Overriding Objective
Description.
There have been many attempts to reform civil procedure from the late 19th century
with the Supreme Court of Judicature Act 1863. Gradually the reforms created a
single system of civil courts organised in divisions. The high court dealt with higher
value and more complex matters and the county court dealt with lower value matters.
There was then an inquiry made in relation to access to Justice. The two Woolf
reports were the Interim Report 1995 and Final Report 1996- there was the belief
amongst clients and lawyers that the civil justice system was broken and needed
major reforms. There was also the issue of legal representatives trying to fill their
pockets rather than trying to get justice for their clients.
Woolf MR identified the following problems of the system :
- Litigants had unlimited court resources. The system was party led not court
led. The judge was a neutral referee.
- Courts (and rules) tolerated complexity.
- Technical issues of procedure produced wasteful and expensive satellite
litigation (which parties could use to put pressure on opponents or delay
judgment.) - if your client did not have a strong legal claim, they would use
technical issues.
- There were different rules for different courts.
- Costs were high and unpredictable.- there wasn’t the pressure to keep your
client informed on costs. Generally, someone would employ a lawyer and
would agree a bill would be given but they did not know the price.
- There was a huge delay in the system. A personal injury case might take 5
years to decide. Companies owed money might go bust waiting for judgement
letting the debtor off the hook. Things were taking so long because
information was being asked all the time and many were asking for stays or to
bring more witnesses and this clogged up the courts.
- During this period and its complexities, it could be argued justice was not
being done.
The Civil Procedure Rules laid out Woolf's solution. They came into force in April
1999. Now, for the first time these rules had a guiding principle which was the
overriding objective. The idea being that these new rules would codify and clarify all
courts with regards to litigation.
1.1 two elements - dealing with cases justly and at a proportionate cost. Justly is not
controversial as cases without justice would be an abomination. The second keeping
costs proportionate limits the amount of court time to what is fair. Uncontroversial
also as a matter of principle but difficult to achieve. CPR 1.1 has also been amended
and now states (a) ensuring that the parties are on an equal footing and can
participate fully in proceedings, and that parties and witnesses can give their best
evidence. This was as a result of a report about vulnerable witnesses in 2021.
1.4 sets out a list to keep costs and time proportionate.
1.2 requires the court to give effect to the overriding objective, which 1.3 helps
achieve.
1.3- Assist the court in achieving the objective justly and proportionate costs. E.g.
preparing a written draft of the order made and then submitting it to the other party
for agreement. This is there duty and in Webb Resolutions Ltd v JV Ltd (t/a
Shepherd Chartered Surveyors) [2013] EWHC 509 (TCC) a party which failed to do
so was penalised in costs.
Another way in which parties must assist the court is described in r.3.1(8): respond
promptly to any enquiries the court makes of them in order to monitor compliance
with orders. Assistance also involves cooperating with other parties, combining
, applications to minimise hearings, and comply with any order made by the court fully
and timely.
The overriding objective of the reform was , simply , to enable the court to deal with
cases justly. Here it ensured that:
Parties must be on equal footings to financial resources and information.
Financially stronger parties cannot intimidate a weaker party by escalating costs.
If one side has a disproportionate pocket than the other, the court may place the
party the burden of taking steps in litigation that would be taken by the opposing
party. E.g. Preparing trial bundles (Maltez v Lewis 1999 per Lord Neuberger J).
Inequality of information may put a defendant at disadvantage so the pre action
protocols are intended to remedy this.
Where they do not apply or have not been complied with the court will grant any
extensions of time necessary to stop the inequality.
Judges to take charge of the procedure and case-manage. Particularly , the time of
the court was to be rationed: trials were to be either fixed to one day or of a duration
decided by the court.
The use of experts and lay (non opinion) witnesses should be limited- rather a written
statement than bring them to court because this makes the cases more time
efficient.
Lord Chancellor 2009 “that every citizen now has the ability to approach our legal
system and ask for justice without always needing expert knowledge and aware of
the continuing drive to control costs is something we should be proud of, and we
must ensure that these ideals are never lost in the business of reviewing , changing
and implementing these rules.”
DOES IT WORK? Professor Michael Zander of the LSE said it might cut delays but
would increase costs based on research into case management in the USA by the
RAND Corporation. Peysner’s research agreed. Delays have been reduced (most
smaller cases can be tried within a year) but costs remain a problem.
Equal footings is not the same as adopting a principle of equivalence. A claimant who
cannot afford to instruct leading counsel cannot obtain an order debarring the
defendant from instructing leading counsel, it is a fundamental right to be
represented by legal advisors of their choice.
Also, the court cannot limit the costs consequences of litigation having regard to the
pocket of the poorest party. Payable amount will not be reduced to the amount they
can afford. (Ilangaratne v British Medical Association [2005] EWHC 2096 (Ch)
Courts should not modify rules for those not represented. “the rules provide a
framework within which to balance the interest of both sides. That balance is
disturbed if an unrepresented litigant is entitled to greater indulgence in complying
with them than his represented opponent. Unless the rules and practice directions
are particularly inaccessible or obscure, it is reasonable to expect a litigant in person
to familiarise himself with the rules which apply to any step he is about to take” (per
lord Sumption in Barton v Wright Hassall LLP [2018] UKSC 12 at [18]).
The OVOB is the touchstone by which courts exercise its various powers under the
rules and how to interpret them.
Important qualifications. Terrorism , Prevention and Investigation and Measures Act
2011, and certain linked statues , there is duty to ensure information is not disclosed
contrary to public interest, and the overriding objective must be compatible with that
duty.
Dealing with cases justly requires the court to consider more than just the interest of
parties and court users. Must consider public as a whole. Justice and security Act
2013 sensitive information is not disclosed in a way which would be damaging to the
interests of national security.
THE JACKSON CHANGES. LJ Jackson’s Cost review has led to changes starting in
2013. They were supposed to keep costs down however this didnt work. Costs are
still being reviewed now.
, HOW DO CIVIL COURTS DECIDE THINGS POST WOOLF:
Written documents set out the parties case. These used to be called pleadings and
were highly technical: bills, cross bills, answers , rejoinders. They are now simpler,
normally just a claim and defence.
Evidence used to be given orally. Now in most cases the witness evidence will be
given in writing and only the cross examination will be oral.
The decision used to be made by a jury. Now it will almost always be by a judge
sitting alone.
Judges are all former practitioners (mostly barristers). Part time judges are in part
time practice.
The case used to be set out by the advocates at the trial. Now skeleton arguments
and lists of cases must be submitted in writing in advance.
Physical evidence (a broken machine tool/a video showing the ‘disabled’ claimant
working) can be used.
Expert evidence (giving an opinion on whether the machine really doesn’t work or
that the video has been edited to show the claimant in a bad light) can be used. It is
normally in writing. Sometimes it is joint (‘hot tubbing’).
In England & Wales there is no requirement to be represented unlike some
jurisdictions (Scottish courts have a different type of procedure based on Roman
law).
Courts also decide who pays the costs at the end or, sometimes, during the case
using a system of default orders and Offers to Settle (part 36).
MORE REFORMS NEEDED:
The current system even after the Jacksons 2013 reforms is too expensive at least
for cases up to £250000. The whole system needs to be reviewed again because the
argument now is that case management, fixed costs and witness statements and
restriction on experts actually increase costs. Civil Liability Act 2018 dealing with
whiplash and personal injury claims. On line courts- due to COVID has been fast
forwarded.
Peysner(2005) the management of Civil cases shows the impact of the Woolf
reforms. The findings were that the culture of litigation had changed for the better,
with cooperation between the parties improving, there were mixed views over
whether the delay had been reduced. Case management conferences were felt to be
one of the major successes of the CPR. There was a more uniform procedure across
the country. There was a very high rate of settlement, often more than 60% and in
some courts over 80%. Part 36 process and sanctions attached to it were found to be
effective, although it was felt to be too complicated and difficult to explain to the
client. There was little or no increase in ADR and out of court mediation; in practice,
judges rarely stay cases for mediation, and ADR had not become incorporated into
the court process. Costs increased overall as a result of the CPR and the front-
loading of costs,with costs in fast track cases being disproportionate. The courts
were still under resourced and the IT systems primitive compared with those used by
practitioners.
2011 Ministry of Justice consultation on reforming civil justice. Solving disputes in the
county courts.- it was 15 years since the Woolf report and the framework could not
maintain up with the ‘significant economic and social changes that have taken place
since then.’ We agree that the mechanism has to rely primarily on conflict settlement
and debt repayment than on the principles of ‘justice’. In fact they found out that the
costs of taking a lawsuit to a trial are sometimes higher than the sum stated. Ideally,
disputes are : ‘should be resolved in the most appropriate forum, so that processes
and costs are commensurate ith the complexity of the issues involved.’ They
proposed a range of options to achieve this, including : fixed costs (already used for
traffic accidents under £10000) to be extended to other personal injury claims for up
Description.
There have been many attempts to reform civil procedure from the late 19th century
with the Supreme Court of Judicature Act 1863. Gradually the reforms created a
single system of civil courts organised in divisions. The high court dealt with higher
value and more complex matters and the county court dealt with lower value matters.
There was then an inquiry made in relation to access to Justice. The two Woolf
reports were the Interim Report 1995 and Final Report 1996- there was the belief
amongst clients and lawyers that the civil justice system was broken and needed
major reforms. There was also the issue of legal representatives trying to fill their
pockets rather than trying to get justice for their clients.
Woolf MR identified the following problems of the system :
- Litigants had unlimited court resources. The system was party led not court
led. The judge was a neutral referee.
- Courts (and rules) tolerated complexity.
- Technical issues of procedure produced wasteful and expensive satellite
litigation (which parties could use to put pressure on opponents or delay
judgment.) - if your client did not have a strong legal claim, they would use
technical issues.
- There were different rules for different courts.
- Costs were high and unpredictable.- there wasn’t the pressure to keep your
client informed on costs. Generally, someone would employ a lawyer and
would agree a bill would be given but they did not know the price.
- There was a huge delay in the system. A personal injury case might take 5
years to decide. Companies owed money might go bust waiting for judgement
letting the debtor off the hook. Things were taking so long because
information was being asked all the time and many were asking for stays or to
bring more witnesses and this clogged up the courts.
- During this period and its complexities, it could be argued justice was not
being done.
The Civil Procedure Rules laid out Woolf's solution. They came into force in April
1999. Now, for the first time these rules had a guiding principle which was the
overriding objective. The idea being that these new rules would codify and clarify all
courts with regards to litigation.
1.1 two elements - dealing with cases justly and at a proportionate cost. Justly is not
controversial as cases without justice would be an abomination. The second keeping
costs proportionate limits the amount of court time to what is fair. Uncontroversial
also as a matter of principle but difficult to achieve. CPR 1.1 has also been amended
and now states (a) ensuring that the parties are on an equal footing and can
participate fully in proceedings, and that parties and witnesses can give their best
evidence. This was as a result of a report about vulnerable witnesses in 2021.
1.4 sets out a list to keep costs and time proportionate.
1.2 requires the court to give effect to the overriding objective, which 1.3 helps
achieve.
1.3- Assist the court in achieving the objective justly and proportionate costs. E.g.
preparing a written draft of the order made and then submitting it to the other party
for agreement. This is there duty and in Webb Resolutions Ltd v JV Ltd (t/a
Shepherd Chartered Surveyors) [2013] EWHC 509 (TCC) a party which failed to do
so was penalised in costs.
Another way in which parties must assist the court is described in r.3.1(8): respond
promptly to any enquiries the court makes of them in order to monitor compliance
with orders. Assistance also involves cooperating with other parties, combining
, applications to minimise hearings, and comply with any order made by the court fully
and timely.
The overriding objective of the reform was , simply , to enable the court to deal with
cases justly. Here it ensured that:
Parties must be on equal footings to financial resources and information.
Financially stronger parties cannot intimidate a weaker party by escalating costs.
If one side has a disproportionate pocket than the other, the court may place the
party the burden of taking steps in litigation that would be taken by the opposing
party. E.g. Preparing trial bundles (Maltez v Lewis 1999 per Lord Neuberger J).
Inequality of information may put a defendant at disadvantage so the pre action
protocols are intended to remedy this.
Where they do not apply or have not been complied with the court will grant any
extensions of time necessary to stop the inequality.
Judges to take charge of the procedure and case-manage. Particularly , the time of
the court was to be rationed: trials were to be either fixed to one day or of a duration
decided by the court.
The use of experts and lay (non opinion) witnesses should be limited- rather a written
statement than bring them to court because this makes the cases more time
efficient.
Lord Chancellor 2009 “that every citizen now has the ability to approach our legal
system and ask for justice without always needing expert knowledge and aware of
the continuing drive to control costs is something we should be proud of, and we
must ensure that these ideals are never lost in the business of reviewing , changing
and implementing these rules.”
DOES IT WORK? Professor Michael Zander of the LSE said it might cut delays but
would increase costs based on research into case management in the USA by the
RAND Corporation. Peysner’s research agreed. Delays have been reduced (most
smaller cases can be tried within a year) but costs remain a problem.
Equal footings is not the same as adopting a principle of equivalence. A claimant who
cannot afford to instruct leading counsel cannot obtain an order debarring the
defendant from instructing leading counsel, it is a fundamental right to be
represented by legal advisors of their choice.
Also, the court cannot limit the costs consequences of litigation having regard to the
pocket of the poorest party. Payable amount will not be reduced to the amount they
can afford. (Ilangaratne v British Medical Association [2005] EWHC 2096 (Ch)
Courts should not modify rules for those not represented. “the rules provide a
framework within which to balance the interest of both sides. That balance is
disturbed if an unrepresented litigant is entitled to greater indulgence in complying
with them than his represented opponent. Unless the rules and practice directions
are particularly inaccessible or obscure, it is reasonable to expect a litigant in person
to familiarise himself with the rules which apply to any step he is about to take” (per
lord Sumption in Barton v Wright Hassall LLP [2018] UKSC 12 at [18]).
The OVOB is the touchstone by which courts exercise its various powers under the
rules and how to interpret them.
Important qualifications. Terrorism , Prevention and Investigation and Measures Act
2011, and certain linked statues , there is duty to ensure information is not disclosed
contrary to public interest, and the overriding objective must be compatible with that
duty.
Dealing with cases justly requires the court to consider more than just the interest of
parties and court users. Must consider public as a whole. Justice and security Act
2013 sensitive information is not disclosed in a way which would be damaging to the
interests of national security.
THE JACKSON CHANGES. LJ Jackson’s Cost review has led to changes starting in
2013. They were supposed to keep costs down however this didnt work. Costs are
still being reviewed now.
, HOW DO CIVIL COURTS DECIDE THINGS POST WOOLF:
Written documents set out the parties case. These used to be called pleadings and
were highly technical: bills, cross bills, answers , rejoinders. They are now simpler,
normally just a claim and defence.
Evidence used to be given orally. Now in most cases the witness evidence will be
given in writing and only the cross examination will be oral.
The decision used to be made by a jury. Now it will almost always be by a judge
sitting alone.
Judges are all former practitioners (mostly barristers). Part time judges are in part
time practice.
The case used to be set out by the advocates at the trial. Now skeleton arguments
and lists of cases must be submitted in writing in advance.
Physical evidence (a broken machine tool/a video showing the ‘disabled’ claimant
working) can be used.
Expert evidence (giving an opinion on whether the machine really doesn’t work or
that the video has been edited to show the claimant in a bad light) can be used. It is
normally in writing. Sometimes it is joint (‘hot tubbing’).
In England & Wales there is no requirement to be represented unlike some
jurisdictions (Scottish courts have a different type of procedure based on Roman
law).
Courts also decide who pays the costs at the end or, sometimes, during the case
using a system of default orders and Offers to Settle (part 36).
MORE REFORMS NEEDED:
The current system even after the Jacksons 2013 reforms is too expensive at least
for cases up to £250000. The whole system needs to be reviewed again because the
argument now is that case management, fixed costs and witness statements and
restriction on experts actually increase costs. Civil Liability Act 2018 dealing with
whiplash and personal injury claims. On line courts- due to COVID has been fast
forwarded.
Peysner(2005) the management of Civil cases shows the impact of the Woolf
reforms. The findings were that the culture of litigation had changed for the better,
with cooperation between the parties improving, there were mixed views over
whether the delay had been reduced. Case management conferences were felt to be
one of the major successes of the CPR. There was a more uniform procedure across
the country. There was a very high rate of settlement, often more than 60% and in
some courts over 80%. Part 36 process and sanctions attached to it were found to be
effective, although it was felt to be too complicated and difficult to explain to the
client. There was little or no increase in ADR and out of court mediation; in practice,
judges rarely stay cases for mediation, and ADR had not become incorporated into
the court process. Costs increased overall as a result of the CPR and the front-
loading of costs,with costs in fast track cases being disproportionate. The courts
were still under resourced and the IT systems primitive compared with those used by
practitioners.
2011 Ministry of Justice consultation on reforming civil justice. Solving disputes in the
county courts.- it was 15 years since the Woolf report and the framework could not
maintain up with the ‘significant economic and social changes that have taken place
since then.’ We agree that the mechanism has to rely primarily on conflict settlement
and debt repayment than on the principles of ‘justice’. In fact they found out that the
costs of taking a lawsuit to a trial are sometimes higher than the sum stated. Ideally,
disputes are : ‘should be resolved in the most appropriate forum, so that processes
and costs are commensurate ith the complexity of the issues involved.’ They
proposed a range of options to achieve this, including : fixed costs (already used for
traffic accidents under £10000) to be extended to other personal injury claims for up
