AN OPEN LETTER TO THE CIVIL PROCEDURE RULE COMMITTEE: DO SOMETHING AND DO IT NOW – FOR THE SAKE OF THE COUNTRY

March 24, 2020 · by · in Access to justice, Civil Procedure, Coronavirus

Earlier today I tweeted

“Anyone want to join me in an “open letter” to the Civil Procedure Rule Committee (& anyone else who will listen). We need guidance NOW to allow the parties to agree open-ended extensions of time. This would stop the courts being clogged up with applications for extensions.”

That has had 227 likes to date, 63 retweets and I have had over 74 messages of support from across the profession and many direct messages of support in addition.

 

Across the country, lawyers,  many working from their kitchen table, are trying to keep the civil justice system going.  They are doing this having had very little notice and many will have very little technical expertise.  They are socially isolated, they cannot see clients.  Many may be totally alone.  There is no doubt at all that everyone is doing their best.

TIME LIMITS AND SANCTIONS MUST BE ENDED

Against this background it is ridiculous that the parties to litigation are doing this against a background where they are prohibited, by the rules, from agreeing more than a 28 days extension. It is ludicrous that parties who cannot meet time limits because of extraordinary circumstances face sanctions.

WHAT IS NEEDED

Everyone dealing with the current crisis faces considerable difficulties and uncertainty. The Rule Committee should, today, allow parties to agree general extensions of time.  It should go further and suspect CPR 3.9.

The Lord Chancellor has stated

“We have an obligation to continue with the work of the courts as a vital public service, just as others in the public sector and in the private sector are doing.  But as I have said before, it will not be business as usual. “

It cannot be business as usual in relation to time periods and sanctions.  It is absurd that litigators, who have a duty to continue to provide a public service, have to worry about time periods, about being struck out, about not being paid because a costs budget cannot be lodged timeously, about a default judgment being entered because they cannot speak to key witnesses.

All of these time periods must be relaxed. The rules should encourage the parties to co-operate, they should ensure that the relevant document is placed, in good time, before a judge hearing a remote hearing, however this is not a time for sanctions.

WITNESS STATEMENTS

The requirement that a party sign their own witness statement and disclosure statement should also be suspended.   This is often not physically possible.  A statement that the document is served at a time of social isolation, that it has been seen by, or read to, the party in question should suffice.

THE CONSEQUENCES OF FAILING TO ACT

These are challenging times. As a profession we will do our best to meet those challenges. The Rules Committee should, at once,  respond to those challenges by removing many of the requirements that are normally placed on litigation.

  • The courts will be swamped with applications to extend time. This is a senseless and nonsensical waste of judicial time.
  • For years to come the courts will be plagued with applications for relief from sanctions and arguments about compliance.  This is not going to help the rebuilding of our society one jot.

The Committee has a public duty to act, to act promptly and to act decisively.  Anything less will represent a wholesale failure of the duty it owes to our community.

(I have not had the opportunity to do the usual “round robin” gathering of support. If you agree with this please use the comments section of this blog).

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