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Summary Civil Litigation Study Notes
- Institution
- Cardiff University (CF)
Covers topics such as pre-action conducts, adjudicative and non-adjudicative options
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Topic 1: General Matters (Syllabus 1) and Pre-Action Conduct (Syllabus 3)CPR 1.1 Overriding Objectives
-Cannot confer jurisdiction on the court where there would otherwise be no
jurisdiction, cannot deal with substantive legal rights.
-Deals with cases justly and at a proportionate cost.
How exactly?
1.1 (2)
(a) Ensure parties are on equal footing, participate fully in proceedings, parties &
witnesses can give their best evidence
(b) saving expense
(c) dealing with case in proportionate ways: (amount of money involved, importance
of the case, complexity of the issue, financial position of each party)
(d) cases are dealt with expeditiously and fairly
(e) allotting to it an appropriate share of court’s resources while not interfering with
the allotment of resources to other cases.
(f) enforcing compliance with rules, practice directions and orders.
1.1.1 – CPR apply to all litigants whether represented or unrepresented
-Court, further to the OO, can provide practical assistance to litigants but must
enforce the rules, except where rules/ Practice Directions are particularly
inaccessible/ obscure
1.1.2 Equality of arms, judicial bias
*concept of impartiality
-Actual bias and apparent bias
(a) Actual bias
• Judge influenced by partiality/ prejudice in reaching decision
• Where it has been demonstrated that a judge is actually prejudiced in favor or
against the party
(b) Apparent bias
• situation where circumstances exist which give rise to a reasonable
apprehension that the judge may have been, or may be, biased.
, • “The court must first ascertain all the circumstances which have a bearing on
the suggestion that the judge was biased. It must then ask whether those
circumstances would lead a fair-minded and informed observer to conclude
that there was a real possibility or a real danger, the two being the same, that
the tribunal was biased.”
• Judge may not be cross-examined / subject to disclosure concerning the
issue
• on judicial competence to give evidence, that where competent to do so they
should only give evidence as a last resort,
• Statements of judges as to their state of mind will be disregarded by a
reviewing/ appellate court
• Where there are real grounds for doubt as to a lack of bias, it should be
resolved in favour of recusal. The reasonableness of the apprehension must
be assessed in the light of the oath of office taken by the judges to administer
justice without fear or favour; and their ability to carry out that oath by reason
of their training and experience. It must be assumed that they can disabuse
their minds of any irrelevant personal beliefs or predispositions
JUDGES shall not:
- If the credibility of a judge’s friend or acquaintance is an issue to be decided by
him, the judge should be readier to recuse himself.
-Legal practitioner acting as a part time judge shall not sit to determine a case where
n his capacity as a practitioner, he is acting under current instructions for a party in
the case in another matter.
- Where a judge discloses the existence of such a factor or factors, they should
provide sufficient detail as is relevant to the informed bystander test, particularly in
those cases where the judge is likely to be the only source of such information—shd
reveal material facts that might provoke recusal but not necessary to disclose all
background details
-Judges may recuse themselves on the ground of bias – application for recusal go to
the heart of the administration of justice & must be raised as soon as is practicable
-It is a routine for judge to disclose activity/ association that would give rise to
reasonable apprehension of lack of impartiality & proper disclosure is necessary
because it gives parties to object & shows that judges simply have nothing to hide.
-Where a judge decides that it is improper to hear a matter due to apparent bias,
they must give formal notice to the parties on the reasons of withdrawal
*improper: =hear an application in, or to try a particular issue arising for
determination in, particular proceedings because of their early involvement in
those proceedings.
,-Judges must be really careful in ruling pre-trial applications, not to pre-judge & pre-
empt any decision that will be made on that occasion.
-Judge should give particular care not to give rise to reasonable apprehension of
bias
- it is not acceptable for a judge to form (or to give the impression of having formed)
a firm view in favour of one side’s credibility when the other side has not yet called
evidence which is intended to impugn it
- A judge who intervenes to suggest new lines of argument to counsel risks being
accused of entering into the arena on behalf of one side
-not a breach of ECHR Art 6 for judge to deal with contempt himself.
**approach taken in recusal application
(1) General rule: judge shd not recuse themselves simply because they are hearing
an application which relies on their own previous findings, iunless they genuinely
cannot give parties fair hearing/ a fair minded person thinks they are not able to do
so.
(2) must have substantial evidence of bias of one form or another before the general
rule can overcome
(3) Bias is not to be imputed to the judge by reason of their previous rulings unless it
is proved that they are likely to reach their decision by reference to extraneous
matters/ predilections or preferences.
(4) Judges shd not recuse themselves too readily in long & complex cases otherwise
the convenience of having single judge in charge of both procedural & substantial
part of the case will be seriously undermined
1.1.3 Equality of arms – vulnerable witnesses and parties
-Can participate fully in proceedings and give their best evidence.
1.1.4 Equality of arms – representation in remote hearings
-No infringement of equality where one party’s counsel can take part effectively
remotely & other party’s counsel is in court
1.1.5 unfair trial
-where a trial is held to have been unfair, the appellate must order a complete retrial
as no part of the judgement can be relied upon.
1.2 Application by court of OO:
(a) Court must seek to give effect to oo, when it exercises any power given by the
rule
(b) Interprets any rules subject to rules 76.2 (court must ensure that information is
not disclosed contrary to the public interest) , 79.2, 80.2, 82.2 and 88.2
, 1.3 Duty of the parties -Parties are required to help the court to further the OO.
1.3.2 (r.1.3)
-Party-failure to help the court may be visited in costs on the defaulting party/ parties
-Legal representatives will not be in breach of any duty to their client if they agree
reasonable extensions of time
-In commercial litigation, a high level of realism and co-operation is expected of
parties in their approach to pre-trial case management –so wasted court & party
costs are not incurred.
-Party is not under a duty to inform opponent of procedural mistakes
1.3.3 Court’s resources
-Fair allotment of court’s resources
-Duties of parties and professional advisers to keep the court informed of
developments that may affect use by the court
1.4 Court’s duty to manage case
1.4 (2) Active management includes
(a) encourage parties to co-operate in conduct of proceedings
(b) identify issues at early stage
(c) decide promptly on issues that need full investigation & trial and accordingly
disposing summarily of others
(d) decide the order in which issues are to be resolved
(e) encourage parties to use ADR if court deems appropriate
(f) help parties to settle whole/ part of case
(g) fix timetables/ control progress of each case
(h) consider the likely benefits of taking a particular step and justify the cost of it
(i) dealing with many aspects of the case
(j) deals with the case w/o parties needing to attend at court
(k) make use of technology
(l) give directions to ensure trial of a case proceeds quickly & efficiently)
1.4.1 Effect of rule
-Actively managing case
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