CIVIL LITIGATION BRIEF 25 YEARS AGO: A QUARTER OF A CENTURY OF CIVIL PROCEDURE
Nobody knew what a “blog” was 25 years ago. However at that time Civil Litigation Brief did exist, it was a monthly column in the Solicitors Journal. It is interesting to see how much (or how little) matters have moved on in the world of civil procedure.
THE AUTOMATIC STRIKING OUT PANTOMIME
For several years civil procedure was marred by the provisions of CCR Ord 17.r.11(9) which provided for the automatic striking out of actions where a claimant had not requested a trial date within 15 month of close of pleadings, Subsequently the Court of Appeal upheld a draconian approach to reinstatement in the case of Rastin -v- British Steel. Unsurprisingly this dominated the column throughout the year:
- January saw three cases discussing various exceptions and exclusions of the automatic striking out principles.
- February saw guidance given to defendants on the automatic striking out rules.
- In March CLB looked at the vast discrepancies in approaches to automatic striking out from various courts.
- April saw an examination of the “open” questions about automatic striking out.
- A further batch of cases on automatic striking out were looked at in May (Including the question of whether it was appropriate to issue again if a first action was stuck out. This remains a very live issue).
- June saw a report on two Court of Appeal cases. One in relation to case management the other in relation to the decision in Heer -v- Tutton which was a decision about CCR Ord 9.r.10.
- July saw a consideration of two Court of Appeal cases on reinstatement and automatic striking out and the surprising decision that there could be an “implied” request for a trial date (which avoided all the automatic striking out problems).
- August saw another batch of cases on this issue, including a judgment from Judge Haggue QC, which was critical of the rule itself.
“No doubt those responsible for Prd 17, r 11 had the best of intentions,… but the practical results of the automatic striking out provisions and the Rastin principles seem to me to be highly unsatisfactory to say the least. The cure has proved to be much worse than the disease. The courts are not inundated with cases on the rule. It has thrown up a myriad of difficult technical points and attracted its own jurisprudence. Every month Mr Gordon Exall contributes valuable articles to Solicitors Journal entitled Civil Litigation Brief which these days consists almost entirely of points arising under the rule. Hours of court time are now spent deciding these technical points…”
- Things had not changed by September when there was a detailed look at a Court of Appeal decision whereby an application for an extension of time was held to amount to an implied request for a hearing date.
- October led to another batch of cases in relation to automatic striking out and Ord 9. r.10 (I note that Colin Ettinger sent me a copy of a decision I reported that month. Colin has, more recently, sent me a copy of one of the cases in relation to extensions of time which I have used on this blog.)
- By November, believe it or not, there were three more Court of Appeal cases on automatic striking out to be considered.
- I clearly had enough by December. Rather than reviewing the year on procedure as requested by the editor I wrote a pantomime “The striking out pantomime” looking at the effect of Rastin and how it had been curtailed by subsequent decisions.
It is striking how the technical challenges and general procedural furore that followed automatic striking out were matched by the amendments to CPR 3.9 and the Mitchell decision. The difference is that Mitchell affected cases of much higher value and the main problems were remedied by a later Court of Appeal decision. The Rastin decision was dealt with by rule changes. It took until the introduction of the Civil Procedure Rules for “automatic striking out” to go (and those involved in drafting those rules tell me the mistakes made by automatic striking out featured heavily in the drafting).