LexisNexis, publishers of the Civil Court Practice 2009 “The Green Book” marked the tenth anniversary of the Civil Procedure Rules with a debate chaired by Lord Neuberger which considered the impact of the CPR and assessed its strengths and weaknesses.
The panel members were:
* Sir Anthony Clarke, Master of the Rolls
* Simon Davis – Clifford Chance
* District Judge Michael Walker
* Professor Michael Zander QC – London School of Economics
The debate was recorded on video and can be found on the LexisNexis web site. It comes in convenient chunks – two sets of short excerpts, some highlights, and the full version (for which user details are required). I have so far watched only the highlights but will certainly go back to the full version.
If the contributors’ summary views are reasonably predictable – Michael Zander as the minority critic, as a recent post of mine will have led you to expect (see Zander sees his Woolf CPR predictions justified) – that makes them no less interesting and important. This is a convenient way to get an informed assessment of the CPR, albeit from a rather elevated stand-point.
I am with Michael Zander, not necessarily as to the detail, but as to what was conceded by Sir Anthony Clarke – that whatever the arguments for or against the CPR as a whole or in its specifics, litigation costs have gone up. Zander made the point that the front-end obligations now placed on parties means that any measurement of time and cost must start well before the issue of proceedings and take in the Pre-Action Protocols. I was at a meeting last night of Master Whitaker’s drafting committee. Our remit is limited to disclosure of documents rather than the wider aspects of the CPR, and a comment which I made about having a “bonfire of the Protocols” was very much an aside. The polite silence which followed this subversive comment was broken by one of those very British put-downs when someone said “I think you may find yourself on your own on that one”. In a minority, certainly, but not on my own; that does not make it wrong to question whether the array of pre-action requirements give back as much as they they take in pursuit of a just result – a justice which you cannot afford is no justice.
We very much need some metrics and (which is harder to find) some wider evidence that it is the CPR which are to blame for driving parties away from the courts – not just where the costs lie but a rounded explanation as to why, as Lawrence West QC put it recently, “the number of civil actions in the year after 1999 ‘plummeted as if pushed off a cliff’” (see Have the Woolf reforms worked).
I have covered this recently and will not do so again – yet. The LexisNexis debate is a good place to take in some of the arguments.