WHAT WOULD THE SUPREME COURT THINK ABOUT MATTERS RELATING TO PROCEDURE? CLUES FROM THE PRIVY COUNCIL?
The Mitchell case was not appealed. Practitioners have no clue as to the approach of the Supreme Court to matters of procedure. However a decision of the Privy Council on the 3rd March makes interesting reading as to potential construction of the Civil Procedure Rules.
Real Time Systems –v- Renraw & others  UKPC 6
This was an appeal from the Court of Appeal of Trinidad and Tobago. It related to the striking out of Particulars of Claim that failed to give full particulars. The particulars served were inadequate. The judge at first instance struck out the case. The Court of Appeal (in Trinidad) reversed the decision to strike out the case and remitted the matter to the judge for reconsideration of the order to make. At the Court of Appeal stage the claimants offered to give particulars that the defendant had requested pre-issue.
THE CIVIL PROCEDURE RULES IN TRINIDAD AND TOBAGO
The Civil Procedure Rules in Trinidad and Tobago have more than a passing resemblance to the Civil Procedure Rules in England and Wales.
(1) There is an “overriding objective” which includes “to enable the court to deal with cases justly” (r.1.1(1) as it happens).
(2) There is a duty to set out the facts on which the claimant relies.
(3) There is a power to amend statements of case.
(4) There is a duty to actively manage cases.
(5) There is a power for the court to take steps or give directions to manage the case and further the overriding objective.
(6) There is a power to strike out a statement of case.
(7) Failure to comply leads to a sanction automatically taking effect.
(8) A party can apply for relief from sanctions.
(9) The court holds Case Management Conferences.
Suffice to say that we don’t have to look very far to see the source of these rules. In many material respects the wording of the rules is identical to the CPR. The rules are not, however, totally identical. A party cannot normally make a request for further information until after witness statements have been served).
THE DEFENDANTS’ ARGUMENTS: A DEFECTIVE STATEMENT OF CASE CANNOT BE RECTIFIED
The defendants argued that the pleadings could not be rectified by a request for further information.
“14. It does not follow … that, if the pleadings are not satisfactory prior
to exchange of witness statements, there is nothing that can be done about it. That
would be a very strange conclusion, particularly under a new system of rules designed
to enable matters to proceed smoothly and efficiently. Mr McCormick pointed out
that, even after a claim has been struck out, a claimant can apply for relief from the
sanction under rule 26.7 or commence fresh proceedings (as rule 26.2(2)
contemplates). But the conditions for obtaining relief under rule 26.7 are stringent,
and it is far from clear that they could or would be satisfied. The ability to commence
fresh proceedings (during the limitation period, which is in practice now long expired)
is a double-edged factor, raising the question whether it is in the circumstances really
proportionate to put the parties to the expense of a fresh start. “
The Privy Council further considered the Defendant’s submissions:
“16. In the Board’s opinion, the Centre’s submissions involve a misconception as to
the scheme of the Civil Proceedings Rules and the role of the court under them. Rule
35.3 involves a restriction on the ability of a party to request information. But it says
nothing about the court’s powers. In the present case, the Centre is not applying for
information. It is applying to strike out, and it is in these circumstances for the court to
decide upon the appropriate response.
17. In that connection, the court has an express discretion under rule 26.2 whether
to strike out (it “may strike out”). It must therefore consider any alternatives, and rule
26.1(1)(w) enables it to “give any other direction or make any other order for the
purpose of managing the case and furthering the overriding objective”, which is to
deal with cases justly. As the editors of The Caribbean Civil Court Practice (2011)
state at Note 23.6, correctly in the Board’s view, the court may under this sub-rule
make orders of its own initiative. There is no reason why the court, faced with an
application to strike out, should not conclude that the justice of the particular case
militates against this nuclear option, and that the appropriate course is to order the
claimant to supply further details, or to serve an amended statement of case including
such details, within a further specified period. Having regard to rule 26.6, the court
would quite probably also feel it appropriate to specify the consequences (which
might include striking out) if the details or amendment were not duly forthcoming
within that period.”
WHAT CAN WE READ FROM THIS? DOES IT HAVE ANY APPLICATION TO THE CPR IN ENGLAND AND WALES?
This is a very specific construction of a different set of procedural rules. However it is interesting to note:
1. The concern to give a proper construction to a set of rules “designed to enable matters to proceed smoothly and efficiently”.
2. The observation that a court, faced with an application to strike out, does not have to
conclude on the justice of the particular case that the “nuclear option” should be exercised.
3. The observation that since the court has a discretion “It must therefore consider any
alternatives” for the purpose of furthering the overriding objective.
Suffice to say that if these principles are held to apply in the domestic courts then many of the decisions we have seen over the past few months may well have been decided differently.