Appendix 4
S.I. 2011/3103: memorandum from
the Department for Business, Innovation and Skills
Civil Procedure (Amendment No. 4) Rules 2011
(S.I. 2011/3103)
1. By a letter dated 1 February
2012, the Committee sought a memorandum on the following points:
"Given the comments
on the use of the expression "will" in paragraph 5.9
of the Committee's 31st report of this Session, explain -
(a) what that expression
is intended to mean in each of the provisions inserted or substituted
in the Civil Procedure Rules 1998 in which it features and how
effect is given to that intention, and
(b) why paragraph 3.1 of
the Explanatory Memorandum indicates that there are no matters
of interest to the Committee."
2. The Civil Procedure Rules
(the Rules) are made by the Civil Procedure Rule Committee (CPRC);
they are subject to approval by the Lord Chancellor. The Rules
make up a procedural code, the overriding objective of which is
to enable the courts to deal with cases justly. They have application
to, and also assist, amongst others, the judiciary, court staff,
practitioners and litigants in person. The CPRC consists of members
of the judiciary (including Appeal Court, High Court and district
judges), barristers, solicitors and lay persons, who are all aware
of the importance of both accuracy and clarity in the rules, and
of the requirement on the CPRC under section 1(3)(b) of the Civil
Procedure Act 1997 to exercise the power to make Civil Procedure
Rules with a view to securing that the rules are both simple and
simply expressed .
3. In relation to the first
limb of the Committee's request, we can say as follows. The CPRC
takes the view that in relation to the functions of the court,
it is appropriate to refer to what the court "will"
do, not what it "must" do. There are two reasons for
this.
4. First, as in the rules under
consideration, the use of the word "will" reflects the
fact that, under the Rules, the functions of the court fall to
be performed in light of particular circumstances, in particular
the actions of parties to the proceedings, without discretion—it
describes an essentially automatic step in the proceedings. For
example, rule 7(b) inserts in the Rules a new rule 14.7A(a) and
(b), which provide that if (a) a claimant files a request for
judgment for an amount of money to be decided by the court and
(b) the claim is a designated money claim, the court will transfer
the claim to the preferred court. The transfer of the proceedings
by the court is something which will follow upon the actions of
the claimant in this specific type of case and set of circumstances.
In this context, the use of the expression "will" is
accurate and its meaning clear. Neither the Ministry of Justice
nor the CPRC is aware of any instance where the use of the word
"will" when referring to such functions of the court
has given rise to any complaint among practitioners or court users
that the meaning or outcome is unclear.
5. Secondly, the court is (exceptionally
in the overall scheme of the Rules) required by rule 1.2 to give
effect to the overriding objective of dealing with cases justly
whenever exercising any power provided by the Rules or when interpreting
any rule (which will include interpreting any rule which provides
that the court will do a specific thing in specific circumstances),
and by rule 1.4 to further the overriding objective by actively
managing cases. The Rules do not in general operate by compelling
the court to perform its non-discretionary functions by imposing
a duty in relation to each one and there is no sanction which
applies to the court should it fail to do so. Imposing a further
notional duty on the court to perform its individual functions
by use of the word "must", is considered by the CPRC
to be, in general, unnecessary and, arguably, misleading. Should
the court exceptionally fail to perform a non-discretionary function,
either party (or both) may have recourse to the court (which is
bound by the general overarching duty under rule 1.2) to ensure
that the omission is rectified and neither party is disadvantaged.
6. The Committee will no doubt
have noted that there are some instances in the current Rules
of the use of the word "must" in relation to the functions
of the court. Those instances largely derive from pre-CPR usage:
when first drafted, some of the Rules replicated or closely followed
the words which appeared in the earlier County Court Rules. Many
of the Rules have since been developed by the CPRC and, in particular,
"will" has been substituted for "must", where
the CPRC has deemed it appropriate, as and when various parts
of the Rules have fallen to be considered for amendment. For example,
rule 7(c)(i) of the Rules presently under consideration substitutes
"will" for "must" in rule 14.2(12) of the
Rules, the effect of which is to provide that, where a judge is
to determine the time and rate of payment at a hearing, the proceedings
will be transferred automatically to the defendant's home court,
if conditions (a) to (e) are met. In this instance, the transfer
will be automatic; it is unnecessary to use the word "must"
to compel transfer for the reasons stated in paragraph 5, above.
7. In respect of the second
limb of the Committee's request, the Ministry of Justice understands
that matters of interest to the Committee include timing, the
practical consequences of the instrument in question and responses
to previous Committee comments. We have noted the Committee's
comments in relation to the Criminal Procedure Rules 2011[1]
in its 31st report, but should say that, given that
the use of the expression "will" has regularly been
used in various instruments concerning the Rules[2]
without comment, we did not consider that it was necessary to
draw the Committee's attention to the present instance of this
use in the Explanatory Memorandum. If the Committee considers
that, in future, instruments amending the Civil Procedure Rules
which use the word "will" in respect of court functions
should specifically draw that fact to the Committee's attention,
the Ministry will endeavour to ensure that that is done.
Ministry of Justice
7 February 2011
1 S.I. 2011/1709 Back
2
See, by way of example, rule 7(b) and Schedules 1 and 2 of S.I.
2010/621, rule 11(22) of S.I. 2010/1953 and rules 5(t) and 14(f)
and Schedule 1 of S.I. 2009/2092. Back
|
