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Notes on Commencing Procedure and the Overriding Objective
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SA1C - Overriding objectiveOverriding objective
- Underpins the entire CPR
- Overarching set of principles the court will apply throughout a case
- At all times when conducting litigation, parties must bear in mind the OO
- CPR applies to all litigants (represented & unrepresented)
o Unrepresented litigant is expected to take steps to familiarise themselves with the rules (Barton v Wright Hassal)
o Court can provide practical assistance to litigants, but must enforce rules (Mole v Hunter)
CPR r1.1
OO defined as enabling the court to ‘deal justly with cases and at proportionate cost’
Dealing with cases justly and at proportionate cost includes:
Rule Content Purpose
r.1.1(2)(a) ensuring parties are on an equal footing Parties to have ‘equality of arms’ and ‘equal access
- Parties entitled to an independent and impartial tribunal to justice’
- An appellate court can set aside a decision affected by
actual/apparent bias
To avoid 1 party having a greater ability to use the
rules to its advantage where there is a significant
disparity in funds available for each party to spend on
the litigation
i.e. multinational vs lone claimant with restricted
financial means
r.1.1(2)(b) saving expense n/a
r.1.1(2)(c) deal with cases proportionately. To balance the following considerations:
- Legal complexity of issues
- Factual complexity of issues
- Financial value of the claim
, - Financial position of each party in considering
the proportionality of a proposed step in a
case/cost of it
- Importance of the case to general public
(holistic aspect)
e.g. a case with only a modest amount of damages
claimed, but which would introduce a new legal
concept or interpret a clause in a contract which
would apply in future to many other potential
litigants.
r.1.1(2)(d) dealing with a case expeditiously and fairly. n/a
r.1.1(2)(e) allotting to it an appropriate share of the court’s resources Ensure that there are resources reserved for other
cases
r.1.4(a) encouraging co-operation between the parties n/a
How do parties comply with the overriding objective?
- Court furthers the OO/puts it into effect by actively managing cases (R1.4)
- The parties to litigation must also assist the court further the OO (R1.3)
- Court’s approach to OO includes positive encouragement of the use of ADR
- The court must seek to give effect to the OO when it exercises any power conferred upon it by the rule or interprets any ruke
Complying with the overriding objective means that conduct aimed at achieving an advantage to your client will be penalised if it results in:
• unnecessary expense
• delay
• inefficient case management
• an adverse impact on other cases
• prejudice to another party through what is seen as underhand tactics.
, NB: the best time for a court to identify issues in a multi-track claim is as early as possible. Active case management includes identifying the
issues at an early stage: CPR r.1.4(2)(b).
The sooner the court seeks to identify the issues, the sooner it will be able to begin its effective case management, in particular of saving costs
and using time effectively
How does the court manage cases?
- Court controls cases through case management
- Court looks at importance of the case to each party + objective importance of the case
- Court’s power to make directions towards trial and about trial – r1.4(2)(l) straddles all of the others
- If the case does not settle, the court seeks to have a tight control over the amount of court time and the costs the parties are permitted
to expend in reaching the trial.
- Court must make orders that are at proportionate costs – must carry out a cost benefit analysis before making an order – therefore it
always bears in mind the cost of a step in the proceedings before ordering it
- The court can look at which allegations or issues are pursued by a party and the manner in which the litigation is conducted
CPR, r. 1.4
2. Active case management includes:
a. encouraging the parties to cooperate with each other in the conduct of the proceedings;
b. identifying the issues at an early stage;
c. deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;
d. deciding the order in which issues are to be resolved;
e. encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such
procedure;
f. helping the parties to settle the whole or part of the case;
g. fixing timetables or otherwise controlling the progress of the case;
h. considering whether the likely benefits of taking a particular step justify the cost of taking it;
i. dealing with as many aspects of the case as it can on the same occasion;
j. dealing with the case without the parties needing to attend at court;
k. making use of technology; and
l. giving directions to ensure that the trial of a case proceeds quickly and efficiently.
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