the proceedings to allow the parties to attempt resolution of the dispute by alternative means or to attempt settlement. A judge's responsibility is to ensure that the case proceeds in the most effective way possible to secure a just resolution of the dispute. That resolution must be achieved with regard to proportionality of time and expense, or it is not just.
The rules are one part of the armoury judges will have to bring about the civil justice revolution. Practice directions, giving litigants and their representatives the details of what they must do to comply with the rules, are being developed under the supervision of the Vice Chancellor, Sir Richard Scott, and will be published with the final versions of the rules.
I expect to be able to include in that published package protocols which will regulate pre-action behaviour for some types of case. Tough sanctions for non-compliance with protocols, where proceedings are issued, will be a further weapon to support tight case
There is one omission from the package which I am putting before you. You will not find draft rules relating to fixed costs in the fast track, an issue which I know and acknowledge is very important for practitioners. I have deliberately taken time to consider how to approach that issue. I commissioned research to assist me in forming my view. I regard the issue as so important that in June I issued a consultation paper seeking views on a range of options. That consultation process is not yet complete. I am not yet able, therefore, to ask the Rule Committee to consider rules on this.
I have given your Lordships a flavour of the radical nature of these reforms. Let me now invite you to give me your views on the drafts I have brought before you for your consideration. I beg to move.
Moved, That this House take note of Her Majesty's Government's proposals for Draft Civil Procedure Rules (contained in the document Access to Justice dated July 1998) as part of their proposals for civil justice reform.--(The Lord Chancellor.)
Lord Hunt of Wirral: My Lords, I welcome the words of the noble and learned Lord the Lord Chancellor in setting the background to the debate. We welcome the opportunity to give our views. I have been involved in the day to day administration of the law for over 30 years. As I explained to the House last week, I acted for plaintiffs for the first 10 years and for the past 20 years I have acted almost exclusively for defendants. Anyone who has been so involved would join the noble and learned Lord the Lord Chancellor in saying that the system of civil justice has long been in need of reform. There is much to praise in what has been achieved so far by the noble and learned Lord the Lord Chancellor and his predecessor.
From the outset I pay tribute to the work of the Master of the Rolls, the noble and learned Lord, Lord Woolf, who has approached the task with the clarity of thought which makes so much of his report Access to Justice seem like obvious good sense despite its revolutionary approach. In particular, the idea of cutting away the adversarial culture and encouraging dispute resolution through judge-led case management has deservedly gained wide acceptance in the legal profession and among the public at large.
Moreover, the report's "big idea" is supported by a range of good practical ideas such as a combined set of rules for all civil courts, written in plain English and comprehensible by all. What a tremendous ambition, and one very close to being achieved. But it is in the context of those rules which now come before your Lordships' House for consideration that I wish to sound three notes of caution, not criticism. Now is not a time for detail, as the noble and learned Lord the Lord Chancellor said. Conscientious committees are combing through not only the rules but the practice directions and forms associated with them to make the detailed wording as clear and effective as possible.
My three points concern broad issues of principle. First, I hear fears in many quarters now about the danger of a piecemeal introduction of the new rules. I reflect immediately the irony of urging delay in implementing a process the very purpose of which was to remove delay from the system. But partial implementation of the rules without adequate time for preparation is likely to make the eventual outcome far worse.
The noble and learned Lord, Lord Woolf, has always made clear that the reforms must be regarded as a package, and I have sat at his feet listening to him on many occasions saying just that. The wisdom of that approach is self evident. The timetable for implementation now looks decidedly optimistic. With a commencement date of 1st April 1999--I am not sure why that day of the month has been chosen, but wiser minds than mine have selected it--it is worrying that the final version of the new rules is not expected to be available to the profession and the public until January next year.
Moreover, there are significant changes planned to the procedures followed before proceedings are issued. I greatly welcome that. They are a fundamental part of the new reforms. But the protocols which will cover that have only just been published, as the noble and learned Lord the Lord Chancellor pointed out. The one for general personal injury claims is still marked "draft" so that we cannot be sure of the final form. I regret to say that I am not aware of any extensive research or modelling on how the various protocols, rules and practice directions will work together. I understand from those who know much more about it than I do that in order to keep the rules simple, matters of detail have been left over to practice directions. There is a concern that matters of detail are now left over from the practice directions to separate guidance notes and forms. There are dangers in the approach. However, the work which has been done so far represents a great opportunity for constructive change. I urge the noble and learned Lord the Lord Chancellor to think carefully about the timetable, in particular about implementing a system which is still far from ready.
My second concern relates to the resources which are being devoted to the process, and whether they are adequate to sustain two key central elements of the new system: case management and information technology. Case management depends on training both existing and new junior judges in the skills required. Existing judges have been selected for their legal skills and, knowing several of them, there are not many who have detailed practical experience of managing cases. They will, I know, make excellent case managers, but the training available so far has necessarily been limited because the rules and practice directions have not been available. Moreover, I am sure that more judges will be required, but there does not seem to be much in the budget at present. Indeed, I read of the closure of some regional courts being planned and I do not think that augurs well.
Information technology is also a key factor. As the noble and learned Lord the Lord Chancellor pointed out, the essence of the new fast track will lie in closely timetabled cases with high speed electronic communication between the court, the judiciary and the
I note that in its brief, the Law Society talks about the IT system not being ready until at least 2000. Only the noble and learned Lord the Lord Chancellor would know the internal workings, but I am very nervous about some of this phraseology. I am nervous that we might not see the new system until 2001. If the noble and learned Lord the Lord Chancellor can give me some comfort on that, I shall be very grateful indeed. I do not believe that the reforms will succeed without adequate IT support. They are at the heart of the reforms. I am worried that there does not appear to have been any consultation with users about the type of system which would meet the standards to which the legal profession operates. I hope that we will have an open approach to costing the resource implication of recruitment, training and IT and a proper assessment of whether the Government are prepared to fund the necessary resources required.
My third chief area of concern is the extent to which the financial savings which the civil justice reforms offer may prove illusory if cost transfer is mistaken for cost saving. So none of the reforms can be seen in isolation. There have been other recent developments which have imposed huge additional burdens on defendants. I took the opportunity in the debate last week, as the noble and learned Lord the Lord Chancellor may recall, of referring to the decision of the Judicial Committee in this House in Wells v. Wells and also to the impact of paying success fees and insurance premiums where plaintiffs are, in future, funded by conditional fee agreements. I also mentioned the full cost of additional repayments to the compensation recovery unit. I see, in Post Magazine and Insurance Week, the headline "Insurers reeling from decisions." I do not plead anything other than this. The noble and learned Lord the Lord Chancellor paid tribute to the innovative methods which insurers will find of meeting demands and the ability to introduce new products. But insurers and defendants need to have a reasonably balanced system of justice.
I am concerned that under the new rules there are other hidden penalties. Here, perhaps I may give one example. Part 36 of the new rules introduces heavy penalties on defendants if they fail accurately to assess an offer to settle made by the plaintiff. Comparisons are drawn with the effect of a payment into court by the defendant, but there is a crucial difference. The plaintiff, of course, and his solicitors, hold all the information
Similarly, defendants may be penalised for failing to comply with pre-action protocols, but plaintiffs of course may not give them all the information they require. I urge the noble and learned Lord the Lord Chancellor to ensure strong protection from the court to achieve a proper balance between the responsibilities placed on defendants and those on plaintiffs. I suppose that most defendants are insured and it is felt that the cost will be met by increasing premiums. But the costs are not just disappearing; they are merely being conjured away to be paid by a less visible purse.
Most defendants are not necessarily insurers or insurance backed. Many are government departments; many are health service bodies directly dependent on public money. It is crucial that no aspect of these reforms should proceed on the basis that there is available a crock of gold which can be raided without expense to the public at large. Any savings must be real and not illusory.
That is the sum of my concerns. I wish these reforms well. I believe that if they are successful, under the leadership in his report of the noble and learned Lord, Lord Woolf, combined with the reforming zeal of the noble and learned Lord the Lord Chancellor, then we will succeed. But we will only succeed if we do that at a proper pace with proper detail and proper resource, in particular on training, IT and with the necessary people found to implement the reforms. Certainly, we need a little more time to consult and so ensure that whatever we introduce will be right.
Lord Woolf: My Lords, the rules that your Lordships are considering could be said to have had a favoured start in life. That is nothing to do with me, although I appreciate the generous comments made by the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Hunt of Wirral.
As regards the comments of the noble Lord, Lord Hunt, I can assure him that they will be taken very much into account by the rules committee. Why the rules have had such a favoured start in life is because their conception was due to one distinguished Lord Chancellor and their birth to another.
However, the period of labour in between has been difficult. I should like to acknowledge the great credit that is due to the drafting team which the noble and learned Lord the Lord Chancellor has provided, the Civil Procedure Rules Committee, of which I am a member, the Vice-Chancellor who is deputy chairman of that committee, our respective private secretaries and, not least, our respective personal secretaries who have ensured that the rules committee, during its period of labour, has not wanted for being well nourished. Labour is not an inappropriate word to use to describe the work on which the rules committee has been engaged. The process has been prolonged and hard but it is remarkable
As the noble and learned Lord the Lord Chancellor indicated, the committee initially met for a day once a fortnight. We now meet once a week. The noble and learned Lord the Lord Chancellor is absolutely right in saying that there has to be at least a day's preparation for each of those meetings. I certainly commend and echo the words of the noble and learned Lord the Lord Chancellor in acknowledging the contribution of the non-judicial members of the committee who have given their services at, no doubt, considerable personal cost.
A feature of the committee is the width of its membership. I hope that the quality of the rules reflects that membership. I refer, in particular, to the representatives of the consumer organisations. The rules are based on the Brown Book No. 1 which was attached to my Access to Justice report as long ago as July 1996.
Comparing those rules to the ones which your Lordships are considering will show the significant changes which have been made in the interim. Those changes have been the result of a continuing process of consultation. It has not been our intention to make changes for change's sake. We have not made changes unless they will serve a useful purpose. I can assure your Lordships that in developing those changes I have not always had my own way. Anyone passing the Court of Appeal conference room where we meet on a Thursday or a Friday in any week would from time to time hear the sound of vigorous debate. Indeed, on one occasion when we were split equally--my noble and learned friend the Lord Chancellor had to be called upon to arbitrate between the Vice-Chancellor and myself. I am very happy to report that the noble and learned Lord found in my favour.
I believe that these rules differ from those produced in any other jurisdiction in the process of change which is taking place in almost every developed society. An outstanding feature of our rules is Part 1, which provides the framework for the rules and identifies the principles which underlie them--the principles of equal, economic, expeditious, efficient and proportionate justice. Those who have to apply the rules will be required to bear in mind those five important principles. But so will the parties. The rules recognise the significance of co-operation in an efficient and effective civil justice system. In that regard, I say to the noble Lord, Lord Hunt, that the whole idea of the protocols and the rules is that both parties will be required to adopt an open approach, which is so often lacking in litigation at the present time.
A further feature of the rules which is novel is that they encourage parties to behave in a reasonable and rational way and to resolve their disputes without becoming involved in litigation. Although I recognise the immense contribution which the insurance industry plays in protecting those who suffer injury from the consequences of those injuries, I am bound to say, having been engaged for many years in personal injury
As an answer to that kind of phenomena, the rules also provide the foundations for the protocols of sensible pre-litigation behaviour. Those protocols will flourish if they are supported by the courts. They have to be supported by the courts in an equal manner and I am sure that they will be supported in that way. There will not be any distinction between claimants and defendants. Both will equally have to comply with the protocols.
As a reminder of the general approach, I refer the House to the terms of Part 1.4 of the new rules. They set out the overriding objective in actively managing places. They include an expressed requirement encouraging the parties to use alternative dispute resolution procedures. If the court considers it appropriate, the court must facilitate the use of those procedures. Part 1.4 requires the court to encourage parties to co-operate with each other in the conduct of proceedings. It places a responsibility on the court to help the parties to settle the whole or part of the case. This approach is supported by sanctions which can be applied by the courts where parties behave--and I emphasise this--in an unreasonable manner.
It is also supported by the offers to settle to which the noble Lord referred--the offers to settle which are contained in Part 36. Offers to settle by either plaintiffs or defendants will be effective only if they are given teeth by the courts' powers to award increased interest and costs.
Another important principle reflected in the rules is that of simplicity--simplicity of procedure and simplicity of language. The rules are framed in plain English. They are intended to be easier to understand both for practitioners and litigants. The principle of simplicity is carried through to the procedures themselves. Under the two sets of rules which exist at present, there are at least eight ways in which to bring proceedings. Symbolic of the new approach is that under the new rules there will be just one.
Simplicity also underpins reducing the differences between the courts. Currently, there are separate rules to which I have referred--separate rules for the High Court and the county court. The new rules will apply to all non-family civil proceedings and the procedures will be the same wherever proceedings are brought. The focus will be on ensuring that the correct level of judge hears the appropriate case. The current distinction between High Court and county court will therefore be minimised so that if it is decided to remove the distinction altogether, the new rules will not stand in the way.
The word "pleadings" is given a timely demise. It is banished from the new rules. In its place will be the statement of case. The change of name is important because it marks a break with the past, a break which is underlined by the requirement of the new statement of truth. That is a requirement for the litigant to certify that he believes the facts set out in his statement of case to be true. Parties will not be able to make allegations, ignoring whether or not they are justified.
A further area in which rule changes significantly alter the current position is in relation to experts. Expert evidence has become a feature which is bedeviling current litigation. It increases costs, thereby reducing access to justice, and can have the effect of amplifying the differences between the parties and prolonging litigation. Those rules will play an extremely important part in placing a new responsibility on experts, and one which I believe they will welcome. It gives them an overriding duty to the court. That must be contrasted with the present position, where I am afraid all too often experts see themselves as the hired guns of a particular party.
With the new duty goes a greater opportunity to use single experts, to reduce costs and narrow the differences between the parties. If experts are to fulfil their new duty, the courts must in turn accept additional responsibility. That is reflected in the ability of an expert to ask the court for guidance to help him carry out his duties.
Although the rules are primarily the work of those to whom I have already referred, they have benefited also from the consultation process. In particular, I pay tribute to both the Bar Council and the Law Society and their respective working groups. Unlike the experience in so many other jurisdictions, I am happy to say that in that jurisdiction both sides of the profession are to be congratulated on the way they have supported, instead of turning their face against, change.
I am aware of the concerns to which the noble Lord, Lord Hunt, referred and which have been expressed by others about the timetable for the implementation of the programme of reform and information technology to support the new rules. I am confident that the present programme of implementation is reasonable. For those not directly involved in the implementation process, it is easy to underestimate the vast amount of work already done in preparation for April 1999.
The momentum for change is considerable. It is vital that that momentum is not lost. Delay beyond April 1999 could have put that momentum at risk. I congratulate and support the noble and learned Lord the Lord Chancellor on his decision to press ahead with the implementation of those rules, which form the heart of the civil justice reforms, in advance of the availability of full technological support.
The decision was not taken lightly. I would not say that without being fully satisfied that the success of the reforms will not be put at risk by the non-availability of the technology. I rely on the Court Service to provide all the necessary support to ensure that the rules are implemented successfully. Indeed, I am becoming more and more convinced that delay in relation to technology might be a blessing in disguise. There would have been a considerable risk in trying to implement the new rules and the new information technology simultaneously.
The implementation plan which has been decided upon will reduce that risk and ensure that the new rules start their life in April 1999 with the best possible chance of success. We in the courts shall then be charged with the responsibility of ensuring that the new culture of civil justice thrives. We will do our best.
Lord Hacking: My Lords, I should like to begin by joining the noble Lord, Lord Hunt of Wirral, in thanking my noble and learned friend for giving us this opportunity to debate and comment upon the new procedure rules. I should also like to join the noble and learned Lord, Lord Woolf, in congratulating my noble and learned friend on taking forward the reforms which were instigated by his predecessor, the noble and learned Lord, Lord Mackay of Clashfern--reforms which I clearly remember had his full support when he was the shadow Lord Chancellor. Therefore, I believe that we are blessed by two reforming Lord Chancellors and we are certainly blessed by a reforming Master of the Rolls, and his colleagues, who worked so hard upon the reports which have come out as the Access to Justice reports.
The changes in the rules will bring about a single set of civil procedure rules in simple language which conforms to the needs of the modern litigant in the brave new world of technological resource. Gone will be these large tomes used by those of us who have practised the law for as many years as I have--30 years or more--the "White Book" covering the Rules of the Supreme Court and I only hold volume one of it. There is a volume two and the supplement on the Bench beside me! There is also that other rather large tome, the "Green Book", which covers the County Court Rules.
As my noble and learned friend rightly said, these new rules represent the most significant change in civil procedure for over 100 years since the Judicature Acts of the 1870s. However, there is another point that I should like to emphasise which derives from the words spoken by my noble and learned friend. The new rules will shift in a very fundamental way the responsibility for the effective conduct of court proceedings from parties and counsel to the judge. That is quite fundamental and most important.
Other than speeding up and simplifying the trial process--the use of statements of case and other matters to which the noble and learned Lord, Lord Woolf, referred--there is much that is very imaginative in the new rules which goes back to the work of the noble and learned Lord, Lord Woolf, and his colleagues. I refer, first, to offers of settlement which are contained in Part 36 of the document. I believe that the noble Lord, Lord Hunt, was supping those new proposals with a rather long spoon, but I would remind him that the current procedure of payments into court certainly induces and puts a lot of pressure on the plaintiff; but there is no similar process which puts pressure on the defendant. As a result, as the noble and learned Lord said, it is the experience of those of us who do practise in the courts--for example, in personal injuries cases, and the like--that it is only at the door of the court that settlements are achieved in many cases involving insurance companies. Therefore, the new proposals contained in this part dealing with offers of settlement of inducing defendants to settle by imposing a percentage on damages--which is quite modest; indeed, I believe only about 7 per cent.--and also by stiffening up the orders of cost are, I believe, to be welcomed.
Another imaginative part of the rules is contained in the new cost rules which are to be found in Part C of the document from page 227 onwards. I have often argued in your Lordships' House that the rule of "costs following the event" is clumsy and sometimes plain unfair on parties. Therefore, I find it sensible that in the new rules conduct is now to be taken into account. Indeed, on page 234 of the document, we have reference to the kind of conduct which can be taken into account; for example,
If my recollection is right, I think in the original report of the noble and learned Lord he and his colleagues said that cost was one of the greatest problems in the conduct of litigation. I believe that the new approach to costs, and not the slavish policy of costs following the rules, is much to be welcomed.
But having given a solid welcome to these new rules, I would like to make a few points about them. First, they will work only if the judges make them work. Case management is a discipline in which judges must be trained, as they are, for example, in sentencing. If judges do not intervene, the new dawn will never come. But if judges become too interventionist, the appeal process will clutter up the system and the new dawn will be darkened.
The second point I wish to make is that these new rules will not work unless there is sufficient support from information technology. This requires much training and much money. I am not saying that is a reason for not pressing forward now but I am saying it is most important that there is sufficient IT resource.
Thirdly, the civil procedure rules should, if possible, come into force as a single package. My noble and learned friend referred to it as a rolling programme of reform. But rolling or not, we should not be left in an interim state where we are half referring to the new rules and half referring to the old rules. Both in the draft rules provided by the noble and learned Lord, Lord Woolf, in the "Brown Book" as it is called, and in the rules that we are considering now, we are told that these are just the "core" rules. It is to be noted that in the rules we are currently considering third party proceedings and consolidation are not covered; the appeals process is not covered and enforcement of judgments is not covered. In so far as certain matters that are covered, for example, court service in Part 6, we are told that for service "out of jurisdiction" we have to apply to specific rules of the High Court, to the Rules of the Supreme Court, Order 11, Rule 1, or to the County Court rules, Order 8, Rule 2.1. I believe that that is unsatisfactory. It will cause confusion and is most undesirable.
Fourthly, I believe that some of the new rules need more work. I refer, for example, to the new rules concerning the disclosure of documents in Part 27. The requirement here on a party who has to make the
I would also like to make one small but I believe important point concerning the proposed new procedure of statements of truth. That is to be found concerning the statement of case of the claimant in Rule 7.6; the statement of case of the defendant in Rule 9.7; and for an application in Rule 10.7. I believe that the statement of case should not be signed by anybody but the litigant; that is, the claimant or the defendant. It should not therefore be signed by the "litigation friend" or the "legal representative". It is a personal commitment of truth on the part of the party and it would be wholly unsatisfactory if it were to be signed by persons other than the claimant or the defendant.
My position is therefore this. I believe that more time and work are needed: for the judges to be trained; for more IT resource to be made available; for the rules to be further worked upon; and, if possible, for a single, complete package to be provided. But in asking for that, I am not asking for delay. There is still time in the gestation period of nine months to address those issues. We are stepping into a new dawn. Profound congratulations should go to the noble and learned Lord, Lord Woolf, to my noble and learned friend, and to the new Civil Procedure Rules Committee.
Lord Meston: My Lords, these draft rules are clearly vital to the reforms which have been master-minded by the noble and learned Lord, Lord Woolf, who even before their implementation has already done so much to improve the culture, the mechanics and the pace of litigation in this country. I join in paying tribute to his immense hard work.
These rules skilfully try to strike that balance--between, on the one hand, efficiency for the benefit of all court users and taxpayers and, on the other, over-prescriptive control, which can be counter-productive. The unhappy history of the automatic striking out rules in the county court provide an example of the latter.
The "overriding objective" stated in Rule 1 includes consideration of the parties' financial position. Fears have been expressed that litigants will be able to plead poverty in order to avoid the normal obligations of disclosure, or even that the courts will be asked to assess a party's true financial position if it is disputed and if it is thought relevant to do so. That will be undertaken so that the court can decide how a case should proceed. I believe that those fears are misplaced. However, they illustrate the danger of focusing too closely on one part of the definition of the overriding objective stated in the first rule.
Many of these rules are old friends in simpler, modern clothing. It is essential that the language of the rules, their structure and the sanctions can be readily understood, not just by lawyers but by unrepresented litigants, who increasingly occupy the courts. So it is that we shall say farewell to plaintiffs, writs, summonses, discovery, interrogatories and subpoenas. I note, however, that affidavits have hung on by the finger-nails.
I shall not take time this evening raising queries about details of the rules but, like other noble Lords, shall refer to a few broad areas of concern. The first is expert witnesses. The vice of too adversarial partisan experts is well understood. I have recently completed a case in which no fewer than four pathologists had to carry out a post-mortem examination of a body In the event three of those four agreed with each other in every respect.
I suggest, however, that there might be in the rules greater prominence of and emphasis on the appointment of single experts. In the draft rules, under Rule 32.8, there is a discretionary power. Would it not be preferable for the appointment of joint experts to be more clearly the first step to be taken rather than an option which the court may or may not encourage? Likewise, Rule 32.9 provides for joint experts to be separately instructed. I suggest it would be preferable for joint instructions to be the normal starting point and for that to be clearly stated in the rules.
Secondly, I question whether the rules could place more emphasis on settlement. Under Rule 1.4, active management of cases by the court includes helping the parties to settle, but it is not clear how that will be achieved in practice. Rule 24.5 permits a party to request a stay of proceedings for settlement to be attempted which the court will normally grant. But I question whether that is enough and suggest that there is some merit in trying to follow the lines of the remarkably successful and cost-effective pilot scheme operating in matrimonial ancillary relief cases. That scheme obliges the parties to place all their cards on the table face up at an early stage and to disclose to the court all offers of settlement at a privileged hearing in order to facilitate a compromise, which is often achieved before the case has to go any further.
That system may not be capable of wholesale transposition to other civil litigation, but I would like to see more emphasis on a positive duty to negotiate which undoubtedly obtains in family law disputes. It must be possible in most cases to bring the parties, not just their lawyers, to the court to negotiate face to face and for a
In any event, the parties should, as happens now in matrimonial cases, be from time to time, as a matter of mandatory requirement, made to look at the movement of the costs meter on the expensive taxi cab in which they are riding.
Finally, as has been said by the noble Lord, Lord Hacking, and others, these draft rules are not yet comprehensive. As the noble and learned Lord the Lord Chancellor explained, it is understood that there will have to be specialist rules, for example in housing cases and judicial review cases. It is regrettable if this important body of reform comes in too piecemeal.
As has also been observed by the noble Lord, Lord Hacking, the rules do not cover appeals--either appeals within the same court from district judge or master to the judge in the county court or the High Court, or, of course, appeals to the Court of Appeal. However, Rule 2.1 in the draft rules suggests that in due course the Court of Appeal rules will become incorporated into the overall body of the new rules.
The current rules and provisions governing the Court of Appeal--and I hope that the noble and learned Lord, Lord Woolf, will forgive me for this--are increasingly impenetrable and complex and take up a large part-- I suggest a disproportionate part--of the current white book. Of course, I understand that the rules of the Court of Appeal are themselves subject to separate review, but it would be helpful if the opportunity could be taken this evening for an indication to be given of when that review will be completed and when new rules for the Court of Appeal will be incorporated.
As the noble Lord, Lord Hacking, said, the rules do not cover enforcement. Again, concern has recently been expressed that the courts in this country do not provide enough help in enforcing judgments, so depriving the litigant, and in particular the unrepresented litigant who has struggled through the procedures, of the opportunity to achieve his judgment. They do not provide enough help in recovering the benefit of the judgment which he has obtained. There is of course a limit to what the court can do, but I suggest that there is a definite need for simpler, more speedy procedures. Again, I hope that the noble and learned Lord the Lord Chancellor will confirm that some consideration is being given to that by his department.
It is a cliche that procedural rules are servants, not masters. The new rules have the potential to serve us well. There will be a new responsibility on the legal profession to make them work. The noble and learned Lord, Lord Woolf, referred to their conception and their birth. Following birth, there will certainly be a period of nursery education and training which we hope will not be too expensive or drawn out.
I shall not weary your Lordships' House with a further exegesis of the rules. These have already been admirably discussed by noble and learned and noble Lords. Such was the scope and quality of the contribution of the noble Lord, Lord Hunt of Wirral, that, save only for questioning his hesitations in relation to the qualities of the adversarial system, I adopt entirely his speech on behalf of the Opposition.
The Lord Chancellor: My Lords, I acknowledge the Government's debt to the noble and learned Lord, Lord Woolf, yet again. At the outset of his speech he was too modest; he has nothing to be modest about. However, I found it difficult to conceive of the image of myself as a midwife.
The noble Lord, Lord Hunt, expresses concern in relation to partial implementation. He reminds us that the noble and learned Lord, Lord Woolf, describes the proposals as a package. I say this. There are always those who say, "Festina lente". But if I may mix my Latin metaphors, we cannot expect Rome to be built in a day, but we can make a good and improving start.
Essentially, the noble Lord asked how I can expect practitioners to be ready when we consider that the rules will not be signed by me until the end of the year. He suggests that there is simply not enough time for adequate preparation. But practitioners have had ample warning and opportunity to prepare for next April on the basis of the large amount of information currently available in relation to the reforms.
These changes have been developed in an open way over a lengthy period. The professions have known essentially what they will have to cope with for a long time. I refer in particular to the need to identify the key issues in a case, hence the relevant documentation and other material and also the need to run cases to a timetable. To assist them further, my department is placing the latest draft rules on the Internet with updated versions being added as the rules committee continues its work. Practice directions will also be placed on the Internet in due course.
I have already delayed implementation by six months to allow more time for preparation. I share the view of the noble and learned Lord, Lord Woolf, that further delay would risk loss of momentum. We should not wait any longer than necessary to bring the considerable benefits of the reforms to litigants. We can produce significant benefits before full IT back-up is available.
Allowance has been made in the court service budget for IT support. The exact figures are subject to negotiation with the IT suppliers and obviously therefore, I can go no further. The Judicial Studies Board has been allocated £680,000 to meet the funding for training for the judiciary. This will enable us to deliver the reform training programme for the full and part-time judiciary.
The noble Lord, Lord Hunt, invites me to offer him some comfort as to when the full IT back-up will be in place. I am neither an optimist nor a pessimist but a realist. We all know that IT systems have a worrying habit of being late, but I remain hopeful for 2000. I endorse the general point made by the noble Lord that the rules and the protocols must be balanced and fair to both plaintiffs and defendants.
I welcome the support of my noble friend Lord Hacking. He was right to emphasise the fundamental transfer of power from the lawyers to judges which the new system will entail. He is also right that the new rules will only work if the judges make them work. The judges must not flinch from imposing toughly the sanctions that are available to them.
Finally, let me say this. The Rule Committee will finalise its work on these rules in November of this year. Subject to my approval, they will be laid before Parliament before Christmas and published in January 1999 for introduction in April of that year. This is a substantial start to a historic process of reform--but it is only a start.
Work is already under way to reform the practices and procedures of the Court of Appeal in line with the Beaumont Report. That meets some of the concerns of the noble and learned Lord, Lord Meston. Work is also under way to bring the rules governing proceedings in housing cases into the new plain English style and to overhaul radically the enforcement process to increase significantly the number of claimants who are able to achieve satisfaction of the judgments given in their favour.
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