HAMLYN - College of Social Sciences and International Studies ...

Civil Justice
not deserve. The point was made by Sir Jack Jacob Q.C., the
leading civil proceduralist of our time, in his Dissent to the
Report of the Winn Committee in 1968:
"The admonition by Lord Justice Bowen that 'courts do not exist for
the sake of discipline' should be reflected in the principle that rules
of court should not be framed on the basis of imposing penalties or
producing automatic consequences for non-compliance with the
rules or orders of the court. The function of rules of court is to
provide guide-lines not trip wires and they fulfil their function most
where they intrude least in the course of litigation." 59
When the court visits severe penalties for a breach of the rules
it is generally acting harshly in the particular case pour encourager
les autres. It is predictable that sometimes the judges will
take this approach—hardening their hearts and administering
the punishment in the name of the principle that the rules must
not be flouted. (Incidentally, when they do so, lay litigants will
often find themselves penalised for the failures of their lawyers,
not an obvious advance in justice.) Sometimes, however, the
court will be persuaded by the excuses and justifications put
forward on behalf of the party in default. 60 What is predictable
is that the courts will not be consistent in their approach which
is a recipe for unequal justice, or less fairness.
The problem of inconsistency of approach by the judges
creating unfairness applies equally to a whole raft of new
discretions given to the judges by the new rules. Under Lord
Woolf's judicial case management, the judge who is managing
the case knows only what is presented to him by the parties. He
has to make snap decisions based often on inadequate information.
Inevitably, through no fault of his, he will sometimes make
decisions that are unwise or inappropriate. But it will be
difficult to appeal such discretionary decisions since the appeal
courts, understandably, will not want to second-guess the
59 Report of the Committee on Personal Injury Litigation, Cmnd. 369 (1968), pp. 151-
152.
60 In Biguzzi v. Rank Leisure pk [1999] 4 All E.R. 934 the Court of Appeal per Lord
Woolf confirmed: (1) that time-limits were important and had to be enforced
by the courts; (2) that the courts had an unfettered discretion to strike out
cases where there had been a failure to comply with a rule; but that (3) the
court might instead use other powers to make it clear that delays would not
be tolerated. ("In a great many situations those other powers will be the
appropriate ones to adopt because they produce a more just result" (at 940)).
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