 |  |
|
 |
 |
 |
 |
|  |
|  |
|
F. THE COMPLEXITY OF THE CIVIL JUSTICE SYSTEM
| (a) | Complexity under the RSC |
| 126. | In addressing the complexity of the civil justice system, the Woolf reforms focussed on the then existing set of procedural rules, the Rules of the Supreme Court ("RSC") and on how they were used in practice. In Hong Kong, the High Court Rules ("HCR") are closely based on the RSC. |
| 127. | Lord Woolf saw as a major barrier to legal access, particularly vis- -vis unrepresented litigants, the complexity and sometimes archaic and impenetrable language of the RSC, with their case-law accretions :- |
| "No doubt each proposition contained in the rules was considered to be necessary when it was introduced. But the size and number of the rules is now such that in my view they are wholly inaccessible to those unfamiliar with them, and complex and daunting even to those who are familiar with them. It might even be said that the rules themselves have become an obstacle to access to justice. The problem becomes worse as the number of those who may have to act without legal representation increases. Complexity in the rules takes two obvious forms: | ||
| - too many ways of doing the same or similar things; | ||
| - the use of specialist terms and an over-elaborate style of language. | ||
| This is compounded by the problem of accretion: additions are made to deal with specific matters without taking into account the problem of meshing with the existing structure." (Note 95) | ||
| 128. | Complexity in the RSC was seen to be the inevitable result of the then accepted methodology, namely, to approach procedural rules on the footing that they were or could be made comprehensive so as specifically to cover every situation. Lord Woolf states :- |
| "In many instances, the complexity of the rules lies in their sheer length and the number of words used. This is the result of the attempt to cover all eventualities comprehensively and the need to give every single word a definite meaning, which leads to the repeated use of the same phrase or to cross-referencing." (Note 96) | ||
| (b) | Replacing the RSC with the CPR |
| 129. | The decision taken in England and Wales was to undertake the huge effort of substituting the RSC and to simplify procedural rules "so that they will be more easily understood and followed by litigants as well as their advisers". (Note 97) As a result, the RSC have now been replaced with the Civil Procedure Rules 1998 ("CPR"). |
| 130. | This task was undertaken with two fundamental aims. In the first place, recognizing the persistent upward trend in the numbers of unrepresented litigants, the CPR are an attempt to make procedural rules more accessible and therefore less of a potential source of unfairness to them. Lord Woolf put the point this way :- |
| "...... an increasing number of people, if they wish to assert their legal rights, may have to do so without professional help. It is therefore vital to enable them to do so, so far as the unravelling of unnecessary complexity and the simplification of language can assist. ...... Procedural justice is as important as substantive justice. It must be seen to be fair. The rules should, therefore, be comprehensible to the parties (whether or not they are legally represented) and to others who are concerned with the outcome of litigation. The civil process should command respect, not because it generates a sense of awe or mystery, but because it is patently fair." (Note 98) | ||
| 131. | A similar approach is adopted by the Law Reform Commission of Western Australia ("LRCWA") :- |
| "The public submissions convinced the Law Reform Commission that there is no point in having a justice system that people don't understand. Moreover it would be wrong to call it a 'justice system' if the prevailing view is that the system is unjust and unfair. The Commission heard from many people who feel that the present system is not accessible because it isn't comprehensible to the ordinary participant or observer. If, at the end of legal proceedings, people feel aggrieved by the process and procedures, the system is neither effective nor fair." (Note 99) | ||
| 132. | The LRCWA emphasised the difficulties caused to litigants in person by archaic language and forms :- |
| "There are more than 200 complex, archaic forms in use in the Local Court and it is necessary for a litigant to make sense of quaint terms including 'plaint', 'praecipe' or 'allocatur'. While a term like 'subpoena' has come to have a generally understood meaning: ie, if you get one you have to go to court or take something there, many of the words used and forms required by courts are confusing and unnecessarily complicated." (Note 100) | ||
| 133. | One of the main features of the CPR is its jettisoning of such language and its replacement by more functional terms. For instance :- |
| Used in RSC | Used in CPR |
||
| action | claim |
||
| plaintiff | claimant |
||
| writ | claim form | ||
| summons | notice of application |
||
| pleadings | statement of case |
||
| statement of claim | particulars of claim |
||
| request
for further and better particulars |
request
for clarification or information |
||
| leave of the court | permission of the court | ||
| guardian ad litem | litigation friend | ||
| settlement | compromise | ||
| mareva injunction | freezing injunction | ||
| anton piller order | search order | ||
| subpoena | witness summons | ||
| execution | enforcement |
| The CPR also contain a "glossary" explaining technical terms. (Note 101) It is fair to say that comparing the CPR with the RSC (and our HCR), the CPR are far more readable and easier to understand, both in their structure and as a matter of language. | |
| (c) | The new approach to procedural questions |
| 134. | As indicated above, the changes go deeper than merely modernising the language or simplifying the drafting. The second fundamental aim of the CPR is to foster a qualitatively new approach to deciding procedural questions. The danger, as some commentators have pointed out, is that over time, any new set of rules will itself attract case-law accretions and develop complexity. (Note 102) However, as Lord Woolf explains, the CPR are designed to avoid this in so far as possible :- |
| "The new rules are deliberately not designed expressly to answer every question which could arise. Rule 1, the statement of the objective, provides a compass to guide courts and litigants and legal advisers as to their general course. Where detailed instructions are needed, matters of general application will be dealt with in the rules; other matters will, I hope, be capable of being dealt with in practice directions and practice guides." (Note 103) | ||
| 135. | The lawyer or litigant and the Judge must therefore orient themselves differently in relation to the CPR. Lord Woolf argued that the objectives of the new rules could only be achieved :- |
| "...... if a new approach is taken by the judges applying the rules under a managed system of litigation. Instead of the over-technical way the rules have been applied in the past, the new rules will have to be used in a different way: they will have to be read as a whole, not dissected and viewed word by word under a microscope. A paramount consideration of those applying the rules must be saving cost and reducing delay. It is this new approach to procedural matters which will be the cornerstone of the new rules because the rules will be applied to save expense and avoid delay. The new rules are being deliberately framed so that the approach of those construing them can be more purposive and less technical. It will thus be the responsibility of the judiciary to make the new system work." (Note 104) | ||
| 136. | In other words, the second fundamental aim of replacing the RSC is to establish a new methodology for approaching procedural questions. More broadly formulated rules are there to be interpreted in the light of the overriding objective in rule 1 of the CPR (set out below). Decisions based on close linguistic construction of particular rules or reported cases in favour or against a particular construction should be avoided. The judge is to adopt a purposive approach, exercising a broad discretion which takes into account considerations of procedural economy as an aspect of procedural fairness. |
| 137. | This new departure, both for the court and for the parties, is expressly prescribed in the overriding objective prescribed by CPR 1 as follows :- |
| "1.1 | (1) | These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly. | |
| (2) | Dealing with a case justly includes, so far as is practicable - | ||
| (a) | ensuring that the parties are on an equal footing; | |||
| (b) | saving expense; | |||
| (c) | dealing with the case in ways which are proportionate - | |||
| (i) to the amount of money involved; | ||||
| (ii) to the importance of the case; | ||||
| (iii) to the complexity of the issues; and | ||||
| (iv) to the financial position of each party; | ||||
| (d) | ensuring that it is dealt with expeditiously and fairly; and | |||
| (e) | allotting to it an appropriate share the court's resources, while taking into account the need to allot resources to other cases. | |||
| 1.2 | The court must seek to give effect to the overriding objective when it - | |
| (a) | exercises any power given to it by the Rules; or | ||
| (b) | interprets any rule.1.3 The parties are required to help the court to further the overriding objective." | ||
| 138. | In Section M below, after examining a range of possible specific reforms, this Report considers the arguments for and against the alternatives of (i) adopting in large part the CPR in place of the HCR and (ii) largely retaining the HCR with limited amendments. |
Notes
| 95 | WIR, p 208, §6 <back> |
| 96 | WIR, p 211, §17. <back> |
| 97 | WIR, p 120, §7. <back> |
| 98 | WIR, p 216, §§28-29. <back> |
| 99 | WAR- Project Summary, p 3. <back> |
| 100 | Ibid, p 15. <back> |
| 101 | The CPR are published in Civil Procedure, The White Book Service 2001 (Sweet & Maxwell). The current version of the CPR may also be read or downloaded from the LCD's website: <http://www.lcd.gov.uk>. <back> |
| 102 | In 1998, Professor Michael Zander QC stated: "Whatever may prove to be [the CPR's] advantage, it will take many years and a great deal of litigation to establish their meaning." (1998) 61 MLR 382 at 388. <back> |
| 103 | WFR, p 275, §12. <back> |
| 104 | WIR, p 215, §26. <back> |
|
 |
|
