Changing Perspectives on Civil Litigation
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