Introduced in 1999 following Lord Woolf’s Access to Justice inquiry, the introduction of the Civil Procedure Rules (CPR) was the most significant change to the rules of civil procedure in England and Wales since the Rules of the Supreme Court in 1883. 20 years on and the question is - has the introduction of the CPR been a success for the civil justice system?
At a recent conference hosted by the Bonavero Institute of Human Rights at Oxford University, speakers presented their thoughts on the CPR, what they viewed as successes and areas they felt still require improvement.
A survey of practitioners carried out at a London law firm suggested that practitioners viewed a number of aspects of the CPR as having largely been successful including (i) the introduction of active case management by the judiciary helping cases move through the court system more efficiently; (ii) the introduction of the summary assessment of costs procedure which encourages parties to consider the costs they may have to pay upfront if they make an unsuccessful application; (iii) encouragement of ADR to assist parties in reaching an out of court settlement; (iv) the pre-action protocols; and (v) the rules on expert evidence.
Nonetheless, there were also a number of aspects of the CPR identified during the conference as areas still needing improvement. The key note speaker, Sir Terence Etherton, Master of the Rolls, discussed the increased focus and importance of using technology to improve the civil justice system. He discussed the “Online Civil Money Claims” pilot which allows Claimants in the County Court to make a claim online in a more accessible manner. Although he dismissed the idea that there would ever be one online court, he recognised the need to harness the potential of technology to improve, in particular, the ability for individuals to access the civil justice system.
Another key area for discussion was disclosure. Speakers recognised that disclosure under the existing rules continues to be a costly and time-consuming process, and that the introduction of the Disclosure Pilot Scheme (DPS) is designed to bring about a “wholesale cultural change”. One speaker noted that the CPR was developed alongside (and not in reaction to) the substantial growth of electronic documents and consequently the rules are not designed to address cases with large numbers of electronic documents. The DPS aims to encourage a greater use of technology in disclosure and the new rules expressly refer to technology assisted review (TAR). If parties decide not to use TAR in a case involving more than 50,000 documents, they will need to explain why. The jury is still out as to whether the DPS will bring about a “wholesale cultural change” but it is clear that amongst both the judiciary and practitioners there is a desire and support to make the current rules work more effectively for modern day litigation.
And finally, there was a plea from another speaker for there to be further development of the rules governing collective actions in the UK – one of the areas highlighted by Lord Woolf in 1999 and which has yet to be properly brought to fruition.
For more information on the conference, see the Oxford University Law website here. A book to mark the anniversary conference will be published later this year.