Stephen Alderson on abolishing the duality of rules between courts

In recent years many legal practitioners have called for the abolition of the anachronistic duality of the rules of the High Court and the county court. Indeed, the tighter rules on transfer between the two systems and the fact that a majority of High Court cases never reach a full High Court judge highlights this need.

Yet rather than advance the logical merging of the two systems the High Court and Appellate Judges appear to be pushing them apart. Is this an attempt to protect their perceived position? In fact they seem to be protecting the High Court from modernising policies, such as speed and value for money.

The Lord Chancellor and many legal and political commentators have called for greater speed in bringing civil cases to trial. This is not in itself an unreasonable demand and has led notably to the inclusion in 0.17 of automatic striking out in the county court if a case is not set down within the timetable. This was wholeheartedly endorsed by the Court of Appeal in Rastin, which allows lawyers little leeway if they default.

In the High Court, however, the opposite is true. Since Birkett v James there is no limit to delay if there is no "prejudice" to the defendant in trying the action. This is a principle Rastin states of only secondary importance in considering the reinstatement of County Court cases.

Arbitration cases have a no-cost rule and the Court of Appeal recently in Afzal admonished against the abuse of the county court process by deliberately avoiding the arbitration system to obtain costs orders in small PI cases.

In the High Court, however, the right to issue a writ for u601 is jealously guarded and no amount of persuasion by the defendant will obtain the exercise of the courts' discretion against costs for a plaintiff who takes this route – except in PI cases!

If the Lord Chancellor is serious about modernising the civil legal system he must start by attacking the old privileges of the High Court structure and bring the two systems together with one set of rules for all.

Stephen Alderson is a partner at Dickinson Dees.