The CPR were a product of their time. That time has gone.

If I were peddling porn or a political party, I would gauge the success of this site by the number of hits each day. I am content enough with that indicator, but what is more interesting to me are comments which suggest that people with a real interest in litigation and its management are reading my articles and finding that they strike a chord with them. It is particularly gratifying when, as last week, the comments come equally from Australia, the US and London – a reflection, I am the first to admit, of the universality of the subject matter rather than my own gloss on it.

Richard Harrison, a litigation partner at Laytons in London, was one of those who took the trouble to drop me a line last week. I value it because Richard is one of the few who combines actual practice in litigation for commercial clients with serious thought as to litigation’s place in society and as to how best to serve both the interests of justice and the clients’ needs. This cross-over between practice and thinking is vital: one of the biggest e-disclosure exercises I have been involved in, years ago, was for a Laytons partner;  Richard and I exchange e-mails from time to time or meet at conferences, and  he is one of those contacts who helps to keep my thinking rooted in the practicalities of life from the solicitor’s perspective.

His comment was made in relation to my post Jackson Litigation Costs Review consultation ends and picked up on points I made both in that post and in an earlier one called Woolf V Genn: the decline of civil justice . It reads:

As ever, I enjoy your stuff because in addition to the e-disclosure exotica of which you have an obvious grip, you are aware of the place of litigation in the real world.

As to the “expensive dirigisme” of the CPR, I agree with you and have done in extensive writing since implementation. And on the issue of terminology, I first wrote about this in nearly ten years ago in “Linguistics and Litigation” (New Law Journal, 8 October 1999). I have to recant though when at the same time as mocking the substitution of “writ” with claim form and “plaintiff” with “claimant”, and ridiculing the replacement of the perfectly understandable Anglo-Saxon “leave” with the polysyllabic, Latinate “permission”, I said that changing “discovery” to “disclosure” was a “useful change”. I was wrong: as well as diverging from other common-law jurisdiction, I agree with you (although I’ve forgotten where I read it here precisely) that it conveys a notion of voluntary revelation rather than a court-inspired hunt for justice.

It is a sad reality that the ability of the law and legal practice to change lags well behind the demise of its political inspiration. The CPR, if not the underlying Woolf proposals, were a product of their time and that time was the first New Labour government. The prime movers were characters such as Irvine and Hoon and the whole thing smacked of the optimism of the new dawn: it was genuinely thought that language could change behaviour. Claim Forms would be genuinely more accessible than Writs. Even legislation suffered from the syndrome: the Access to Justice Act was in reality what used to be called an Administration of Justice Act. The political inspiration for New Labour is now discredited and its initiators a source these days of grim mirth. But legal culture turns like an oil tanker and we are still living with the spirit of the late nineties.

Oh and thanks for getting Clapton, Hendrix and me together.

It was, I should point out, a different Harrison who was grouped with Clapton and Hendrix in my post Jackson Litigation Costs Review consultation ends.

The point of real interest here is that Lord Woolf’s two reports, which largely set the tone of the CPR, were commissioned by the last Conservative Government. Labour inherited them, and the extent to which they modified them is unclear. There is a definite Labour flavour in the addition of unnecessary bureaucracy, the earnest desire to save people from their own wishes and the multiplication of superfluous rules, as well as the idea that that fiddling with nomenclature is ipso facto an improvement, but perhaps the CPR and New Labour were equally products of their unimpressive time. That time is gone. The oil tanker of court rules and legal culture will, as Richard says, take a long time to turn.

Richard is probably unconscious of his influence on what I write. For a long time, he had a column in the Society for Computers & Law Magazine. Computers and Law is not a trivial read. It has for many years been the best source of learned yet practical articles on all aspects of information technology law and the role of IT in legal practice. Richard’s column usually came at the end where, exhausted by immersion in the heavyweight stuff, one would find a page which combined obvious knowledge of the subject with a light touch, cultural references from all over the place and a deft sense of humour. I don’t think I consciously borrowed his approach but, looking back, I suspect that my own habit of illustrating e-disclosure and case management with anything from politics to pop songs came from Richard’s columns. When people quote my own articles back at me, it is usually the collateral allusions which made them stick in the mind, although I hope it is the substance which they come back for.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Access to Justice, Civil justice, Court Rules, CPR, Litigation. Bookmark the permalink.

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