Part 36 best illustrates the presiding philosophy of CPR

Part 36 best illustrates the presiding philosophy of CPR
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  Fehreen Khan “Part 36 is the supreme achievement of the Civil Procedure Rules in assisting out of court resolution of civil disputes and thus best illustrates the presiding philosophy of those rules, that restricting legal costs promotes better access to justice.”   Critically analyse this statement. The presiding philosophy of the Civil Procedure Rules 1998, (CPR) srcinates from Lord 1 Woolf’s Access to Justice: Final Report, in which he expressed the need to improve justice and improve the costs of litigation by promoting the ‘early and cost efficient settlement of 2 claims.’ The overriding objective of these aims is enshrined in CPR r1.1, which enables 34 cases to be handled justly and proportionately to costs. Part 36 of the Civil Procedure 5 Rules is the procedural mechanism most squarely aimed at achieving this aims. 6 Although,whether it is the supreme achievement which best illustrates the presiding  philosophy is debatable. This essay will make the case that; Part 36 has its flaws and that there are other achievements of the CPR, which can assist out of court dispute, such as; encouraging parties to observe the pre-action protocols and to attempt Alternative Dispute Resolution, (ADR). However, ultimately Part 36 is the supreme achievement of the CPR. Part 36 provides the means for a party to make a formal offer to settle, which will be treated as ‘without prejudice as to costs’. The details of any offers will not be communicated to the 7  judge until the case has been decided. A Part 36 offer can be made at any time during or 8  before commencing proceedings, with the effect that if the party rejects an offer and fails to achieve a judgment ‘more advantageous’ they will face sanctions. 9 A flaw of Part 36 is that it is used to incentivise early offers, which puts pressure on the  parties to make a decision before the case has been sufficiently investigated. As in Ford v GKR which provides that the time of disclosure is important when deciding whether an 10 offer should be accepted. It is because of this that there is a risk that Part 36 may be used as Civil Procedure Rules 1998 1  Jackson, ‘The White Book’ Volume 2 (B Fontaine, I R Scott Sweet & Maxwell 2015) 3169 2  Lord Woolf, Access to Justice; Final Report to the Lord Chancellor on the Civil Justice System in 3 England and Wales (London: HMSO, 1996) Civil Procedure Rules 1998 r1.1 4  Civil Procedure Rules 1998 r1.2 5  Daniel Ward article 6  Civil Procedure Rules 1998 r 36.16(1) 7  Interactive Technology Corporation Limited v Ferster and Others [2017] EWHC 1510 ChD 22 , 8 Civil Procedure Rules 1998 r36.16(2) Civil Procedure Rules 1998 r36.14, r36.17 9  Ford v GKR Construction Limited [2000] 1 ALL ER 802 (CA) 10  a tactic by a party to avoid liability and such it does not provide access to justice. Instead the aim of restricting costs by imposing sanctions ends up threatening the parties to compromise and not achieve justice. However, this flaw does not seem to damage the credibility of Part 36. As following the 2015 reform, Part 36 allows the judge’s discretion on how sanctions are imposed, which can sometimes avoid harsh and unjust results. For 11 example,where a claimant failed to beat an offer, but the court held her reasons to be reasonable as documents needed for the case were not disclosed until later on. Similarly, 12 where claimant has failed on a particular issue, the court may reduce the sanctions imposed on the defendant. 13 Additionally, Part 36 is the supreme achievement because it is a self - contained code, 14 which does not incorporate general principles derived from the law of contract. This is 15 made clear in r36.9(2), which states that offers remain open for acceptance, unless a notice of withdrawal is served and where an offer has been rejected it does not render it incapable 16 of later acceptance. This therefore has the effect of reducing costs as it allows the 17 defendant to put forward a reasonable offer and to choose whether to leave the offer on the table, to tempt the claimant into accepting it. As a result, if the offer is accepted, then the defendant has the benefit of the costs of an offer made at an early stage and as such it encourages parties to settle promptly. It could also potentially see parties avoiding court altogether. Furthermore, because of the self - contained code nature of Part 36 it can be used by litigants in person. As noted by Sime, the uncertainty caused prior to the 2015 reforms had led to satellite litigation because of the consequences of failing to obtain a better offer. 18 This was due to the ambiguity of how the courts would award costs in situations such as where there were two live offers from the same party each with their own effects on costs depending on its terms and the date. However, the occurrence of satellite litigation can be 19 said to have been combatted to an extent by the inclusion of r36.9(4)(b), where the official offer letter can contain a deadline, following which the offer will be automatically withdrawn, after the relevant period easing the complications around this area. Thus, demonstrating that Part 36 illustrates the presiding philosophy of the CPR. Civil Procedure Rules 1998 r36.21, r36.29 11  Ibid 9 12  Budgens v Andrew Gardner Partnership [2002] 3 ALL ER 385 13  Civil Procedure Rules 1998 r36.1(1) 14  Gibbon v Manchester City Council case…….. 15  Civil Procedure Rules 1998 r36.9(2) 16  Sampla v Rushmoor Borough Council [2008] EWHC 2616 17  Stuart Sime, ‘Offers to Settle: Incentive, Coercion, Clarity’ (2013) 32 CJQ 182, 191 18  Ibid 192 19  Another achievement of the CPR to consider is the use of Pre - Action Protocols to govern the conduct of parties, in line with the r1.1, to encourage parties to settle early and to ensure that they support the efficient management of proceedings which cannot be avoided. 20 Whilst the Protocols can result in settlement and thus a reduction in costs, it can often be difficult to establish which protocol applies to the claim at hand. Therefore, whilst it reduces costs it does not have the potential to completely eliminate them like Part 36. ADR is also an achievement of the CPR which is encouraged through the protocols,in order to reach a settlement. Meadow argues that dispute resolution by negotiation and agreement is superior to formal adjudication because parties are more involved in the process and as such outcomes are tailored towards the parties needs.Although, as established in the 21 Briggs report, for certain cases such as those on the Multi-track, following the recent rises in issue fees the use of mediation now being used before proceedings does not necessarily reduce costs or settle any earlier, because more costs are now incurred pre-issue. Although, 22 for small cases ADR may be effective, it is still a double - edged sword which can  potentially front load costs. ADR is not compulsory, but is becoming a cultural norm. 2324 This is demonstrated in cases such as Dunnett, where unreasonable refusal resulted in cost 25 sanctions. Despite sanctions being imposed, there is still reluctance from parties to use 26 ADR, which may suggest that this is because it is not seen to achieve justice. Genn further supports this view, as she states that unsuccessful mediation can effectively increase the costs of litigation by £1500 -2000. Although, ADR is at the heart of today’s civil justice 27 system,as it makes it possible for weaker parties to enforce their rights and to expose wrongdoing, Genn also argues that it is necessary for certain cases to be adjudicated to 28 make new leaps in the law. This is illustrated in the decision of Donoghue v Stevenson, 2930 which without in court resolution would not have established the tort of negligence. Moreover, emphasising the use of ADR does not achieve justice, nor does it provide access Civil Procedure Rules 1998 r1.4(1) 20  C Menkel - Meadow, ‘For and Against Settlement: Uses and Abuses of the Mandatory 21 Settlement Conference’ (1985) 33 UCLA L. Rev 485 Briggs Report 22 Michael Zander, Cases and Materials on the English Legal System’ (10th edn CUP 2007) 147 23 24  Dunnett v Railtrack Plc [2002] EWCA Civ 303 25  Civil Procedure Rules 1998 r44 26  Hazel Genn, ‘What is Civil Justice for? Reform, ADR and Access to Justice’ (2012) 24(1) Yale 27 Journal of Law & Humanities 397, 405 Judith Resnik & Dennis E Curtis, Representing Justice: From Renaissance Iconography to 28 Twenty- First Century Courthouse 151 Proceedings AM. Phil. Socy 139, 157 (2007) Hazel Genn, ‘What is Civil Justice for? Reform, ADR and Access to Justice’ (2012) 24(1) Yale 29 Journal of Law & Humanities 397, 398 Donoghue v Stevenson [1932] 30  to justice but rather it conflicts with the right to a fair hearing under Article 6. As such it 3132 is antipathetic to the presiding philosophy of the CPR, which Lord Woolf defined as the creating of an equal justice system for all. Therefore, this “economic cleaning” of the 3334 civil courts to reduce costs through compulsory mediation is essentially stepping back from the progress made by the Woolf reforms, as it limits access to justice for the poor. 35 Therefore, ADR simply urges settlement it does not embody the presiding philosophy. To conclude, Part 36 is a far superior achievement of the CPR as it restricts costs by combatting satellite litigation and it can prevent harsh and unjust results from occurring. Although, it cannot be said that it always achieves justice, but it has the potential to do so, unlike the observing of the protocols and the use of ADR, which raise confusion and undermine the fundamental right to access the court, under the rule of law. Therefore, Part 36 best illustrates the presiding philosophy. Ibid 417 31   Council of European Convention for the Protection of Human Rights and Fundamental 32 Freedoms (European Convention on Human Rights, as Amended) (ECHR) 1950, Article 6 Rule of Law Tom Bingham 33  Hazel Genn, ‘What is Civil Justice for? Reform, ADR and Access to Justice’ (2012) 24(1) Yale 34 Journal of Law & Humanities 397, 417 Ibid 417 35
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