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K14.2. Reducing the need for interlocutory applications
| 430. | The aim of reducing the need for interlocutory applications is part of the overriding objective of the CPR. Thus, CPR 1.4(2) requires the court actively to manage a case by, amongst other things :- |
| "(i) | dealing with as many aspects of the case as it can on the same occasion; [and] | |
| (j) | dealing with the case without the parties needing to attend at court......" |
| (a) | Leaving matters to the parties to agree without involvement of the court |
| 431. | Avoiding applications by encouraging the parties to agree to sensible procedural arrangements is part of the overriding objective. Thus, CPR 1.4(2)(a) includes in the court's case management duties encouragement of the parties "to co-operate with each other in the conduct of the proceedings". CPR 1.3 places an obligation on the parties to "help the court to further the overriding objective". Plainly, bloody-mindedness or simple unreasonableness which leads to an interlocutory application puts the unreasonable party at risk as to the costs of that application. |
| 432. | Agreement is sometimes specifically encouraged in particular contexts. Thus, while the rules stress the firmness and general immovability of milestone dates in the timetable, CPR 2.11 authorises the parties to agree extensions of time (in relation to the rules, practice directions or orders of the court) without any need for an application to or approval by the court, provided that the dates for the milestone events identified in CPR 29.5 are not affected. Such a rule ought significantly to cut down the need for time summonses. |
| (b) | Court acting on own initiative |
| 433. | Another measure aimed at reducing the number of interlocutories is the power given to the court to deal with matters of its own initiative :- |
| "Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative." (Note 384) | ||
| 434. | Where it decides to do so, it is specifically absolved from any duty to hear the parties. (Note 385) However, if, after having made the order, a party affected may, within a specified time, apply for the order to be set aside, varied or stayed, the right to make this application being stated in the court's order. (Note 386) |
| 435. | This is a useful power which, if used wisely in cases where the order is plainly needed and unlikely to lead to a contentious hearing, could avoid interlocutory hearings and save the parties costs. |
| (c) | Making orders "self-executing" |
| 436. | At present, if faced with a defaulting or dilatory opponent who fails to comply with the rules or with the court's interlocutory orders, the other party must take out a summons to enforce compliance. This may take more than one hearing, with the master or judge first extending time for compliance and then making a "final order" or an "unless order" before finally being driven to a more drastic sanction, such as striking out the defence or claim where non-compliance persists. |
| 437. | The CPR's approach is to relieve the innocent party of this burden of enforcement and to reduce the number of applications needed. This change was explained by Lord Woolf as follows :- |
| "I would stress four important principles. | ||
| (a) | The primary object of sanctions is prevention, not punishment. | ||
| (b) | It should be for the rules themselves, in the first instance, to provide an effective debarring order where there has been a breach, for example that a party may not use evidence which he has not disclosed. | ||
| (c) | All directions orders should in any event include an automatic sanction for non-compliance unless an extension of time has been obtained prospectively. | ||
| (d) | The onus should be on the defaulter to apply for relief, not on the other party to seek a penalty." (Note 387) | ||
| 438. | It was emphasised that the sanction should be relevant to the non-compliance and tailored to be proportionate to the importance of the breach in the context of the action as a whole. (Note 388) A wide range of sanctions allows for flexibility in this context. |
| 439. | In implementing this approach, if practicable, rules, practice directions and court orders should specify the consequences of non-compliance. Thus, in relation to the court's general powers of case management, the CPR provide that :- |
| "When the court makes an order, it may - |
| (a) | make it subject to conditions, including a condition to pay a sum of money into court; and | ||
| (b) | specify the consequence of failure to comply with the order or a condition." (Note 389) |
| 440. | If such an order is made, then the consequence takes effect without need for a further order, placing the onus on the party guilty of non-compliance to seek relief :- |
| "Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction." (Note 390) | ||
| 441. | The party who has failed to comply cannot count on being granted relief. The court is enjoined by CPR 3.9 to consider all the circumstances including the following :- |
| "(a) | the interests of the administration of justice; | ||
| (b) | whether the application for relief has been made promptly; | ||
| (c) | whether the failure to comply was intentional; | ||
| (d) | whether there is a good explanation for the failure; | ||
| (e) | the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol; | ||
| (f) | whether the failure to comply was caused by the party or his legal representative; | ||
| (g) | whether the trial date or the likely trial date can still be met if relief is granted; | ||
| (h) | the effect which the failure to comply had on each party; and | ||
| (i) | the effect which the granting of relief would have on each party." |
Notes
| 384 | CPR 3.3(1). <back> |
| 385 | CPR 3.3(4): "The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations." <back> |
| 386 | CPR 3.3(5). <back> |
| 387 | WFR, p 72, § 3. <back> |
| 388 | WFR, p 74,§ 10. <back> |
| 389 | CPR 3.1(3). <back> |
| 390 | CPR 3.8(1). The rule permitting the parties to vary time limits by agreement does not apply in such cases: CPR 3.8(3); and where the sanction is an order as to costs, relief can only be sought by way of appeal against such order: CPR 3.8(2). <back> |
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