‘The equitable underpinning of modern remedies

“The just underpinning of modern redresss is clearly seeable in the Civil Procedure Rules and Practice Directions. However, these developments demonstrate a farther hardening of equity with a move towards greater certainty, and the flexibleness associated with the Maxims of Equity has been all but lost” ( 1000 words )

When the Civil Procedure Rules and attach toing Practice Directions came into force in April 1999, the English legal system benefitted from the origin of a individual, incorporate procedural codification with which all civil judicial proceeding must henceforth comply. They introduced many ( so most ) of the reforms that Lord Wolfe had suggested in his thorough reappraisal,Entree to Justice. As will be seen, the system, or codification, that resulted was based on just foundations that were evident in that early study. His Lordship expressed his position here that a civil justness system should be merely in its consequences ; be fair in its intervention of litigators ; offer appropriate processs at a sensible cost ; be moderately efficient in its handling of instances ; be apprehensible to its users ; react to the demands of those users ; supply a high grade of certainty and be by and large effectual, good resourced and organized.

This, so, was possibly what Lord Woolf was taking at in his recommendations which finally manifested themselves into the Civil Procedure Rules. The just underpinnings is clear from the above ideal of a civil justness system. How did these interpret into the existent procedural codification? After a audience procedure enduring over two old ages, Lord Woolfe’s study aimed to “provide a new landscape for civil justness for the 21st century.” A clear manifestation of the underlying just rules is in the express purposes of the Civil Procedure Rules, seeking as they do to cut down unneeded cost, hold and complexness. Again Lord Woolfe highlighted this basically just attack in his statement that “if ‘time and money are no object’ were the right attack in the yesteryear, so it surely is non today” .

Having considered the implicit in rules, or the doctrine, of the Woolfe-inspired reforms, we now turn to the Rules themselves, which once more reflect these just underpinnings. The first Rule sets out the “overriding objective” of the CPR. Again, this Rule truly underlies the whole codification, and provinces that the regulations should let the tribunals to cover with instances “justly” . Since this is an “overriding” aim, the Rule prevails over all others in instances of struggle, in a similar manner to which equity prevails over rigorous jurisprudence in instances of struggle. Furthermore, parties to judicial proceeding and their representatives are expected to adhere to the Rules and the aim in peculiar in order to help the Judgess. Again, so, we see how the procedural facets of the civil justness system are to a great extent influenced by, and based upon, just rules.

The gap statement suggests a possible unfavorable judgment of these developments in civil justness ; viz. that while the regulations and processs are doubtless based upon just foundations, really their rigidness nullifies the necessary component of flexibleness that has historically been built-in to the workings of equity. The statement suggests that a rigorous application of the procedural regulations leaves little, if any, room for this flexibleness to be applied on a individual footing. Given the extent of the Rules and their attendant Practice Directions, one can surely see the footing for this statement. The Rules, nevertheless, despite their largeness, should still be regarded more as a general model within which civil justness now operates. They are non an thorough set of regulations covering every eventuality, akin to some kind of civil jurisprudence codification that one might anticipate to happen in other legal powers.

This can be illustrated with an illustration. One of the most important facets of the new civil process is the pre-trial process. This reflects both the just underpinnings of the Rules, every bit good as the lasting flexibleness that allows for the effectual operation of such just rules. The footing of the pre-trial process is basically to seek to avoid full judicial proceeding, which once more flows from the aims of minimising costs and clip, and increasing openness and equity. Under the assorted Pre-Action Protocols, the parties must increase their contact with each other in order to ease earlier and more comprehensive exchanges of information and Fuller pre-trial probe. Again, the purpose is to ease an earlier, pre-trial colony between the parties. The just underpinnings of this are clear, as is the rigidness of the procedural regulations. What is non so clear, nevertheless, is how this detracts from the necessary flexibleness of equity. The regulations provide simply a model, and the parties are to the full at autonomy to come on the affair every bit far as they wish, capable to trying to avoid full judicial proceeding.

A farther facet of the new process in which the inter-relationship of the rigidness of the Rules and the flexibleness of their just underpinnings is evident is in the country of instance direction. Previously this had been left about wholly to the attorneies stand foring the litigating parties. The CPR, nevertheless, topographic point this direction entirely in the custodies of the justice. Indeed, the tribunal is obliged, pursuant to Rule 1.4, to take a proactive function in pull offing each instance that comes before it. Although this may at first appear rigid, in actuality the Judgess have a big discretion as to how to pull off instances, and can near them on their single virtues. Lord Woolfe’s ain positions on the effects of this are exemplifying. He expressed the position that this higher grade of judge-led instance direction would non sabotage the adversarial tradition of English judicial proceeding ; instead it would restrict the adversarial pattern to a more controlled environment.

One can see, so, foremost without uncertainty the Woolfe Report and its subsequent impact on the Civil Procedure Rules were basically based upon just rules. Furthermore, the new civil process surely increased the rigidness of civil judicial proceeding by virtuousness of its many regulations and pattern waies. Upon closer review, nevertheless, it becomes clear that these are simply a model, and do non encroach upon the flexibleness that is so cardinal to the axioms of equity.


Primary beginnings

Civil Procedure Rules

Secondary beginnings

Haley, M. and Mcmurty, L. ( 2006 )Equity and Trusts( London: Sweet & A ; Maxwell )

Pearce, R. and Stevens, S. ( 2006 )The Law of Trusts and Equitable Duties( Oxford: OUP )

Sime, S. ( 2005 )A Practical Approach to Civil Procedure, 8ThursdayEdition ( Oxford: OUP )

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