12.    There will continue to be specific requirements for particular types of case. In the case of personal injury claims, for example, the claimant will have to provide a statement of any special damages which are claimed and, in the case of appeals, the decision under appeal must be attached.

13.    The claimant must also specify the date of service of the claim and the date by which the defendant must file a notice of intention to defend (14 days) and a defence (28 days unless the parties agree on a longer period, which can be up to three months). Only one agreement to extend will be allowed; any further extension can only be made by court order. I accept that in some technical areas of litigation, for example claims involving medical negligence or patents, extensions beyond 28 days may not be uncommon, but I have no doubt that these should be the exception and not the rule.

14.    The notice of intention to defend, which is similar to the present High Court procedure, will apply to all claims other than appeals. This step is needed for a number of reasons. First, it is important that creditors are not prejudiced by the longer period which the new rules allow for filing a defence. Secondly, it will enable a defence to be dispensed with where it is necessary, for example where the matter is not contentious but the defendant is a necessary party. Thirdly, it will enable defendants to challenge the jurisdiction of an English court to hear the case, without needing to file a full defence. In any claim the defendant may choose to file a defence within 14 days instead of returning the notice of intention to defend within that time.

15.    I should make it clear that my proposals are not intended to affect undefended debt claims, which form the vast majority of all claims. The procedures between issue and judgment, in particular, for the defendant to admit the claim and seek time to pay, which will be based on the existing county court procedures, will continue.

Defence
16.    The defence must:

(a) indicate

(i) which parts of the claim the defendant admits,

(ii) which parts he denies,

(iii) which parts he doubts to be true (and why),

(iv) which parts he neither admits nor denies, because he does not know whether they are true, but which he wishes the claimant to prove;

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

(c) say why the defendant disputes the claimant's entitlement to any, or to a particular, remedy or the value of the claim or assessment of damages; and

(d) specify any document vital to the defence.

Reply
17.    I suggested in chapter 20 of my interim report that there should be no further formal pleadings beyond a reply, and that that itself would be rare and should not be permitted unless the court gave leave. The Commercial Court and Chancery Working Groups say that replies are often necessary in order to set out the claimant's challenges to the defence and that the need to obtain a court order where none is now necessary will add to delay and expense. I accept their recommendation that it should still be possible for the claimant to put in a reply without having to seek the leave of the court, provided it is served before any case management conference. However, in fast track cases any reply is not to be taken into account with regard to costs, nor should it defer the timetable. And there should be no further statements of case at all.

18.    I also recommend the use of a reply in debt cases. If the defendant states in his defence that he has paid the whole of the money claimed, the claimant must file a reply. If he fails to do so within three months of the filing of the defence, the claim will be deemed to be struck out (although the claimant may apply for the position to be restored under the general rules about relief from sanctions).

Amendments to statements of case
19.    It will be possible for the claimant to amend his statement of case after service once, without leave, and for the defendant to amend his defence once without leave.

Service of documents
20.    The machinery for the service of documents relating to court proceedings is of fundamental importance in ensuring that justice is achieved, since it is the means by which parties are notified of claims against them and put in a position to respond. Furthermore, if the court is to take steps in proceedings on the assumption that a party has been properly served, it too must have confidence in the reliability of the methods used. In order to achieve these purposes, it follows that the system for service must be reasonably reliable in bringing knowledge of court process to the attention of those whom it may affect. For this reason, rules of court have tended to restrict permissible methods of service. This is true of both the Rules of the Supreme Court (RSC) and County Court Rules (CCR). Indeed, the RSC are drafted in a way which still reflects the former emphasis on the primacy of personal service, ie, physical service directly on the party concerned. (The RSC were changed only in 1979 to allow postal service.) In the county courts, service by first class post is also permitted and is overwhelmingly the normal method in use. This is the method used by the Summons Production Centre, which issues around 1,163,000 summonses each year, approximately 47 per cent of the county court total.

21.    Other methods permitted by the rules include leaving the process at a party's address, and service on a solicitor if he has authority to accept service on behalf of his client. The rules provide that the court can also direct service by a method not expressly sanctioned by the rules ('substituted service'). If necessary, it can order service to be dispensed with entirely.

22.    There are differences between the practice in the High Court and in county courts. In the former, once the court has formally issued the process by sealing it, it is the initiating party's responsibility to serve it. The court itself does not serve any process. In the county courts, the norm is for the court itself to serve the process by first class post. Indeed, in many cases, the county court itself prepares the formal process from particulars provided by the claimant, though there is now provision for claimants themselves to prepare process ready for issue. In personal injury cases only, the claimant may serve the claim himself.

23.    The basic methods allowed for the service of originating process and other documents are the same, but there are some variations. When originating process is served by first class post, it is deemed to have been served seven days after posting. For other documents, the 'ordinary course of post' rule of the Interpretation Act 1978 is applied; this is treated in practice as meaning two days after posting by first class post and four days for second class post. Originating process may not be served by FAX or through a document exchange.

Proposals for change
24.    The recommendations which follow relate only to service of domestic court process in this country. The final version of the rules will deal with service of foreign process in this country and with service abroad of domestic process but those matters are not considered in this report.

25.    In principle, there should be no restriction on the methods by which documents can be served. Before any procedural step which depends on proper service of a document can take place, the court would have to be satisfied that the method used either had put the recipient in a position to ascertain its contents or was reasonably likely to enable him to do so within any relevant time period. (I refer to putting the recipient in a position to ascertain a document's contents to deal with situations where the recipient deliberately avoids informing himself.)

26.    Subject to this, there would be two 'standard' methods of service: first class post and service on a solicitor who intimates that he has instructions to accept service. Use of either of these methods would involve a lighter burden of proof of service, for example, when it comes to entering judgment for failure to defend ('default judgment'), the commonest situation where proof of service is relevant. Service by first class post would have to be to the appropriate address specified by the rules, for example, the residential address of an individual or, in the case of a business, an office or place of business connected with the dispute. I treat first class post as a standard method because it is estimated to be the most commonly used method of service; it is cheap and generally effective. Accordingly, therefore, the burden of proving service should be a light one. As now, it will consist effectively of no more than an assertion that first class post had been used, that the document has not been returned through the post and that it is reasonably likely that the recipient would be in a position to ascertain the document's contents.

27.    Service on a solicitor who intimates that he can accept service speaks for itself in terms of reliability and proof.

28.    By contrast, the use of all other methods of service would require the serving party to state what method he had used, the date of service and why it was expected to be effective. So parties would be free to choose other methods, but there would be an advantage in using the primary methods.

29.    I also recommend that a party should be free in all cases to choose to serve process himself. The amount of costs allowed for service should be very low to reflect the fact that, if the court were serving the document, it would use first class post and that it is reasonable in most cases to expect the party himself to use that method.

30.    Where a party does not wish to serve the document, the only method which the court would use is first class post. This means that, in the county courts, the option of bailiff service, which is already restricted to situations where other methods of service have failed, would no longer be available.

Summary judgment
31.    In the interim report I explained that the important purposes of case management are stopping weak cases from dragging on and reducing complexity and cost by eliminating issues as the case proceeds. One means of achieving these purposes is for the court to exercise its power of summary disposal on a wider basis than it does at present.

32.    In the interim report I recommended a single procedure for summary disposal, applying a single test for its exercise. The single procedure would replace existing, separate procedures which currently allow:

(a) summary judgment on the application of the plaintiff;

(b) summary determination of a point of law;

(c) striking out pleadings which disclose no cause of action on the defendant's application.

33.    The new procedure in effect merges several different procedures into one. It thus conforms with my overall approach of integrating and harmonising rules and procedures wherever possible.

34.    The procedure would be available on the application of any party or of the court's own volition. The test for making an order would be that the court considered that a party had no realistic prospect of succeeding at trial on the whole case or on a particular issue. A party seeking to resist such an order would have to show more than a merely arguable case; it would have to be one which he had a real prospect of winning. Exceptionally the court could allow a case or an issue to continue although it did not satisfy this test, if it considered that there was a public interest in the matter being tried.

35.    The procedure would be available from the beginning of the case: for example, a claimant could issue an application at the same time as he served his statement of case while a defendant could apply even before he had filed a defence in a suitable case. Although parties would be expected to make an appropriate application as early as they reasonably could, the procedure would be available throughout the proceedings, up to and including the trial. Whenever it had occasion to consider the case, the court would have to ask itself the question: "Can the case or part of it be disposed of without the full apparatus of trial?"

36.    The procedure will be flexible: the court could require oral evidence as well as written statements if it considered that it could dispose of the case more economically than at a full trial.

Disclosure of documents
37.    In chapter 21 of the interim report, I discussed the need to curtail the process for discovery of documents (which I now recommend should be called 'disclosure'). I said that the process had become disproportionate, especially in larger cases where large numbers of documents may have to be searched for and disclosed, though only a small number turn out to be significant. Nevertheless, I considered that disclosure contributes to the just resolution of disputes and should therefore be retained, but in a more limited form.

38.    My recommended solution involved the identification of four categories of documents which at present have to be disclosed. These are:

(1) the parties' own documents, which they rely upon in support of their contentions in the proceedings;

(2) adverse documents of which a party is aware and which to a material extent adversely affect his own case or support another party's case;

(3) documents which do not fall within categories (1) or (2) but are part of the 'story' or background, including documents which, though relevant, may not be necessary for the fair disposal of the case;

(4) train of inquiry documents: these are documents which may lead to a train of inquiry enabling a party to advance his own case or damage that of his opponent.

39.    In fast track cases, the basic duty of disclosure, ie, that which would arise by virtue of standard case management directions given by the court, will be limited to categories (1) and (2) ('standard disclosure'). Indeed that will normally be the limit on fast track disclosure in any event, though I do not rule out the possibility of the court allowing what I called 'extra disclosure' (categories (3) and (4)) in an exceptional case. On the multi-track, the initial obligation will also be to make standard disclosure only.

40.    Extra disclosure will be by court order only. I should make it clear that it will also be possible to apply for disclosure of documents in categories (1) or (2) which should have been included in standard disclosure. When ordering extra disclosure, the court would have to be satisfied not only that it was necessary to do justice but that the cost of such disclosure would not be disproportionate to the benefit and that a party's ability to continue the litigation would not be impaired by an order for specific disclosure against him.

41.    It is no use, however, limiting the categories of document which a party has to disclose if he still has to search through all his documents to identify those in categories (1) and (2). I therefore recommended that initial disclosure should apply only to relevant documents of which a party is aware at the time when the obligation to disclose arises. I recognise that this is the most difficult aspect of my proposals in practice. The test of awareness is particularly problematic where the disclosing party is not an individual; in a company, firm or other organisation, it is likely that a number of people will have known about relevant documents. My proposal here is that there should be an obligation for the organisation to nominate a supervising officer whose task would be to identify individuals within the organisation who were likely to recollect relevant documents. On the basis of their combined recollections, documents would be extracted and disclosed (subject to any claim of privilege). When it made its list of documents in accordance with rules of court, the company, etc, would also include a statement of the identity and status of the supervising officer and those whose recollections he had canvassed. This would assist the other party to make an appropriate application for specific discovery if he thought that inquiries should reasonably have been made of some additional person or department in the organisation.

42.    I am not recommending that the supervising officer should have to pursue his inquiry with former employees of the organisation who have had knowledge of relevant documents. In practice it would be impractical to enforce co-operation with such an inquiry. This is to be distinguished from the requirement, to which I recommend no substantive change, that a party must list documents which have been but are not currently in its possession. In some circumstances this may require a party to seek to obtain documents from an external source, such as a subsidiary company.

43.    I received a number of responses to my original proposals. I can summarise these by saying that, while they all endorsed what I was trying to achieve in principle, all found objections to my proposals in practice. Among the arguments, it was suggested that my formulation would be easy to evade; that it would positively encourage parties to turn a blind eye to documents which might damage their case or at least would encourage a slapdash approach to disclosure; and that the line drawn by the test of awareness is artificial and unsatisfactory, depending as it does on the chance recollections of available individuals.

44.    I have no doubt that these views are sincerely held. However, following this advice would mean making no recommendation to improve a state of affairs generally acknowledged to be unsatisfactory for domestic litigants and for the international competitiveness of the English legal system.

45.    Discovery depends at present on the honesty and diligence of the parties. Withholding documents cannot necessarily be detected so the temptation to do this already exists; the facts of decided cases and comments which I have received confirm that it is not unknown in practice. It has to be recognised that the alternatives to my proposal would be to dispense with disclosure entirely (like the continental systems) or to limit initial disclosure to documents on which a party intended to rely. Both of these go too far; the latter would be inefficient because it would simply increase the volume of routine applications for disclosure. My proposal has the effect of preventing a party, if he acts reasonably honestly, from putting forward a case which he knows to be inconsistent with his own documents. It thus offers not a perfect, but a realistic, balance between keeping disclosure in check while enabling it still to contribute to the achievement of justice.

46.    Despite its imperfections, I therefore have no doubt that a solution on the lines I have indicated is necessary and will bring about some improvement. If the principle of disclosure is to be retained at all, it is important not to make the non-existent ideal the enemy of the better-than-nothing solution. It should of course be kept in mind that standard disclosure can be supplemented by applications for specific disclosure; if it is apparent in a particular case that documents disclosed on such an application should plainly have been produced by way of standard disclosure, the court can impose appropriate sanctions.

Pre-action disclosure
47.    An important part of my thinking is the need for parties to adopt a sensible and co-operative approach from the earliest stages at which a potential claim begins to materialise. As I have explained in chapter 10, key elements of this approach include early notification of claims coupled with sensible exchange of information. Chapter 10 describes the work which the Inquiry has initiated on pre-action protocols with a view to ensuring good practice before proceedings are ever initiated.

48.    In support of this strategy, I recommend that parties should be able to make pre-action applications for disclosure against potential defendants in all cases. At present, the court's power to make such orders is confined to potential claims in respect of personal injury or death.

49.    There may be some apprehension about the unforeseen consequences of such an extension. In relation to claims for injury or death, it was fairly clear against which categories of potential defendants such applications were likely to be made. When the jurisdiction to make pre-action orders was first introduced, applications for medical records tended to be hard-fought and often acrimonious. I understand that it is now rarely necessary even to make such applications, since documents are usually provided directly in response to a reasonable request. I have no doubt that the recent protocol prepared by the Civil Litigation Committee of the Law Society for use in this context will have helped further to simplify the process. This involves the use of standard forms of request and response, and has been approved by the NHS Management Executive.

50.    Opening up the range of cases in which pre-action applications may be made obviously widens the range of potential defendants who might be subject to such applications. But it must be remembered, first, that any such application would have to be in respect of specific documents, which will have to be shown to be in the possession of the respondent; secondly, that there is a likelihood that the respondent would indeed be a defendant if proceedings were initiated; and, thirdly, that the documents sought are relevant to a potential claim. These requirements simply extend the provision currently made by statute and rules of court for injury cases. In my recommendations about disclosure generally, I have not explicitly proposed exclusion of category (3) and (4) documents from the scope of relevance, but I have made it clear that the court would apply a rigorous cost-benefit analysis when considering an application for such documents. It perhaps hardly needs saying that the court should apply the cost-benefit test to pre-action applications; I believe that its effect would be that the court would invariably not allow disclosure of category (3) or (4) documents at a stage when issues had not been fully elaborated between the parties. On this basis, I believe that the proposed extension of the jurisdiction is justified.

51.    In relation to claims in respect of personal injury or death, I recommend a further, specific extension of the court's jurisdiction. At present in such cases, the court may order disclosure of documents:

(a) before proceedings, against a potential defendant; and

(b) once proceedings have begun, against any non-party.

52.    There are often circumstances in which a prospective claimant needs documents - usually medical records - from health providers other than the prospective defendant. Not infrequently, such documents are provided on a voluntary basis. However, where access is refused, there are difficulties. The claimant may have to issue proceedings prematurely in order to be able to seek disclosure from the third party. This is a waste of resources, in particular, of public health service resources. It not infrequently results, for example, in an expert's report having to be modified in the light of documents which only become available much later. I therefore recommend, for claims in respect of personal injury or death only, a limited extension of the court's power, so that it may order a third party to disclose documents before proceedings have begun, whether or not it is intended to join them as a defendant. The criteria for making such an order would otherwise be the same as for an application against a potential defendant. Without experience of how the power would work in relation to the limited category of personal injury and death claims, I would not put it forward on a wider basis.

Witness statements
53.    In fact-based disputes, it is now a standard requirement, laid down in rules of court, that a party who intends to adduce factual evidence at trial must provide the other parties with a written statement in advance of the evidence which the witness is expected to give. It has also now become standard practice, especially since the practice direction issued jointly by the Lord Chief Justice and the Vice-Chancellor in January 1995, for such witness statements to stand as the evidence in chief of the relevant witness. In chapter 22 of the interim report, I described the problems which have begun to beset what should have been a very useful procedural development. Indeed, despite the problems which have emerged, nobody has suggested to me that the principle of openness on which the use of witness statements is founded is wrong and that their use should be discontinued. 'Cards on the table' is universally accepted as the proper approach to conducting litigation.

54.    Nevertheless, the problem which I noted in the interim report is a serious one. Witness statements have ceased to be the authentic account of the lay witness; instead they have become an elaborate, costly branch of legal drafting. Although the general view of judges appears to be that the use of witness statements shortens trial time, the great majority of cases do not go to trial: the costs of preparation are incurred in all cases but the savings of trial time in only a few.

55.    Part of the problem lies in the fear that a witness will not be permitted to depart from or amplify his statement at the trial itself. Whether or not this fear is well-founded, it has led to the elaborate over-drafting which I described in the interim report, with a view to ensuring that the witness statement is complete in every detail.

56.    To tackle this, I recommended in the interim report that judges should be flexible in allowing a witness to amplify what he has said in a witness summary or a witness statement. Many judges are no doubt flexible in allowing witnesses to depart from the letter of their statements where it is reasonable to do so. A number of judges have commented that it is in any event helpful to them to hear the witness give evidence in his or her own words before coming under the pressure of cross-examination. It also helps to put the witness at ease. I would not quarrel with this, so long as the overall need for economy is kept in mind, especially on the fast track.

57.    The new rules will provide that the court can allow evidence which has not been foreshadowed by a witness statement to be given at trial where admitting the evidence will not cause any other party injustice. It should be noted that, in the light of the overriding objective at the start of the new rules, additional expense to a party caused by a late, unjustified change of tack by his opponent can be regarded as a potential aspect of injustice. Departing from present assumptions, however, this type of prejudice should not be regarded as remediable simply by an order for costs. There may accordingly be cases where the court has to refuse to allow the additional evidence to be given.

58.    If the courts are flexible about allowing a reasonable degree of amplification of witness statements at trial, then they can expect the lawyers to be less concerned to draft absolutely comprehensive statements. This is not to be taken as encouragement deliberately to omit relevant material, but simply to rein back the excessive effort now devoted to gilding the lily. In the interim report, I recommended that courts should disallow costs where they thought the drafting of witness statements had been disproportionate. Trial judges, and to some extent procedural judges, will need to make a real effort, especially in the early phase of the new system, to scrutinise witness statements rigorously. This is the only way in which they will be able to pinpoint repetitious or inappropriate material, such as purported legal argument or analysis of documents. This is a fault which must in the main be attributed to the legal profession and not to its clients; wasted costs orders may therefore be appropriate in some instances of grossly overdone drafting. Only if the legal profession is convinced by demonstration that it has an active judicial critic over its shoulder will it be persuaded to change its drafting habits.

59.    In connection with this change of approach, I make the following recommendations about the content and form of witness statements:

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

(b) they should not discuss legal propositions;

(c) they should not comment on documents;

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

60.    When the Civil Evidence Act 1995 is brought into force, hearsay evidence will become admissible, with only a minimum of formality required to identify it. The lawyers' present task of editing a witness statement so as to remove hearsay will become unnecessary, thus saving cost. Since a witness statement will in future be able 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 himself is relying. In this respect the difference between witness statements and affidavits will diminish.

Representation of companies
61.    At present a company has no right to represent itself in proceedings in the High Court or in the county courts. It may do so only at the court's discretion. County courts commonly, though not invariably, exercise the discretion in favour of companies; the High Court will almost never do so. I make recommendations below to extend a company's ability to represent itself.

62.    I have received numerous representations about the inconvenience and additional expense which the present restrictions impose. They are particularly irksome in relation to routine procedural steps, such as an application to register a county court judgment for enforcement in the High Court. Steps such as these require no special skills. This has not gone without comment by the courts. The Court of Appeal, in Jonathan Alexander Ltd v Proctor, [1996] 2 All ER 334, held that a company representing itself should be entitled to the same costs as a litigant in person.

63.    The rationale of the limitations on company representation is unclear. It is true that a company, being a legal and not a physical entity, cannot physically 'appear' in court. It follows, as the Court of Appeal confirmed in Alexander v Proctor, that a company cannot be a litigant in person. On the other hand, an officer or employee of a company, not being the litigant in person either, is prevented (except at the discretion of the court) from acting as a representative because he does not qualify under Part II of the Courts and Legal Services Act 1990.

64.    A justification which is put forward for the present restriction is that it is simply the consequence of a company's limited liability. Directors cannot have it both ways by saying that the company has a separate legal personality but that they can act for it in person. To my mind that is not a sufficient answer. Incorporation is intended to provide public as well as private benefits. If it contains features which are burdensome to companies but which are not obviously justifiable in the public interest, then those features should be re-examined.

65.    What are the arguments against allowing companies to represent themselves? First, it would mean in effect that the courts would have to deal with more litigants in person. However, unlike the position in some continental countries, it has never been the policy here to oblige litigants to employ professional lawyers to represent them in the courts. I cannot, therefore, see a basis in principle for distinguishing the treatment of companies in this respect. Despite the undoubted difficulties which the policy of openness can create for the courts, I believe that it is desirable to maintain this tradition. In the interim report, I made recommendations for improved advice facilities for litigants in person, and these would also help the courts. Small companies may also need assistance, though not exactly the same kind as individuals. If companies are to have a wider facility to represent themselves, bodies representing their interests may wish to consider how guidance and advice might be provided. In line with my general approach, any such guidance should include guidance on the availability of ADR.

66.    A second objection is that company employees are not subject to the same duty to the court or to the same professional discipline as solicitors. But they are in no different position from litigants in person. Under my proposals, the court will certainly have sanctions (if it does not already have them) to prevent abuse and maintain case progress. In addition, I see no difficulty in a company being held liable for the defaults of its duly authorised representative. There has been a suggestion that, in certain circumstances, the representative as well as the company could be joined as a party in order to make him more directly amenable to sanctions. I believe that such a step would normally not be necessary.

67.    Thirdly, it is argued that a representative may not be genuinely representing the interests of the company but may be exploiting it. As a general rule, I would require a representative to show due authorisation to act from the company. I recognise that this does not deal with the situation where the representative effectively controls the company and is acting contrary to its interests. If that fact became apparent, then I believe that the court would have power under its inherent jurisdiction to refuse to allow the misbehaving representative to continue in that capacity. The company would then either have to obtain professional representation or discontinue the proceedings.

68.    Finally, it may be argued that allowing company employees rights to litigate and to act as advocates cuts across the regime for approving litigators and advocates established under the Courts and Legal Services Act 1990. Such a change would either enable in-house lawyers to do what they are not at present able to do under that regime or make them worse off than their non-lawyer colleagues. My answer in principle would be that, if it is right that companies should be allowed to represent themselves, then the identity of the representative is immaterial, subject to the conditions which I have already indicated. So long as the position of in-house lawyers remains as it is under the 1990 Act, those representing companies would be treated as lay representatives; they would not have the status of lawyers though, as I have explained, their acts would bind the company; they would be subject where appropriate to the court's sanctions and the company itself would be liable to be penalised for their misbehaviour.

69.    It is not the case that all companies are uniformly better able to afford representation than individual litigants. We have a huge number of very small companies in this country, for whom the potential costs of litigation (especially under the present arrangements) are daunting and burdensome. It is for this reason that those representing the interests of small businesses in particular have welcomed my proposals for the fast track. Legal aid is generally not available to companies. Under the existing legislation, they are unlikely to be able to take advantage of conditional fee arrangements unless they are insolvent. By no means all steps in proceedings require professional legal skills. In certain areas of work, such as debt recovery and small claims, company employees regularly involved may become as competent as any solicitor. Furthermore, a company is more likely than an individual to be capable of judging when professional help is needed, assuming it is affordable.

70.    Companies are at present frequently represented by their employees in county court proceedings, subject to the court's discretion. It has not been suggested that this has harmed the administration of justice. The objections to a right of self-representation need to be weighed against that fact. This would not be a leap in the dark. At the same time, I recognise that it would be desirable on the whole not to move too far away from the regime established under Part II of the Courts and Legal Services Act for extending rights of advocacy and representation.

71.    I therefore recommend that rules of court should no longer require a company to act by a solicitor and that, subject to the court's discretion, a duly authorised employee of a company should normally be permitted to take any steps on behalf of the company which a litigant in person could take on his own behalf in High Court and county court proceedings. Exercise of the facility would be subject to the court being satisfied that the representative was duly authorised to act and to the right of the court to stop any advocate who misbehaves from addressing it. In effect I am recommending that the discretion to allow companies to represent themselves should be exercised on county court lines as opposed to High Court lines. To ensure that the discretion is exercised in a consistent and reasonable way, I also recommend that the Head of Civil Justice should set out in a practice direction the considerations which would be relevant to the court's decision. It should normally be possible for a company which is acting reasonably to be confident in advance that it will be able to act on its own behalf.

72.    The question was raised in Alexander v Proctor whether companies should be entitled to the same costs as litigants in person. My recommendation about this is a provisional one, since I believe that the matter needs further consideration. A company has potentially more scope for incurring time-based costs on a scale which most individual litigants would be unlikely to approach. The fact that unreasonable costs could be reduced on taxation is not a complete answer. It would not be desirable to encourage companies to set up informal litigation operations in larger cases where they would be better advised to seek professional help. However, on the fast track, I am recommending that the costs recoverable by litigants in person, like those of solicitors, should be capped (see chapter 4). In cases on the multi-track, I am recommending (chapter 7, paragraphs 35-37) that the courts should develop an approach to limiting costs, at least in the more standard cases. These limitations would also apply to a company representing itself. I therefore consider that it is reasonable in principle to allow companies the same costs in those cases as litigants in person. This will be subject to the general review of litigant in person costs which I am recommending.

Recommendations
My recommendations are as follows.

(1) 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.

(2) All claims should be started on a single claim form with appropriate variations.

(3) 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.

(4) 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.

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

(6) 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.

(7) 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.

(8) A party should be free in all cases to serve process himself.

(9) 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.

(10) Summary judgment would be available at all stages of a case up to judgment.

(11) 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.

(12) 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.

(13) 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.

(14) 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.

(15) 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.

(16) Especially on the fast track, witness statements should be concise.

(17) Rules of court should no longer require a company to act by a solicitor.

(18) 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.

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

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