Do the Civil Procedure Rules allow for a ‘fair trial’?

The Human Rights Act 1998 ('HRA') implements the European Convention of Human Rights into domestic UK legislation. As a public body, the courts are required to apply the Human Rights Act. At the same time the courts are to follow the Civil Procedure Rules ('CPR'). Article 6 of the HRA states that everyone has the right to a fair trial. Do the CPRs help courts ensure that everyone has a fair trial?

Do the Civil Procedure Rules allow for a ‘fair trial’?

Yes because... No because...

the CPR encourages early exchange of information

The Pre-Action Protocols contained in the CPR dictate how parties are to conduct themselves even before a trial is started. This favours both parties and ensures a fair hearing.

Parties are told to exchange information before starting proceedings. The claimant is to inform the defendant they wish to make a claim against by writing them a letter dictating the issue they are claiming on. The defendant is then guided to respond with a full and written response.[[Pre-Action Protocol: Pre-Action Conduct 7.1(1) and (2)]] The exchange of information is to be sufficient in order to ensure that each party understands the issues [[Pre-Action Protocol: Pre-Action Conduct 4.4(1)]]. If a trial results from the case in hand then each party will be able to proceed with all the relevant information they need to conduct their case. This allows for fair trails in compliance with Article 6 ECHR as it levels out the imbalance of power which could potentially arise between parties (between a company and an individual for example).

Even with the early exchange of information, the imbalance of power will still exist. This will be evident in later stages of the case whereby the more powerful party will be able to afford better experts or lawyers to support their claim. This imbalance of power renders is not remedied by the CPR and therefore does not ensure a fair trial as per Article 6.

Do the Civil Procedure Rules allow for a ‘fair trial’?

Yes because... No because...

even when in default, a defendant can have a judgment against them varied or set aside

Under CPR 12, a defendant who does not respond to the particulars of claim that a claimant validly serves them can have a judgment in default made against them. This judgment is often due to the defendant's lack of time keeping or pure negligence. The CPR rules make allowance for this in the pursuance of Article 6, a right to a fair trial.

If the judgment was entered wrongfully by the claimant not complying with the rules, or if the defendant had in fact sent the required forms, the court MUST set the judgment aside [[CPR 13.2]]

The court has discretion as to whether to vary or set aside a judgment in default if it thinks the defendant has a real prospect of defending the claim [[CPR 13.3 (1)(a)]] or by virtue of some other good reason [[CPR 13.3(1)(b)]].

This means that even if a defendant does not comply with the time limits imposed by the CPR then they can still have their right to a fair trial, and the court has a wide discretion in adopting this.

Do the Civil Procedure Rules allow for a ‘fair trial’?

Yes because... No because...

if a witness will not attend trial, the opposing party must be informed

When preparing for a case, there are various pieces of evidence that can be submitted. One of these is the witness statement. Witnesses produce a witness statement and then attend court for cross-examination. If a witness makes a statement but will not attend trial to give oral evidence, the party whom relies on that witness must inform the opposing party[[CPR 33.2]]. This ensures that the parties have access to all the information they need before the trial takes place. Upon receiving such notice, the opposing party may request that the court order that the witness attends trial so that they may be cross examined [[CPR 32.7]], this once again ensures that all parties can adduce the evidence they need to advance their case and ensure a fair trial.

Do the Civil Procedure Rules allow for a ‘fair trial’?

Yes because... No because...

experts owe their duty to the court

In order to support their case, parties can instruct experts as witnesses of expert opinion. The experts will produce a written report [[CPR 35.5(1)]] stating the extent of their research based on their instructions[[CPR 35.10(3)]]. Despite their instructions coming from one side of the party, the expert's duty is owed to the court [[CPR 35.3(1)]]. This means that they should not produce their report solely to advance the case of the party who instructed them. It is for that reason that the courts encourage the use of a single joint expert for both parties rather than having two experts [[CPR 35.8]]. This ensures that a more wealthy party cannot hire experts for vast sums of money who will say whatever that party wants them to say. The experts duty to the court is overriding and their report must state that the expert understands that his duty is to the court [[CPR 35.10 (2)]]. In producing such a report the expert may be liable if it is found they were in flagrant disregard of this duty and produced a report based solely on advancing the rights of the party who instructed them [[s.51 Supreme Court Act 1981]]. An expert will thus be unlikely to breach such a rule.

Do the Civil Procedure Rules allow for a ‘fair trial’?

Yes because... No because...

the cost of litigation is excessive

The reason why legal aid does not cover some court cases is because soliciting firms offer 'no win, no fee' representation. That means that the person who wants to bring an action to court (the 'claimant') will not have to incur the costs. They will just have to accept the fact that if they win, their award at the end may be hampered by commission charges of the solicitors. But it does mean that Article 6 is catered for. The person had a fair and public hearing. Article 6 does not say that after being heard a claimant must be able to recover all of the damages awarded to them.

Due to all the formal requirements that the CPR lays down, litigation is very expensive. There are so many formulaeic procedures to follow, that the costs spiral. This often leaves many without a chance of a fair trial. Whilst legal aid may be able to cover the people who earn the least in society, it will not help the vast majority of the public[[http://www.courtroomadvice.co.uk/court-costs-and-legal-aid.html]]. In addition to that, the legal aid is only applicable to some cases. For instance, businesses and partnerships cannot claim legal aid, even if they are struggling. Neither can you get legal aid if your claim is for personal injury. This leave many people without a chance to a fair and public hearing as per Article 6.

Do the Civil Procedure Rules allow for a ‘fair trial’?

Yes because... No because...

There are limitation periods to bring claims

Stubbings was not actually stopped from having her case heard. She did have her case heard, you cited the case reference. The problem was that upon being heard, Stubbings was told that it was too late for any chance of recovery. She still had the chance to be heard, the court if it felt it appropriate could have amended the interpretation of the wording of the Limitation Act if they thought it unjust that Stubbings could not claim. But they did not. In the interest of certainty they left the law as it was. But Stubbings had the opportunity before an open court to argue otherwise, on this occasion her argument failed. None the less, her right to a fair trial was no breached.

In order for a claim to be heard, there are certain limitation periods that run[[Limitation Act 1980]]. These limitation periods are different for different causes of action. This leads to unsatisfactory results. The time for the limitation period to start is when the damage arises. We can see the unfairness in this via the case Stubbings v Webb [[ [1993] AC 498, S v W [1995] FLR 862]]. In this case, 11 years after being sexually abused, Stubbings realised that her mental disorder was caused by her uncle who committed the sexual abuse. Upon trying to sue, she was prevented. Th case was not allowed to proceed because the limitation period had expired. For deliberate personal injury claims, the limitation period is 6 years [[http://www.lawcom.gov.uk/limitation_actions_summary.htm]]. This stopped Stubbings from having her case heard and therefore her Article 6 right to a fair trial was breached.

Do the Civil Procedure Rules allow for a ‘fair trial’?

Yes because... No because...

A fair trial is impossible to achieve no matter what legislation is introduced to make trials 'fairer'

Let us define fair as 'as fair/just as is humanly possible taking into account cost and time constraints, while also keeping a vast allowance for human error."

Also the debate is to discuss the value of the law in improving the justice system. Has it made trials fairer or less fair?

There have always been issues with the officious nature of how the law work; evidence has to presented at a certain time and not after. Surprise revelations or developments are not expected in court because of the limited time during proceedings. It is up-to lawyers and their clients to run their case efficiently pertaining to the rules or suffer.

Outlining the rules has helped the legal system because it motivates court room efficiency and helps the lawyer and his/her client make the best prepared case before the trial so that time is not wasted and all the relevant information is presented in an organized and efficient fashion.

A court room is not a fish market. Failure to produce the right evidence before trial(or not following other outlined CP rules) damages any client's case irrespective of whether the rules were/are in place or not. [[http://www.justice.gov.uk/civil/procrules_fin/]]

This is because of several reasons. One, juries and judges are not free of prejudice or value-neutral. Two, imperfect information, most trials are conducted using circumstantial evidence and if the the evidence in a case was perfect there would be no need for a trial.

All trials, thus have an element of subjectivity in the judgments passed in their completion and room for reasonable doubt since the evidence is rarely perfect.

Counterargument:
Trials usually occur while a police investigation is ongoing and evidence is still being analysed. Sometimes crucial evidence is not available before trial because of the police department's inefficiency and the Defense/prosecution suffers.
Sedulous judges are excused for being irritable when asked to review new but relevant evidence because of the rules. Cases that are clear-cut in terms of evidence therefore do not always use all the information available and are resultantly not fair.

Do the Civil Procedure Rules allow for a ‘fair trial’?

Yes because... No because...

a claimant can obtain a judgment against a defendant without a hearing!

A judgment in default can potentially breach Article 6, but it is for that reason that there are various hurdles for a claimant to overcome before they can succeed in getting a judgment in default.

A court will only make a judgment in default if the claimant has properly served it's claim form [[CPR 7.5 (1)]] and particulars of claim [[CPR 7.4]] to the defendant. A certificate of service will need to verify this [[CPR 6.17]].

Then the defendant needs to have failed to comply with its duty to send either an acknowledgment of service ('AoS') in 14 days of such service [[CPR 10.3(1)(a)]] or a defence in 14 days of the particulars of claim, or 28 days from the service of a particulars of claim if an AoS was served[[ CPR 15.4]].

Therefore, what the judgment in default is doing is ensuring that the claimant has a remedy, a fair hearing, if the defendant does not respond to the claim form. If there were no judgment in default, then a claimant would be left without a hearing and without a remedy by the virtue of the defendant ignoring the claim. Therefore, the CPR are enforcing the Article 6 right for the claimant.

A claimant can obtain a 'judgment in default' against a defendant. This is a judgment where there is no trial[[CPR 12 PD 1.1]]. The court merely decides the case on the basis of the one sided evidence it has to its disposal. The judge has discretion as to what the amount it awards, and it can even apply a costs order so that the defendant has to pay the claimants costs for bringing the claim [[CPR 12.5 (3)]]. The judgment in default can also claim interest[[CPR 12.6 (1)]], and once again this can be decided by the courts without any evidence from the defendant. This is not congruent with the Article 6 right to a fair trial.

Do the Civil Procedure Rules allow for a ‘fair trial’?

Yes because... No because...

strict rules on witness statement formalities

Whilst the CPR may give the courts permission to refuse to admit a witnesses evidence which does not comply with the rules, it does not mean that the courts will exercise those rights. The court is still under a duty to comply with the overriding objective[[CPR 1.1]]. The overriding objective places an obligation of the court to deal with the case proportionatly [[CPR 1.1 2(c)]] and fairly [[CPR 1.1 2(d)]]. They must do this when exercising any power given to them under the CPR [[CPR 1.2]]. This means that a court is unlikely to rule a witness statement inadmissable due to failing to comply with formalities. The power is there to ensure that parties do not deliberately breach the formal requirements in order to frustrate the issues in the case.

There are strict rules in the CPR as to the format of witness statements[[CPR 32 PD 17-19]]. There are requirements as to the order of the contents of such a statement and even rules about how the paper is to be headed, and it is even stated that the witness statement is to only be on one side of the paper. A failure to comply with these rules means that courts can refuse to admit the witness statement as evidence [[CPR 32 PD 25.1]]. This does not allow for a fair trial. Valuable evidence maybe refused entry into court due to an inadequacy in format; but the courts should not assess format but the content in order to make sure a fair trial ensues.

Debates > Do the Civil Procedure Rules allow for a 'fair trial'?