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J1. Overriding objective and CPR
J1.1. The purpose of the overriding objective
| 225. | In his Final Report, Lord Woolf explained the idea behind the overriding objective in the CPR in these terms :- |
| "Every word in the rules should have a purpose, but every word cannot sensibly be given a minutely exact meaning. Civil procedure involves more judgment and knowledge than the rules can directly express. In this respect, rules of court are not like an instruction manual for operating a piece of machinery. Ultimately their purpose is to guide the court and the litigants towards the just resolution of the case. Although the rules can offer detailed directions for the technical steps to be taken, the effectiveness of those steps depends upon the spirit in which they are carried out. That in turn depends on an understanding of the fundamental purpose of the rules and of the underlying system of procedure. | ||
| In order to identify that purpose at the outset, I have placed at the very beginning of the rules a statement of their overriding objective. This is intended to govern the operation of all the rules and in particular the choices which the court makes in managing each case and in interpreting the rules......." (Note 171) | ||
| 226. | As Lord Woolf put it a little later in his Report, the overriding objective contained in Rule 1 of the CPR, is intended to provide "a compass to guide courts and litigants and legal advisers as to their general course." (Note 172) The relevant parts of this rule may conveniently be set out 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 of 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." (Note 173) | ||
| 227. | As noted above in the section on "The Complexity of the Civil Justice System", the second fundamental reason for replacing the RSC with the CPR is to establish a new methodology for approaching procedural questions. This involves using more broadly drafted rules construed purposively in accordance with the overriding objective. An important aim is to minimise encrustation of the rules with case-law seeking closely to construe each individual provision. |
| 228. | Such an approach is not without precedent. In a 1993 article, Mr Justice L T Olsson of the South Australian Supreme Court drew attention to a provision which requires that State's Supreme Court Rules to be construed in similar manner :- |
| "The fundamental concept upon which all procedures and processes are based now finds expression in Rule 2 of the Supreme Court Rules (SCR), which stipulates: | ||
| 2.01 | These Rules are made for the purpose of establishing orderly procedures for the conduct of litigation in the Court and of promoting the just and efficient determination of such litigation. They are not intended to defeat a proper claim or defence of a litigant who is genuinely endeavouring to comply with the procedures of the Court, and are to be interpreted and applied with the above purpose in view. | ||
| 2.02 | With the object of - | ||
| (a) | promoting the just determination of litigation; | |||
| (b) | disposing efficiently of the business of the Court; | |||
| (c) | maximising the efficient use of available judicial and administrative resources; and | |||
| (d) | facilitating the timely disposal of business at a cost affordable by parties; | |||
| actions in the Court will be managed and supervised in accordance with a system of positive case flow management. These Rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the above objects. | |||
| 2.03 | The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for pleadings, discovery and other interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties, and the preparation of the case for trial." (Note 174) | ||
| 229. | Since promulgation of the CPR, a similar rule (among other amendments) has been adopted in New South Wales. (Note 175) It provides as follows :- |
| Overriding purpose | ||
| 1.3. | (1) | The overriding purpose of these rules, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in such proceedings. | ||
| (2) | The Court must seek to give effect to the overriding purpose when it exercises any power given to it by the rules or when interpreting any rule. | |||
| (3) | A party to civil proceedings is under a duty to assist the Court to further the overriding purpose and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court. | |||
| (4) | A solicitor or barrister shall not, by his or her conduct, cause his or her client to be put in breach of the duty identified in (3). | |||
| (5) | The Court may take into account any failure to comply with (3) or (4) in exercising a discretion with respect to costs." | |||
| 230. | The LRCWA has published recommendations that Western Australia adopt a similar approach :- |
| 5. | The civil justice system should be managed in order to be expeditious, proportionate, and both procedurally and substantively just. | |
| 6. | Legislation should be enacted applying the objects clause [above] to all legislation impacting upon civil justice, including Rules of Court, so that the principles on which the civil justice system rests are clearly set out." (Note 176) | |
| 231. | The overriding objective is not intended to be an abstract aspirational statement, but to represent a set of principles to be projected into all procedural rules, guiding their interpretation in a dynamic and purposive way. Case-law on the CPR has been relatively sparse (as intended). However, the decided cases tend to indicate that the courts have taken the purpose of the overriding objective to heart and that it is generally being used as a beacon guiding construction of the broad language of the CPR. (Note 177) This has been brought home to practitioners, as Geoffrey Reed indicates :- |
| "On numerous occasions ...... the Court has made it abundantly clear that the overriding objective is a good deal more than a hollow declaration of intention. The repeated reference to the overriding objective has made us all stop and think from time to time just what we are trying to achieve."(Note 178) | ||
| 232. | The overriding objective appears to have proved a useful and fundamental source of guidance for the operation of the system as a whole. It is likely to be an essential part of any reforms, whether or not a new set of procedural rules is adopted. One may note, for instance, that an overriding objective was adopted in New South Wales where the rules were not subjected to a complete re-drafting. |
| 233 | Readers are asked whether the Hong Kong civil justice system should adopt an overriding objective and the accompanying methodology: Proposal 1. |
Notes
| 171 | WFR, p 274, §§10 and 11. <back> |
| 172 | WFR, p 275, §12. <back> |
| 173 | Rule 1.4 deals with the court's duty to manage cases and is dealt with in this Paper in the subsequent section on case management. <back> |
| 174 | The Honourable Justice L T Olsson (S Ct, S Australia), Civil Caseflow Management in the Supreme Court of South Australia - Some Winds of Change (1993) JJA 3 at 7-8. The other sub-rules of r 2 deal in greater detail with aspects of case management. <back> |
| 175 | Supreme Court Rules (amendment No 337) 2000, made by the Rules Committee on 20 December 1999. <back> |
| 176 | WAR - Recommendations 5 and 6. <back> |
| 177 | Eg, Burstein v Times Newspapers Ltd [2001] EMLR 14; Securum Finance Ltd v. Ashton [2000] 3 WLR 1400 (CA) Chadwick LJ and Rattee J. <back> |
| 178 | Geoffrey Reed, "Review of the Civil Procedure Rules from the Perspective of a Defendant Personal Injury Lawyer" [2000] JPIL 13. <back> |
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