I have seen many hundreds of Defences in Dental Clinical Negligence cases but I’ve never seen this one:
I have seen many hundreds of Defences in Dental Clinical Negligence cases but I’ve never seen this one:
It’s my favourite time of year. Pupillage application time. The portal closes on Thursday and I will be reading the first sift of applications. In fact I’ve already started because I know there will be 230 plus.
We regularly receive 235. It may be one or two higher or lower but not by much. Always struck me as odd that but there you have it: 235 x 10 pages or so.
I know what it means from your side of the chasm that has to be leapt to land in the mythical world of pupillage. I was there not long ago. Let me tell you what it’s like from my side:
Firstly, the mechanics of it. Yesterday I printed the only 27 applications made in good time. Yes, 27 as it stands but it will be 235 by Thursday. It’s the same every year. I used to get my hopes up when looking 24 hours before the deadline and seeing only 50 applications; now I know that you will all do it at the last minute and trust your future careers and lives to your PC, a server run somewhere by someone you’ve never met and a broadband connection that you know has failed in the past.
A few years ago the system would crash regularly. I went to London to sit on the Pupillage Portal Review Group to see if we could improve it. The hardware and software suppliers simply couldn’t believe the last minute flurry of activity each year. One year they told us that it would be bombproof the following year. Wrong. You pesky applicants still managed to crash it by gambling with your futures at 5 minutes to deadline.
At my most difficult I have malicious thoughts about binning all applications made within the last hour before deadline. Are we so unimportant to you? Would you book your holiday flights in the last hour before you wanted to be sure you could have a holiday? Are you going to run your practice within our Chambers in such a shambolic, last-minute way?
Printing those 27 applications came to 264 pages and took one of Chambers’ main printers out for 15 minutes or so. Cue justifiably grumpy senior member of Chambers waiting for his urgent material from the printer. Ironically that’s why I printed those 27 early. Last year I printed them all at once and it took out a printer and an office junior for ages. And the same senior member of Chambers waited for hours for his document by the time the printer had been reloaded repeatedly, de-jammed, rested, cooled, re-toned and pensioned off. 2,350 sheets of paper. That’s why they call it the stack.
Incidentally the real reason I went to London to help the Bar Council with the Portal Review Group was to cut the word limits. I campaigned hard to slice 150 words from here, 200 from there, erase that duplicate question. Saved something like 1900 words one year and some more the next. Net result? Saved myself reading approximately half a million words every year. Has it stopped us finding the best candidates? Nope. Just saved hours of my life.
The next logistical problem is how do we do it? Every set of chambers will have a different approach. We are of the view that one person needs to read all applications because how else do you compare and contrast? Ten different people reading a tenth each will result in unfairness. So I will read all 2,350 pages. Every word. A ring binder, I think, takes 3-400 pages so it’s probably 5-6 ring binders of lovely small print.
So what do we look for? I have found interviewing and viva voce examinations fascinating over the years. We don’t have to fail people. We don’t have to give them a hard time. They do it all by themselves. Candidates and applicants enter the room with a clean slate, the panel full of expectation. Either you leave us with the expectation and, as you leave the room, we say to each other “S/he fills me with hope. They could go a long way etc etc” or you snatch it away from us by saying and doing silly things that we didn’t want you to say and do.
And its just the same with written applications. You snatch away the reader’s hope all on your own.
Get used to it – Everyone has qualifications as good as yours. Many will be better. Got a first from Redbrick? Someone has a first from Oxbridge. Got a first from Oxbridge? So has this other guy.
You all have outstanding A levels. Without being drawn into the “A-levels have got easier since my day” row, they simply do not help us discriminate any more. (Not a rude word, discriminate, by the way. It’s unfair discrimination that is naughty.) If you all have the same A-levels what’s the point of it being on the form? You might as well tell us that you all have ears.
So how do you not snatch away our hope as we read your applications? In a written application…..drum roll….write well. Please.
Use apostrophes. Know what a comma is for. Spell the words in English rather than Gobbledegook.
Remember this: You want us to envisage you as tenants of our Chambers within a couple of years. Sending out written work to our solicitors with our Chambers name on it. And a shiny corner to make it look nice. If you think for one minute that we would allow that to happen when you don’t know where the apostrophe goes in Magistrates’ Court or don’t know the difference between practice and practise or counsel and council (I kid you not) then please reconsider.
The word “I” should always be capitalised. It’s not an optional extra. You are not texting your m8. Please learn how to spell fulfil. And liaise. And their. And there. And if you could know the difference between “would have” and “would of” that would be nice.
I HATE the word insight. I guarantee that almost every applicant will have had a valuable insight into this, a helpful insight into that, a rare insight of something else. It’s not your fault, its a very useful word. It’s just that everyone uses it to death.
Oh, and please don’t lie. We have got memories and we have had cases where someone’s qualifications seem a little better than remembered. A quick trawl through the computer reveals last year’s application and the changed A-level results are plain to see.
That’s probably enough ranting. How does the system work? After the first sift the top slice are handed to head of pupillage who goes through them all in as much detail. We then invite somewhere in the region of 12-15 people for first interview. Nice and easy. As I say there’s no need to give people a hard time, the best candidates just stand out all by themselves. The agreement between panellists is remarkable; we all see the same things in the best people. There’s always some debate about where the cut goes and on the exact scores that people generated but by and large there are no difficulties in reaching a consensus.
Second interview is a tougher gig. Unarguable propositions to be argued, that sort of thing. We try and have pretty much the same core panel each year for the second interviews as it allows us to compare and contrast not only within that year’s candidates but also with those from previous years. It’s great for putting apparent shortcomings into perspective. What might appear to be a negative doesn’t look so problematic when someone remembers so-and-so from two years ago who created a similar impression and look how well s/he turned out…
We work really hard at it. Most of you do so its only fair and, frankly, its our future. We want the very best people, not just good people. And we are known for keeping our pupils as tenants, even if further refinement is needed. So we have to get it right at this early stage.
At this stage in writing I’ve been through some 20 or so applications. Some are excellent. I have seen countless Magistrates’ Courts with no apostrophes or apostrophes in the wrong place. Say, 40?
I have seen council instead of counsel twice. Three out of 20 people think we’re on the Northern Circuit.
(Incidentally, if you’re going to do a cut and paste job please pay attention. One of my favourite gaffs was a few years ago now. Good application, very good in fact. Hovering above the yes pile until the very last word. “Trinity Chambers is where I want to be, I’ve always wanted to live and work in Wales.” A late snatch of hope that one.)
So what other cock-ups have I seen in the 20 or so applications from today? “Trinity Changers”. My name spelt wrong. It’s only 8 letters for heaven’s sake. Someone who is “clam” in a difficult situation. Someone who wrote only three words in telling us about their hobbies and interests and how they assist the application. Plenty of gibberish. At least 50 insights.
But also some very, very good writing. People with good qualifications who are clearly bright and paid attention to the application. You may know who you are. We think we know who you are. We look forward to meeting you soon.
So what have we learned this week?
Firstly, that it is possible to use the White Book on an iPad but it’ll take a while to become slick at it I would think.
Secondly, that the new proportionality rule is an open invitation for DJ’s to do anything at all on a summary assessment of costs. I was told that my costs schedule was being reduced “because it’s disproportionate”. Quite how and when something becomes disproportionate is, as predicted, a complete unknown. This was in the context of an order for sale of £140k+ and a costs schedule of £3,000+ was “disproportionate”.
Thirdly, that the new costs rules are not as complicated as we thought. Page 61 of the 2013 White Book special supplement: “The general rule is that the unsuccessful party pays the costs of the unsuccessful party.” That’s cleared that up then.
A good weekend all,
LORD DYSON MR
THE APPLICATION OF THE AMENDMENTS TO THE CIVIL PROCEDURE RULES
18TH LECTURE IN THE IMPLEMENTATION PROGRAMME
DISTRICT JUDGES’ ANNUAL SEMINAR
22 MARCH 2013
1. The Jackson reforms are just over a week away. They come into force immediately after the Easter weekend. The official start date is, as I am sure you all know, 1 April. The reforms are very important. I know that some of you, maybe most of you, find the prospect of these big changes rather daunting. That is entirely understandable. The DJs are the engine room of our civil justice system. Without you, the system could not function. I am confident that you will adapt to the new regime just as you did to the Woolf reforms. I am sure that within a few months, you will feel quote at home in the new post-Jackson world. I have been asked to talk this morning about the philosophy that underpins the reforms. I am going to focus on the revisions to the overriding objective and to Rule 3.9.
The Philosophy underpinning the New Rules
2. It should come as no surprise that the philosophy underpinning the Jackson reforms is the same philosophy that underpinned the Woolf reforms. My predecessor but one as Master of the Rolls, Lord Clarke, made sure of that in setting Sir Rupert Jackson’s terms of reference. He did so because those terms of reference were entirely consistent with, and required Sir Rupert to make recommendations that would further, Lord Woolf’s new approach to litigation. As Lord Clarke explained in 2009 the task he set Sir Rupert, was to conduct
‘a review that is entirely consistent with the approach Woolf advocated in his two reports. . . . [to]. . . look for answers to the problems of cost consistent with the new approach to litigation Woolf’s reforms introduced. That is to say, whatever conclusions [the review] reaches will be ones that are consistent with the overriding objective and the commitment to proportionality to which it gives expression.2’
1 I wish to thank John Sorabji for all his help in preparing this lecture.
2 A. Clarke, The Woolf Reforms: A Singular Event or an Ongoing Process, in The Woolf Reforms: What’s the
Verdict? in D. Dwyer (ed), The Civil Procedure Rules Ten Years On (Oxford) (2009) at 49.
Sir Rupert’s task then was to consider how the Civil Procedure Rules had operated since their introduction in 1999 and to do so in order to make recommendations that would better enable litigation to be conducted consistently with proportionality. In other words, to make recommendations that would ensure that the justice system was better able to implement the aim of the Woolf reform. It was a review that was not intended to question ‘the shift in judicial philosophy’ in civil litigation effected by the overriding objective, which was acknowledged and endorsed by the House of Lords in Three Rivers3. It was to identify why and how it had not properly taken effect and how that failure could be remedied.
The Review ranged wider than the rules of court. It also required a consideration of Conditional Fee Agreements, how they had operated in practice, and the effect they had had post-2000 on the justice system. It came as no surprise to many, not least those who had criticised the introduction of reformed CFAs in 2000 as a consequence of the Access to Justice Act 1999, that they caused an increase in the cost of litigation. It was a real irony that in doing so, they fatally undermined the Woolf reforms’ aim of reducing cost just as the CPR was being introduced. As Sir Rupert concluded they were the major cause of disproportionality in costs4.
Having considered the recommendations of the Jackson Final Report, Parliament accepted that CFAs need to be reformed. The funding reforms – that is to say, revised CFAs and the introduction of Damages-based Agreements or DBAs – will do two things. First, and most importantly, increase access to justice as the CFA reforms in 2000 were intended to do; and secondly, unlike the CFA reforms in 2000, do so without creating disproportionate costs. It is important that this aspect of the reforms succeeds. It is for the simple reason that they are a means to secure access to the courts for individuals of limited means. It is also important that they succeed because funding arrangements that generate proportionate, rather than disproportionate, costs are consistent with the philosophy underpinning the Woolf and Jackson reforms.
The CFA and DBA aspects of the Jackson reforms are not matters for today. But as with the reforms to the CPR, the reforms to CFAs and the introduction of DBAs are intended to ensure that litigation is conducted consistently with the overriding objective and its articulation of the commitment to proportionality. It is to those I turn.
The overriding objective
7. The starting point is the overriding objective. As you know its wording has been revised. From 1 April we have a Mark II overriding objective. CPR 1.1 will read as follows:
‘1.1(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 . . .
3 Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3)(Three
Rivers)  2 AC 1 at .
4 R. Jackson, The Review of Civil Litigation Costs in England and Wales, in G. Meggitt (ed), Civil Justice
Reform – What has it achieved? (Sweet & Maxwell) (2010) at 137.
(f) enforcing compliance with rules, practice directions and orders.”.’ (Post-April 2013 additions in bold.)
The rule has therefore been revised to emphasise (i) the centrality of dealing with cases at proportionate cost and (ii) the fact that the overriding objective requires the court to place a greater weight than it might have done previously on enforcing compliance.
Why have these changes been made? As the Jackson reforms are intended to build on, and be consistent with, the Woolf reforms and the commitment to proportionality they introduced via the overriding objective, it might be thought that such changes are superfluous or that they mark a departure from Woolf. If the former they might at best be redundant, and at worst a source of confusion and satellite litigation. If the latter, they might be said to go beyond the Jackson review’s remit. I want to stress to you that they are neither superfluous nor do they go beyond the Jackson remit, as it was described by Lord Clarke and to which I referred earlier.
The argument that the amendments are superfluous might be put in this way. The overriding objective, as originally drafted, was intended to ensure that the court, when applying the specific provisions of the CPR and when actively managing cases, generally did so in order to ensure that cost and delay was reduced. More specifically, it was intended to ensure that litigation costs would become proportionate. The entire thrust of the Woolf reforms, as is readily evident given the frequent references to both disproportionate costs and proportionate costs in, for instance, the Final Woolf Report, make this abundantly clear. Equally, it is evident from the fact that Lord Woolf made the very point that the concept of dealing with cases justly expressed, amongst other things, a commitment to proportionality. Given this fact, it could be said, that adding an express reference to proportionate cost is superfluous; superfluous because dealing with cases justly already requires the court to ensure that cases are managed so as to ensure no more than proportionate costs are incurred. In other words, a commitment to proportionate costs is already implicit in the overriding objective.
A similar argument could be made regarding the addition of the reference in CPR 1.1(2)(f), to enforcing compliance with rules, PDs and orders. It can be said that proper enforcement of rules, such as procedural time limits, or of court orders, such as unless orders, is inherent in the idea of dealing with cases justly. If an individual claim is to be dealt with justly, it requires such compliance and, if necessary, enforcement. As Lord Phillips MR put it in the Flaxman-Binns case, sometimes the court is faced with the question ‘. . . whether the overriding objective of dealing with this case justly calls for us to bring these proceedings to an end . . .’5 In order to ensure that cases are dealt with justly requires enforcement of rules and court orders. Enforcement is, like the commitment to proportionate cost, already implicit in the overriding objective.
Why then make explicit what is already implicit? The CPR whether they refer to the procedural case tracks, court control of expert evidence, time limits within which to serve claims or directions that specify when evidence should be exchanged and so on, serve to provide a just framework. That framework is intended to ensure that all litigants have fair access to the courts and a fair opportunity to proceed to judgment.
5 Flaxman-Binns v Lincolnshire County Council (Practice Note)  1 WLR 2232 at .
Obviously that framework must be adapted to the circumstances of the immediate case. Flexibility and discretion within that framework are always necessary. In this respect, the use of the phrase “so far as practicable” is of some significance. Such flexibility must however be applied so as to achieve two things. These are (i) to ensure that parties do not expend more than proportionate costs in conducting their own litigation and (ii) to ensure that parties do not expend more of the court’s time and resources than is proportionate given the need to ensure that all other court-users can have fair access to the courts within a reasonable time.
This may mean that in some cases parties will have to be denied the opportunity to adduce certain evidence if they have failed to exchange in accordance with case management directions. Doing so may be justified in order to ensure that they do not expend more than proportionate costs on their own litigation. Equally, this might be justified in order to ensure that all other court-users have fair access. In others it may mean that a claim that could otherwise continue to trial might have to be come to a premature end due, for instance, to a failure to comply with an ‘unless order’.
This may all seem rather harsh. It may certainly appear to amount to a denial of justice to the parties. The court’s refusal to grant relief from a sanction, for instance, may appear to be a denial of the need to ensure that justice is done as between the parties. Faced with an apparent conflict between the need to do justice to the parties, to secure a decision on the merits, and the need to secure proportionality it is easy to see why the former might – and often has – prevailed. The courts exist to do justice: where justice and proportionality come into conflict, the former should be given greater weight. Intuitively this seems obviously correct. After all, is a judge not required by his or her oath “to do right by all manner of people, after the law and usages of this realm, without fear or favour, affection or ill will’?
Here lies the answer to the superfluity question as well as the remit question. Dealing with a case justly does not simply mean ensuring that a decision is reached on the merits. It is a mistake to assume that it does. Equally, it is a mistaken assumption, which some have made, that the overriding objective of dealing with cases justly does not require the court to manage cases so that no more than proportionate costs are expended. It requires the court to do precisely that; and so far as practicable to achieve the effective and consistent enforcement of compliance with rules, PDs and court orders.
The Court of Appeal, has emphasised on a number of occasions that justice goes beyond simply looking at the immediate parties to the proceedings. Lord Woolf made this very point in the pre-CPR case of Beachley Property Limited v Edgar; pre-CPR but looking forward to the approach that would be applied post-1999. In refusing the allow a party to adduce evidence that had not been served in time, he explained how,
‘It is no use the party coming forward and saying, “The evidence will help our case. . . You have to consider the position not only from the plaintiff’s point of view, but also from the point of view of the defendant, and with a view to doing justice between other litigants as well.6’
6 (CA 21 June 1996) at (6).
The court has to consider three things: the claimant’s perspective, the defendant’s perspective and, importantly, the perspective of other court-users. It is not enough to consider the need to secure justice as between the parties. The same point was made by Lord Justice Ward in UCB Corporate Services Ltd (formerly UCB Bank Plc) v Halifax (SW) Ltd, when he explained that, when considering a party’s failure to prosecute claims timeously, the court had not just to take account of the effect of any decision on the parties, and thus their claim to obtain justice. The court also had to
‘take into account the effect of what has happened on the administration of justice generally (which) involves taking into account the effect of the courts ability to hear other cases if such defaults are allowed to occur.7’
Lord Justice Ward emphasised this point again in Arrow Nominees Inc & Another v Blackledge & Others. In that decision he made the point that, when considering whether a claim should be struck out for rule non-compliance, the court had to go beyond the question of securing a decision on the merits for the parties. It had to consider the need to ensure that sufficient court resources were allotted not just to the immediate parties but also to other court users8. As he went on to say,
“The trend of the authorities before C.P.R. was increasingly to support the notion that as the court became more pro-active, so greater importance was given to the need to emphasise and protect the court’s interest in administering justice fairly not only as between the parties before the court but to all other others using the court service. Access to the courts was open to all but the time of the courts was a precious resource which needed to be managed rigorously in order to be fair to all. The C.P.R. is the apotheosis of those ideals.”9
Doing the proper administration of justice goes beyond the immediate parties to litigation. It requires the court to consider the needs of all litigants, all court-users. This idea finds expression in the overriding objective. Unfortunately the courts have not always acted consistently with this idea. Perhaps this is not surprising, as the court does not address case management questions, questions of relief from sanctions and so on in the abstract. It does so in the context of a particular case.
In such circumstances it is easy to see why, not least given the long heritage we have of striving to secure justice on the merits in each case and the intuitive understanding that doing justice is to reach a decision on the merits, mistaken assumptions took hold. This was compounded by the failure to make explicit in the overriding objective that it includes a duty to manage cases so that no more than proportionate costs are incurred and so as to enforce compliance. By making these features explicit the Rule Committee has clarified the meaning of the overriding objective. And they have done so exactly as Sir Rupert was required: the reform to the rules will improve practice and procedure consistently with Woolf’s commitment to proportionality. They are as such neither superfluous nor beyond the Jackson remit. They are in fact necessary to underline the requirement that both courts when actively managing cases and litigants in assisting the court to do so, are required to do so consistently with the need to further the proper
7  C.P.L.R. 691.
8  CP Rep 59;  BCC 591 at .
9  CP Rep 59;  BCC 591 at .
administration of justice, where that goes beyond the interests of the immediate parties. We have a managed system. That system must be managed for the needs of all litigants. The new emphasis in the overriding objective on proportionate cost and compliance is intended to make sure the wider public interest remains at the forefront of all our minds.
19. This takes me to the revision to rule 3.9. The famous – or perhaps I should say infamous – checklist has gone. The rule will now read as follows:
‘3.9(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need-
for litigation to be conducted efficiently and at proportionate cost; and
to enforce compliance with rules, practice directions and orders.’
The new rule thus explicitly refers back to the overriding objective, stressing the need in dealing with a case justly to take account of proportionate cost and the need to enforce rule compliance. As such it expressly refers back to the need to ensure that questions concerning relief from sanctions are not simply considered by reference to the immediate litigation, but to the wider public interest. Why has this change to been made to rule 3.9?
First of all the rule change implements an often-forgotten aspect of the Woolf reforms, the need to simplify the rules. The previous checklist approach was less than ideal. It was cumbersome, and often difficult to apply in practice. I have no doubt that it often became an exercise in ticking-off the various elements. That was almost inevitable. As the Court of Appeal’s recent decision in Ryder Plc v Dominic James Beever  EWCA Civ 1737 shows, it was not a means of securing clarity in decision-making, which in itself is a recipe for satellite litigation. The removal of the check-list should improve things.
Secondly, and more importantly it is intended to underline and reinforce the importance of conducting and managing litigation so as to ensure that no more than proportionate costs are incurred as between the parties and that no one piece of litigation is permitted to utilise more of the court’s resources than is proportionate, taking account of the needs of other litigants. It thus requires the court to focus much more clearly and consistently than it has in the past on these essential aspects of case management in the light of the overriding objective. This point has of course rightly been emphasised by Lord Justice Jackson (who else?) in the recent Court of Appeal in Fred Perry (Holdings) Ltd v Brands Plaza Trading Ltd  EWCA 22410 where he said this,
‘Non-compliance with the Civil Procedure Rules and orders of the court on the scale that has occurred in this case cannot possibly be tolerated. Any further grant of indulgence to the defendants in this case would be a denial of justice to the claimants and a denial of justice to other litigants whose cases await resolution by the court.’
10  EWCA Civ 224 at .
As I have said, one of the problems that has undermined the efficacy of case management has been too great a desire to err on the side of individual justice without any real consideration of the effect that has on the justice system’s ability to secure effective access to justice for all court-users. The Court of Appeal has been as guilty of this error as any other court. That the Court of Appeal could in 2011 in Swain-Mason & Others v Mills & Reeve LLP  1 WLR 2735 comment that early, robust, decisions by the Court of Appeal that emphasised the need to take account of the needs of all court-users and not just those of the immediate parties had been lost from view makes the point. The revised rule 3.9, by referring back to the overriding objective, is intended to ensure that such issues cannot become lost again post-April.
Thirdly, consistently with this, the revised rule is intended to put a stop to what Lord Justice Jackson referred to recently in Mannion v Ginty as the ‘culture of toleration of delay and non-compliance with court orders. . .11 .’ That the Court of Appeal could call for such a culture to be brought to an end, as Jackson LJ did in that case, demonstrates just how far we have moved away from the approach that the CPR and the overriding objective were intended to establish in 1999. In this regard it is another irony that five years earlier than the Mannion decision Lord Justice Brooke felt the need to remind the courts and practitioners that, as he put it,
‘The Civil Procedure Rules, with their tough rules in relation to requiring compliance with court orders, were introduced to extinguish the lax practices which existed before the rules were introduced . . .12’
Tough rules but lax application; tough rules but a culture of toleration; and lax application and toleration are all fatal to the new philosophy. By emphasising the need to take account of the new explicit elements of the overriding objective, rule 3.9 is intended to eliminate lax application and any culture of toleration.
24. I should deal with one specific criticism of a tough approach to relief from sanctions at this point. It has been said by some that a tough approach, one which hardens its heart and refuses to allow a party to adduce probative evidence that has not been exchanged at the required time, or which strikes out a claim or defence for non-compliance with an unless order, is one which is inimical to justice. It has been said that such an approach improperly deifies compliance; and that it transforms rules into tripwires for the unwary and the incompetent, as Dame Janet Smith recently put it in the Ryder case13, or equally into procedural weapons for the unscrupulous. It has also been said such an approach is fundamentally at odds with the position outlined in Lord Esher MR’s famous dictum in Coles v Ravenshear (1907)14. Lord Esher MR said this,
‘. . . a Court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case.15’
11  EWCA Civ 1667 at.
12 Thomson v O’Connor  EWCA Civ 1533 at .
13  EWCA Civ 1737 at .
14  1 KB 1.
15  1 KB 1 at (4).
These words must be viewed with great caution in the 21st century. They are based on an idea that was rejected by the Woolf reforms – that justice is not subject wider policy considerations. If the justice system, and the public interest in the proper administration of justice, was solely concerned with one set of proceedings that approach might be justifiable. It is not. It is a system that has to command public confidence through securing for the majority, many of whom have limited resources, access to a system that itself must operate with limited resources. Doing justice in the individual case can only be achieved through a fair procedure operated in a way that is fair to all.
In order to achieve this, the Woolf reforms and now the Jackson reforms were and are not intended to render the overriding objective, or rule 3.9, subject to an overarching consideration of securing justice in the individual case. If that had been the intention, a tough application to compliance would have been difficult to justify and even more problematic to apply in practice. The fact that since 1999 the tough rules to which Lord Justice Brooke referred have not been applied with sufficient rigour is testament to a failure to understand that that was not the intention.
The revisions to the overriding objective and to rule 3.9, and particularly the fact that rule
3.9 now expressly refer back to the revised overriding objective, are intended to make clear that the relationship between justice and procedure has changed. It has changed not by transforming rules and rule compliance into trip wires. Nor has it changed it by turning the rules and rule compliance into the mistress rather than the handmaid of justice. If that were the case then we would have, quite impermissibly, rendered compliance an end in itself and one superior to doing justice in any case. It has changed because doing justice is not something distinct from, and superior to, the overriding objective. Doing justice in each set of proceedings is to ensure that proceedings are dealt with justly and at proportionate cost. Justice in the individual case is now only achievable through the proper application of the CPR consistently with the overriding objective.
The tougher, more robust approach to rule-compliance and relief from sanctions is intended to ensure that justice can be done in the majority of cases. This requires an acknowledgement that the achievement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations. Those obligations not only serve the purpose of ensuring that they conduct the litigation proportionately in order to ensure their own costs are kept within proportionate bounds. But more importantly they serve the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately, and that the court enables them to do so.
This may mean that in some cases, or some classes of case (such as those allocated to the small claims or fast track), that the court must reach a decision at trial on less evidence than it might have done in the past. To some extent, this has already been happening as a result of the introduction of case tracks. It also means that, where we exclude evidence because of a failure to comply with rules, PDs or orders, we must determine the cases on less evidence than we would have done in the pre-Woolf and pre-Jackson days.
That we have to do so stems from our commitment to proportionality, and the need to secure a fair distribution of court resources amongst all those who need to come to the courts in order to vindicate their rights. We have limited resources. Demand for those resources outstrips that limit. We have to cut our cloth accordingly. The wider public
interest in the proper administration of justice requires us to do so. For that reason we have no choice but to take a more robust approach to rule compliance and relief from sanctions than previously. Our approach in the case immediately in front of us has consequences wider than for the parties themselves.
Where does this leave us as far as the underlying philosophy of the Jackson reforms is concerned?
It seems to me that we can draw a number of conclusions:
first, that the revisions to both the overriding objective and rule 3.9 are designed to ensure that the courts, at all levels, take a more robust approach to ensuring that proceedings are managed so that no more than proportionate costs are incurred by the parties to those proceedings. They do so because proceedings must be managed in the public interest to ensure that individual parties do not expend more than is proportionate on their own claims; but as importantly, that they do not, through being permitted to expend more than a proportionate amount of the court’s time and resources, impinge on the rights of other litigants to have fair access to the courts;
secondly, that those revisions require a more robust approach to the enforcement of compliance and a more restrictive approach to relief from sanctions. This is not based on a dogmatic insistence on compliance for its own sake. It is done because, again I stress, the wider public interest demands it. The effective administration of justice requires it; and
(iii)thirdly, the approach required by the overriding objective will not simply apply to questions of rule-compliance and relief from sanctions. It will apply to case management, costs management and costs budgeting. Those commentators who perceive, for instance, the decision in Henry v News Group Newspapers Ltd  EWCA Civ 19 as some form of signal from the Court of Appeal that the new rules will not be applied robustly are wrong. Henry was decided under the Mark I overriding objective. As Lord Justice Moore-Bick made clear in Henry future decisions on costs budgeting etc will take place under the new rules that come into force on 1 April. As he put it
‘(Those rules) impose greater responsibility on the court for the management of the costs of proceedings and greater responsibility on the parties for keeping budgets under review as the proceedings progress.16’
They do and so does the Mark II overriding objective.
32. Thank you.
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16  EWCA Civ 19 at .
Three days after I blogged about Self-Represented Litigants and how in my line of work they wouldn’t cause any clogging up of the courts, they ceased to exist! Maybe that’s what this really represents: Judicial wishful thinking that if the term SRL disappears then so will the problem…
It made no sense but then that is no yardstick for anything at all these days. I recently saw a solicitor have a cheque handed back by the civil court office because it was made out to HMCS and not HMCTS. She wasn’t authorised to sign the cheque so had to go back to the office and back to the court office which was going to be closed by the time she got back.
Anyway, below is the full Practice Guidance:
Terminology for Litigants in Person
In its Report of November 2011 the Civil Justice Council (CJC) recommended that in future individuals who conduct legal proceedings on their own behalf, and have traditionally been referred to as Litigants in Person (LiPs), should in future be referred to as self-represented litigants (SRLs). Subsequently the term SRL has gained some currency. LiP has however also continued to be used. The use of two terms to refer to the same thing is less than ideal. It is confusing both for individual litigants and the courts.
The Judges’ Council (including the Lord Chief Justice and President of the Family Division) has consequently considered the CJC’s recommendation, and authorised me as Master of the Rolls and Head of Civil Justice, to issue Guidance, to promote clarity, certainty and simplicity, on the term to be used in future.
I have considered all the circumstances, including the fact that the term LiP: is used in statute (eg, The Litigants in Person (Costs and Expenses) Act 1975); is and will continue to be used by Government; is commonly understood and well-known both by the legal profession and individuals generally; the term SRL is unclear in its scope, as it can variously be understood to suggest that individuals are conducting the entirety of legal proceedings on their own behalf, that they are only conducting court advocacy on their own behalf or, that they have themselves obtained representation i.e., secured the service of an advocate.
In the light of these factors I have therefore determined, with the unanimous agreement of the Judges’ Council, that the term SRL should not be adopted or used in future.
The term ‘Litigant in Person’ (LiP) should continue to be the sole term used to describe individuals who exercise their right to conduct legal proceedings on their own behalf.
This Guidance applies to all proceedings in all criminal, civil and family courts.
Lord Dyson MR
I’ve just heard Maura McGowan QC on Radio 5 live and its not her fault that she only had a few seconds, but Peter Allen liked the sound of McKenzie Friends and that sort of took over.
Lord Neuberger’s premise was that SRLs slow up the system and make the Government’s hard-fought savings illusory. It’s been said a lot of course. But is it true?
My experience is based on many hearings against SRLs. How many? Probably between 50 and 75 at a guess. I have been reported to security for “harrassment” by introducing myself to an SRL but have certainly never considered that the hearing would have been shorter with a qualified opponent. It would have almost always been less trouble in the waiting room but shorter in court? Never.
My experience is that the SRL tells you of all the injustices that they will tell the judge about and revs him/her self up for a huge speech. And then completely fails to deliver it. They tend to have three or four main points in any hearing and very early on those will burst out whether the juncture is appropriate or not. And then they’ll repeat them when the DJ is trying to get at or to something else and they’ll be told not to repeat the point. At the conclusion of the evidence or the application, typically a DJ says “Now then Mr X, is there anything else you want to say to me or have you covered everything?” and invariably the offer to speak further is declined.
I’m told that it’s different in Family proceedings. And what is true is that, because no robust legal advice has been issued, I have fought several hearings where the SRL should have thrown the towel in at the directions hearing and was given the tip-off by the judge but wouldn’t/couldn’t take it. Now that takes time that is a waste. But the truth is that no-one wastes court time like a junior junior with a set of pre-written submissions.
That’s not to say its not hell for the judges. I’m sure it is. There’s all the explaining and bending over backwards to be done. And it’s tough on the court staff too. But it simply does not take longer in the type of cases I appear in. It probably keeps my submissions shorter too because I can see that the cause has been won and I don’t have to deal with any arguments that are sophisticated.
And when it comes to costs? SRLs are way, way quicker. If they’ve won they’re entitled to diddly squat and if they lose they’re so piqued that they just throw up their hands as if to say that all the lawyers are crooks anyway and the clear inference is that you can whistle for your costs.
Will SRLs clog up the courts? Not in my experience.
A cautious welcome from me to the Pupillage Gateway as we’ll give anything a chance before sticking the boot in.
I have to say that from the Chambers end it’s not user-intuitive. Well designed sites shouldn’t need you to read the user guide, it should be glaringly obvious. I resented having to read the user guide to see how to do it.
I can’t see how it will make a blind bit of difference to the process for anyone. The questions are the same as ever but this year Trinity Chambers can have two questions of our own rather than just one.
And I guarantee that the technology will, in the words of the last tech provider “fall over” in the last hours before the deadline. Three times the last provider put in huge additional resource so that the last minute rush wouldn’t crash the system. On the last occasion they got it right (their surprise and shock about the last-minute application traffic was a sight to see) and then immediately, a new tech provider is going to have a go.
See you back here on 30 April 2013 for the full “I told you so….”
First glimpse of the Pupillage Gateway this afternoon. Doesn’t look particularly intuitive from the chambers end. Maybe it’ll just take a little time. Watch this space….
On 23 January 2013 Mr Recorder Sweeting QC heard the case of Mrs Paula Drabble v Mr Ian Hughes.
The Claimant had had a well known white patch on the left side of her mouth.
She had been under the care of Manchester Dental Hospital since 1995. The Defendant became her dentist in January 2000. In October 2004 MDH wrote to the Defendant to say that the white patches in the buccal gingivae (which were bilateral) were less tan in previous photos and that a biopsy showed nothing. She was to be checked within the practice setting and the defendant was reassured that he should “not hesitate to re-refer her if you notice, or indeed if Mrs Drabble notices any changes.”
In a nutshell, C alleged that she had complained about changes in the colour and appearance of the patch from June 2008 onwards. D said simply that that was not the case and that his records backed that up. The experts were largely in agreement and this became a straight fight between the contemporaneous records and the recollection of the Claimant.
The Judge said that “D struck me as a straightforward and helpful witness and not at all the rather unsympathetic and dismissive person described by Mrs Drabble….His evidence was clear, logical and supported by the contemporaneous material…He readily accepted criticism; in particular in relation to his record keeping where both dental experts agreed that he should have noted both negative and positive findings in relation to the lesion.”
“Mrs Drabble was a dignified and honest witness. I have no doubt about the sincerity of her recollection. I do however have considerable doubt about its accuracy. Although she said that her memory of what took place was clear she appears to have conflated at least some of the events of 2008 given the disparity between her account and what is recorded on the record cards.” [my emphasis]
The Judge went on to find that the persistent failure to record changes in the white patch was improbable.
In short, that is a fairly blunt finding that if there is a discrepancy between the recollection of C and the record cards of D then the former must be wrong. I have said before and I say it in cases again and again that claimants will struggle to overcome contemporaneous records.
Approximately one clinical negligence case in 20 that I see has an allegation that the records have either been altered, replaced or were written after the event. This case is a reminder that in the absence of any significant evidence that that is right, there remains an almost insurmountable obstacle in the face of contemporaneous records that support a defendant.
The lesson for both claimants and clinicians is clear. The latter scrimp on their notes at their peril. If the former think that they can overcome such notes simply by saying that they remember it differently then a nasty surprise lies in store.
The case is also one where the notion that getting something wrong once is more likely than getting something wrong repeatedly. That is superficially attractive but I have seen hundreds of cases where persistent failure demonstrably occurred. When a clinician forms a view of something, it is unlikely to change easily: persistent failure can be a persistent problem.
Thursday 13 December 2012 by John Hyde
Lawyers on both sides of the personal injury sector have rounded on the government after the latest announcement in an unprecedented series of radical reforms.
Justice secretary Chris Grayling on Tuesday outlined proposals to raise the upper limit of the small-claims track from £1,000 to £5,000 and for independent medical panels to diagnose whiplash injuries.
The changes had been expected following meetings between the government and the insurance industry earlier this year. Grayling insisted the measures would cut fraud and benefit honest drivers who have had to ‘bear the price of a system that has been open to abuse’.
But with the consultation on the measures closing on 8 March – just 14 working days before the Jackson reforms and a new costs regime for RTA claims come into force – claimant and defendant lawyers warned that the new plans could backfire.
Iain Stark, chairman of the Association of Costs Lawyers, said the proposals could spell ‘disaster’ for consumers and the legal profession alike. He warned they could lead to the creation of a new unregulated industry to handle claims below £5,000 and courts being ‘flooded’ with litigants in person.
‘The government is already consulting on a 60% cut to legal fees for the system that currently deals with whiplash cases worth up to £10,000 where liability is admitted.
‘These new proposals will remove most cases from the system, leaving just the higher-value, more complex ones at unfairly low-fee levels,’ Stark said.
Craig Budsworth, chairman of the Motor Accident Solicitors Society, said it was ‘irresponsible’ to consider more changes at a time of industry upheaval. ‘The government has forgotten that the majority of whiplash claims in this country are genuine,’ he said.
Even insurance lawyers expressed doubts about the timing and scale of the proposals.
While cautiously welcoming the consultation, Kennedys partner Richard West warned against ‘change for change’s sake’ that risked undermining the good intentions underpinning the consultation.
James Arrowsmith, from insurance firm Browne Jacobson, said the move could make it more difficult for defendants to prove fraud with only a few weeks from exchange of evidence to a hearing.
‘The deterrent effect the government seeks, therefore, seems more likely to arise through making claims less profitable and more of a challenge to run,’ Arrowsmith said.
The proposal to raise the limit for small claims comes five years after a government consultation found no justification for an increase. Sir Rupert Jackson, the architect of many of the government’s civil justice reforms, came to the same conclusion in his 2009 review of litigation costs.
Grayling insisted that reform will make it less likely that fraudulent or exaggerated claims will be made, and those that are will be properly tested. ‘Genuine claims can still be settled but fraudsters are left in no doubt there will be no more easy paydays.’
Shadow justice minister Andy Slaughter said: ‘The government underestimates the complexity of cases that are affected – it’s fanciful to think people are going to have to litigate for themselves.
‘If these changes led to falling premiums then I would be more sympathetic, but I don’t hear insurers saying that.’
A Law Society spokesperson said: ‘Raising the small claims limit runs the very real risk that the already swamped courts will be flooded with self represented litigants, causing the inevitable delays that come with that. Of equal concern is the likelihood of a growing number of those who need treatment may be put off making a claim when they have a genuine injury. They will be the walking injured, literally.
‘The onus here surely has to be on insurers. They need to do more to challenge false claims properly and their reasons for not doing so are flimsy to say the least. The government’s plans seem to be geared towards squeezing everyone – including those who suffer genuine injury – except the insurers.’
However the Law Society said it welcomed plans for stronger medical diagnoses but warned there needed to be care that the cost was not disproportionate. The Society said it would be working with its members to provide a robust and evidenced response to the consultation, and welcomed the three-month consultation period, which reflected the seriousness of the issue.