50 not out!!

By | 17th September 2009

As the English cricket season draws to a disappointing close, with the Aussies hammering England in the One Day Internationals and taking some (but certainly not all) of the gloss off winning the Ashes, I found I had nothing better to do but to  turn my mind to the CPR! (For the non lawyers among you, the Civil Procedure Rules and not Canadian Pacific Railways or Cardio Pulmonary Resuscitation).

I was surprised to find that the CPR is 50 not out. Since their introduction in April 1999, there have been a number of changes to the CPR and the 50th update is mostly due to come into force on 1st October 2009…

It may be a rather meaningless statistic but this means that there have been on average 5 updates each year since 1999 which equates to one update every 2.4 months!!

Lord Woolf’s aim to reduce the amount of litigation has been achieved admirably but at a cost. The front-loading of litigation costs is familiar to all litigation lawyers and their unfortunate clients who have had to pay the bill or forgo the litigation. It is to be hoped that the Jackson report, when published towards the end of this year, will come up with innovative solutions. If lawyers cannot come up with ways to litigate without the huge upfront costs now faced by the parties in the courts of this country, there is a real risk that London and the English Courts will lose their current reputation as a good and sensible place to resolve disputes from around the world.

Changing the obligations on disclosure (or discovery as I still fondly call it) may be part of the answer as will Third Party Litigation Funding but we should not forget the appropriate use of the technology which exists. A sensible and proportionate application of technology to the right case coupled with proposals to reduce the cost of disclosure (sic) from Rupert Jackson will help. In my view, however, instituting judicial training on the electronic options available so that judges can quiz the parties about the options they have chosen and make orders from a position of knowledge, coupled with judges enforcing the powers they already have, would provide a good start now.

There are more changes on the way. There will soon be a new Technology Questionnaire (and I will return to this at a later date), a new Practice Direction under Part 31 and, before the end of the year, we will see what Lord Justice Jackson has to say.

In the meantime, congratulations to the CPR in scoring a half century. If only they could bat for England!