WHY THE CIVIL PROCEDURE RULES COMMITTEE IS MORE APPROPRIATE THAN THE SUPREME COURT (FROM THE SUPREME COURT)

There is one passage in the Supreme Court judgment in Ho -v- Adelkun [2021] UKSC 43 that makes for interesting reading.  The Supreme Court made it quite clear that, in procedural issues, the Civil Procedure Rules Committee is often a more appropriate venue for consideration of issues than the Court.  This also indicates that Ho may not be the final word on QOCS and set off.

“The CPRC exists for the purpose of keeping the CPR under constant review. It is better constituted and equipped than is this court to put right such ambiguities…”

THE JUDGMENT OF THE SUPREME COURT

When Lord Briggs and Lady Rose gave the judgment (which which the whole court agreed) they observed that the Supreme Court may not be the best means of determining these issues.

“We should say at the outset that we doubt the appropriateness of a procedural question of this kind being referred to this court for determination. The very fact that two eminently constituted Courts of Appeal have differed profoundly over the interpretation of a provision of the CPR suggests that there must be an ambiguity which practitioners need to have sorted out. The CPRC exists for the purpose of keeping the CPR under constant review. It is better constituted and equipped than is this court to put right such ambiguities, all the more so where, as here, the outcome is suggested by both parties and by the Association of Personal Injury Lawyers (“APIL”),intervening, to have potentially profound policy consequences for the maintenance of a reasonably fair and level playing field in PI litigation, something which this court is much less well equipped than is the CPRC to assess. Nonetheless, permission having been given, this court must decide the question of construction, leaving it to the CPRC to consider whether our interpretation best reflects the purposes of QOCS and the Overriding Objective, and to amend the relevant rule if, in their view, it does not.”

THE OBVIOUS QUESTION…

The obvious question is – how would a litigant such as the claimant in the appeal achieve justice if this was left tot the CPRC?  The CPRC cannot legislate retrospectively.   The main point being made, I suspect,  is that the CPRC should not feel afraid to change the outcome of this result if it feels it appropriate to do so.  For instance the CPRC had no difficulty in overturning the impact of Carver v BAA plc [2008] EWCA Civ 412 (the “near miss”  principle in Part 36 offers).  Clearly this is going to be a matter discussed soon.