The Civil Procedure Rules – How much do you know?

The new Civil Procedure Rules (CPR) came into force on 26 April 1999. The aim was a radical shake-up of the civil justice system and to address the two biggest perceived problems – delay and cost. Lord Woolf, the mastermind behind the CPR, had an objective to make the system fairer, quicker and cheaper, and to ensure greater equality between parties.

One of Woolf's fundamental aims is to avoid litigation and encourage early settlement discussions and methods of alternative dispute resolution. Where proceedings do seem inevitable, the court expects the 'pre-action' behaviour of the parties to be more open.

The issue of "proportionality" is central to the new CPR. A criticism of litigation is that cases can continue forever, with legal costs often being disproportionate to the claim value. The CPR enable courts to deal with cases in ways which are proportionate to the claim amount, the case importance, the complexity of the issues and the financial standing of the parties.

There is now just one set of CPR which govern all civil litigation. Fundamental to the reform was the proposal to move "responsibility for the management of civil litigation from litigants and their legal advisors to the courts". The purpose of this, according to Woolf, is to "enable the court to deal with cases justly".

Courts will now take a more active role in managing cases. Delaying tactics and speculative applications are out. A strict timetable is now imposed by the court, which can impose financial or other penalties if it is not followed.

The main changes

The new CPR work on a three track approach. All claims are allocated to a "track", depending on their value. The small track is for claims worth up to £5000 and is basically the same as the old County Court small claims arbitration procedure. The fast track covers claims up to £15 000 – with "fast" being the operative word. A very tight timetable will be set by the court at an early stage.

The trial is limited to one day and must take place within 30 weeks – much quicker than under the old regime. Disclosure of documents and expert evidence is strictly limited and oral expert evidence at trial is discouraged.

Claims over £15 000 are dealt with in multi-track. All Technology and Construction Court cases are in this category. In these cases the court takes a case management role, with more power and involvement than in the past. A case management conference takes place shortly after the defence is received, at which point the court will set a trial date and give a timetable and clear directions on how it should be run.

A second conference – the pre-trial review – is held before the trial to make sure all the issues are clear. Both parties must complete questionnaires for these hearings and be able to provide estimates of current costs and those that will be incurred if the case proceeds to trial.

The move to plain English

With the new Rules comes a new language. You can no longer issue a "writ"; all cases are now started on the same standard "claim form", setting out their "statement of case". A "plaintiff" is now a "claimant", and a "summons" has become an "application". Solicitors no longer request "leave" of the court to do something, nor ask the other side for "further and better particulars". These have become, respectively, "permission" and "further information".

An "interlocutory" application is now an "interim" application, and a "subpoena" has become a "witness summons". "Discovery" has become "disclosure" and a "payment into court" is now called a "Part 36 payment" and can be made by a claimant. The term "defendant" though has somehow survived.

A new concept has also been instated – the Statement of Truth. Certain documents – including a Statement of Case and a Witness Statement – must now be verified by a Statement of Truth. Signing such a statement without an honest belief in it will constitute contempt of court.

The court has much greater powers to give orders. If the court considers that a statement of case shows no reasonable grounds for bringing or defending a claim it can strike the case out without any application from either side.

Summary judgment (ie final judgment) can now be given against the claimant or the defendant, either on the whole of the claim or a particular issue, if the court considers that either has "no real prospect of success". This test is less strict than the old one of "no defence to the claim" and it is now also open to the defendant to apply for summary judgment on the grounds that the claimant has no real prospect of succeeding on its claim.

The new Rules are also designed to limit disclosure. Under the old regime, the categories of documents liable to be disclosed were almost endless and led to expenditure of enormous amounts of money and time. The new Rules provide for "standard disclosure". This requires a party to disclose only the documents which are relied on to prove the case, and those which adversely affect this or the opponent's case, or which support the opponent's case.

The role of the expert can potentially be dramatically changed under the new Rules. The overall objective is to reduce the amount of expert evidence as much as possible. The court can now direct that only one expert is needed, to act as a joint expert instructed by and paid for by both parties. If the judge feels that expert evidence is not necessary it can be refused. The expert's overriding duty is to the court not the client and indeed, the expert's report must now be addressed directly to the court.

Probably the most important overall practical implication is that the litigation timetable now moves far more quickly and solicitors must possess a considerable amount of information before proceedings are even issued. This method therefore incurs more up-front costs than in the past.

The CPR are making fundamental changes to the world of litigation and actions seem to be getting rarer. Lord Woolf reported in September that the number of claims issued was down by around 35%. Whether this is as a direct result of Woolf or the better economic climate, we have yet to see.