Tamara is a legal adviser to the Chartered Institute and has qualifications from institutions in various countries. As such, she is well placed to give us a resume of the new rules. Owing to the wide range of possible matters to discuss, our chairman had suggested that her presentation should concentrate on some of the more significant alterations.

We were told how disenchantment in government circles and in the judiciary with the high cost and slow progress involved in litigation had led to the root-and-branch review that had led to Lord Woolf's report "Access to Justice". The new rules which were drafted as a result came into force on 26th April 1999, albeit that during a transitional period some parts of the old rules have not been amended and remain in force. The new rules are supplemented by practice directions, pre-action protocols and new forms.

The principal objectives underlying the changes are, of course, to reduce delays and costs by giving the Court more control over the process, and judges are expected to pay regard to the objectives when deciding procedural matters, rather like an arbitrator has to under the 1996 Act. The parties have to complete an allocation questionnaire, on the basis of which the Court allocates the case to the small claims track, the fast track or the multi track. In doing so, the amount in dispute, the financial standing of the parties, the importance of the case and its complexity are considered. These matters are known as proportionality, and recoverable costs are also determined with these things in mind.

Costs are used as a lever to encourage the parties and their lawyers to enter into the spirit of the new rules. Parties' behaviour, both before and during the litigation, can be used in assessing recoverable costs. Payments into Court and offers to settle can also play an even more important role than before in protecting a party's costs position. Both parties can now make payments in, and the new rules clarify the treatment of interest and the time offers are to be held open for acceptance. Whilst the basic considerations regarding costs remain the same, there are now sweeping steps the Court can take if it decides that a party has behaved inappropriately. Such behaviour can include the failure to co-operate in pre-trial Alternative Dispute Resolution (of which more later), the failure to accept reasonable offers and inordinate use of disclosure and experts, which again are covered below. For example, interest can be awarded at 10% above base rate and costs given on an indemnity basis, in which case proportionality does not apply. A further new tool is that Courts may require a schedule of costs to be submitted 24 hours before the hearing, whereupon the judge can give a summary ruling on costs.

Judges now have greater powers to encourage appropriate behaviour, although some say they have always had the powers, but were more constrained in their ability to use them. They can now strike out claims on their own volition and limit admission of evidence etc. in the event of procedural transgressions. The new rules have effectively removed many, if not all, of the procedural precedents, and the judges can rely much more on their discretion. This may increase the uncertainty of going to law, at least in the short term.

One way of increasing the rate of progress of cases through the courts is to reduce the number of cases to be heard by the finite resources available. ADR is now to be actively encouraged by the Courts, and failure positively to participate can of course be penalised in costs. Whilst mediation is the form of ADR most commonly thought of in this context at the moment, other forms, including arbitration, are also applicable.

Disclosure replaces discovery, although the principles are much the same. The criterion however, is no longer relevance but probative, or disprobative, value in the context of proportionality. Whilst a party can still seek as much disclosure as it wishes, proportionality will be considered when assessing recoverable costs. The Court can also make orders for specific disclosure if good reason is shown, and lists must be produced of documents disclosed, those searched for but not found, and if not, why not. There can be pre-action disclosure and the court can order disclosure from third parties.

Significant changes have occurred to do with experts. An expert witness' prime duty is now to be owed to the Court, rather than to the instructing party, and the Court must give its permission before an expert can be called. The expert's report must include a statement of truth, and whilst it does not have to include the instructions in response to which the report was prepared, those instructions must be revealed if so ordered. So far as costs are concerned, the party calling the expert has to pay initially for the costs of the report and the evidence, but the cost of any supplementary questions must be paid for (subject to recovery) by the enquiring party. It would appear that at least this measure has taken immediate effect. The Solicitor General reported on 29th October 1999 that the workload of experts had decreased by 50%.

It was said that the Commercial Court has taken a consistent line in interpreting the new rules, and that several cases have been reported which demonstrate that judges are acting robustly in support of the objectives.

Tamara gave a very lucid account, and held our attention throughout. However, I have to say that her speed of delivery was such as severely to test the note-taking ability of this reporter. As a disclaimer and apology for any inaccuracies in this account, I caution the reader to check its contents before relying upon them.

The presentation gave rise to an interesting debate amongst the members present, and there were some good-humoured differences of opinion as to the justice of some of the changes. The criterion of the importance of the case was questioned: important to whom, the public interest (as evidenced in the Courts' case-load) or the party in question? Lawyers will also now face questions in deciding between exposing a client to a choice between losing the case and incurring irrecoverable costs.

Bob Crease