Question 1

The Civil Procedure Rules (CPR) provides the rules of obtaining evidence. In this section, the steps that are taken for obtaining evidence under the CPR are discussed.?

The Personal Injury Protocol

Pre-action Protocol for Personal Injury claims (PI Protocol) is filed in cases where personal injury claim of up to £25000. As in this case, the injury claim is beyond that amount, the PI protocol need not be followed in letter, but the spirit of the PI Protocol is to inform the process of correspondence between the client and the defendant.

As per the Protocol, in the initial stage, the client may want to send an informal letter to the defendant company or the insurer. To start the formal process under the Protocol, two copies of the letter of claim will have to be sent to the defendant. A claim notification form can be sent before this. This step is important because it can indicate which documents the defendant should disclose at this point. Thus, it is an important step for the purpose of gathering evidence. This step is also important because if the defendant does not reply within 21 days, the client may proceed with the court proceedings.

Claim Form

The first step in civil proceedings involves the issuance of claim form by the court. This is done at the request of the claimant. This is a prerequisite for disclosure.

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Particulars of Claim

The claimant must ensure that the Particulars of the claim are also sent with the claim form. This is a statement by the client setting out all the relevant and material facts and it has to be served within 14 days after the claim form is served.

Disclosure

The parties are required to disclose all relevant documents in their possession or control, and not just those documents that help their case. As this is a multi-track case, the rules of disclosure that are provided in CPR, rule 31 are applicable to it. Evidence can be collected with the use of this part of the CPC. The defendant is under a duty to disclose. The client has the right to inspect the documents that are disclosed by the defendant, unless, the defendant no longer has these in his possession. The parties are supposed to file a disclosure report that is also verified by a statement of truth disclosing all relevant documents, at least 14 days before the case management conference.

In order to ensure that the evidence can be adduced at the time of the trial, should the case proceed to trial, it is imperative that all the steps of procuring evidence are followed. Evidence obtained improperly is not admissible in the court.

Claims that are for over £25,000, or for lesser money sums where the case involves complex points of law and/or evidence are allocated multi-track. In multi-track litigation, case management powers allow the court to put restrictions on the scope and type of evidence, which can be considered at trial. Following the allocation to the multi-track, the following directions can be asked for from the court.

Directions for timetable between the giving of directions and the trial

This will allow the client to have a time table for reference for the important stages and their corresponding dates between the giving of directions and the trial, in case trial is resorted to.

Directions for Case management conference

This will allow the court to call for a case management conference. A case management conference will allow the client to ask the court for some interim monetary relief as she is unable to go to work due to the injury. The first case management conference is usually an appropriate time to ask for such relief.

Directions for disclosure of documents

The defendant at the time disagreed with the medical report obtained by the client and obtained their own medical report. Such disagreement in cases is common. However, the client’s medical report is relevant to the disagreement they had with the medical report obtained by the client. Therefore, it is essential to have a copy of that medical report for evidence and rebuttal.

Directions for exchange of witness statements

There are witnesses who were present at the time of the accident, and they saw the accident and can give important evidence with respect to the same. Bob, the driver who was driving the lorry which caused the accident, has made a statement to the Health and Safety Officer that the client was in dark clothing, so he could not see her clearly as it was dark and the weather was poor. At the same time, Bob had not turned on the reversing siren, as also attested to by another colleague, Tommy, who was on the spot. Therefore, an exchange of witness statements is needed at this point to assess what is being said by different witnesses.

Directions for disclosure of experts’ reports

The client is now suffering from psychological injuries. No evidence has yet been obtained for this. The directions can be asked for obtaining this evidence and also disclosure of any such evidence that the defendant may have procured.

Finally, it is important to note that both parties must endeavour to agree appropriate directions for the management of the proceedings and submit agreed directions, or their respective proposals to the court at least seven days before any case management conference.

Introduction

Lord Woolf’s report, Access to Justice, led to major reforms in the Civil Procedure Rules. The report itself came at a time when the reforms in English law were felt to be much needed. Rendering civil justice to ordinary people was one of the aims of the reforms mentioned in the manifesto. From that to now, however, court fees have increased leading to some doubt as to whether access to justice is really achieved.

In April 2014, the Civil Proceedings Fee (Amendment) Order came into effect. Under the order, there were major changes in the court fee structure and policy. Consequently, court fee increased. Although the recent report by Lord Briggs does not deal with court fee, he does make a passing reference to it, in context of increase in fee and access to justice. This essay considers the increase in court fee and cost of litigation in light of the access to justice notion that was to underpin civil litigation as propounded by Lord Woolf.

Access to justice: From Lord Woolf to Brigg’s Report

The motivation behind the reforms suggested by Lord Woolf in his seminal report, Access to Justice, was the need to reform the Civil Procedure Rules and make the access to justice the underpinning principle in the civil justice system. A principle area of reform suggested by Lord Woolf, relates to costs of litigation. Lord Woolf explained the problems that were existing in the civil justice system and the identified problems included the expense that litigants are put to. According to him, the system was “too expensive in that the costs often exceed the value of the claim; too slow in bringing cases to a conclusion and too unequal: there is a lack of equality between the powerful, wealthy litigant and the under resourced litigant. It is too uncertain: the difficulty of forecasting what litigation will cost and how long it will last induces the fear of the unknown; and it is incomprehensible to many litigants.

The areas of procedural excesses that led to expensive litigation as identified by Lord Woolf were: pleadings that were too detailed, documentary discovery, over lengthy witness statements, use of experts, at times unnecessarily so. The solution offered by Lord Woolf was to offer appropriate procedures at a cost that was also reasonable, considering the nature of the procedure and dealing with cases efficiently and speedily. Moreover, the fast track and multi-track courts were to run on fixed costs and costs published by the court, respectively.

The reforms made after the Lord Woolf report would suggest that the problems of costs as faced by litigants would be corrected. Despite the reforms in the CPR after Lord Woolf report, Lord Jackson identified high litigation costs as a factor that inhibits access to justice. According to him, high litigation costs have become a problem that affects both individual litigants as well as public justice. More concernedly, if high costs of litigation would prevent access to justice, the rule of law gets undermined. The ‘hourly rate’ remuneration was identified by Lord Justice Jackson as one of the factors that takes up the costs of litigation. This is a problem that has been talked about from an earlier period. For example an earlier work also mentions this problem as For example an earlier work also mentions this saying that solicitors in addition to charging on an hourly basis, also charge an “uplift for care and conduct which may, in a complex case, amount to 100 per cent of the fee”.

Lord Jackson’s reforms were focussed on giving more personal injury victims opportunities to recover damages; making costs proportionate by not making defendants pay success fee and ATE insurance costs; and making claimants financially interested in the costs that would be incurred on their behalf. Another thing that Lord Jackson recognised in common to Lord Woolf before him was the fact that witness statements and expert opinions were inordinately long. He suggested case management as a tool for cost control.

Lord Brigg’s interim report identified the fact that there is a need to move to paperless court in order to decrease costs of litigation. The report also mentioned Lord Jackson’s recommendation of fixed costs not being implemented as yet.

The running costs of the civil courts are met by court fees for the major part. The fees policy has been that it be broadly commensurate with the cost to the State of providing justice. Since 2014, the introduction of new court fees has meant a 75% fall in the workload of the ET. Due to the changes in court fees, in some instances, court fee has almost doubled.

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Conclusion

The change in court fee was required if the taxpayers had to stop shouldering the burden for making up the deficit in costs. At the same time, it is seen that rise in court fee has led to fall in workload of some courts. This puts the access to justice principle in doubt.

Bibliography

  • Access to Justice, Final Report (London: HMSO 1996).
  • Andrews N, ‘The New English Civil Procedure Rules’, in C H van Rhee (ed.),
  • European Traditions in Civil Procedure (Oxford: Intersentia NV 2005) 166.
  • Civil Courts Structure Review, Interim Report (London: The Stationary Office 2015)
  • Jackson, ‘Fixed Costs: The Time Has Come’, IPA ANNUAL LECTURE (28 JANUARY 2016)
  • Review of Civil Litigation Costs, Final Report (London: The Stationary Office 2009)
  • Sime S, A Practical Approach to Civil Procedure (Oxford: Oxford University Press 2016)
  • Zuckerman AAS, ‘Lord Woolf’s Access to Justice: Plus ca change’, (1996) The Modern Law Review 59(6), 773.

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