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SI 2015/1569: doesn’t sound so earth-shattering, does it?

SI 2015/1569: doesn’t sound so earth-shattering, does it?

Amendments to the CPR are enacted with such regularity that they are often lucky to receive more than a passing glance from the legal community. The changes brought into effect on 1 October 2015 by Civil Procedure (Amendment No 4) Rules 2015 (aka SI 2015/1569), however, are likely be ‘food for thought’ for some time to come; certainly insofar as litigants in person are concerned.

The insertion of new rule 3.1A is described in the accompanying Explanatory Note as, “making provision for the way in which the court is to approach case management where at least one party is unrepresented”.

So far, so anodyne. But as with everything in life, the devil is in the detail.

Rule 3.1A provides as follows:

“3.1A Case management – unrepresented parties

  1. This rule applies in any proceedings where at least one party is unrepresented.
  2. When the court is exercising any powers of case management, it must have regard to the fact at least one party is unrepresented.
  3. Both the parties and the court must, when drafting case management directions in the multi-track and fast track, take as their starting point any relevant standard directions which can be found online at www.justice.gov.uk/courts/procedure-rules/civil and adapt them as appropriate to further the overriding objective.
  4. The court must adopt such procedure at any hearing as it consider appropriate to further the overriding objective.
  5. At any hearing where the court is taking evidence this may include –
    (a) ascertaining from an unrepresented party the matters about which the witness may be able to give evidence or on which the witness ought to be cross-examined; and
    (b)
    putting, or causing to be put, to the witness such questions as may appear to the court to be proper.”

Commercial practitioners are met with unrepresented parties on a regular basis. It is, after all, the practice area in which legal aid and insurance has rarely strayed.

As such, few commercial practitioners will blanche at sub-rules (1) to (4) above. They represent no more than a codification of the common practice of courts conducting case management conferences involving an unrepresented party; ordering, for example, the represented party (whether claimant or defendant) to prepare hearing bundles, draft directions and so on.

It is equally commonplace to provide more conservative timescales for directions such as agreeing the trial bundle index and providing the trial bundles themselves, to enable the unrepresented party to turn their mind to the documents upon which they place particular reliance and to prepare for the trial itself.

Where case management takes a new and potentially far-reaching direction, however, is with discretionary sub-rule (5).

One can easily see how this provision, judicially deployed, may further the overriding objective, with trials involving an unrepresented party concluding more quickly and efficiently thereby saving court time and saving the represented party legal costs.

However, there is a fine line between doing justice between the parties, including procedurally, and straying from the impartiality required of the court’s role.

One can (equally) easily see the potential for the proverbial ‘ambush’ of the represented party if an unrepresented party is invited to elaborate, or define, the scope of his witnesses’ evidence at the very point of giving evidence; as sub-rule (5)(a) would appear to envisage. The scope of such evidence can only be justly dealt with at an interim stage – case management proper, if you will – if we are to be left with a process that is fair to both parties.

Perceived impartiality is, of course, just as important as actual impartiality. At first blush, sub-rule 5(b) does not sit comfortably with our adversarial judicial system, smacking as it does of the inquisitorial.

Here, however, practitioners (and the parties they represent) can take comfort from the fact that the practical constraints of the public purse and judicial time are such that the likelihood of a quasi-inquisitorial trial are slim to non-existent.

So earth-shattering it may not be but as with all change, only time will tell how truly revolutionary this new rule is.

Reconciling the procedural disadvantages faced by an unrepresented party with the overriding objective of doing justice between the parties is no mean feat. That being said, I cannot help but wonder whether this new rule misses the point.

The courts are already adept at appropriately adopting procedure using CPR r.3.1(2)(m), which for those of you without a photographic memory, empowers the court to “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.”

The real strain placed on the court and, indeed, on represented parties, is that an unrepresented party frequently fails to understand what the actual issues in the case are. Without an understanding of the issues, an unrepresented party cannot hope to appropriately comply with procedural steps such as disclosure and witness statements.

Perhaps an agreed list of issues upon which case management will be based is one for next time? I can only cross my fingers and watch this space…

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