Fifth Standing Committee on Delegated Legislation
Monday 19 April 1999
[Dr. Michael Clark in the Chair]
Draft Civil Procedure (Modification of Enactments) Order 1999 on Delegated Legislation
4.30 pm
The Minister of State, Lord Chancellor's Department (Mr. Geoffrey Hoon): I beg to move,
That the Committee has considered the draft Civil Procedure
(Modification of Enactments) Order 1999.
The most fundamental reform of the civil justice system
for more than 100 years will come into effect on 26 April.
The reforms aim to provide a single system of civil justice
based on the fundamental principles of proportionality,
clarity and efficiency. The civil procedure rules that will
come into force on that day are a key aspect of the
reforms a new unified code of civil procedure to
implement the expressed objectives of the new system.
There are other steps to be taken in this process of
reform which, although comparatively minor, still make
an important contribution to the achievement of the
modernisation of the civil justice system. One step is the
implementation of the Civil Procedure (Modification of
Enactments) Order 1999, which is before the Committee
today. The order is made under section 4(2) of the Civil
Procedure Act 1997, the Act that provided the machinery
for the reform of civil procedure. It established the civil
procedure rule committee and gave it the task of drafting
the new rules of court.
When the 1997 Act was passed, it was recognised that
certain aspects of the reforms might conflict with existing
provisions of primary legislation. At the time, Parliament
recognised that some changes of substance might be
necessary to make the new reforms effective. However, it
rightly wanted an opportunity to debate the changes
before they were made. Section 4(2) of the 1997 Act
therefore permits the Lord Chancellor, by order, to make
amendments to primary legislation to facilitate the making
of civil procedure rules. The orders, such as that before
the Committee today, are subject to the affirmative
resolution procedure.
The amendments made by the order to primary
legislation are small but significant. The order amends
section 11 of the Courts and Legal Services Act 1990.
Section 11 permits the Lord Chancellor, by order, to
provide that there shall be no restriction on the persons
who may exercise rights of audience, or rights to conduct
litigation, in relation to proceedings in a county court.
That power is restricted to the types of proceedings listed
in section 11(2). Section 11(2)(e) currently provides that
the power is exercisable in respect of proceedings
"referred to arbitration in accordance with county court rules made
under section 64 of the County Courts Act 1984 (small claims)".
These are currently the only proceedings for which an
order allowing lay representation in county court
proceedings has been made.
The civil procedure rules have moved away from
treating small claims cases in county courts as if they had
been referred to arbitration. It is fiction now to think of
small claims as arbitration. Article 3 of the draft order
amends section 11(2) of the Courts and Legal Services
Act 1990 by referring to small claims instead of
arbitration. That will reflect the new rules and allow the
current, successful practice of permitting lay
representation in small claims cases to continue.
The other amendment that is proposed is to the Civil
Evidence Act 1995. That Act made new provisions for the
admissibility of hearsay evidence and the proof of
documentary evidence in civil cases. Before the
implementation of the 1995 Act, the law on hearsay
evidence was governed by the Civil Evidence Act 1968,
which contained an elaborate system of notices and
counternotices to enable parties to adduce hearsay
evidence.
Parliament greatly simplified the procedures in the
1995 Act by providing that hearsay evidence should
generally be admissible in civil proceedings and by
providing for notification to be given to the other parties
in accordance with rules of court. Section 16(3) of the Act
provided that transitional provisions could be contained in
the commencement order but, subject to any such
provisions, the Act would not apply to cases begun before
the commencement of the Act.
The Act was brought into force on 31 January 1997
but, by an oversight, the power to provide transitional
provisions was not exercised in the commencement order.
As a result, cases commenced before that date were not
brought under the new Act and had to continue to apply
the cumbersome and expensive provisions of the 1968
Act.
Part 33 of the Civil Procedure Rules 1998 contains the
mechanism for the admissibility of hearsay evidence
under the 1995 Act. The amendment proposed in article
4 of the draft order allows for rules of court or practice
directions to make transitional provisions for the
application of the Act to cases commenced before
31 January 1997. It is intended that such provision will
be made and thus provide that there will be only one set
of rules for hearsay in all cases. That will be beneficial,
and the regime that the uniform rules will apply will be
simpler and more economical for litigants.
I hope that I have given sufficient explanation of why
the various provisions of the order are necessary.
Together, they will help achieve the objectives of the civil
justice reforms. I commend the order to the Committee.
4.35 pm
Mr. Edward Garnier (Harborough): I begin by
welcoming you to the Chair, Dr. Clark. I declare an
interest: I am a practising member of the Bar. Article 3
of the order should not affect my practice, but article 4
may from time to time have some bearing on my work.
As we see from the explanatory notes, the order makes
two changes first, to section 11 of the Courts and Legal
Services Act 1990; and, secondly, to the commencement
provisions of the Civil Evidence Act 1995, so as to enable
that Act and the Civil Procedure Rules 1998 to apply to
cases begun before 31 January 1997.
Section 11(2)(e) of the Courts and Legal Services Act
1990 is to be changed. Subsection (1) states:
"The Lord Chancellor may by order provide that there shall be
no restriction"
on who may appear as an advocate or who may conduct
litigation in county court proceedings of certain
categories. Subsection (2)(e) includes small claims cases.
On reading the draft order and the Act, I was not sure
why the change was needed, but the Minister has assisted
me, at least in part.
Of more concern is the fact that section 11(10) of the
1990 Act states that
"Before making any order"
such as the one now being debated
"the Lord Chancellor shall consult the Senior Presiding Judge."
Given the Lord Chancellor's record for consultation, and
given the Minister's inability to keep a check on the Lord
Chancellor's demands for ever more executive power over
the courts such as the extermination of the Advisory
Committee on Legal Education and Conduct under the
Access to Justice Bill it is entirely right that the Minister
should tell us when the Lord Chancellor consulted the
Senior Presiding Judge, and to identify that judge; and
whether he did so orally or in writing.
Will the Minister publish his letter of consultation or
provide us with a written memorandum of any oral
consultation and any relevant replies? Will he assure the
Committee that he personally ensured that the
consultation process was properly conducted and was in
line with the judgment of Mr. Justice Webster in the case
of The Crown v. the Secretary of State for Social Services,
ex parte The Association of Metropolitan Authorities,
reported on page 1, volume 1 of the Weekly Law
Reports, 1986?
Given that the provision on consultation is mandatory,
it follows that for there to have been consultation with the
meaning of that word in the 1990 Act, there must have
been a genuine request for advice and a genuine desire to
receive it. Will the Minister assure the Committee that the
Senior President Judge was not placed under any time
restrictions for his reply or given inadequate time in which
to consider the Lord Chancellor's? request for advice, and
that he was given all the necessary information upon
which to base his advice to the Lord Chancellor?
Will the Minister assure the Committee that he has
considered not only Mr. Justice Webster's judgment but
those in the cases of Fletcher v. The Minister of town and
Country Planning, reported in the second volume of the
All England Law Reports of 1947; of Rollo v. The
Minister of Town and Country Planning, reported in the
first volume of the All England Law Reports of 1948; of
the Union of Whippingham and East Cowes Benefices,
Derham v. The Church Commissioners for England,
reported in the Appeal Cases Reports of 1954; and of
The Agricultural, Horticultural and Forestry Training
Board v. Aylesbury Mushrooms Ltd., reported in the first
volume of the Weekly Law Reports of 1972?
Those cases are all about deeply esoteric matters, but,
if the Minister is doing his job properly, I have no doubt
that he will have considered them so that he could come
to a view about whether the Lord Chancellor had gone
through the proper consultation process under section
11(10) of the 1990 Act.
Article 4 of the order relates to section 16 of the Civil
Evidence Act 1995. Section 16(3) will be changed in quite
a major way, although I understand that the change is
required because of an oversight. At the moment, the Act
does not apply to proceedings begun before the
commencement date of the Act 31 January 1997. The
order will make it possible to apply the Act to proceedings
begun before that date. In short, hearsay and documentary
evidence will not be excluded in cases begun before 31 January 1997.
Paragraph 5.1 of the Law Commission's 1991
consultation paper No. 117, entitled "The Hearsay Rule
in Civil Proceedings", states:
"There can be little doubt that the rule excluding hearsay is the
most confusing of the rules of evidence, posing difficulties for
courts, practitioners and witnesses alike."
No one quite knows when the rule against hearsay was
introduced, but whenever it was, it has been eroded
piecemeal by statue ever since. With the increased
keeping of official written records and electronically
retrievable information systems, the reliability and public
availability of documentary evidence that can technically
amount to hearsay has increased. Its accuracy is no longer
always a source of worry. In practical terms, there is no
reason why cases begun before 31 January 1997 should
not be subject to the same regime subject to proper
judicial safeguards as cases begun after that date.
When will the Minister published the draft rules
referred to in article 4(b)? If the Minister can assure me
of his personal attention to the matters that I raised in
relation to article 3, I anticipate that the order will shortly
be passed.
Finally, I should like to ask the Ministers about two
related matters. First, the explanatory note refers to civil
procedure rules, in particular those of 1998. The Minister
began his remarks this afternoon by referring to the
earth-shattering events of 26 April, which flow from the
reforms designed by the Master of the Rolls, Lord Woolf.
Is the Minister aware that, despite the fact that the Woolf
reforms will come into force on 26 April, no new claim
forms are available in the Leicester county court? Will he
ensure that all necessary court forms are available in every
county court? [Interruption.] It is the Minster's business:
it is the responsibility of his Department. If he is going to
snigger about the great big reforms that he is introducing,
he is even more unfit to do his job that others have
thought until now. It is no good the Minister sniggering
and being lazy; this is a most important matter
[Interruption.] Listen to them Dr. Clark; they have no
idea about the importance of the reforms that will come
into effect next week. Leicester is just one example of a
county court in which claim forms are not available. They
should be available in time for 26 April, and the Minister
should be able to assure the Committee that they will be.
Secondly, the court service's software for drawing up
court orders does not allow for more than one defendant.
A solicitor in my constituency who was acting for a
plaintiff against several defendants in the Leicester district
registry was this morning unable to have an order drawn
up by the court against anyone in addition to the first
defendant, as the computer could not allow for that. It
was not possible even to identify, let alone enumerate, the
second and subsequent defendants in that unit order. Such
matters may be of no importance to most members of this
Committee, but I assure you, Dr. Clark, that the order will
be laughed out of court if the real substance behind the
Woolf reforms cannot be brought into practical effect.
I invite the Minister to comment as soon as possible on
my final points as well as on those that I made earlier.
4.44 pm
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