COVID REPEATS 20: CIVIL LITIGATION BRIEF 26 YEARS AGO: PROCEDURAL DEVELOPMENT IN 1994
Six years ago I reviewed the annual output of Civil Litigation Brief in 1994 so, in essence, this is a repeat of a repeat. There were no “blogs” back. Twenty six ago CLB was a monthly column in the Solicitors Journal (monthly now seems a leisurely timetable). It is interesting to see what was making the news back then and the guidance being given. There were major problems caused by a Court of Appeal decision on “automatic striking out”. This led to the courts being hyper vigilant for a while, and then rowing back from the strictness of the decision (whilst denying they were doing it). Some observers may think that the same thing happened again two decades or so later…
CIVIL LITIGATION BRIEF IN THE SOLICITORS JOURNAL 1994.
February saw an interesting case on witness credibility in summary judgment (then Order 14) applications; an interesting case on enforcing undertakings; disclosure and Mareva injnctions and the new provisions in relation to appeals in the county court.
March saw consideration of the rules relating to payment in (Part 36 now); a House of Lords decision on striking out for want of prosecution and issues relating to the admissibility of police accident reports.
THE MARCH OF “RASTINITIS”
April saw a detailed review of the Court of Appeal decision in Rastin -v- British Steel  The Times 18 February. CCR Ord.17.r.11(9) introduced a new concept of “automatic striking out” into the rules if a claimant failed to request a hearing date for trial by a certain time. The Court of Appeal set out a rigorous rule for “reinstatement”. Included in that requirement was an “excusable reason” and the express statement that overwork was not an excuse.
MUCH WASTING OF JUDICIAL TIME
Consequently there was, thereafter, numerous appeals on this point. Hundreds (if not thousands) of judicial hours were spent deciding whether or not an action was, in fact, struck out and, if if was, whether reinstatement should take place.
THIS AUTOMATIC STRIKING OUT COULD (AND DID) RUN AND RUN
Consequently May was also taken up with the same issue. Including the problem of whether a struck out claimant could issue again. It was noted then that Rastin could “run and run”.
WHERE WAS I ON THE 12th MAY 1994?
Striking out dominated the May edition, with my reporting of a successful reinstatement application in the York County Court . Reinstatement was rare but the facts were exceptional the parties had agreed to put proceedings on hold whilst the claimant had reinstatement cosmetic surgery paid for by the defendant. (I remember doing the case on the 12th May, it was the day that John Smith Q.C. (leader of the Labour Party) died.)
EARLY NEWS OF THE WOOLF REFORMS
The July edition carried news of some proposals to change civil procedure by someone called “Woolf”. However CLB reviewed yet another Court of Appeal decision on reinstatement (Gardner -v- London Borough of Southwark).
MORE PERIPHERAL ISSUES IN RELATION TO STRIKING OUT
September saw striking out considered again and the issue of what was the position in relation to automatic striking out when an action was transferred from the High Court.
You will not be surprised to find that October saw CLB discussing yet another Court of Appeal decision in relation to reinstatement of an action that had been automatically struck out (Hoskins -v- Wiggins Teape  PIQR 377.) Which was, in many ways, another nail in the coffin for many of those seeking reinstatement. The question of the effect of a judgment on the automatic directions was also considered.
The November edition was dominated by letters from readers with reported cases and comments (this was quite an innovation at the time) all of which related to construction of the rules relating to automatic striking out.
DECEMBER: A CHRISTMAS PRESENT FOR LITIGATORS
December contained a guide on how not to get struck out . Interestingly the checklist I provided was:
- “Be a new age litigator. Don’t delay or tolerate any delay“.
- Set down in 6 not 15 months.
- “Set the alarms early. Start worrying every time you cannot comply with each direction“
- “Go in hard if the defendant defaults“(the strike out provisions only applied to claimants).
- Always apply for an extension of the setting down period.
- Turn up at your application (seems obvious but some people were not and this was a long time before telephone applications).
- “Assume the automatic directions clock is ticking unless the Court of Appeal has, personally, told you otherwise” (some litigators were assuming that directions had ceased to run, sometime with disastrous consequences).
- Split the trial if a delay in prognosis was causing delay.
- “Clever ways of seeking to avoid automatic directions tend to come unstuck“.
- “Do it to them before it happens to you. Litigation in the latter part of the twentieth century requires a different approach. Get it or get out.”
HAS ANYTHING CHANGED?
Automatic striking out applied only to claimants and was one rule which came into play 15 months and 2 weeks after a defence was filed. It caught hundreds, probably thousands, of claimants out. There were numerous tranches of cases heard by the Court of Appeal. It was recognised as a great mistake. Conscious efforts were made during the Woolf consultation and implementation process to avoid a repeat. Nothing like that could possibly ever happen again…
I would not change any part of the advice I gave in 1994 (although parts of it clearly need updating, not least the century).
ONE STRIKING CHANGE
One striking change, however, it the sheer speed of legal information. Twenty years ago I was writing about cases that had been decided weeks, sometimes months, earlier. However the CLB was often the most current source of information on these issues. Transcripts were scarce. Readers wrote letters containing information. The opportunity to tweet direct from court and to blog about cases on the day of judgment did not exist.