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In the Working Party's view, some of the most beneficial reforms can readily be
adopted without a wholesale change to the existing rules. Two of these were
discussed by Lord Phillips MR as part of his general review of how the Woolf reforms
were working, delivered at a Law Society Civil Litigation Conference held on 24
January 2002.
(a)
The first of the great successes involves Part 36 offers of settlement,
as to
which his Lordship stated :-
"The number of actions settling before trial has increased by 20% and the number settling at
the door of the court has diminished by 10%. I suspect that these figures are largely due to
the simple, but inspired, innovation which is an important element of the Woolf reforms,
namely that under Part 36 of the Rules not merely a defendant, but also a claimant can make
a settlement offer. ......"
(b)
The second involves a bundle of measures, including the making of
immediately payable and summarily assessed costs orders in place of orders for
costs payable "in any event", which have resulted in the reduction of
interlocutory skirmishes and interlocutory appeals. Lord Phillips put it as
follows :-
"There was a fear that the new rules would lead to a proliferation of interlocutory in-fighting.
This fear has not been realised. I believe that this is largely attributable to what has been
described as a ‘pay as you go' system of awarding costs. Under CPR 44 the court is required
to make a summary assessment of costs on giving judgment on an interlocutory application
and those costs had to be paid within 14 days. In the old days interlocutory costs orders
would not normally have to be paid until conclusion of the litigation. The fear of having to
call upon one's client to write a cheque for costs incurred in an interlocutory skirmish must
be a powerful disincentive to interlocutory proceedings unless success seems certain. The
reduction of interlocutory in-fighting and, in particular, of interlocutory appeals is one of the
major success stories of the Woolf reforms."
Clearly, it would be quite simple to introduce the equivalent of Part 36 offers and
payments by amending the RHC. This could also be done in respect of rules changing
the court's approach to the costs of interlocutory applications. The same applies to
other measures aimed at discouraging unnecessary interlocutory applications. And a
rule making leave to appeal necessary for interlocutory appeals can obviously be
added without difficulty, such a rule having been part of the RSC before adoption of
the CPR in England and Wales.
Notes
Discussed as "sanctioned offers and payments" in Section 11 below.
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