For the first time in the history of Rules of Court, they have an objective. Rule 1.1 of the Draft Civil Proceedings Rules states that the overriding objective is "to enable the court to deal with cases justly" and the court "must apply the Rules so as to further the overriding objective". Whether this adds much to the existing judicial oath "to do justice" is debatable.
Lord Woolf's Final Report states that the new rules are not designed to answer every question which could arise. The principle of dealing with cases "justly" is a compass to guide courts as to their general course. There will be practice directions and practice guides, which are not yet available.
A question which is vexing the London Solicitors Litigation Association and others is the extent to which the White Book and precedent will have any role under the new rules.
It has been indicated that in matters of practice and procedure there will be flexibility – precedent will not apply. However, there is an overlap between procedure and substantive law.
Take for instance the new rule (part 15) as to interim remedies. As well as creating new forms of relief (for example interim declarations), it also deals with interim remedy and how to apply it. But it is silent as to the basis on which the courts will grant orders for interim relief. Is this a matter of practice and procedure, will authorities in the White Book apply, or will the courts rely solely on the new overriding principle?
If it is practice and procedure, there is a risk that different practices will spring up in different courts around the country, with the result that no uniformity is achieved.
A clear dividing line must be laid down to show where practice ends and where substantive law or procedure governed by substantive law begins. I would urge that precedent should apply to those areas where substantive law overlaps with procedure if litigation solicitors are to advise their clients with any certainty under the new regime.
Tony Marks is senior commercial litigation partner at McKenna & Co and a member of the LSLA committee and the litigation sub-committee of the City of London Law Society.