Access to Justice

58.    The client should personally be sent any costs order made against him and be made aware of his right to apply for a wasted costs order against his solicitor. He should also be sent a copy of any order, breach of which will lead to striking out, so that he knows the directions of the court and the effect of non-compliance.

Costs
59.    It should be a professional obligation for lawyers, before they are retained in connection with litigation, to explain to the prospective client how their charges for litigation are to be calculated and what the overall cost might be; and for the solicitor to give reasonable notice where that estimate is likely to be exceeded and the reason for this. (IRR 120)

60.    Legal professional bodies should encourage their members, where this is practical, to undertake litigation on fixed fees either for stages of the proceedings or the proceedings as a whole. (IRR 121)

61.    Courts, in making orders for costs, should pay greater regard than they do at present to the manner in which the successful party has conducted the proceedings and the outcome of individual issues. (IRR 122)

62.    Orders for costs need to reflect more precisely the obligations the new rules place on parties.

63.    The court should have power to deal with the question of costs even where all other issues have been resolved without litigation.

64.    Where one of the parties is unable to afford a particular procedure, the court, if it decides that that procedure is to be followed, should be entitled to make its order conditional upon the other side meeting the difference in the costs of the weaker party, whatever the outcome.

65.    The court should be able to order payment of interim costs in cases where the opponent has substantially greater resources and where there is a reasonable likelihood that the weaker party will be entitled to costs at the end of the case.

66.    Benchmark costs should be established by the court with the assistance of user groups, for multi-track proceedings with a limited and fairly constant procedure.

67.    The new standard basis of taxation should be based on the wording of the Solicitors' (Non-Contentious Business) Remuneration Order 1994, ie, that the amount allowed should be what is "reasonable to both parties to the taxation". The indemnity basis should remain as it is.

68.    There should be a review of the rules on the costs recoverable by a litigant in person with a view to simplifying them.

69.    As part of the wider discussion of legal aid, consideration should be given to the position of the unassisted litigant who succeeds against a legally aided opponent. (IRR 123)

70.    As part of the review of court fees, the position of a litigant of modest means should be protected from the undue impact of increased court fees. (IRR 124)

The supporting structure
71.    A Civil Justice Council should be established to contribute to the development of the proposed reforms.

72.    The new rule-making authority which will be needed to enact the new combined rules should contain in its membership people who can advance consumer, advisory and other lay viewpoints, as a counterbalance to the professional legal interests.

73.    There should be a Head of Civil Justice who will have overall responsibility for the civil justice system in England and Wales. (IRR 12)

74.    A Presiding Judge on each Circuit should be nominated as having primary responsibility for civil work. (IRR 13)

75.    The two Chancery judges responsible for overseeing Chancery work on Circuit should also oversee the business and mercantile lists. (IRR 14)

76.    A Circuit judge responsible for each civil trial centre and its satellite courts should be designated by the Head of Civil Justice as soon as the centres are identified. (supersedes IRR 15)

77.    The Court Service should appoint officials who correspond to the judges responsible for judicial administration to act in partnership. (IRR 16)

78.    The High Court and the county courts should be retained as separate courts and the separate status of the High Court judge should not be undermined. (IRR 24)

79.    The High Court and the county courts should generally have the same jurisdiction and outside London should be administered together. Cases should be remitted to the lowest appropriate level for trial. (IRR 25)

80.    The specialist judges on Circuit should provide support to each other's lists. (IRR 26)

81.    The Chancery and the Queen's Bench Divisions should retain their separate identities. (IRR 27)

82.    Outside London there should be three or four designated civil trial centres on each Circuit. (IRR 28)

83.    Small claims and fast track cases should be dealt with at local county courts. (IRR 29)

84.    Cases on the multi-track should be managed by teams of judges. (IRR 17)

85.    Each team should have a Master or district judge as the manager of the team and, except in unusually complex cases, as the procedural judge. (IRR 18)

86.    An appropriate share of judicial resources should be allocated to civil business. The trial judges for heavier civil cases should be identified earlier than at present to enable them to conduct the pre-trial reviews in those cases. (IRR 20)

87.    High Court and Circuit judges should concentrate on fewer areas of work without becoming single subject specialists. (IRR 19)

88.    Judges should be nominated for appropriate areas of specialisation. A record of judges' preferences should be established and taken into account in determining the allocation of judges to specialised areas.

89.    Judges who specialise in areas such as medical negligence and housing should be given appropriate training. The possibility of providing joint training with the legal profession, under the general aegis of the Judicial Studies Board, should be explored.

90.    Procedural judges should be given proper clerical and secretarial support to enable them to carry out their new duties in relation to case management effectively.

91.    The Court Service should encourage members of staff, including clerks to High Court judges, to become members of the Institute of Legal Executives.

92.    High Court and Court of Appeal judges should have law clerks, initially on a selective basis.

93.    Consideration should be given to the way in which members of the professions who are experienced in litigation and who retire at an early age can be involved as 'civil magistrates' or otherwise, in support of the civil justice system. (IRR 73)

94.    Masters and district judges should be eligible for appointment as Circuit judges, without having to sit as Recorders in crime. (IRR 21)

95.    High Court judges should continue to visit Circuits and not be resident on Circuit. (IRR 22)

96. There should be training and monitoring of judges in relation to case management. This should be under judicial supervision. (IRR 23)

Pre-action protocols
97.    There should be a new ethos of co-operation on the part of litigants and their legal representatives before proceedings are begun. (IRR 74)

98.    The appropriate professional bodies should draw up guidelines for pre-proceedings conduct of legal representatives. (IRR 75)

99.    Pre-action protocols should set out codes of sensible practice which parties are expected to follow when faced with the prospect of litigation. They should not cover all areas of litigation, but should deal with specific problems in specific areas, including personal injury, medical negligence and housing.

100.    When a protocol is established for a particular area of litigation, it should be incorporated into the relevant practice guide.

101.    Unreasonable failure by either party to comply with the relevant protocol should be taken into account by the court, for example in the allocation of costs or in considering any application for an extension of the timetable.

102.    The operation of the protocols should be monitored and their detailed provisions modified so far as is necessary in the light of practical experience.

Offers
103.    Offers to settle can be made by a plaintiff as well as a defendant. (IRR 115)

104.    Offers to settle can relate to individual issues. (IRR 116)

105.    Offers to settle can be made before the commencement of proceedings. (IRR 117)

106.    The extent of entitlement to costs and interest in respect of an offer should be in the court's discretion and should depend on the extent of disclosure by the parties. (IRR 119)

107.    A defendant's ability to make a payment into court should be retained, but the making of an offer, in accordance with rules of court, should be the primary requirement, with payments in being a secondary and optional means of backing an offer. The absence of a payment in should not normally influence the court's view of whether an offer was reasonable. (supersedes IRR 114)

108.    A party may withdraw an offer, but an offer which is open for less than 21 days should be disregarded by the court for costs purposes.

109.    Offers to settle can result in substantially enhanced costs and interest being payable. (IRR 118)

110.    The rates of additional interest which I now recommend should be payable to a claimant who makes an offer which is not accepted and which the claimant matches or exceeds at trial are:

awards up to £10,000	25%
more than £10,000 and up to £50,000	15%
above £50,000	5%.

111.    Extra interest will normally run from the date of the offer, but the court may order a different start date where appropriate

112.    A party who recovers at trial the amount which he claimed should be treated as if he had made an offer for that amount, and be entitled to extra interest.

Practice and procedure
Starting a claim
113.    It will usually be possible to start proceedings in any High Court district registry or county court. Claims for possession of land will be an exception, being brought in the court where the relevant land is situated. It will normally not be possible to bring claims worth £50,000 or less in the Royal Courts of Justice in London. The commencement of proceedings in the wrong court will not nullify them.

114.    All claims should be started on a single claim form with appropriate variations.

115.    A claim should contain the following:

(a) a succinct statement of the facts entitling the claimant to a remedy;

(b) the remedy or remedies claimed;

(c) any matters of law arising out of the stated facts which entitle the plaintiff to a remedy; and

(d) the legal nature of the claim where it would otherwise not be clear. (IRR 81)

116.    The defendant will be required to complete a notice of intention to defend, within 14 days of service of the claim, and the period for filing a defence will be 28 days, unless the parties agree to extend it.

117.    A defence should contain:

(a) the parts of the claim admitted and not admitted;

(b) the defendant's version of the facts so far as different from those stated in the claim;

(c) specific defences (voluntary assumption of risk, failure to mitigate loss, etc,) and any grounds for denying the claim arising out of the facts stated by the defendant, or for disputing its value or denying entitlement to a particular remedy; and

(d) where no specific facts or legal grounds are relied upon, that the defendant does not know whether the facts stated in the claim are true and requires the plaintiff to prove them and, if appropriate, why this is required. (IRR 82)

118.    In debt cases the claimant must file a reply if the defendant's defence is that he has paid the whole of the money claimed. In other cases it will be possible for the claimant to file a reply without the leave of the court, before any initial case management conference. (supersedes IRR 83)

Statements of case
119.    The term 'pleading' should be replaced by 'statement of case'. (IRR 86)

120.    Statements of case will refer to the principal documents relied upon. A party would be permitted, but not obliged, to attach to his statement of case the principal documents to which he refers and the names of his anticipated witnesses or summaries of their evidence. (IRR 84)

121.    Statements of case will contain a declaration on behalf of the party of belief in the accuracy and truth of the matters put forward. (IRR 85)

122.    One amendment of the claim, after service, and one amendment of the defence will be allowed without leave.

123.    As part of its responsibility for managing cases, the court will ensure that the parties plainly state the factual ingredients of their case so that true nature and scope of the dispute can be identified. (IRR 76)

124.    The basic function of pleadings is to state the facts relied upon. (IRR 77)

125.    The claim and defence will be considered by the procedural judge after the defence is filed and, if the issues cannot be readily identified from the pleadings, directions will be given with a view to rectifying this. (IRR 78)

126.    Where there has been a case management conference, a major aim will be to produce a statement of the issues in dispute, which will effectively take over from the pleadings. (IRR 79)

127.    If, unavoidably, new facts and new issues emerge during the proceedings, the statement of issues can be altered to reflect this. (IRR 80)

Service
128.    In principle there should be no restriction on the methods by which court process can be served. Instead the court will have to be satisfied that the method used had either put the recipient in a position to ascertain the document's contents or was reasonably likely to enable him to do so.

129.    Service by first class post and service on a solicitor will be the 'standard' method of service, with a simpler burden of proving service than other methods. A party who uses another method will have to describe the method, the date of service and why the method was expected to be effective.

130.    A party should be free in all cases to serve process himself.

Summary judgment
131.    The court should have an enlarged jurisdiction to give summary judgment on the application of either a claimant or defendant or on the court's own initiative, on the grounds that a case or part of a case has no realistic prospect of success. (IRR 3)

132.    The test for summary judgment would be that there was no realistic prospect of success at trial. Exceptionally, notwithstanding that the test was satisfied, the court could allow a case or issue to continue if it considered there was a public interest in the matter being tried.

133.    Summary judgment would be available at all stages of a case up to judgment.

Disclosure of documents
134.    A requirement to disclose documents should be retained, but subject to controls. (IRR 87)

135.    In fast track cases, discovery should normally be confined to documents on which a party relies or which to a material extent undermine his case or support another party's case ('standard discovery'). (IRR 88)

136.    In the multi-track, standard discovery should be the first stage, the extent and timing of 'extra discovery' being determined by the procedural judge. (IRR 89)

137.    Standard discovery should be limited to documents of whose existence a party is aware at the time when the obligation to disclose arises. If the documents involved are likely to be voluminous, a party can state that he was initially limiting disclosure to those which were capable of being located without undue difficulty and expense. (IRR 90)

138.    It will normally be necessary to disclose only one version of a document. (IRR 91)

139.    In determining whether to order extra discovery, the procedural judge should have regard to the issues in the case and the order in which they are likely to be resolved, the resources and circumstances of the parties, the likely cost of extra discovery and the likely benefit. (IRR 92)

140.    The restriction of the court's powers in respect of pre-action discovery to personal injury cases should be removed. (IRR 93)

141.    The test for documents to be initially disclosed is whether a party is aware of those documents at the time when the obligation to disclose arises. In the case of a company, 'awareness' will be that of individual employees with relevant knowledge. A company will be required to appoint a supervising officer to identify such individuals.

142.    A potential claimant in proceedings for injury or death should be able to make a pre-action application for disclosure against a person who is not expected to be a defendant.

143.    Pre-action applications for disclosure will have to be in respect of specified documents which will be relevant to a potential claim; the court must be satisfied that the benefit of allowing such disclosure will outweigh any cost and inconvenience to the disclosing party.

Witness statements
144.    On the multi-track, before the case management conference, only the identity of witnesses and the issues with which they deal need be disclosed. After the case management conference, when the issues have been identified, witness statements should be exchanged. (IRR 96)

145.    A party should be entitled to require his witnesses to amplify summaries or statements but not to raise new matters except with leave of the judge. (IRR 97)

146.    Cross-examination on the contents of witness summaries and statements should only be allowed with the leave of the judge. (IRR 98)

147.    A practice guide dealing with the preparation and use of witness summaries and statements should be issued. (IRR 99)

148.    The costs allowed for witness statements and summaries should reflect the fact that they are not intended to be elaborate documents. (IRR 100)

149.    Witness statements should:

(a) so far as possible, be in the witness's own words;

(b) not discuss legal propositions;

(c) not comment on documents;

(d) conclude with a signed statement by the witness that the evidence is a true statement and that it is in his own words.

150.    When the Civil Evidence Act 1995 is in force, allowing a witness statement to refer to matters beyond the direct knowledge or observation of the witness, the statement should indicate where appropriate the sources of knowledge, belief or information on which the witness relies.

151.    Especially on the fast track witness statements should be concise. (supersedes IRR 95)

Representation of companies
152.    Rules of court should no longer require a company to act by a solicitor.

153.    The court should normally exercise its discretion in favour of allowing an employee of a company to take any steps on behalf of the company which a litigant in person could take in High Court or county court proceedings.

154.    The employee would have to show, if required, that he was duly authorised to act by the company.

155.    A practice direction should indicate the considerations relevant to the exercise of the court's discretion.

Expert evidence
156.    The calling of expert evidence should be subject to the complete control of the court. (IRR 101)

157.    The court should have discretion, with or without the agreement of the parties, to appoint an expert to report or give evidence to the court. (IRR 102)

158.    The court should have wide power to appoint assessors. (IRR 103)

159.    Experts should be given clear guidance that, when preparing evidence or actually giving evidence to a court, their first responsibility is to the court and not their client. (IRR 104)

160.    Any report prepared for the purposes of giving evidence to a court should be addressed to the court. (IRR 105)

161.    Such a report should end with a declaration that it includes everything which the expert regards as being relevant to the opinion which he has expressed in his report and that he has drawn to the attention of the court any matter which would affect the validity of that opinion. (IRR 106)

162.    If experts instructed by the parties meet at the direction of the court, it should be unprofessional conduct for an expert to be given or to accept instructions not to reach agreement. If the experts cannot reach agreement on an issue they should specify their reasons for being unable to do so. (IRR 107)

163.    Codes of practice providing guidance as to the practice in relation to experts should be drawn up jointly by the appropriate professional bodies representing the experts and the legal profession. (IRR 109)

164.    Unless the plaintiff is relying on the doctor by whom he is being treated, the defendant should be told whom the plaintiff intends to instruct and invited to make any comments as to the proposed instructions. (IRR 110)

165.    Before a doctor reports on behalf of a plaintiff or a defendant, the opposing party should have the opportunity to give instructions to that doctor. (IRR 111)

166.    Every effort should be made by the court to avoid doctors having to attend court, or if they have to attend court, to reduce the inconvenience this involves. Video technology should be used for this purpose. (IRR 113)

167.    As a general principle, single experts should be used wherever the case (or the issue) is concerned with a substantially established area of knowledge and where it is not necessary for the court directly to sample a range of opinions.

168.    Parties and procedural judges should always consider whether a single expert could be appointed in a particular case (or to deal with a particular issue); and, if this is not considered appropriate, indicate why not.

169.    Where opposing experts are appointed they should adopt a co-operative approach. Wherever possible this should include a joint investigation and a single report, indicating areas of disagreement which cannot be resolved.

170.    Expert evidence should not be admissible unless all written instructions (including letters subsequent upon the original instructions) and a note of any oral instructions are included as an annex to the expert's report. (supersedes IRR 108)

171.    The court should have a wide power, which could be exercised before the start of proceedings, to order that an examination or tests should be carried out in relation to any matter in issue, and a report submitted to the court.

172.    Experts' meetings should normally be held in private. When the court directs a meeting, the parties should be able to apply for any special arrangements such as attendance by the parties' legal advisers.

173.    Training courses and published material should provide expert witnesses with a basic understanding of the legal system and their role within it, focusing on the expert's duty to the court, and enable them to present written and oral evidence effectively. Training should not be compulsory.

Appeals
174.    Leave to appeal should be required for all interlocutory appeals.

175.    Appeals from interlocutory decisions should lie, in fast track cases:

(a) from a district judge to a nominated Circuit judge;

(b) from a Circuit judge to the Court of Appeal;

and, in multi-track cases:

(c) from a Master or a district judge to a High Court judge;

(d) from a Circuit judge or a High Court judge to the Court of Appeal.

176.    In case (a) the Circuit judge should be able to refer the appeal to a Presiding Judge or, with his agreement, to the Court of Appeal. In cases (a) and (c) there should be a further appeal to the Court of Appeal with leave if there was certified to be an important point of principle or practice or one which for some other special reason should be considered by the Court of Appeal.

177.    It should be possible to make an application for leave to appeal from an interlocutory order to the judge taking the decision, there and then, or ex parte in writing to the appellate court within three days. The appellate judge should decide on the papers whether to refuse leave, or to direct that there be an oral hearing of the appeal or a determination on the basis of written submissions. Where the judge appealed from gives leave to appeal the appeal should be listed for hearing within 10 days. There should be no further renewal of the application for leave.

178.    Appeals from final decisions should be to the Court of Appeal. Leave to appeal would be required from final decisions in fast track cases.

179.    The Court of Appeal should be able to delegate its jurisdiction to hear interlocutory and final fast track appeals to any judge of the Supreme Court or to request a Circuit judge to sit as a member of the Court. It should also be able to determine such appeals without a hearing.

180.    There should be a procedure involving the preliminary consideration of all appeals to the Court of Appeal, usually by a single judge, with the power to dispose of appeals with no merit summarily.

181.    All appeals should be of the limited Court of Appeal rehearing type and not complete rehearings.

182.    All appeals should be heard in open court.

183.    There should be greater uniformity in the procedure for statutory appeals to the courts.

184.    Further consideration should be given to enabling decisions to be referred to the House of Lords or Court of Appeal where no appeal has been brought or is possible, so as to ensure proper development of the law.

185.    It should be possible for third parties, with the leave or at the request of the court, to make submissions to the Court of Appeal or House of Lords.

186.    The rules on appeals should be rationalised. Eventually there should be a single procedure for all appeals to the courts, using a claim and defence and with a preliminary consideration by the court at which it will be possible to dispose of the proceedings summarily. If there have been two stages already the appeal should normally be to the Court of Appeal, and if not more than one stage, then to the High Court.

Medical negligence
187.    The training of health professionals should include an introduction to the legal context of medical work, including an indication of what is involved in a claim for negligence.

188.    The General Medical Council and other regulatory bodies should consider whether a rule of professional conduct is needed to clarify the responsibility of healthcare professionals to their patients when they discover an act or omission in which they may have been negligent in their care and treatment.

189.    The NHS should consider tackling the problem of tracing former hospital staff, by improving hospital record systems or making more use of existing information.

190.    A pre-litigation protocol for medical negligence cases should be developed. As part of the protocol, claimants should be required to notify defendants of a firm intention to sue in a letter before action. The letter should include the fullest available information about the basis of the intended claim, and should wherever possible give at least three months' notice that a statement of case is to be served. If liability is disputed, defendants should be required to provide a reasoned answer.

191.    The use of alternative dispute resolution mechanisms should be encouraged in medical negligence, especially for smaller claims. Solicitors acting for patients should not automatically advise litigation but should inform their clients of all the available options, including the Health Service Ombudsman, and consider the possibility of alternative dispute resolution at all stages of the case.

192.    The specialist lists in the Queen's Bench Division of the High Court should include a separate medical negligence list.

193.    Outside London, medical negligence cases at both High Court and county court level should be handled at specially designated court centres.

194.    There should be regional lists, or a single national list, to facilitate the flexible allocation of cases for trial and reduce delay.

195.    The Judicial Studies Board should investigate, with appropriate medical experts, the scope and content of training in medical issues for procedural and trial judges, and organise the necessary training.

196.    Standard tables should be used wherever possible to reduce the cost of quantifying complex medical negligence (and other personal injury) claims.

197.    There should be a practice guide to indicate how the new rules on case management and procedure will apply in detail to medical negligence litigation. The guide should be developed by the new 'umbrella' organisation for medical negligence or under the aegis of the Civil Justice Council.

198.    The Court Service should facilitate a pilot study of the various options for dealing with medical negligence claims below £10,000, to establish which is the most effective procedure for enabling these cases to be litigated on a modest budget.

Housing
199.    Judges should be encouraged to specialise in housing cases, and more training should be provided to ensure that they are aware of the special problems in this area.

200.    The Law Commission should be invited to carry out a review of housing law with a view to consolidating the various statutory and other provisions in a clear and straightforward form.

201.    All claims for repossession of domestic property, including actions for the eviction of squatters, should start in the local county court. It should be possible for cases to be listed before a High Court judge only if there are exceptional circumstances which make this necessary.

202.    There should be a new, two-stage possession procedure for arrears of rent cases. The first stage would be a paper procedure leading to a court order for the repayment of arrears. Failure to comply with its terms would lead to a second stage involving a hearing, which could then result in an order for possession.

203.    The need to reform the accelerated possession procedure for assured shorthold tenancies should be considered in the light of the responses to the Inquiry, and of the results of research by the Department of the Environment.

204.    All hearings involving discussion of a party's financial affairs should be held in private. The best approach is for all possession proceedings to take place in the informal surroundings of chambers. There should be no overall ban on public attendance, but either party should be able to apply for members of the public to be excluded.

205.    There should be an expedited possession procedure, including an element of case management and a target date for trial within 10-13 weeks, for claims by local authorities and registered social landlords within the meaning of the current Housing Bill, where it is alleged that there has been violence or harassment.

206.    County courts, solicitors, law centres and any other agencies dealing with enquiries about housing matters should provide information to potential claimants about the 1994 Right to Repair Regulations, the Local Government Ombudsman, and any other options such as local mediation schemes.

207.    There should be a pre-action protocol for housing disrepair cases including:

(a) a clear procedure for tenants to report disrepair;

(b) an obligation on landlords to issue receipts for reports of disrepair; and

(c) provision for inspection of the property by a single expert chosen from an agreed list.

If the agreed protocol, or the protocol set out in the practice guide, is not complied with by the parties, this should be reflected in the court's approach to costs and discretionary relief.

208.    There should be a new route of appeal to the county courts, on judicial review principles, against local authorities' decisions on homelessness.

209.    The existing rules on the standing of organisations to bring representative actions in the housing field should be clarified and made less restrictive.

210.    The discretion of the public Ombudsmen to investigate issues involving maladministration which could be raised before the courts should be put on a formal basis. The Ombudsman should be able to refer points of law (including questions of statutory interpretation) to the courts, and compensation recommended by the Ombudsman should be enforceable through the courts.

211.    The law in relation to housing should be simplified. (IRR 58)

Multi-party actions
212.    Where proceedings will or may require collective treatment, parties or the Legal Aid Board should apply for a multi-party situation (MPS) to be established. This would suspend the operation of the Limitation Act. The court may also initiate an application. Within the MPS, part of the proceedings could be common to some or all of the claimants, and other parts could be limited to individual claimants.

213.    Individual claimants would be able to join the MPS at the application stage and subsequently by entering their names on an initial register.

214.    The court should certify an MPS if it is satisfied that the group or groups will be sufficiently large and homogeneous, and that the cases within the MPS will be more viable if there is a collective approach than if they are handled individually.

215.    Lower value or local cases should be dealt with locally at appropriate courts by either a High Court or Circuit judge.

216.    A managing judge should be appointed at or as soon as possible following certification and should handle the action throughout.

217.    In appropriate cases additional support may be provided by the appointment of a deputy Master or deputy district judge from those practitioners who already have considerable experience of multi-party litigation.

218.    The court should have a residual power to approve the lead lawyer if a difficulty arises in appointing one.

219.    The court should usually aim to treat as a priority the determination of the generic issues while establishing economic methods of handling the individual cases.

220.    The court should have power to progress the MPS on an 'opt-out' or 'opt-in' basis, whichever contributes best to the effective and efficient disposition of the case.

221.    In reaching a decision on notice of the action to potential claimants, the court must take into account the cost of such notice and its usefulness.

222.    The court should be responsible for determining whether the action has merit and should proceed and the criteria which must be met by those wishing to join the action.

223.    The court should determine the arrangements for costs and cost sharing at the outset. The costs of action groups should be recoverable on taxation.

224.    The Lord Chancellor's Department and Legal Aid Board should consider the possibility of extending the upper limits of financial eligibility on the basis of increased contributions. In appropriate cases, with tight judicial management and control on costs it may be possible for assisted persons' liability to be assessed and fixed in advance.

225.    The possibility of a contingency legal aid fund should be reconsidered in the context of these proposals.

226.    The court has a duty to protect the interests of claimants, especially those unidentified or unborn.

227.    In appropriate cases the court should appoint a trustee.

228.    Multi-party settlements should be approved by the court especially where the defendant offers a lump sum settlement.

229.    The court should require an identified and finite group of claimants to have in place from the outset a constitution including provisions relating to acceptance of settlement.

The Crown Office List
230.    The procedures in public law cases should be brought into line with one another and with those in private law cases wherever possible. Use of the wrong procedure should not lead to the case being dismissed. Instead it should be dealt with so far as possible under the proper procedure.

231.    More judges from other Divisions should be nominated to hear Crown Office List cases.

232.    Certain Crown Office List cases should be heard outside London.

233.    Claimants for judicial review should use available methods of ADR.

234.    Claimants should notify the defendant of their proposed claim before starting proceedings.

235.    A claim for judicial review and any defence should follow the standard claim form and defence. Unless it would inconvenience the hearing of the claim for judicial review, it should be possible for the claimant to include any remedies which could be obtained in a private law action and for the defendant to make a counterclaim.

236.    The court should be able to grant advisory declarations in limited circumstances.

237.    At the preliminary consideration stage (formerly 'leave'), which should be in writing, the judge should allow the claim to proceed if there is a realistic prospect of success or some other reason why the claim should be disposed of at a substantive hearing. He should consider giving directions for the conduct of the claim and set a timetable.

238.    There should be a right to renew the application in non-criminal cases at an oral hearing before a single judge and a further renewal to the Court of Appeal, with leave. Consideration should be given to the same procedure applying in criminal causes.

239.    The court should be able to grant interim relief before the preliminary consideration but should only do so ex parte in a clear and urgent case.

240.    The claimant will have standing if he has been or will be adversely affected or if it is in the public interest that the claim should be brought.

241.    All cases of judicial review should normally be heard by a single judge. There should be an appeal, with leave, to the Court of Appeal, Civil Division in non-criminal causes and consideration should be given to enabling appeals in criminal causes to lie, with leave, to the Court of Appeal, Criminal Division.

242.    The court should have a discretion to order costs to be paid out of public funds or to order that the unsuccessful party is not to pay the other party's costs where the proceedings have been brought in the public interest.

243.    It should be possible to determine some claims in the Crown Office List in writing where the parties agree.

244.    The rules on habeas corpus and committal for contempt will be clarified and simplified.

Other specialist jurisdictions
245.    Many of the present Chancery procedures should be accommodated by the general provisions of the new rules.

246.    Where proceedings are usually disposed of in a particular list or court, the heading of the case should identify that list or court. For example, all Companies Act proceedings should be entitled 'In the Companies Court'.

247.    The Vice-Chancellor should institute an annual review of the Chancery Division, similar to those published by the Court of Appeal and the Commercial Court.

248.    The Head of Civil Justice should publish an annual review covering the civil justice system as a whole.

249.    There should be a power to transfer particular issues, as well as whole cases, to another court.

250.    The Patents Court and the Patents County Court should develop procedures which go further than existing ones in providing rapid resolution of disputes, with a strict timetable and a trial limited in time, and a fixed budget for costs.

251.    A number of the special rules for intellectual property, Chancery and Admiralty proceedings should be retained.

252.    Pre-reading guides for trial judges, as currently used in the Patents Court, should be extended to other areas of multi-track litigation. Where it would assist with case management, they should be made available at an earlier stage in the litigation.

253.    Both the Official Referees' Court and the Commercial List in the High Court in London should continue. The definition of 'commercial action' should be replaced with a more modern one.

254.    There should be uniformity in the description of claims and defences, and there is no need for the Commercial Court to retain the description of points of claim and points of defence.

255.    There should no longer be special rules for the transfer of commercial actions, since the new rules will contain wide provisions on the transfer of cases.

256.    As proposed by the Official Referees' Working Group, there should be a general provision in the rules that trials or other hearings may take place anywhere.

257.    Consideration should be given to reducing the number of county courts with Admiralty jurisdiction.

Information technology
258.    Consideration should be given to the extent to which the IT requirements of case management, as proposed in this report, can be integrated into the LOCCS framework. (IRR 30)

259.    Judges should be equipped with personal computers powerful enough to support all the proposals outlined in this report. There should be consultation with a wider range of judges to establish the full range of applications. The specification of minimum requirements for judicial systems should be reconsidered in this light. There should be enhanced training and technical support to encourage a wider range of judicial users. (IRR 31)

260.    Litigation support systems should be used more widely by the professions. The position of recoverability under legal aid and taxation should be clarified. (IRR 32)

261.    Video and telephone conferencing facilities should be piloted and introduced as a priority to assist judges, particularly procedural judges, in case management and the legal aspects of the use of new technology should be considered. (IRR 33)

262.    Video recording and viewing facilities should be introduced in appropriate cases. (IRR 34)

263.    There should be exploration of the provision of IT to inform and assist the public and the scope for its provision in public places and advice centres. (IRR 35)

264.    The policy in relation to providing primary source materials, especially statutory materials, in electronic form should be clarified. (IRR 36)

265.    There should be an evaluation of the implications of the proposed PFI procurement scheme for the civil courts, including the necessary safeguards and infrastructures. (IRR 37)

266.    There should be co-ordination of the provision of IT in the civil justice system, involving all the key bodies. The proposed Civil Justice Council and ITAC should consider how best to advise on and assist in this. (IRR 38)

267.    A new independent and representative IT strategy body should be set up, which in due course should become attached, as a sub-committee, to the proposed Civil Justice Council. This body should have four main responsibilities. First, it should be responsible for promoting the development of long term IT strategy to be implemented by the Court Service for the entire civil justice system. Secondly, it should be a review body through which the medium term IT plans of the Court Service should be passed. Thirdly, the body should monitor and report on the progress of the PFI exercise. Fourthly, it should co-ordinate initiatives in other parts of the justice system.

268.    There should be close liaison between the new body and those responsible for IT in the criminal justice system, so that there is a coherent approach to IT across the entire justice system.

269.    A project should be launched to address the ways in which existing court administration systems can and should be extended for use by judges (and by others, including lawyers and their clients), especially the caseload management facilities which deal with the allocation of resources, the scheduling of judges' workloads, the listing of cases and the electronic diarising of cases.

270.    A working group (involving, at least, the Court Service, the PFI supplier and judges) should be set up to analyse and specify the requirements of simple, PC-based case flow management systems for judges.

271.    A 'Courtroom of the Future' exhibition should be created, similar to those in the USA and Australia, to capture a vision of, and to stimulate interest in, the future.

272.    Telephone conferencing should be piloted more extensively so that decisions about its applicability for case management can be based on practical and extensive experience.

273.    An extended civil litigation protocol should be developed for use across the entire civil justice system, building on the protocol developed by the Official Referees' Solicitors' Association.

Small claims in the county courts
274.    Except for personal injury cases, the financial limit of the small claims jurisdiction should be increased to £3,000. The effect of the increase, and of the measures recommended below, should be monitored with a view to a possible further increase to £5,000. (IRR 39)

275.    The district judge's discretion to transfer complex cases out of the small claims jurisdiction should be widened by removing the requirement that complexity must be "exceptional". (Implemented) (IRR 41)

276.    Unless there are genuinely exceptional circumstances, small claims should be disposed of at a single hearing. If clarification is required from the parties this should, wherever possible, be done by correspondence or telephone. (IRR 42)

277.    Businesses should be allowed to continue to use the scheme. (IRR 43)

278.    All district judges and deputy district judges should be trained in handling small claims, to ensure a more consistent approach. (IRR 44)

279.    The option of paper adjudication in small claims should be more effectively publicised. (IRR 45)

280.    The court should have power to appoint an expert assessor from a list provided by the appropriate professional body. Subject to the judge's discretion the cost of the assessor should be recoverable from the unsuccessful party or shared between the parties. (IRR 46)

Litigants in person
281.    The provision of assistance to litigants should be an invariable obligation of the courts. (IRR 47)

282.    In the context of the consultation paper on legal aid and the aims of the Court Service, the Lord Chancellor should determine and implement the best way of providing advice through court-based or duty advice and assistance schemes funded by the Legal Aid Board. (IRR 48)

283.    Information technology kiosks should be introduced on a trial basis at selected courts. (IRR 49)

284.    Research should be conducted into litigants' information needs and the most helpful way of presenting information. The feasibility of providing an explanatory video on the court process should be investigated. (IRR 50)

285.    The courts should provide reasonable facilities, preferably in private, for filling in forms. (IRR 51)

286.    Both professional litigators and unrepresented litigants should have access to court libraries. (IRR 52)

287.    All the Civil Justice Review's recommendations on the provision of information and advice to litigants should be fully implemented. (IRR 53)

288.    There should be a permanent advice centre in larger courts. In courts with smaller workloads, there should be an investigation as to whether court-based advice agencies are more effective than those located elsewhere. (IRR 54)

289.    Permanent facilities should be provided for all court-based advice schemes, where possible. (IRR 55)

290.    There should be a duty advice scheme funded by legal aid at each of the courts identified as handling substantial levels of debt and housing work. Ways of providing more general assistance, by the provision of a Citizens Advice Bureau or similar facility at court centres where the workload would justify it, should be explored and the possibility of legal aid funding for such a service should be considered. (IRR 56)

291.    Judges should be prepared to adopt an interventionist approach in all cases involving an unrepresented party and the handling of such cases should be fully covered in judicial training. (IRR 57)

292.    Alternative ways of providing court services in rural areas should be explored, including mobile courts providing small claims hearings, as well as advice and information. (IRR 59)

293.    The possibility of holding evening or weekend courts should be re-examined. (IRR 60)

294.    Court buildings should be clearly signposted, in appropriate minority languages as well as English. (IRR 61)

Alternative approaches to dispensing justice
295.    Developments abroad, particularly those in the United States, Australia and Canada, in relation to ADR should be monitored, the Judicial Studies Board giving as much assistance as is practicable in relation to this exercise. (IRR 62)

296.    The retail sector should be encouraged to develop private ombudsman schemes to cover consumer complaints similar to those which now exist in relation to service industries; the government should facilitate this. (IRR 63)

297.    The relationship between ombudsmen and the courts should be broadened, enabling issues to be referred by the ombudsman to the courts and the courts to the ombudsman with the consent of those involved. (IRR 64)

298.    The discretion of the public ombudsmen to investigate issues involving maladministration which could be raised before the courts should be extended. (IRR 65)

299.    In the review of legal aid, the funding of voluntary organisations providing mediation services should be considered. (IRR 66)

300.    The courts should encourage and facilitate mini-trials in appropriate cases and use of mini-trials should be tested on an experimental basis in a selected number of courts. (IRR 67)

301.    The courts should, where appropriate, consider taking advantage of bodies such as the City Disputes Panel, to give authoritative guidance on particular practices from those who have experience at the highest level. (IRR 68)

302.    Where there is a satisfactory alternative to the resolution of disputes in court, use of which would be an advantage to the litigants, then the courts should encourage the use of this alternative: for this purpose the staff and the judiciary must be aware of the forms of ADR which exist and what can be achieved. (IRR 69)

303.    The Lord Chancellor and the Court Service should treat it as one of their responsibilities to make the public aware of the possibilities which ADR offers. (Implemented) (IRR 72)

» Return to contents

• Back to top

© Crown Copyright