Changing Perspectives on Civil Litigation
| Author | Leonard Hoffmann |
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb02674.x |
| Date | 01 May 1993 |
| Published date | 01 May 1993 |
May
19931
Changing Perspectives on Civil Litigation
Changing Perspectives on Civil Litigation
Sir
Leonard
Hoffmann
*
Let me begin by declaring two limitations on what I intend to discuss. Both arise
from the fact that the paper is based entirely on my own experience as counsel and
a judge. The first point is that when I speak of recent changes,
I
mean what has
happened over the last twenty-five years or
so,
since the late
1960s,
which happens
to be when I came to the Bar. Secondly, I shall speak principally of actions in the
Chancery Division. I doubt whether things are very different in the Commercial
Court, but
I
can say nothing of, for example, personal injury litigation or procedure
in the County Court.
Twenty years ago, English civil procedure could be said to have the following
salient characteristics. First, it was intended to enable the parties to obtain a decision
on disputed questions of legal right. In other words, it was devised for deciding
bona fide disputes. Second, the centre piece of the system was the trial. This meant
a continuous session, sometimes contained within a single day, sometimes lasting
many days, at which the parties would confront each other, call their witnesses,
test their opponent’s evidence by cross-examination, make their submissions and
receive judgment. Third (and this is a corollary of the last feature), the earlier
procedural stages such as pleadings, discovery and interlocutory applications were
ancillary to the ultimate trial and judgment. Their purpose was first, to enable the
trial
to be conducted as efficiently and economically as possible and second, to enable
the judgment to be as effective as possible. Fourth, the proceedings were largely
oral. The rules for the written elements of the procedure
-
pleadings, affidavits,
interrogatories
-
emphasised the need for brevity. The rules said that pleadings
are to be succinct and affidavits should not be prolix. But they said nothing about
limits on oral evidence or submissions: these were open-ended, subject only to the
general discretion of the court.
Let me now examine the extent to which these characteristics have changed. First,
the procedure as a method for deciding bona fide disputes. The bulk of the Rules
in the White Book,
so
far as they apply to ordinary civil proceedings, are designed
to enable the issues to be defined, the parties to prepare for trial and the trial to
take place in an orderly and effective manner. Clearly, none of this makes any sense
in
a
case in which there is no real dispute and the plaintiff only wants access to
the coercive power of the state in order to enforce his undoubted rights. Until quite
recently, the only way in which it was possible to short-circuit the procedure and
go straight to judgment without pleadings or trial was by application for summary
judgment under RSC Ord
14
or RSC Ord
86.
In recent years, however, this remedy
has been shown to be in various respects inadequate.
First, let me consider those cases for which RSC Ord
14
was primarily designed,
namely the money claim in a liquidated amount, where the defendant is delaying
payment to improve his cash flow or because he is in fact unable to pay his debts
but wants to stave off liquidation or bankruptcy. There are symptoms to suggest
that, in this kind of case, the paradigm RSC Ord
14
case, the system is not working
adequately. These symptoms consist in an increase in the number of cases in which
companies deny that they owe money which the creditor claims is indisputably due
*Lord
Justice
of
Appeal.
0
The
Modern Law Review Limited
1993
297
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