 |  |
|
 |
 |
 |
 |
|  | |  | |
Some elements of the "proportionality" concept discussed above are already reflected
in some of our existing rules, for instance, those requiring the court to refuse an order
if it is "not necessary either for disposing fairly of the cause or matter or for saving
costs."
A well-developed rule of this kind is found in O 38 r 2A(1) which concerns
the court's power to order witness statements to be exchanged, stating :-
"The powers of the Court under this rule shall be exercised for the purpose of disposing fairly
and expeditiously of the cause or matter before it, and saving costs, having regard to all the
circumstances of the case, including (but not limited to) -
(a)
the extent to which the facts are in dispute or have been admitted;
(b)
the extent to which the issues of fact are defined by the pleadings;
(c)
the extent to which information has been or is likely to be provided by further
and better particulars, answers to interrogatories or otherwise."
In the Working Party's view, "proportionality" should form part of a rule stating the
underlying principles guiding case management, but without the specificity of CPR
1.1(2)(c) set out above. It should try to avoid spawning minute analysis and argument.
It should instead be a reminder that commonsense notions of reasonableness and a
sense of proportion should inform the exercise of a judicial discretion in the
procedural context.
Notes
|
 |
|