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In 1999, the English Courts saw a huge change in the procedure
and ethos of Litigation. The rules of Court were totally overhauled
to create the Civil Procedure Rules ("CPR").
The aim of the changes were to discourage Litigation except
as a last resort, to limit the cost of Litigation and give
more certainty in estimating costs, to create a more equal
process and to create a quicker process.
The overriding objective of the CPR is worth setting out
fully:
"1.1 THE OVERRIDING OBJECTIVE
These Rules are a new procedural code with the overriding
objective of enabling the court to deal with cases justly.
Dealing with a case justly includes, so far as is practicable
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate
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i. to the amount of money involved;
ii. to the importance of the case;
iii. to the complexity of the issues; and
iv. to the financial position of each party; |
(d) ensuring that it is dealt with expeditiously and fairly;
and
(e) allotting to it an appropriate share of the court's resources,
while taking into account the need to allot resources to other
cases.
1.3 DUTY OF THE PARTIES
The parties are required to help the court to further the
overriding objective."
Before the CPR came into force, it was not unusual for Litigation
to take 36 months from issue of the Writ to Trial. In our
experience, that has reduced to 18-24 months.
Most lawyers' experience is that the CPR have not succeeded
in reducing costs. This is because a great deal of the work
now needs to be done at the beginning of the matter - long
before any real settlement discussions are likely. For more
information on legal costs, please see our FAQ section.
The rules include "pre-action protocols" designed
to encourage the parties to explore each other's position
and possibilities for settlement long before a Claim Form
(the new terminology for Writ) is issued. The protocols generally
give the parties 6 months to do this - during which time neither
can issue proceedings.
Care should be taken before dismissing the various alternative
dispute resolution processes. The desire of one party to have
their day in Court may be satisfied through Mediation
or Arbitration by a senior Barrister
or through early neutral evaluation ("ENE"). An
ENE is more likely in large value commercial cases and involves
submissions in Court by Counsel and a formal opinion by a
Judge. The opinion is not binding but will generally form
the basis for almost immediate settlement.
An evidential "mis-match" may be dealt with by
detailed questioning of witnesses in a mediation process.
There are some cases in which Litigation is the only option.
These are:
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Where an Injunction is required. |
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Where a precedent needs to be set. This
could be in cases where a matter is brought as a test
case or a political issue is involved. |
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Where, despite challenging the evidence,
a complete "mis-match" in the witness evidence
remains which can only be resolved through cross-examination. |
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Where reputation is at stake. |
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