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11 November 2013
Michael Brindle considers whether drafting a new set of rules will mean confusion for the commercial Court. Michael Brindle QC is a barrister at Fountain Court Chambers.
The Commercial Court led the way in introducing case management techniques into civil litigation. The Commercial Court Guide, which existed before Lord Woolf started his campaign to clean the Augean Stables, has been influential, both in leading other parts of the High Court to follow suit and in provoking Lord Woolf's further and more radical proposals.
While the Commercial Court Guide may not be the last word in case management, its procedures are less in need of overhaul than other areas of civil litigation. As such, the Commercial Bar Association (Combar) has been keen to ensure that unnecessary reforms are not proposed.
Commercial judges have adopted a balanced position. They have fully supported the Woolf initiative but have also put the special case of the Commercial Court into context.
In February 1996, however, a Commercial Court working party proposed going well beyond anything that Lord Woolf had suggested. Proposals included:
a significant decrease in oral hearings;
the severe curtailment of the role of oral evidence at trials;
the requirement that lawyers should vouch on oath for the merits of their clients' case.
Combar expressed serious reservations about some of these proposals. Consequently, many of the more controversial aspects were dropped, and a line was adopted which was more in tune with that of the earlier collegiate response.
The problem of how to draft and implement the new procedure rules now faces the reformers. Lord Woolf's report on Access to Justice envisages an entirely fresh set of rules which would provide a framework, avoiding detail where possible.
Many practitioners, including members of Combar, have been concerned about this suggestion, and the idea that the White book on Supreme Court Practice (and the Green book on County Court practice) should be abandoned. Would this advance the Woolf principles, or simply lead to confusion, uncertainty and a mass of interlocutory disputes and appeals?
These concerns have been highlighted by the work carried out by Christopher Clarke QC for the Bar Council. He collated responses from all areas of the Bar to the draft rules which Lord Woolf appendixed to his report. This process, completed in September 1996, revealed just how difficult the job of coming up with a new set of rules was going to be.
Lawyers interested in how the Woolf reforms were going to be implemented set up the Selborne group in November 1996. It represents the views of practitioners in the High Court about the implementation process. The group supported Lord Woolf's idea of a Civil Justice Council which would be representative of all users and practitioners of the civil courts as well as of the Lord Chancellor's Department.
After initial reluctance on the part of the Lord Chancellor, the Selborne group persuaded him to include the setting-up of the Civil Justice Council to oversee the implementation process when the Civil Procedure Bill had its second reading in the House of Lords in December 1996.
Lawyers will not be in a majority on the council, but will have an opportunity to help to keep the implementation process on the rails.
The problem lies in deciding how detailed the new rules should be, to what extent existing rules which worked well should be retained, and whether the framework concept of Lord Woolf's original draft rules can be realistically maintained.
It is reasonable to assume, however, that practitioners, including those representing the commercial Bar, will have a say in the drafting of the new rules, whether through a new rules committee, through the council or through other forms of consultation.
The interests of expeditious and inexpensive justice may be better served by a set of rules which enables practitioners to predict how case management will be conducted rather than by leaving decisions to the unfettered discretion of individual judges.
Simple language is to be encouraged, but you cannot always explain a complex concept in simple terms. Thus there is a limit on how far procedural rules can be simplified.
Combar and the Selborne group continue to keep a close eye on the rule-drafting process. If a well-drafted new set of rules can be established, that will be more effective than anything in ensuring the success of Lord Woolf's proposals.