#10349 - Overriding Objective And Human Rights - BPC Civil Litigation

OVERRIDING OBJECTIVE

OVERRIDING OBJECTIVE (OO)

1.1 CPR

(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

(2) Dealing with a case justly and at proportionate cost 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-

(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;

(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases; and

(f) enforcing compliance with rules, practice directions and orders.

• applies to courts and parties

'A NEW PROCEDURAL CODE' - SOURCES OF PROCEDURAL LAW

Statutory Sources

• CA & HL - Senior Courts Act 1981

• CC - County Courts Act 1984

• Civil Procedure Act 1997

  • s2 - empowers CPR Comm to make rules

  • s1(3) - must be simple & simply expressed

  • CPR 1998 = e.g. of these

• provisions from previous rules of court preserved for time being in Schs 1 and 2 to CPR

Practice Directions and court guides

• made by LCJ/nominee w/ approval of LC or LCJ

• includes practice directions supplementing CPR & general ones made in past by courts

• detailed court guides w/ no formal status published for specialist courts

Judicial sources

• CPR often loosely drafted, details worked out on case-by-case basis

Lacunae in county court rules

• s76 CCA 1974 - HC practice can be applied to Coco if gap

Inherent jurisdiction

HC

• inherent control of procedure and ensure no injustice - constitutional right

• if CPR does not cover, resort to inherent jurisdiction - cautious approach to expansion of principle

• if codified, inherent jurisdiction ceases

CC

• Landley v NW Water Auth 1991 - est CC's inherent jurisdiction

ACTIVE CASE MANAGEMENT

• 1.4(1) CPR - court must further OO by actively managing cases

• List in 3.1(2) enables this active management

General case management

• usu active judicial case management at following stages

  • a) allocation stage - track; timetable

  • b) evidence to be adduced at trial - esp expert

  • c) listing for trial - set date/window; avoid delay

  • d) trial itelf

  • e) costs - proportionality; penalise those breaching OO

Specific instances of active case management

• proportionality of interim applications

• making directions; striking out unreasonable proceedings

• summary judgment (cases w/o chance of success)

• further info generally

Technology

• more likely in heavy litigation

• only acceptable if saves time & ; does not prejudice parties

INTERPRETING THE CPR - CPR 2.3 - definitions

General approach

• purposive

• CPR = SI Interpretation Act 1978 applies

When are the pre-CPR rules of court relevant to the 'new procedural code'?

(a) old case law on substantive point e.g. test

(b) lacuna in CPR authorities can be incorporated into CPR by r3.1 (general power to rectify error of procedure)

(c) wording of new rule is same as old

• otherwise, CPR = new procedural code old case law strictly not binding, but in reality used as a guide

OO as guide to interpretation

• if no express words, court use interpretation which best reflects OO

Natural meaning

• give effect to OO in interpreting any rule

• above doesn't apply is words clear

HR as guide to interpretation

• additional words read into CPR rule to comply w/ 3(1) HRA

Rules of precedent

• SC can sometimes depart from prev ruling

• CA and all lower bound by - SC, HL, CA

APPLICATION OF OO

Dealing w/cases justly

CPR r1.1(1)

• primary concern of ct = justice: dealing w/both sides' real case; if poss decide on merits

• BUT justice must be done at proportionate cost

Equal footing

• unfair exploitation of superior resources, as opposed to failure to provide info -Henry v Newsgroup

• tackle lack of equality between under-resourced litigant and powerful wealthy litigant

• establish 'equality of arms'

• not just financial - experience at court

• exploit rules of court spin out proceedings and escalate costs

• respective access to expert evidence - general rule should be same amount of expert witnesses

• Where one party can afford to instruct a large firm of experienced and expensive solicitors, whereas the other can afford only small and relatively inexperienced advisers, the court may make orders designed to rectify this imbalance

  • e.g. orders allowing the smaller firm more time to carry out necessary work, or requiring the larger firm to prepare bundles of documents needed for court hearings

• BUT court has no power to prevent a party from instructing the legal representatives of his choice (even on the ground that he is able to afford more powerful representation than his opponent)

Proportionality

• at heart of CPR

• applications on minor matters may be seen as tactical posturing may be dismissed on prop grounds - TIP Communications LLC v Motorola

• e.g. taking point that particulars of claim 1 min late = unmeritorious in absence of prejudice - Kent Hospitals NHS Trust

• costs budgeting required at outset when disproportionate costs could be incurred - Lownds v SoS Home Dept [2002] EWCA Civ 365

  • likely value of claim

  • importance and complexity

Dealing w/cases expeditiously & fairly; saving expense

• keep litigation as cheap as poss

• Adan v Securicor - separate trials refused to avoid exposing insurer to liability for indefinite period

• court deals by

  • summary disposal of claims / issues within claims court saves expense and achieves expedition - Swain v Hillman [2001] 1 All ER 91

Allotting appropriate share of court's resources

• bad use of resources

  • Stephenson (SBJ) v Mandy CA - refused to consider merits of interim appeal as short time to trial

  • Adoko v Jemal - badly administrated/organised appeal dismissed, to avoid allotting more than fair share of court resources

• Impact on other cases of:

  • inconvenience of delay caused by other case expense

  • wasted court resources for unnecessary applications

• Delay assessed not only from POV of prejudice caused in their case, but what it causes to other litigants and the admin of justice

• Summary judgment gives effect to particular objective in this section of OO - Swain v Hillman

• Even where amounts at stake substantial, rule applies - Morris v Bank of America National Trust [2001] 1 All ER 954

Cooperating

• Chilton v Surrey Coco - CA decided against D as D attempting to take tactical advantage of mistake by D's solicitors

• King v Telegraph Group- solicitors criticised for using vituperative (insulting) lang to raise hostility and costs

• Hertsmere PCT v Administrators of Balasubramanium's Estate - party refused to tell other side nature of technical error in Part 36 offer

HUMAN RIGHTS

• primary and subordinate legislation must be read and given effect in way which is compatible w/ECHR

  • additional words can be read into CPR

• s4 declarations of incompatibility should only be granted to C who is/could be personally adversely affected by the impugned legislation

• unlawful for public authority to act in contravention of ECHR V of unlawful act can

  • rely on ECHR rights in any court proceedings

  • may bring proceedings under HRA against the public authority

  • damages only awarded if court satisfied necessary to afford just satisfaction to C

• if party seeks to rely in civil proceedings on provision / right or seeks remedy under HRA, must state precise details in statement of case - PD 16, para 15.1

• decision of ECHR not binding, but provide authoritative guidance

  • court will need good reason to depart from clear and consistent ECHR case law

  • if SC decision on a point, lower courts must follow SC decisision, even if subsequent conflicting ECHR one

RIGHT TO A FAIR TRIAL (ART 6)

• basic principle: civil claims must be capable of being submitted to judge for adjudication

• engaged if:

  • only forum for deciding dispute NOT independent / impartial;

  • procedural bars prevent claim being decided on merits

• not engaged where complaint about how law framed;

• Art 6(1) cannot create substantive right w/o basis in national law

• where it is alleged that art 6 is infringed by statute which replaces right to litigate w/admin system or tribunal system w/limited recourse to courts 3 Qs to be answered:

  • 1) did case involve determination of C's 'civil rights & obligations'?

Inc. private law decisions and public law decisions affecting C's private law rights

2) was administrative determination of C's rights subject to control by court w/ full jurisdiction to deal w/case as required?

Right to JR of admin decisions satisfies art 6 provided no substantial factual investigation required

• 3) where C right of access to ct restricted, do restrictions satisfy proportionality test?

Balance: objectives of admin scheme / means to achieve

Rights established by Art 6

• fair hearing before impartial tribunal

• general rule:

  • most hearings public - r39.2

  • BUT only necessary in civil cases where court has to make a decision re: party's character

• exceptions (which do not infringe Art 6):

  • child custody hearings can justifiably be in private

• parties should be afforded equality of arms

  • entitled to adequate time & facilities

  • BUT party who can afford a C should not be denied one if other party can't afford

• all circumstances relevant to deciding if hearing held within reasonable time

• stay pending payment of costs of earlier claim compatible w/art 6, even if parties are not entirely the same, provided 2nd claim arose out of...