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Practice Directions and the Civil Procedure Rules

Published online by Cambridge University Press:  01 March 2000

J.A. Jolowicz
J.A. Jolowicz*
Affiliation:
Fellow of Trinity College, Cambridge
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Extract

Practice directions are made by the courts under a jurisdiction usually called “inherent”. Directions do not have statutory authority but are sometimes used to introduce important procedural innovations. Now, the Civil Procedure Act 1997 envisages that a rule of court, instead of providing for something, may refer to directions, actual or to be made: directions covered by this do have statutory authority.

Practice directions “supplementing” many of the Parts of the Civil Procedure Rules 1998 were issued alongside the rules. Not all of these fall within the Act of 1997, but the “inherent” jurisdiction, which has not been displaced, can justify them. In the result, there are now two kinds of practice direction: some have the authority of statute and others do not. This article examines a confusing situation and makes some suggestions.

Type
Shorter Articles
Information
The Cambridge Law Journal , Volume 59 , Issue 1 , March 2000 , pp. 53 - 61
Copyright
Copyright © Cambridge Law Journal and Contributors 2000

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References

1 Jacob, , “The Inherent Jurisdiction of the Court” (1970) 23 Current Legal ProblemsGoogle Scholar, 23, reprinted in The Reform of Civil Procedural Law and other Essays in Civil Procedure (1982), 221 (to which future references are made); Mason, , “The Inherent Jurisdiction of the Court” (1983) 57 Australian L.J. 449Google Scholar; Dockray, “The Inherent Jurisdiction to Regulate Civil Proceedings” (1997) 113 L.Q.R. 120. See also Taitz, , The Inherent Jurisdiction of the Supreme Court (Cape Town 1985)Google Scholar which, though primarily concerned with the Supreme Court of South Africa, contains numerous references to the English situation; Connelly v. D.P.P. [1964] A.C. 1254, per Lords Morris, Hodson and Devlin at pp. 1301, 1336, 1347, respectively; Langley v. North West Water [1991] 1 W.L.R. 697, 709, per Lord Donaldson M.R.

2 Metropolitan Bank v. Pooley (1885) 10 App. Cas. 210, 220-221.

3 11 Mod. 64. See also another General Rule of Holt's of 1691, 1 Show. K.B. 336. A “Memorandum” by an assembly of the justices and Barons in 1625 may be an earlier example: Cro. Car. 34.

4 Tidd, William, Practice of the Courts of King's Bench and Common Pleas in Personal Actions and Ejectment, 9th ed. (London 1828)Google Scholar.

5 1 Wm. 4, c. 70, section 11. The judges could act jointly or by any eight or more, of whom the three Chiefs had to be part.

6 1 Cr. & J. 468.

7 2 Cr. & M. 1. For these rules, see Holdsworth, “The New Rules of Pleading of the Hilary Term, 1834” (1923) 1 C.L.J. 261; Whittier, , “Notice Pleading” (1918) 31 Harv. L.R. 501, 507Google Scholar.

8 Roffey v. Smith (1834) 6 Car. & P. 662.

9 3 & 4 Wm. 4, c. 42, preamble and section 1. As under the earlier legislation, the judges could act through any eight or more of their number of whom the Chiefs were to be three. The power created had to be exercised within five years and rules made had to be laid before Parliament.

10 Ibid. section 15. Rules could also be made concerning the costs of proving documents and, by section 35, about the taxation of costs. The Uniformity of Process Act 1832 (2 & 3 Wm. 4, c. 39) is another example from the same period of an Act giving the judges power to make rules.

11 Supreme Court of Judicature Act 1875, section 17. See also, Appellate Jurisdiction Act 1876, section 17; Supreme Court of Judicature Act 1881, section 19. Rules made had to be laid before Parliament and were subject to negative resolution.

12 (1875) 1 Ch. D. 41.

13 Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234.

14 Practice Direction (Judgment in Foreign Currency) [1976] 1 W.L.R. 83. See Miliangos v. George Frank (Textiles) Ltd. [1976] A.C. 443.

15 Practice Note (Court of Appeal: Anton Piller Orders) [1981] 1 W.L.R. 1420; Practice Direction (Mareva Injunctions and Anton Piller Orders) [1994] 1 W.L.R. 1233; Same [1996] 1 W.L.R. 1552.

16 Practice Direction (Trials in London) [1981] 1 W.L.R. 1296. Though the Direction nominally applies only to applications in London, there is provision to see that all applications for judicial review are actually dealt with in London save in cases of great urgency: Practice Direction (Crown Office List: Criminal Proceedings) [1983] 1 W.L.R. 925, para. 2.

17 Practice Direction (Commercial Court: Revised Practice) [1990] 1 W.L.R. 481; Practice Direction (Commercial Court: Practice Guide) [1994] 1 W.L.R. 1270.

18 Practice Direction (Chancery Division: Procedure and Case Management) [1995] 1 W.L.R. 785.

19 Practice Statement (Commercial Cases: Alternative Dispute Resolution) [1994] 1 W.L.R. 14; Same (No. 2) [1996] 1 W.L.R. 1024. This lead was soon followed in other courts: Practice Note (Civil Litigation: Case Management) [1995] 1 W.L.R. 508, Pre-trial Check-list, Points 10-13.

20 Practice Direction (Civil Litigation: Case Management) [1995] 1 W.L.R. 262, 508.

21 Relevant practice directions from 1926 to 1999 are consolidated in Practice Direction (Court of Appeal) (Civil Division) [1999] 1 W.L.R. 1027. This mammoth document, which includes 9 annexes, occupies 53 pages of the reports. Procedure in the House of Lords is laid down entirely by the House itself: Practice Directions and Standing Orders applicable to Civil Appeals, Supreme Court Practice, 1999, paras. 19A-21-19A-24.

22 Practice Direction (Supreme Court Act: Devolution) [1999] 1 W.L.R. 1592. The code applies to all courts, civil and criminal, except the House of Lords. Should a devolution issue under either the Northern Ireland Act 1998 or the Scotland Act 1998 arise in proceedings in England and Wales, the procedure laid down in the code “should be adapted as required”.

23 Jacob, loc. cit., n. 1, at p. 224. Sir Jack suggests that the inherent jurisdiction of the court lies behind the modern practice of granting legislative powers to a rule committee: ibid., at p. 229. That may well be historically correct, but it does not change the nature of practice directions.

24 Connelly v. D.P.P. [1964] A.C. 1254, 1347; Harrison v. Tew [1990] 2 A.C. 523, 534, per Lord Lowry; I.C.I.C. v. Tsavliris Maritime Co. [1996] 1 W.L.R. 774, 788, per Mance J. This does not mean that where there is no conflict the two cannot stand together: Mercer Corpn. v. Rolls Royce Ltd. [1971] 1 W.L.R. 1520; S. v. McC; W. v. W. [1972] A.C. 24, 46, per Lord MacDermott. See also Gittins v. W.H.C. Stacy & Son Pty. Ltd. [1964-5] N.S.W.R. 1793 (court can impose sanctions for non-compliance with a practice direction).

25 Att.-Gen. of The Gambia v. N'Jie [1961] A.C. 617, 630.

26 Practice Note (Court of Appeal: Procedure) [1995] 1 W.L.R. 1031.

27 Supreme Court of Judicature (Procedure) Act 1894, section 4. Those admitted were the President of the Law Society and two others, one of whom had to be a practising barrister.

28 Supreme Court Act 1981, section 85.

29 Civil Procedure Act 1997, section 2(1). Formerly, and subject to negative Parliamentary resolution, rules could be made by the Lord Chancellor together with any four members of the Committee. Supreme Court Act 1981, ss. 84(8), 85(1). Under the 1997 Act, the Lord Chancellor is not a member of the Committee. Rules must be signed by at least eight members and submitted to the Lord Chancellor who may allow or disallow them: Civil Procedure Act 1997, s. 2(8). They are still subject to negative resolution: ibid., section 3.

30 Act of 1997, section 5(2).

31 Section 5(1).

32 The new section 74A allows the Lord Chancellor to authorise another person to make directions on his behalf but, subject to that, it provides that directions as to the practice and procedure of county courts may not be made by any other person without his approval. This effectively overrules the Court of Appeal's decision in Langley v. North West Water [1991] 1 W.L.R. 697, 709, per Lord Donaldson M.R. and adopts the more traditional view, most recently expressed by Ward L.J. in In re M. (A Minor) (Contempt: Committal of Court's own Motion) [1999] 2 W.L.R. 810, 817, that the county court, “being a creature of statute, has only those powers which are conferred upon it by statute and, unlike the High Court, it does not, save for very limited exceptions, have any inherent jurisdiction”.

33 See, e.g., the “devolution” practice direction (n. 22 above) which was made after the CPR came into force.

34 E.g., CPR, 6.1, 6.2, 6.3.

35 CPR, 27. 4 (3) (a) (ii). See also, e.g. CPR, 31.6(c), 31.(9), 32.8, 34.13.

36 CPR, 59.2, currently in draft only.

37 Many examples of this kind of thing could be given. Indeed, many Parts of the CPR make no reference to practice directions but are, nevertheless, supplemented by them.

38 The Council consists in part, but not exclusively, of members of the judiciary and of the legal professions. Its functions include advising the Lord Chancellor and the judiciary on the development of the civil justice system: Civil Procedure Act 1997, s. 6.

39 A practice direction signed by Lord Woolf M.R. and dated 17 November 1998, for example, states that its content had been the subject of consultation with the members of the Court of Appeal and that it set out the collective views of the Court: Practice Direction (Leave to Appeal and Skeleton Arguments) [1999] 1 W.L.R. 2. See also the practice statement made by Lord Bingham C.J. a few days later: Practice Statement (Supreme Court Judgments) [1999] 1 W.L.R. 1.

40 A goodly number of modifications to the “definitive” version of the rules and practice directions was required even before they came into force and more continue to emerge.

41 Above, n. 27.

42 This would require repeal of paragraph 6 of schedule 1 of the Act of 1997. If it is considered that this would make the working of the Committee too cumbersome, the requirement that rules made by it must be submitted to the Lord Chancellor for his approval or disapproval (section 2(8) in part) before being laid before Parliament could also usefully be repealed.