Drawing special attention to four statutory instruments - Statutory Instruments Joint Committee Contents


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


 
previous page contents


© Parliamentary copyright 2012
Prepared 6 March 2012