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that the bank was entitled to summary judgment on the ground that the claimant™s case had
no prospect of success. The Court of Appeal upheld the decision 2“1. The House of Lords,
allowing the claimant™s appeal by 3“2, held that it was not a case for summary judgment “ the
evidence should be heard. The decision of the majority (Lords Steyn, Hobhouse and Millett)
resulted in ten more years of fruitless litigation with astronomical costs. (The Bank of
England™s costs were agreed at £75 million.)
11
Three Rivers DC v. Bank of England (No 3) (Summary Judgment) [2001] UKHL 16, [2001] 2
All ER 513.
50 Pre-trial civil proceedings


of judiciary can be persuaded to embrace the overriding objective that incor-
porates the requirements of proportionality and expedition, as well as the
need to do justice on the merits, the entire CPR system may become a colos-
sal wreck™.12


The court™s duty to manage cases
Traditionally civil litigation in the pre-trial stage was run by the parties, with the
courts playing only a supporting or facilitating role, intervening basically only
when requested. The new rules impose a positive duty on the courts to manage
cases. CPR 1.4(1) states that the court must further the overriding objective by
actively managing cases. It continues:
1.4(2) Active case management includes: (a) encouraging the parties to co-
operate with each other in the conduct of the proceedings; (b) identifying
the issues at an early stage; (c) deciding promptly which issues need full inves-
tigation and trial and accordingly disposing summarily of the others; (d)
deciding the order in which issues are to be resolved; (e) encouraging the
parties to use an alternative dispute resolution procedure if the court consid-
ers that appropriate and facilitating the use of such procedure; (f) helping the
parties to settle the whole or part of the case; (g) ¬xing timetables or otherwise
controlling the progress of the case; (h) considering whether the likely bene-
¬ts of taking a particular step justify the cost of taking it; (i) dealing with as
many aspects of the case as it can on the same occasion; (j) dealing with the
case without the parties needing to attend at court; (k) making use of tech-
nology; and (l) giving directions to ensure that the trial of a case proceeds
quickly and e¬ciently.
The court is given power (unless a rule or other enactment prevents it) to exer-
cise its powers on its own initiative. It may give a person likely to be a¬ected an
opportunity to make representations but it need not do so. A party a¬ected by
such an order has the right to seek to have it set aside, varied or stayed.
For a positive assessment of whether judicial detachment and impartiality is
compatible with the new duty of active trial management see Lightman J., ˜The
case for judicial intervention™.13 For a positive assessment of court control with
regard to fact ¬nding see A.J. Cannon, ˜E¬ective Fact-¬nding,™ 25 Civil Justice
Quarterly, 2006, pp. 327“48.

The three tracks
Under the CPR, cases must be assigned to one of three tracks: small claims, fast
track or multi-track. Each track has its separate regime.

12
Note 9 above at p. 311. For the same critique arising from a decision of the Court of Appeal,
see J. Sorabji, ˜B v. B: Forwards or Backwards for the Overriding Objective™, 24 Civil Justice
Quarterly, 2005, pp. 414“23.
13
149 New Law Journal, 3 December 1999, p. 1819 and www.lcd.gov.uk/judicial/speeches/
speechfr.htm.
51 Introduction


Small claims
As has been seen, the limit for small claims cases is £5,000 except for personal
injury and housing cases where it is £1,000. Under the Woolf reforms, small
claims involve mainly very limited pre-trial court management, few, if any, pre-
trial hearings and a trial where the judge runs the proceedings in whatever way
seems right to him.
Before April 1999, a case involving sums within the jurisdiction would go to
small claims unless it raised a di¬cult question of law or fact or was of excep-
tional complexity or the parties agreed that the case should be tried in court or
that it would be unreasonable.14 Under the Woolf regime, the court allocates the
case to its appropriate track. The Practice Direction on small claims says: ˜the
small claims track is intended to provide a proportionate procedure by which
most straightforward claims with a ¬nancial value of not more than £5,000 can
be decided, without the need for substantial pre-hearing preparation and the
formalities of a traditional trial, and without incurring large legal costs™.15 ˜Cases
generally suitable for the small claims track will include consumer disputes,
accident claims, disputes about the ownership of goods and most disputes
between a landlord and a tenant other than those for possession™.16

Fast track
The fast track is for cases involving amounts between £5,000 and £15,000 unless
they are unsuitable for this track. The original concept was a set timetable of no
more than thirty weeks to trial, limited pre-trial procedure, a trial con¬ned to no
more than three hours, no oral evidence from experts and standard ¬xed costs
recoverable from the other side. This, broadly, was the scheme that was imple-
mented, though the proposed three-hour limit on the hearing was extended to
¬ve hours and ¬xed costs applied originally only to the costs of the actual hearing.

Multi-track
The multi-track is for cases involving amounts in excess of the fast track limit
or for cases involving lesser amounts which are too complex or too important
to be dealt with as small claims or fast track cases. They are given a more inten-
sive form of court management probably including pre-trial hearings.
In the ¬rst ¬ve years of the CPR, over half of cases (50“60 per cent) were allo-
cated to the small claims system, between a ¬fth and a third (21“33 per cent) were
fast track and slightly fewer (15“20 per cent) were allocated to the multi-track.17


The Civil Procedure Rules
One of the important parts of the Woolf reform project was the uni¬cation of
the rules of the High Court in the White Book (formerly the Annual Practice,
14 15 16
CCR Order 19, r. 1(5). 26 PD 8.1(1)(a). 26 PD 8.1(1)(c).
17
DCA Statistical Branch annual ¬gures for 1999“2003 quoted by Peysner and Seneviratne,
DCA Research Report 9/2005, Table Two, p. 18.
52 Pre-trial civil proceedings


now Civil Procedure) with those for the county court in the Green Book (County
Court Rules). Under the Civil Procedure Act 1997, a new Rule Committee was
established, replacing the two committees previously responsible respectively
for the Rules of the Supreme Court (RSC) and the County Court Rules (CCR).
The new committee was charged with the task of preparing a new single proce-
dural code, to be known as the Civil Procedure Rules (CPR).
Previously the rules were divided into Orders. In the CPR they are divided
into Parts. Most Parts are accompanied by Practice Directions that amplify or
clarify the rules. These have a major role (J. Jacob has rightly said: ˜the develop-
ment of procedure is now by Practice Direction as much as by precedent or
change of rule™),18 but whereas the Rules are made by the Rule Committee, the
Practice Directions are made by Heads of the di¬erent divisions.19
The Civil Procedure Rules “ as amended from time to time “ are accessible
on the Department™s Website “ www.dca.gov.uk. The fact that the Website is up-
to-date is of considerable value given the number of amendments and addi-
tions. From April 1999 to January 2006 there were no fewer than forty
supplements.
The signi¬cance of calling the CPR a ˜new procedural code? The White Book
comments editorially that in many cases the judges have stressed the statement
in r. 1.1 that the CPR are ˜a new procedural code™. It suggests that they do so to
ensure that the innovative provisions in the CPR are given their full intended
e¬ect ˜and are not limited by practices and attitudes that attached to the former
rules of court™ and also to make it clear that provisions that are plainly based on
former rules will not necessarily be interpreted and applied in accordance with
the old case law, but it warns that the assertion ˜should not be relied upon as an
excuse for dealing with important procedural issues as matters of ¬rst impres-
sion rather than as matters requiring rigorous legal analysis (in their historical
context, if necessary)™.20
J. Jacob has described the e¬ect on precedent:
The CPR are a step toward ˜Te¬‚on precedents™. Old decisions, even those after
April 1999, will not stick. Of course, cases will continue to be reported, read by
lawyers and to judges. What has changed is that a continued primacy is given to
the Rules and even more importantly the spirit that underlies them (the
Overriding Objective, CPR, Part 1.2(b)). To this extent, the doctrine of prece-
dent is being modi¬ed. Previous authority, even apparently binding authority,
will become guidance. The judge, in managing cases, will have prime regard to
the rules themselves not what some other judges have said about them.21

18
Civil litigation practice and procedure in a shifting culture, 2001, Emis, pp. 21“2.
19
For the QBD by the Lord Chief Justice, for the Chancery Division by the Vice Chancellor, for
the Court of Appeal Civil Division by the Master of the Rolls and for the county courts by the
Lord Chancellor. (See the note on Practice Directions ¬rst published in the HMSO version of
the CPR, 23rd Supplement, May 2001 and see also J.A. Jolowicz, ˜Practice Directions and Civil
Procedure Rules™, Cambridge Law Journal, 2000, pp. 53“61.)
20
Civil Procedure, 2006, vol. 1, 1.3.9, p. 23.
21
Note 18 above at p. 13.
53 Introduction


The trouble is that there is no way of knowing in advance whether the court
will ¬nd the precedent helpful and therefore to be followed, or not helpful and
therefore not to be followed.22

The Human Rights Act and the CPR
There are many provisions in the CPR that arguably might provoke challenges
under the Human Rights Act 1998 but the courts have made it clear that it is
most unlikely that such challenges will be successful. The reason is that in the
view of the senior judiciary the rules to be found in the CPR are consistent with
the European Convention on Human Rights. Lord Woolf expressed this in
Walker v. Daniels23 in which he said the matter was more than adequately
covered by the requirement in the CPR that the court deal with cases justly.
There was therefore no need to pray in aid the ECHR:
It would be unfortunate if case management decisions in this jurisdiction
involved the need to refer to the learning of the European Court of Human
Rights in order for them to be resolved. In my judgment, cases such as this do
not require any consideration of human rights issues, certainly not issues under
Article 6. It would be highly undesirable if the consideration of case manage-
ment issues was made more complex by the injection into them of Article 6 style
arguments. I hope that judges will be robust in resisting any attempt to intro-
duce those arguments.24
On the impact of the Human Rights Act and the ECHR on the CPR see Joseph
Jacob™s valuable book, Civil Justice in the Age of Human Rights (forthcoming
2007, Ashgate).

User-friendly language
One of the features of the new Woolf era was the scrapping of old-fashioned
legal terms and, in particular, the banishment of time-honoured Latin phrases
used by lawyers. Thus new terms for practitioners and judges to master
included: ˜claimant™ instead of ˜plainti¬™, ˜disclosure™ instead of ˜discovery™,
˜statement of case™ instead of ˜pleading™, ˜application™ instead of ˜motion™, ˜liti-
gator™s friend™ instead of ˜next friend™ and ˜guardian ad litem™, ˜without notice™
instead of ˜ex parte™, ˜witness summons™ instead of ˜subpoena duces tecum™, ˜with
permission™ instead of ˜with leave™, ˜service by an alternative method™ instead of
˜substituted service™, ˜between parties™ instead of ˜inter partes™, ˜search order™
instead of ˜Anton Piller order™, ˜freezing order™ instead of ˜Mareva injunction™
etc. For lawyers such changes are minor irritants. Opinions di¬er as to whether

22
In Hashtroodi v. Hancock [2004] EWCA Civ 652 the court said that earlier authorities were
generally not relevant. It cited to similar e¬ect Biguzzi v. Rank Leisure Plc [1999] 1 WLR 1926
at 1934 and Godwin v. Swindon BC [2001] EWCA Civ 1478 at [42], but it acknowledged that
there were cases ˜where this court has derived assistance from cases decided under the former
rules™. It cited Banks v. Cox [2000] CA Transcript 1476 at [41]; Stewart v. Engel [2000] 1 WLR
2268 at 2276 and Garratt v. Saxby [2004] EWCA 341 at [18].
23 24
[2000] 1 WLR 1382. At 1387.
54 Pre-trial civil proceedings


it actually bene¬ts lay people involved in litigation or whether it is mainly a
manifestation of political correctness.

Research on the Woolf reforms
Pre-Woolf reforms For an assessment of the research situation in March 1997
plus recommendations see a report commissioned by the LCD “ T. Goriely,
Evaluating the Woolf Reforms “ Obtaining Baseline Data on the Cost and Length
of Civil Litigation.25 In 2002 the DCA published a snapshot of non-family civil
justice at the county court and High Court in She¬eld.26 Although it was pub-
lished after the Woolf reforms had been introduced, it related only to a period
before they were introduced.
Post-Woolf There have so far been only two proper research studies of the
impact of the Woolf reforms. The ¬rst, on the e¬ect of the reforms on pre-
action behaviour, was carried out for the Civil Justice Council (CJC) and the
Law Society (˜Goriely et al™).27 The study was based on interviews with ¬fty-four
lawyers, insurers and claims managers, of whom thirty specialised in personal
injury (PI) work, twelve specialised in clinical negligence and twelve specialised
in housing disrepair. In the case of PI work it also included comparison of 150
claimant solicitor ¬les concluded before April 1999 (˜pre-Woolf ™) and 150
opened and closed post-Woolf ¬les.
The second, on the case management aspects of the reforms, was conducted
for the DCA by Professors Peysner and Seneviratne.28 The study, carried out in
2003“04, focused on eight county courts with a varied diet of town and country.
In each court in-depth interviews were conducted with judges, and relevant
court sta¬, notably listing o¬cers and diary managers. Focus groups were con-
ducted with solicitors practising in the area. The authors reported: ˜what was
surprising about our ¬ndings was the almost uniform views we encountered in
very di¬erent environments, about the impact and level of success of the
reforms™ (para. 3). The study did not generate any new quantitative data.

25
The 34-page report was published by Social Legal Research, 227a Richmond Road,
Twickenham TW1 2NJ.
26
J. Shapland, A. Sorsby and J. Hibbert, A Civil Justice Audit, DCA Research Report 2/2002. The
study drew together data about the use of the courts, the progress of cases through the stages
of civil justice, the costs etc. For the Executive Summary, see www.dca.gov.uk “ Publications “
Research. For an article based on the study by one of its authors, see J. Shapland, ˜The Need
for Case Management? Pro¬les of Liquidated and Unliquidated Cases™, 22 Civil Justice
Quarterly, 2003, pp. 324“48.
A second study conducted for the DCA of defended, litigated cases in six county courts by
Professor H. Genn, The Pre-Woolf Litigation Landscape in the County Courts was not
published as the Department decided it wanted to compare the data with post-Woolf data. At
the time of writing the DCA study in question had not been completed.
27
T. Goriely, R. Moorhead and P. Abrams, More Civil Justice? The impact of the Woolf reforms on
pre-action behaviour (Law Society, 2002) Research Study No. 43, 420 pp. A 33-page summary
is accessible on www.research.lawsociety.org.uk (Publications).
28
J. Peysner and M. Seneviratne, The Management of Civil Cases: the Courts and the Post-Woolf
Landscape, DCA Research Report 9/2005. The research was summarised by the authors in
˜The Management of Civil Cases “ a Snapshot™, 25 Civil Justice Quarterly, 2006, pp. 312“26.
55 Few cases are ever started and fewer reach court


The LCD™s publications on evaluation of the Woolf reforms “ Emerging
Findings (March 2001)29 and Further Findings (August 2002)30 “ drew on a com-
bination of sources: reports of the Law Society™s Woolf Network based on
responses by some 130 solicitors knowledgeable in the ¬eld who agreed to
answer periodic questionnaires on how in their view the reforms were working
in practice31 and surveys by the Expert Witness Institute, and Court Service
User Satisfaction Surveys in March and November 2001 and June 2002. There
have also been reports made by individual law ¬rms. There are quite a number
of articles written by a variety of authors of the ˜Woolf reforms one/two/three
years on™ variety based on a mixture of opinion and impression “ and plenty of
anecdotal evidence.
For the writer™s assessment of how the Woolf reforms have worked out see
pp. 132“40 below.


2. Few cases are ever started and fewer reach court

The myth of the ˜compensation culture™
There has in recent years been increasing alarm about a growing ˜compensation
culture™ leading to a ˜litigation crisis™. (Entering the phrase ˜compensation
culture™ into a UK-only Google search in December 2004 and con¬ning the
search to the previous twelve months generated no fewer than 25,500 web
pages.32) The concern is fuelled by a sense that people resort too readily to law
when things go wrong and that the courts are too ready to give compensation.
The evidence, if anything, points to a di¬erent conclusion. The Government™s
Better Regulation Task Force in a report in 2004 compared national expenditure
on tort claims, at 0.6 per cent of GDP in this country as lower than that of ten
other industrialised countries including Canada, Australia, Germany and the
US. Only Denmark spent less.33 Its report, which the Government said it
accepted,34 denied that Britain was in the grip of a compensation culture. It
based this view partly on the opinion of ˜almost everyone™ who gave evidence to

29
www.dca.gov.uk/civil/emerge/emerge.htm. For a summary of the ¬ndings, see ˜E¬ects of the
Civil Justice Reforms™, 20 Civil Justice Quarterly, 2001, pp. 301“2.
30
www.dca.gov.uk/civil/reform/¬reform.htm.
31
They were published roughly twice yearly: No. 1 in September 1999, the last, No. 7, in July
2004. The last four are accessible on www.lawsociety.org “ Civil Litigation.
32
K. Williams, ˜State of Fear: Britain™s “Compensation Culture” Reviewed™, 25 Legal Studies,
2005, pp. 499“514 at 499. Williams™ article is a helpful review of the evidence. See also R.
Lewis, A. Morris and K. Oliphent, ˜Is there a Compensation Culture in the UK?, Journal of
Personal Injury Law, 2006, pp. 87“103 and the report of the House of Commons
Constitutional A¬airs Committee, Compensation Culture, 3rd Report, 2005“06, HC 754,
March 2006.
33
Better Regulation Task Force, Better Routes to Redress, May 2004, p. 15. See www.brc.gov.uk;
154 New Law Journal, 11 June 2004, p. 873.
34
Tackling the ˜Compensation Culture™, Government response to the Better Regulation Task Force
Report, Better Routes to Redress, November 2004.
56 Pre-trial civil proceedings


the inquiry and partly on the declining number of personal injury claims regis-
tered in recent years.35 The real problem it suggested was perceptual. Too many
of us have been persuaded by media stories and by the advertising campaigns of
claims management companies that large sums of money are easily accessible.36
According to the Task Force, there is no objectively sound basis for such beliefs
or for asserting that Britain is su¬ering from a ˜have a go culture™.37
However, in November 2005, the Government introduced the Compensation
Bill. Its main purpose was to establish a regulatory system for claims manage-
ment companies but s. 1 directly addressed the perception of a ˜compensation
culture™ issue. It provides: ˜a court considering a claim in negligence or breach
of statutory duty may, in determining whether the defendant should have taken
particular steps to meet a standard of care (whether by taking precautions
against a risk or otherwise), have regard to whether a requirement to take those
steps might (1) prevent a desirable activity from being undertaken at all, to a
particular extent or in a particular way or (2) discourage persons from under-
taking functions in connection with a desirable activity™.
The general consensus seems to be that s. 1 adds nothing to the existing law
which it simply restates. The Constitutional A¬airs Committee in its March
2006 report Compensation Culture said that the clause was unnecessary and that
it should not be in the Bill.38 The Government, however, did not follow this
advice. The Bill, still including s. 1, received Royal Assent in July 2006.


The attrition of claims
If legal problems are seen in the form of an iceberg, the ones that reach a court
are those at the very tip. The great majority never even get to a lawyer. Of those
that get to a lawyer, the great majority get sorted out without any form of court
hearing, sometimes before legal proceedings are started, often between the ini-
tiation of legal proceedings and the hearing.
The ¬rst solid empirical evidence regarding the progress of claims came
from a large study of personal injury cases conducted in the 1980s by the
Oxford Socio-Legal Centre.39 The study was based on a national household
survey which produced a random sample of 1,711 accident victims all of whom
had su¬ered some impairment for at least two weeks. Of these, only 26 per cent

35
K. Williams reached the same conclusion: ˜there is virtually no reliable evidence about the
number of bogus or exaggerated claims or whether they constitute a grave (or increasing)
problem™ (www.dca.gov.uk/civil/reform/¬reform.htm, note 32 above at p. 513).
36
The Government™s response to the Better Regulation Task Force Report, n. 32 above, said:
˜there is no place for advertising of whatever kind, whether by claims management companies
or lawyers, that either raises false expectations of large compensation pay outs for minor
injuries, or indirectly promotes the bringing of frivolous claims™ (p. 8). For commentary, see
A. Morris, ˜Claims Advertising: Access or Excess?™, New Law Journal, 11 March 2005, p. 345.
37
Better Routes to Redress, n. 33 above at p. 11.
38
3rd Report of Session 2005“06, HC 754, para. 67.
39
D. Harris et al, Compensation and Support for Illness and Injury (Clarendon Press, 1984).
57 Few cases are ever started and fewer reach court


had even considered claiming damages, 14 per cent had actually consulted a
solicitor, most of whom (12 per cent) actually got damages,40 suggesting that the
great majority were valid cases. In the cases in which damages were obtained, a
writ had been issued in under half (40 per cent).41 There were only ¬ve cases
which ended with a court hearing! This represented 2.7 per cent of the 182 cases
in which damages were obtained, but only 0.2 per cent of the 1,711 accident
cases in the sample.
In Professor Hazel Genn™s study Paths to Justice42 4,125 randomly selected
adults were surveyed to ¬nd out how they had experienced and dealt with a
variety of problems for which there might be a legal solution. About 40 per cent
of the sample had experienced one or more of fourteen types of justiciable
problems during the previous ¬ve years. Overall, about 5 per cent had done
nothing at all to try and solve the problem, about one third tried to resolve the
problem without help and about 60 per cent tried to resolve the problem with
advice. (The most common ¬rst adviser was a solicitor, followed by a Citizens™
Advice Bureau.) About one third of the problems were eventually resolved by
agreement (in some 3 per cent after the commencement of legal proceedings).
Very limited use had been made of formal legal proceedings. In eight out of ten
cases no legal proceedings were started, no ombudsman was contacted and no
alternative dispute resolution (ADR) process was used. The matter ended with
a court, tribunal or ombudsman™s decision in 14 per cent of all cases but the
majority of these cases were ones in which the respondent to the survey was
being pursued rather than him or herself initiating action. Among respondents
having action taken against them, over half (56 per cent) said their case had
been decided by a court, tribunal or ombudsman, compared with only 9 per
cent of those who initiated action.43
According to Genn™s study, most people therefore do not even use the infor-
mal and ˜user-friendly™ small claims system “ see p. 389 below.44
A recent study in the NHS suggests that claim frequency is close to one
claim per hundred patients damaged by negligence.45 (The Government™s NHS
Redress Act 2006 aimed at providing a fast track scheme to enable the settlement
without the need to commence legal proceedings of clinical negligence claims

40 41 42
Ibid, Figure 2.1, p. 26. Ibid, p. 112. Oxford, 1999.
43
At p. 151. The Cantley Committee in their report in 1979 stated: ˜in round ¬gures, for
every 9,000 personal injury writs issued in London there are no more than about 300
judgments. Outside the personal injuries ¬eld, for every 100,000 writs issued in London
there are fewer than 300 judgments after trial. The ¬gures for District Registries are not
dissimilar™ (Report of the Personal Injuries Litigation Procedure Working Party, 1979, Cmnd.
7476, para. 9).
44
See also the 2001 and 2004 surveys carried out for the Legal Services Commission by the Legal
Services Research Centre “ P. Pleasence et al, Causes of Action: Civil Law and Social Justice
(2nd edn, 2006). Both surveys had over 5,000 respondents. See also P. Pleasence et al, ˜Causes
of Action: First Findings of the LSRC Periodic Survey™, 30 Journal of Law and Society, 2003,
11“30.
45
P. Pleasence et al, ˜The experience of clinical negligence within the general population™, 9
Clinical Risk, 2003, p. 211.
58 Pre-trial civil proceedings


up to a limited amount “ initially £20,000.46 It was anticipated that this would
result in an increase in the number of claims.)
For a comparative study of the literature on the use of lawyers see T. Goriely
with A. Paterson, Access to Legal Services: A European Comparison (Law Society,
2000). The ¬rst part of the work considered the evidence as to how and why
people use legal services. The second part looked at the actual use of legal ser-
vices in England, Wales and Scotland. The third part dealt with the use of legal
services in six European countries (Sweden, Norway, Holland, Germany, France
and Ireland) with regard to personal injury, dismissal and consumer claims.
Who uses the small claims system? Although the main purpose of establishing
the small claims system was to provide more user-friendly access to justice to
individuals, in fact, like the county court itself, the small claims system is used
to a signi¬cant extent by business concerns. In 2005, two-¬fths of all claimants
were businesses.47
It is also striking that, according to Professor Baldwin, in the main, individ-
ual litigants using the small claims system are middle class. (˜Most litigants con-
tacted in this study, especially those who appeared as plainti¬s, were relatively
well-heeled and articulate individuals. Over two-thirds of those in paid employ-
ment were in professional or managerial occupations . . . Very few litigants were
from ethnic minority groups. The genuinely poor make few appearances at
small claims hearings, and when they do, it is typically as defendants to face
landlords or money-lenders™.48)


The advantages of ˜repeat players™
It is not surprising that the ordinary citizen is apprehensive about starting liti-
gation. He will be nervous about the likely costs, both in terms of time and
money. He will worry whether he may have to appear in court “ unaware of the
fact that most cases settle out of court. He will be unfamiliar with the proce-
dures of the legal system and will not know how to ˜use the system™. He will not
be in regular contact with lawyers who can take up his case. He will not know
how to calculate the pros and cons of taking up the cudgels in terms of the likely
outcome as against the costs of the case.

46
The Act was based on the recommendations of Sir Liam Donaldson, the Chief Medical O¬cer,
in Making Amends, consultation paper, June 2003 “ www.dh.gov.uk/assetRoot/04/0609/45/
04060945.pdf. Entitlement to compensation would be assessed initially by the NHS Litigation
Authority. An o¬er of compensation would be made ˜without prejudice™ and could not therefore
be used in subsequent litigation. The claimant would retain his right to sue up to acceptance of
the amount o¬ered under the scheme. See M. Rowles, ˜Does the Redress Bill make Amends?™,
155 New Law Journal, 16 December 2005, p. 1919. One issue to be resolved was ¬nding an
acceptably economical way of giving claimants an independent medical assessment of the claim
and an independent legal assessment of the appropriate compensation. The Government
indicated that both would be provided at ¬xed fees without charge to the claimant.
47
Judicial Statistics, 2005, Table 4.10, p. 51 “ based on a three months™ sample from selected
county courts.
48
J. Baldwin, Small Claims in County Courts in England and Wales (Clarendon Press, 1997) p. 166.
59 Few cases are ever started and fewer reach court


None of these factors inhibits the large institution or, at least, not nearly to
the same extent. Professor M. Galanter, a noted American scholar in the ¬eld of
the sociology of law, in a famous study analysed the di¬erences between parties
who have only occasional recourse to the law (˜one-shotters™) as against those
who take part in litigation repeatedly (˜repeat players™).49
The repeat players™ advantages included the following:
• Having done it before, they can structure the next transaction and thus gain
over the one-shotter. It is the repeat player who writes the standard form con-
tract and who can adjust it if a particular clause has been interpreted unhelp-
fully in a previous case.
• Repeat players develop expertise, can employ specialists, enjoy economies of
scale and have low start-up costs for any new case.
• Repeat players have developed informal relations with those who work the
legal system, such as lawyers and court o¬cials.
• Repeat players can play the odds. Because they have large numbers of cases they
can a¬ord to take risks with particular cases providing they come out ahead
overall. The one-shotter by comparison cannot a¬ord to lose his one case and
therefore cannot take the risks involved in going for the maximum result.
• Repeat players can play to alter the rules through test case litigation or even
by lobbying for legislative or administrative changes. Repeat players can select
from among their cases the most favourable ones to ¬ght into the courts and
up the appellate levels in order to achieve the best results. This gives them
advantages in the area of law-making through litigation.
Once a case begins there are immense pressures to settle. This was always so, but
it is even more the case following the Woolf reforms which place such emphasis
on the value of early settlement. The CPR actually lays on the court a positive duty
of ˜helping the parties to settle the whole or a part of the case™ (CPR 1.4(2)(e)).
On the process of negotiating a settlement, see further J. Phillips and K.
Hawkins, ˜Some Economic Aspects of the Settlement Process: A Study of
Personal Injury Claims™, Modern Law Review, 1976, p. 497 and H. Genn, Hard
Bargaining: A Study of the Process of Out of Court Settlement In Personal Injury
Actions 1987 (OUP, 1988). For a picture of the strategies of defence lawyers, see
R. Dingwall, T. Durkin, P. Pleasence, W.L.F. Felstiner and R. Bowles, ˜Firm
Handling; the Litigation Strategies of Defence Lawyers in Personal Injury
Cases™, 20 Legal Studies, 2000, p. 1.
For a powerful argument that settlement is not necessarily a good thing, see
O. Fiss, ˜Against Settlement™, Yale Law Journal, 1984, p. 1073.
For an assessment of the role of settlement in light of the Woolf reforms, see
S. Roberts, ˜Settlement as Civil Justice™, 63 Modern Law Review, 2000, p. 739.


49
M. Galanter, ˜Why the “Haves” Come out Ahead™, 9 Law and Society Review, 1974, p. 95 and
˜Explaining Litigation™, ibid, p. 347.
60 Pre-trial civil proceedings


Legal privileges that promote settlement
Negotiations designed to explore the possibility of settlement are assisted by
legal privileges. One such is for negotiations conducted ˜without prejudice™.
This is the rule that if in the course of written exchanges headed with the magic
words ˜without prejudice™ a party makes an o¬er or concession it cannot be used
as evidence against him if the negotiations break down and the case comes to
court.50 The current trend is for the scope of the ˜without prejudice rule™ to be
narrowed.51
Another example of rules to promote settlement is the privilege accorded to
mediators or conciliators such as marriage guidance counsellers, clergymen,
doctors or even family friends who are working with a couple in a matrimonial
dispute. Unless they have the consent of both spouses, they may not reveal the
content of any communication from either spouse. In e¬ect such communica-
tions are treated as having been made ˜without prejudice™.52


The pre-action protocols
One of the important innovations of the Woolf reforms is that the conduct of
the parties in the pre-litigation stage will be taken into account by the court both
during the case and at the end when it comes to allocation of costs. One of the
chief means to this end is the pre-action protocols. This was an idea pioneered
by Lord Woolf. They were developed by working parties of experts represent-
ing the di¬erent interest groups in litigation. By the time the new rules came
into force in April 1999, pre-action protocols had been promulgated for per-
sonal injury litigation and the resolution of clinical disputes. By 2003 they also
existed for construction and engineering, defamation, professional negligence
and judicial review, all of which are supplemented by a Pre-Action Protocol
Practice Direction.
This represents a major new development in civil litigation. The Practice
Direction accompanying the protocols says their objective is to encourage the
exchange of early and full information about the prospective claim, to enable
parties to avoid litigation by settlement and, where litigation cannot be avoided,
50
For an illustration of the rule, see Rush & Tompkins Ltd v. Greater London Council [1988] 3 All
ER 737, HL. See C. Mulcahy, ˜Lifting the Veil on Without Prejudice Negotiations™, 144
Solicitors™ Journal, 12 May 2000, p. 444; J. Ross, ˜The Without Prejudice Rule™, 152 New Law
Journal, 4 October 2002, p. 1488 and S. Akhtar, ˜Listen Without Prejudice™, 153 New Law
Journal, 11 April 2003, p. 538.
51
See, for instance, Prudential Assurance Co Ltd v. Prudential Insurance Co of America [2002]
EWHC 2809, (2003) Times, 2 January, Ch where the Vice Chancellor emphasised the
importance of Article 10 of the ECHR. The ˜without prejudice™ rule, he said, should be
applied with restraint and only in cases in which the public interest underlying the rule was
plainly applicable. See K. Awadella, ˜The Privileged Few™, 147 Solicitors™ Journal, 17 January
2003, p. 43.
52
See Mole v. Mole [1951] P 21; Pool v. Pool [1951] P 470 and cf Bostock v. Bostock [1950] P 154.
The principle extends to cover direct negotiations between the spouses themselves where no
third party intervenes: Theodoropoulas v. Theodoropoulas [1964] P 311.
61 Few cases are ever started and fewer reach court


to support the e¬cient management of the litigation. The introduction to
the personal injury protocol (PIP) says that its aims are more pre-action
contact between the parties, better and earlier exchange of information, better
pre-action investigation by both sides and to enable proceedings to run to
the court™s timetable and e¬ciently. (˜The court will be able to treat the stand-
ards set in protocols as the normal reasonable approach to pre-action conduct™
(para. 1.4).)
The PIP says that it is designed especially for road tra¬c, tripping and slip-
ping and accident at work cases in the fast track range, but the ˜cards on the
table™ approach advocated in the PIP was ˜equally appropriate to some higher
value claims™ (PIP, para. 2.4):

The spirit, if not the letter of the protocol should still be followed for multi-track
type claims. In accordance with the sense of the civil justice reforms, the court
will expect to see the spirit of reasonable pre-action behaviour applied in all
cases, regardless of the existence of a speci¬c protocol™ [para. 2.4].

The PIP suggests that the claimant may wish at a very early stage to notify the
defendant and his insurer that a claim is likely to be made. It includes a speci-
men letter of claim. This is completely di¬erent from the traditional uninfor-
mative letter before action. It should ˜contain a clear summary of the facts on
which the claim is based with an indication of the nature of any injuries received
. . . Su¬cient information should be given in order to enable the defendant™s
insurer/solicitor to commence investigations and at least put a broad valuation
on the risk™ (paras. 3.1 and 3.5). It states that the defendant has a maximum of
three months to investigate a claim and to respond stating whether liability is
admitted, and if not, giving reasons (para. 3.7). In the hope of getting agree-
ment on a single expert, before either party instructs a medical expert, he
should try to agree the name of an expert with the other side.
The pre-action protocol on medical negligence disputes is similar. It was
based on extensive consultation with the major vested interests in the medico-
legal system.
The Practice Direction accompanying all the pre-action protocols says (para.
2.3) that if, in the opinion of the court, non-compliance with the protocols has
led to the commencement of proceedings which might otherwise not have
needed to be commenced, or has led to unnecessary costs being incurred, it can
impose a ¬nancial penalty on the party at fault.
It also says (para. 4.1) that in cases not covered by a speci¬c protocol, ˜the
court will expect the parties, in accordance with the overriding objective and
the matters referred to in CPR 1.1(2)(a), (b) and (c), to act reasonably in
exchanging information and documents relevant to the claim and generally in
trying to avoid the necessity for the start of proceedings™.
When a claimant abandons a claim (either wholly or in part) during the pre-
action protocol stage he is not normally liable to pay the costs incurred in
respect of that work as costs ˜incidental to™ any subsequent proceedings. The
62 Pre-trial civil proceedings


point arose in McGlinn v. Waltham Contractors Ltd.53 The court held that costs
incurred at the pre-action protocol stage could be recoverable but that it would
be contrary to the whole purpose of the protocols, which were such an integral
part of the CPR, if claimants were routinely penalised if they decided not to
pursue claims in court which they had originally included in their protocol
claim letters. The whole purpose of the protocols was to narrow issues and to
enable a prospective defendant to demonstrate that a particular claim was
doomed to fail. Unless the claimant had behaved unreasonably, those costs were
not recoverable from him.
In October 2001, the LCD issued a consultation paper on whether there was
a need for a general pre-action protocol. The responses were generally not
favourable with many respondents stating that there would be di¬culty in suc-
cessfully producing a protocol capable of applying to all disputes, and that it
would add to costs and lead to delays. However, amendments to para. 4 of the
Practice Direction that came into force in April 2003 achieve much the same
e¬ect.54

Are the protocols a success?
Research commissioned by the Law Society and the Civil Justice Council55
showed that those involved in personal injury and clinical negligence work felt
positive about the protocols. (˜By establishing clear ground rules on how claims
should be formulated and responded to, protocols were thought to focus minds
on the key issues at an early stage and encourage greater openness. This
smoothed the way to settlement™.56) In fact housing practitioners reported
similar changes even though there was no protocol covering their work.
Research by Professors J. Peysner and M. Senviratne of Nottingham Law
School, Nottingham Trent University found that the protocols generated better
preparation of cases, a more co-operative attitude between parties (including in
¬elds where there was no protocol), more voluntary disclosure and more wide-
spread employment of single joint experts.57

53
[2005] EWHC 1419, [2005] 3 All ER 1126, TCC. The defendants sought an interim payment
of £20,000 expended they said in costs thrown away in dealing with the abandoned issues. For
a discussion of the implications of the decision, see S. Cavender, ˜Pre-action Protocol Costs:
Settle or Fight?™, 155 New Law Journal, 2 September 2005, p. 1275.
54
For details see D. de Ferrars, ˜Entry via the Back Door?™, 153 New Law Journal, 4 April 2003,
pp. 519“20.
55
T. Goriely, R. Moorhead and P. Abrams, More Civil Justice? The impact of the Woolf reforms on
pre-action behaviour (Law Society, 2002) Research Study No. 43, 420 pp. A 33-page summary
is accessible on www.research.lawsociety.org.uk “ Publications. As noted above, the research
was based on interviews with ¬fty-four lawyers, insurers and claims managers, of whom thirty
specialised in personal injury (PI) work, twelve specialised in clinical negligence and twelve
specialised in housing disrepair. In the case of PI work it also included a comparison of 150
claimant solicitor ¬les concluded before April 1999 (˜pre-Woolf ™) and 150 opened and closed
56
post-Woolf ¬les. Goriely et al, summary of Research Study No 43, p. v.
57
The Management of Civil Cases: the courts and the post-Woolf landscape, 2005, DCA Research
Report 9/2005.
63 Legal proceedings


On the other hand, it is generally agreed that one of the e¬ects of the proto-
cols has been ˜front-loading™ of costs not only for cases that are ultimately con-
tested but equally for those that settle “ including cases that would previously
have settled at lower cost.
See also S. Burns, ˜Pre-action protocols under the CPR™, Legal Action, October
2001, pp. 6“9.
In October 2006 the Law Society proposed a new scheme (dubbed ˜Fast and
Fair™) for handling personal injury cases worth less than £10,000. The claimant
solicitor would complete a standard early noti¬cation form to be sent within
seven days of receipt of the client™s instructions, providing enough information
to enable the insurance company to consider the claim. No further work would
be done by the solicitor for 21 days to give the insurance company time to o¬er
an apology, or admit liability and make an early o¬er of compensation. After 21
days the claimant™s solicitor would send a simple claim form, plus medical
report, any other evidence and an o¬er of settlement.58


3. Legal proceedings

Who can sue? Representative parties and group litigation
Traditionally, the system was based on the concept that legal proceedings were
brought by individuals, but there was provision in the rules for persons to be
represented in proceedings by other persons. They were known as ˜representa-
tive proceedings™. (The old rules were in RSC Order 15, r. 12; the new rules are
in CPR 19.6.59)
The old rule required that those who were represented ˜have the same inter-
est™ in the proceedings and this requirement is also in CPR 19.6. The require-
ment used to be interpreted very narrowly. The classic case was Markt & Co Ltd
v. Knight Steamship Co Ltd,60 but gradually the courts have adopted a broader
approach.61
In public law anyone with a ˜su¬cient interest™ may apply for judicial review
and the courts have given a generous interpretation to ˜su¬cient interest™.
Organisations like Greenpeace and the Consumers™ Association have been held
to have a su¬cient interest to bring proceedings in private law cases. Claimants
must show that they themselves have a legal right which they are seeking to
enforce. In February 2001 the LCD issued a consultation paper (Representative

58
Law Society™s Gazette, 19 October 2006, p 3; and www.lawsociety.org.uk.
59
Inserted by the Civil Procedure (Amendment) Rules 2000, SI 2000/221.
60
[1910] 2 KB 1021.
61
See, for instance, John v. Rees [1970] Ch 345 permitting representation of members of the
local divisional Labour Party even though there was some division of opinion between the
plainti¬ and those he claimed to represent; Prudential Assurance Co Ltd v. Newman Industries
Ltd [1981] Ch 229 permitting representation by minority shareholders of all other
shareholders; and, more recently, Independiente Ltd v. Music Trading On-Line (HK) Ltd [2003]
EWHC 470, Ch and Howells v. Dominion Insurance Co Ltd [2005] EWHC 552, QB.
64 Pre-trial civil proceedings


claims: proposed new procedures) which proposed that this distinction between
public law and private law cases be removed and that it should be possible for a
representative claim in private law to be brought by an appropriate body or
person with a su¬cient interest “ such as consumer groups, environmental
organisations and trade associations.62 But in April 2002 the LCD issued a state-
ment to the e¬ect that a new general provision for claims of this nature would
not meet the needs of the diverse situations where representative claims would
be bene¬cial. Instead the Government would bring forward legislation dealing
with speci¬c topics.63 (This has not yet happened.)
In recent years there has been considerable development of group or multi-
party litigation. In the United States class actions are used on a signi¬cant scale.
Rule 23 of the Federal Rules of Civil Procedures allow such actions where (1)
the class is so numerous that joinder of all members is impracticable; (2) there
are questions of law or fact common to the class; (3) the claims or defences of
the representative are typical of the claims or defences of the class; and (4) the
representative parties will fairly and adequately protect the interests of the class.
The ¬rst massive group action for damages along American lines in the
English courts was the claim of some 1,500 plainti¬s against Eli Lilly, the man-
ufacturers of the drug Opren. The actions were co-ordinated by a consortium
of a small number of solicitors™ ¬rms. Instead of separate statements of claim,
plainti¬s were using two-page schedules which referred to a master statement
of the claim running to over a hundred pages. In July 1986 Justice Hirst ruled
that a number of ˜lead cases™ should be chosen to be litigated on the di¬erent
issues of liability. The remaining actions would then be stayed pending the
result in these cases.
Technically, the position is di¬erent from that in an American class action.
Under the American procedure, the result binds all members of the class. In the
English system this is not so. Any Opren litigant could in theory have contin-
ued to ¬ght his own case after the conclusion of the ˜test cases™, but this is pure
theory. In reality, the members of the class in the English situation are just as
much bound by the result. Those on legal aid would not be allowed to continue
the case and those not on legal aid would not be able to a¬ord to do so.
It had been thought that the procedural problems posed by the English rules
for representative actions could be circumvented by the ˜lead case™ device where
one strong case was selected as a test case. Typically, a plainti¬ on legal aid poor
enough to be on a nil contribution would be selected. The other plainti¬s would
issue their proceedings but their claims would be stayed until the test case was
determined. It was thought that the costs of the litigation could be thrown on
to the state through this use of the legal aid fund. However in the Opren case
the Court of Appeal held that if the action failed, the costs would have to be met

62
On the consultation paper, see P. Bowden and M. Bramley, ˜Representative claims™, 145
Solicitors™ Journal, 6 July 2001, p. 629 and a note by Professor Ian Scott in 20 Civil Justice
63
Quarterly, 2001, p. 205. LCD Press Notice 141/02, 26 April 2002.
65 Legal proceedings


by all the plainti¬s, other than those on legal aid. This in e¬ect meant that,
absent support from the legal aid fund, such actions were impossible to fund.
For the role of the legal aid fund in supporting multi-party litigation in a
series of major disaster case “ the Zeebrugge ferry disaster, the King™s Cross ¬re,
the Clapham and Purley rail crashes, the Lockerbie air crash, the Hillsborough
football stadium tragedy and lawsuits against the makers of the Dalkon Shield
contraceptive device and Benzodiazepene-based tranquillisers “ see the article
by the Director of Legal Practice at the Law Society, A. Lockley, ˜Regulating
Group Actions™, New Law Journal, 9 June 1989, p. 798.64

Woolf and multi-party actions
Lord Woolf devoted 25 pages of his Final Report to multi-party actions and
ended with eighteen separate recommendations for procedural reform.65 The
new procedures should provide access to justice both where large numbers of
individuals had a claim that was too small to make individual action uneco-
nomic and when individual damages were large enough to make an action
viable but the number of claimants made the case unmanageable.There should
be full-scale case management throughout. Where proceedings will or might
require collective treatment, either the parties or the Legal Aid Board should
make an application to the court for a declaration that the action meets the cri-
teria for a multi-party situation (MPS). The court itself should equally have the
power to initiate such an application. The criteria suggested by the Law Society
were: ten or more persons with claims in respect of the same or similar cir-
cumstances, a substantial number of which give rise to common questions of
fact or law and the interests of justice would be served by treating the case as an
MPS. Lord Woolf agreed subject to two modi¬cations. The number ten should
be a guide not a rule. In some instances ¬ve might be su¬cient. Secondly, the
common issues need not necessarily predominate over issues a¬ecting only
individuals. The MPS format should be su¬ciently ¬‚exible to handle all the
di¬erent types of multi-party actions “ local housing and environmental
actions, consumer cases, single ˜one o¬™ disasters and large-scale complex envi-
ronmental actions and product liability cases, including pharmaceutical and
medical cases.
The subsequent procedure would broadly follow the scheme proposed by the
Law Society. The case should be certi¬ed as an MPS. A managing judge should
be appointed to control all the cases. He would make decisions about noti¬ca-
tion of the action, lead lawyers, arrangements for representing the interests of
the group, as to how to balance the generic issues and the individual cases, and

64
The Legal Aid Board played a major role in the development of this form of action. See its
reports Issues Arising for the Legal Aid Board and the Lord Chancellor™s Department from Multi-
Party Actions, May 1994 and When the Price is High, 1997. This policy was continued by the
Legal Services Commission (LSC). Its annual reports give information about multi-party
actions funded by the LSC. Such cases are handled by the Special Cases Unit as part of its
65
remit with very high cost cases. Final Report, pp. 223“48.
66 Pre-trial civil proceedings


as to how costs were to be dealt with. Individuals would participate by entering
their names on a register. The judge would probably need the assistance of a
Master “ who might be a Deputy Master or Deputy District judge drawn from
practitioners with experience of such cases.
Lord Woolf accepted that there was nothing wrong with lawyers ˜taking the ini-
tiative in multi-party actions™.66 The typical claimant in such cases was ˜often
poorly informed or ignorant of the particular facts, and it will only be the lawyer
who recognises the potential for claiming™, but the interests of the lawyers and
their clients could con¬‚ict. Both the legal aid authorities and the court should
supervise and control the way the case was handled by the lawyers. Clients might
be represented by a ˜trustee™ appointed and paid for out of public funds who
would maintain a watching brief on the public interest elements of the case. There
was a strong case for requiring court approval of any settlement in such cases.
In 1997 the LCD issued a consultation paper, Access to Justice “ Multi-party
Situations: Proposed New Procedures.
The CPR deals with the matter in Part 19, rr. 19.10“15 “ headed Group
Litigation. The rules provide a framework for the case management of ˜claims
which give rise to common or related issues of fact or law™ (CPR 19.10). The
court has power to make a group litigation order (GLO) enabling the court to
manage the claims in a co-ordinated way. The GLO will contain directions
about the establishment of a group register listing the claims and specifying the
management court. Judgment orders and directions of the court will be binding
on all claims within the GLO (CPR 19.12(1)). The court can select particular
claims as test claims and appoint individual solicitors to be the ˜lead™ solicitor
for the claimant or defendants (CPR 19.13(b),(c) and 19.15). The Practice
Direction allows costs to be apportioned in advance.
For the position regarding the vital matter of costs in relation to these cases
see pp. 573“74 below.
For a discouraging assessment of the future for group litigation orders see J.
Robins, ˜Another One Bites the Dust™, The Lawyer, 2 June 2003, p. 18 “
www.thelawyer.com/lawyernews. See generally J. Seymour, ˜Representative
Procedures and the Future of Multi-party Actions™, 62 Modern Law Review,
1999, pp. 564“84.
See also R. Mulheron™s two-part article ˜Some Di¬culties with Group
Litigation Orders “ and Why a Class Action is Superior™, 24 Civil Justice
Quarterly, 2005, pp. 40“68 and ˜From Representative Rule to Class Action:
Steps Rather than Leaps™, ibid, pp. 424“49. Mulheron argues that although the
courts have moved the representative action some way toward a fully ¬‚edged
class action system, important di¬erences remain and that the way forward now
should be reform through legislation.67

66
Final Report, p. 242, para. 70.
67
Reform through legislation is the preference equally of J. Seymour in her discussion of the
decision in Howells v. Dominion Insurance Co.Ltd, 24 Civil Justice Quarterly, 2005, pp. 309“15.
67 Legal proceedings


Which court?
As has been seen, until 1990 the High Court and the county court had concur-
rent jurisdiction up to the limit of the county court™s jurisdiction (at that time,
£5,000). In disputes within the jurisdiction of the county court, the plainti¬
therefore had a choice as to whether to start the action in the higher or the lower
level court. Reforms in 1990“91 following the report of the Civil Justice Review
aimed to shift a signi¬cant volume of High Court cases to the cheaper county
court. Lord Mackay said that the reason was ˜too many cases of relatively low
importance, substance and complexity were being handled and tried at an inap-
propriately high level. This was wasteful of High Court resources, in¬‚ated the
costs of smaller cases and clogged up the courts, exacerbating delay™.68 It was
provided that personal injury cases had to commence in the county court unless
the amount in dispute was over £50,000, but for other cases there remained
some degree of choice as between the two levels of court. As from April 1999,
however, the rule is that no proceedings can be started in the High Court unless
the amount claimed is over £15,000 or in personal injury cases, £50,000.69 The
choice as to where to issue proceedings now applies only to cases involving sums
of over £15,000 or in the case of personal injury claims, over £50,000.
There are various reasons why lawyers may prefer the High Court to the county
court. They may feel they will get higher damages, the enforcement process is
thought to be more e¬cient, the quality of the judges is likely to be better, the
level of costs may be higher. But the court has the power to transfer a case from
one level to the other (CPR Part 30). The Practice Direction on Case Management
in the High Court states that, if started in the High Court, cases involving sums
of under £50,000 will generally be transferred to a county court (CPR 29PD, 2.2).
When, as now seems possible, the High Court and the county courts are
amalgamated into a single Civil Court, this problem would disappear. The
DCA™s 2005 consultation paper A Single Civil Court? stated: ˜it should in princi-
ple be possible to commence any proceedings at any court o¬ce™ (para. 27).
Subject to some exceptions the litigant would issue his case at the court busi-
ness o¬ce most convenient for him. Post-commencement, the system would
direct cases to the appropriate venue as part of case management.


What kind of proceedings should be started?
Until 1999, there were a variety of ways of starting legal proceedings: in the
High Court, writ of summons, originating summons, originating motion and
petition; in the county court, summons (also known as plaint). Lord Woolf ™s
Interim Report stated that his new code of procedure would provide for a
single method of starting all types of claim.70 Under the CPR, for most cases

68
Lord Mackay, ˜Litigation in the 1990s™, 54 Modern Law Review, 1991, p. 171.
69 70
Practice Direction to CPR, Part 7. At p. 209, para. 11.
68 Pre-trial civil proceedings


there is now only one claim form regardless of whether it is a case in the High
Court or the county court. (However, if there is no substantial issue of fact, a
claim in the form of what was previously an originating summons is retained
“ CPR, Part 8. This is used extensively, notably in proceedings where the only
issue is costs.)
As noted above, with regard to small claims, in March 2005 the European
Commission proposed the establishment of a European Small Claims Pro-
cedure which would apply to claims of up to 2,000 euros and which would apply
to internal as well as to cross-border cases. The claimant would choose whether
to use his own internal system or the new European system. The DCA™s consul-
tation paper asking for views said the Government took the view that there was
no legal basis for applying the provision to internal cases and that the proposal
was likely to be administratively complex, costly and confusing for litigants.71
At the time of writing it was not known whether and, if so, when this initiative
might bear fruit.


Contents of the claim form
Part 16 of the CPR and its supporting Practice Direction set out the matters that
must be included in the particulars of claim (unless the originating summons
procedure is used). A claim form must contain a concise statement of the nature
of the claim, specify the remedy claimed, including any claim for interest on the
judgment and the grounds for claiming any aggravated or exemplary damages,
and contain a statement of value of the claim. The particulars of the claim can
either be stated on or with the claim form or they can be sent subsequently, in
which case the claim form must state that they will follow.
Previously, the court could only grant a remedy that had been asked for and
practitioners would end the request for remedies with general words to the
e¬ect of ˜and such further or other relief as the court thinks appropriate™. The
rules now give the court the power to award any remedy to which the claimant
is entitled, even if this is not speci¬ed in the claim form.
The claim form asks for a statement of value in order to enable the court to
allocate the case to the appropriate track. The claim form must state whether
the claimant expects to recover more than £5,000, between £5,000 and £15,000
or more than £15,000, or that the claimant cannot say what the claim is worth.
If the statement of value is omitted, the district judge will need more informa-
tion in order to allocate the case to its proper track.
The law distinguishes between ˜special damages™ where the amount is based
on speci¬c amounts that can be precisely quanti¬ed “ the cost of clothes
damaged in the accident, taxi fares to and from the hospital, cost of rented car

71
The covering letter inviting view “ CP(L)12/05 “ www.dca.gov.uk “ Publications “
consultation papers “ 2005. The Regulatory Impact Statement (para. 10) said that the
Government™s view was shared by ˜most Member States™.
69 Legal proceedings


etc. “ and ˜general damages™ where there is no precise way of quantifying the
amount claimed “ such as damages for pain and su¬ering resulting from the
injuries su¬ered in the accident. Claims for general damages in the past did not
have to be quanti¬ed. Under the CPR, if a ¬gure is given on a claim for general
damages, this is treated by the court as the statement of value for the purposes
of allocation to the right track. Moreover, if no defence is entered, the claimant
is entitled to ask for judgment in the amount claimed (though the defendant
can apply to have the judgment set aside).

Contents of the particulars of claim
The particulars of claim must include a concise statement of the facts on which
the claimant relies. In a personal injuries case the particulars must include brief
details of the claimant™s injuries and a schedule of past and future losses. If
medical evidence is relied on, a medical report must be served with the partic-
ulars.
It is optional whether the particulars include points of law relied on and the
names of witnesses to be called.

The statement of truth
In order to improve the quality of the documents exchanged between the
parties, either the claim form or the separate particulars of claim must contain
a statement by the claimant or the claimant™s solicitor: ˜I believe that the facts
stated in these particulars are true™. Particulars that do not contain this state-
ment are liable to be struck out. The same rule applies to defendants and to the
statements of all witnesses (see CPR, Part 22). The purpose of the statement of
truth is to eliminate claims in which a party has no honest belief and to dis-
courage the pleading of cases unsupported by evidence which are put forward
in the hope that something may turn up either pre-trial or at the trial.72


The drafting of documents “ out with old-style pleadings?
The pleadings are the formal documents exchanged between the parties which
de¬ne the issues in the case so as to enable each party to prepare its evidence for
the trial. Strictly, parties are limited at the trial to matters which have been
pleaded “ though the court has a discretion to admit by amendment issues that
were not pleaded.73
Under the old rules the pleadings were supposed to contain a statement of
the facts on which the party relied in his claim or defence “ not the evidence
by which the facts were to be proved (RSC, Order 18, r. 7(1)), but although
pleadings were intended to reveal to each side what the other™s case would be,
72
Clarke v. Marlborough Fine Art (London) Ltd (Amendments) [2002] 1 WLR 1731, Ch D, per
Justice Patten.
73
For a case in which the pleadings determined the outcome of the case with disastrous results
for the plainti¬, see Esso Petroleum Co Ltd v. Southport Corpn [1956] AC 218.
70 Pre-trial civil proceedings


practitioners were adept at seeing that they did not have this e¬ect. They drafted
the pleadings in such a way as to conceal rather than reveal.
The Winn Committee made some acid comments on the state of pleadings.74
˜A perusal of the RSC Order 18 . . . constitutes a fascinating experience, for a
practitioner, in the nature of a trip through territory unknown to him and in a
climate which he has not experienced in his daily life. No set of rules could have
been more carefully devised, no judicial comment could be more cogently
expressed; practice all too regrettably often reveals little relationship to the
Rules; the judicial comments pass unregarded™:
252 . . . It is all-important to make clear in the pleading the causal connection
between the facts alleged and the breach of duty which is alleged to ¬‚ow from
them. Thus it happens that a statement of claim pleads that the plainti¬ sus-
tained a fall at work (without saying how or why) and adds that this was ˜caused™
by the negligence and/or breach of statutory duty of the defendants. There
follows an assortment of complaints, such as failing to fence a stock-bar, failing
to maintain the ¬‚oor, failing to provide protective clothing, etc. This may
conceal a perfectly coherent case, e.g. that the plainti¬ tripped in a cavity in the
¬‚oor, caught his sleeve in an unfenced stock-bar, and was whirled across the
room, falling and breaking his ankle, which would not have occurred had he
been provided with boots instead of plimsolls. Yet the pleading discloses
nothing . . .
254. In road tra¬c cases, the statement of claim seldom requires any great
intellectual e¬ort and, perhaps for this reason, tends to be a shoddy product. Far
too many such pleadings follow a stock form of which the dominant character-
istic is that no cause of collision known to practitioners is omitted. In this type
of litigation super¬‚uity and irrelevance are rampant vices . . .
266. We have no hesitation in saying it is in defence that the current practice
of pleading calls for the harshest criticism. One of the most experienced Queen™s
Bench Masters told us that at present ˜the defence is a blot on our procedure™ and
he regrets that trial judges seem to be unwilling to penalise unsuccessful formal
denials by an order for costs.
The position in the 1990s when Lord Woolf reported was much the same as that
described in 1968 by the Winn Report.
Woolf on pleadings Lord Woolf ™s report referred to ˜incomplete, obscure,
evasive or long-winded pleadings™ and to ˜slapdash pleading and deliberate
misuse™. He said that while he accepted that compliance with existing
rules would improve the position, ˜the fact that they are so often ignored
only accentuates the need for a completely new approach and a change of
culture™.75 The answer, he said, lay in a switch to a ˜managed system of litigation™
which must extend to the way in which parties set out their claims and defences.
Mere exhortation would achieve little. It was time to return to the basic func-
tions of pleadings “ to state the facts of the case. He therefore proposed that:

74
Report of the (Winn) Committee on Personal Injuries Litigation, 1968, Cmnd. 369, p. 237.
75
Interim Report, p. 154, para. 6.
71 Legal proceedings


• The claimant and defendant should each set out ˜all the material matters on
which they rely™.
• The claim and defence would be considered by the procedural judge after the
defence is ¬led.
• The procedural judge gives directions which could include directions to
clarify points in the claim or defence. If the factual allegations are so unclear
that the matters in dispute cannot be identi¬ed, he would hold a case man-
agement conference. If the case was on the ˜fast track™, the conference would
normally be on the telephone.76
A major aim of the case management conference would be to produce an agreed
statement of the issues in dispute. This would take over from the pleadings. As
a consequence, the need for further exchanges between the parties (requests for
further and better particulars, notices to admit and interrogatories) should
largely be eliminated.
The new rules of procedure for both the High Court and county court, Lord
Woolf said, should simplify the rules regarding pleadings. One aim would be to
avoid technicality. There should be non-prescribed forms of claim for common
types of proceedings “ possibly in questionnaire format. Statement of claim and
defence might face each other in the same document. Eventually this could be
computerised. Parties should be required to identify the principal documents
on which they relied and would be permitted though not required to attach
them to the pleading.
In order to signal a change of culture the word ˜pleading™ which was synony-
mous with obfuscation should be replaced by ˜statement of case™.77
There is nothing in the CPR equivalent to RSC Order 18 dealing with the
general principles of pleading. They have to be gathered by looking at what is
required in particulars of claim and defences. Lord Woolf ™s hope, apparently,
was that the judges would achieve the miracle of improving standards of draft-
ing by a combination of exhortation based on scrutiny and criticism together
with the application of sanctions.
In a decision given shortly after the new rules came into force, Lord Woolf
said that although pleadings could now be simpler than before, they were still
necessary ˜to mark out the parameters of the case that was being advanced by
each party™, but contests over the precise terms of a pleading were to be dis-
couraged and should take place, if at all, at a hearing where all relevant issues
could be resolved. No more than a concise statement of the facts was required.78


The cost of initiating proceedings
In recent years the cost of taking civil proceedings has risen very considerably.
In 1988“89 the then Conservative Government adopted a policy that the civil

76 77
Interim Report, p. 155, para. 9. At p. 162, para. 33.
78
McPhilemy v. Times Newspapers Ltd [1999] 3 All ER 775 at 792“93.
72 Pre-trial civil proceedings


justice system should be self-¬nancing. It did so without any public discussion
or consultation with the judiciary. Initially the costs of the system that had
to be ¬nanced by court fees excluded judicial salaries, but in 1991 the
Government decided that judicial salaries should also be included. There were
swingeing increases in court fees. This policy was ¬ercely criticised as uncon-
stitutional by Sir Richard Scott, the then ¬rst holder of the o¬ce of Head of
Civil Justice:
The policy that the civil justice system should be self-¬nancing is, I suggest,
indefensible from a constitutional point of view. It treats civil justice as a market
place commodity to be paid for by the customer who wants it . . . The system of
civil justice is one of the three pillars on which the structure of justice in a
civilised community must stand. The other two are the criminal justice system
and the police. No-one could seriously suggest that the criminal justice system
or the police should be made self-¬nancing. Why should the suggestion be made
of the civil justice system? . . . A policy which treats the civil justice system
merely as a service to be o¬ered at cost in the market place, and to be paid for
by those who choose to use it, profoundly and dangerously mistakes the nature
of the system and its constitutional function.79
Sir Richard (later Lord Scott) hoped that the Government would ˜consign the
self-¬nancing of the courts policy to the dustbin™. His call has been echoed
repeatedly. In November 2002, the Civil Justice Council, in published advice to
the Lord Chancellor, urged that full cost recovery was impossible without inap-
propriate cross-subsidy, that it arbitrarily limited the nature and quality of the
services provided by the civil justice system, limited access to the courts and was
wrong in principle.80 The following month, Lord Woolf, the Lord Chief Justice,
added his voice to the chorus of condemnation in a powerful intervention on
the Second Reading of the Courts Bill.81 Indeed his leadership resulted in a
defeat of the Government on the issue. An amendment to the Courts Bill,
carried by 90“87 on 27 March 2003, required that when setting court fees, the
Lord Chancellor must have regard to access to justice.
However there was no sign that the Government would abandon its
Treasury-driven policy. On the contrary. There was a further signi¬cant rise in
January 2005 and in September 2005 the DCA issued a consultation paper (Civil
and Family Court Fees Increase)82 proposing yet another major increase. The
consultation paper said the Government estimated that the increases would
raise an extra £50 million a year and that the aim was to raise 100 per cent of
the costs of the county court, the High Court and the Court of Appeal, and two-
thirds of the costs of the family courts.

79
Transcript of a speech to the County Court Advisers Group, 16 May 1997.
80
˜Full Costs Recovery™ accessible on www.civiljusticecouncil.org.uk “ Publications.
81
House of Lords, Hansard, 9 December 2002, col. 27. For the Legal Action Group™s powerfully
expressed view, see N. Ardill, ˜Courting Trouble™, Legal Action, February 2003, p. 6. See also
A. Jack, ˜Court Fee: the New Stealth Tax™, 154 New Law Journal, 18 June 2004, p. 909.
82
CP(L) 24/05.
73 Legal proceedings


In January 2006 the Government announced that all but two of the proposed
increases had been implemented. It also announced that it was undertaking two
major reviews. One was to reconsider the system of exemptions from court fees.
The second would review the points at which fees are charged with the objec-
tive of achieving a closer match of income and ˜cost drivers™ “ in particular
through the introduction of trial fees.83 (The suggestion put forward by the
DCA was that fees of £200 per hour might be charged for trials.)
Court fees are not payable by those in receipt of certain bene¬ts: income
support, family credit, disability working allowance and income-based job-
seeker™s allowance. In 1996, Lord Mackay, the Lord Chancellor, abolished this
traditional waiver of fees for indigent litigants, but his action was challenged
successfully by way of judicial review.84 The judges found that the Lord
Chancellor had infringed a basic constitutional right of access to the courts
which Justice Laws described ˜as near to an absolute right as any I can imagine™.
The Lord Chancellor had the grace (or political sense) not to appeal the deci-
sion.85 In 2003 it was estimated that some ¬ve million people were eligible for
the automatic exemption from court fees.86 Another gesture in the same area
was the decision announced in 2002 that the fee payable on allocation would no
longer be required for claims of under £1,000.


Venue
Pre-Woolf, High Court cases could be started in the Royal Courts of Justice in
the Strand or in any District Registry, as the plainti¬ chose, subject to provision
for transfer to another District Registry or the Royal Courts. Divorce proceed-
ings could be started in any divorce county court. In the county court, by con-
trast, the rule was that the proceedings should be in the defendant™s local court
or the court with which the case was most closely connected.
Lord Woolf ™s Interim Report proposed that, irrespective of the nature of
the proceedings, the plainti¬ should be able to apply to any court and it
would be for the court to allocate the case to the appropriate track and the
appropriate court.87 This recommendation was adopted in the CPR. The
claim can be issued from any court, but if the defendant is an individual
and the claim is for a speci¬ed amount of money the case will normally be
transferred to the defendant™s home court, if and when a defence is entered
(CPR 26.2).

83
Baroness Scotland, Written Ministerial Statement, House of Lords, Hansard, 10 January
2006, WS 5.
84
R v. Lord Chancellor, ex p Witham [1997] 2 All ER 779. See to the same e¬ect the same
judge™s decision in R v. Lord Chancellor, ex p Lightfoot [2000] QB 597 relating to bankruptcy
fees.
85
See R. English, ˜Wrongfooting the Lord Chancellor: Access to Justice in the High Court™, 61
Modern Law Review, 1998, pp. 245“54.
86
Statement of the Minister during the House of Commons Committee Stage of the Courts Bill,
87
Standing Committee ˜D™, 8 July 2003, col. 169. Interim Report, p. 36, para. 14.
74 Pre-trial civil proceedings


Issue and service of proceedings
The claim must be ˜issued™ and it must be ˜served™ on the other side. Originally
proceedings had to be served personally. In the High Court this was done until
1999 by the plainti¬ or a professional process server on his behalf. In the county
court it was formerly done by the baili¬ on behalf of the court until this was
stopped in 1983 as an economy measure, since when it was usually sent by the
court through the post.
Under the 1999 reforms, service can still be personal but it can also be by ¬rst
class post, document exchange, fax ˜or other means of electronic communica-
tion in accordance with the relevant Practice Direction™ (CPR 6.2). Service will
normally be by the court and the court can choose whichever method of service
it prefers (CPR 6.3(2)). (Exceptionally, the Administrative Court will not serve
documents, leaving it to the parties to do so.) There are special rules as to how
service should be e¬ected on businesses and companies, children, patients and
members of the armed services. The ˜deemed™ date of service is the second day
after it was posted rather than, as previously, seven days later.
If ordinary service is not possible because the defendant™s whereabouts are
not known, the court can be asked for permission to allow service by an alter-
native method (formerly ˜substituted service™), for example by putting an adver-
tisement in a local newspaper. Where a property owner is trying to get back
possession of premises occupied by squatters, service on those on the premises
(whose names would normally not be known) is allowed to be made by posting
up a notice of the proceedings on the door or some other appropriate place.
There is often a considerable delay between issue and service of a writ. The
rules used to allow twelve months from issue of the writ for its service. Under
CPR 7.5 the general rule is that service of the claim form must take place within
four months from the date of issue (or six months if service is outside the juris-
diction). If the particulars are not served with the claim, they must be served
within fourteen days thereafter and, in any event, within the overall four or six-
month period (r. 7.4).
The Computerised Summons Production Centre In 1990, a computerised
Summons Production Centre (SPC) was set up to process summons requests from
major ˜repeat players™ “ plainti¬s who issued more than 1,000 summonses a year.
Issue and dispatch of summonses is guaranteed within twenty-four to forty-eight
hours. Its main customers are banks, mail order companies and utilities “ gas,
electricity and water companies. It issues roughly half of all summonses. There is
a separate Practice Direction for the issue of proceedings by the computerised
Summons Production Centre available to bulk issuers. A pilot scheme for issuing
the process online “ Money Claim OnLine (MCOL) “ was launched in December
2001 for claims under £100,000. In the ¬rst year of its operation, over 16,000
claims were issued making it the fourth highest issuing source for money claims.88

88
153 New Law Journal, 7 February 2003, p. 163.
75 Legal proceedings


Case law The case law on this dry procedural topic is an object lesson in how
the courts have been struggling to ¬nd the right approach to failures to comply
with the new rules.
In Vinos v. Marks & Spencer Plc89 V had su¬ered injuries at work. After
lengthy negotiations failed to produce a settlement, his solicitors issued pro-
ceedings a week before the expiry of the limitation period but due to an over-
sight they did not serve the claim form until nine days after the expiry of the
four-month period prescribed by the CPR. V applied for an extension of time.
Under CPR 7.6 the court can extend the time ˜only if (a) the court has been
unable to serve the claim form; or (b) the claimant has taken all reasonable steps
to serve the claim form but has been unable to do so; and (c) in either case, the
claimant has acted promptly in making the application™. These provisions did
not cover what happened. The court had not been asked to serve the claim form
and V by his solicitor had not been unable to serve the form after taking all rea-
sonable steps to do so. Obviously a procedural slip had occurred, but the Court
of Appeal refused to apply the ˜slip rule™ in CPR 3.10 which provides: ˜where
there has been an error of procedure such as a failure to comply with a rule or
Practice Direction (a) the error does not invalidate any step taken in the pro-
ceedings unless the court so orders; and (b) the court may make an order to
remedy the error™. The court said: ˜the general words of CPR 3.10 cannot extend
to enable the court to do what CPR 7.6(3) speci¬cally forbids . . . Interpretation
to achieve the overriding objective does not enable the court to say that provi-
sions which are quite plain mean what they do not mean, nor that the plain
meaning should be ignored™ (para. [20]).
The harsh approach of Vinos was applied in Godwin v. Swindon Borough
Council.90 In that case the claim form actually arrived in time but by virtue of
the ˜deeming™ provision in CPR 6.7(1) it was deemed to have arrived three days
late. In judgments that take twenty-four pages in the law reports, the Court of
Appeal held that the deemed day of service was not rebuttable by evidence
showing that service had actually been e¬ected in time! Nor could the situation
be rescued by application of CPR 6.1(b) (the rules apply except where the court
orders otherwise) or CPR 6.9 (the court has the power to dispense with service
altogether) because that would be to condone failure to comply with the express
terms of the rule about service.
The court™s approach was slightly softened in Anderton v. Clwyd County
Council 91 involving ¬ve separate appeals basically on the same issue. The Court
of Appeal agreed that the deemed day of service could not be rebutted by
evidence of earlier receipt. The aim of CPR 6.7 was to achieve procedural
certainty in the interests of all concerned. Justice and proportionality required
that there were ¬rm procedural rules which should be observed. General rules
should not be construed to create exceptions and excuses whenever those who

89 90
[2001] 3 All ER 784, CA. [2001 EWCA Civ 1478, [2002] 1 WLR 997.
91
[2002] EWCA Civ 933, [2002] 1 WLR 3174.
76 Pre-trial civil proceedings


could easily have complied with the rules had slipped up. However, the power
in CPR 6.9 to dispense with service altogether could be applied in exceptional
circumstances at least where there had been an ine¬ective attempt to serve in
time (as opposed to a case where the claimant had not even attempted to e¬ect
service).92
In Steele v. Mooney 93 the Court of Appeal had to decide whether the applica-
tion was to rectify a drafting error in an application for an extension of time or
whether it was to ask for an extension of time. Asking for an extension of time
was barred by CPR 7.6(3) and therefore could not be achieved by application of
the slip rule, CPR 3.10, but here there had been a drafting error in the applica-
tion for an extension of time and that could be cured by CPR 3.10.


Responding to a claim
A defendant served with a claim has a number of options. He can admit the
claim by serving an admission under CPR Part 14, or he can serve a defence
under Part 19, or he can admit part of the claim and serve a defence for
the part he does not admit, or he can ¬le an acknowledgment of service under
Part 10.


Acknowledgment of service
Acknowledgment of service was previously a procedure known only to the High
Court. It is now available in all cases. It is appropriate when the defendant is
unable to ¬le a defence within fourteen days of service of the particulars of
claim. Filing the acknowledgment gives the defendant an extra fourteen days. It
is also used when the defendant wishes to dispute the court™s jurisdiction. If the
defendant can ¬le the defence within fourteen days, the stage of acknowledg-
ment of service can be omitted. (Where a claim has been issued online,
acknowledgment of service “ as well as defence, part admission and counter-
claim “ can now also be made online.)
If the defendant fails to ¬le an acknowledgment of service or a defence or an
admission within fourteen days, the claimant can move directly to ask for judg-
ment (see default judgments below).

92
In Wilkey v. BBC [2002] EWCA Civ 1561, [2003] 1 WLR 1 the Court of Appeal held that the
decision in Anderton created a presumption that CPR 6.9 would be applied to cases prior to
that decision unless the other party could show that he would su¬er prejudice or some other
good reason why it should not be applied. Avoidable delay would not be a good reason, but
the dispensing power should ordinarily not be exercised where service had occurred after the
decision in Anderton. In such cases a strict approach should generally be adopted. The deemed
service rule and the highly desirable certainty which it provided would therefore continue to
apply in all but the most exceptional circumstances after the Anderton decision. In Cran¬eld v.
Bridgegrove Ltd [2003] EWCA Civ 656, [2003] 3 All ER 129 the court said that it could
exercise its discretion where there had been some comparatively minor departure from the
93
permitted method of service. [2005] EWCA Civ 96, [2005] 2 All ER 256.
77 Legal proceedings


A defence
As has been seen (p. 70 above), Lord Woolf severely criticised the drafting
of defences, especially for failing to reveal the nature of the defence case.
Under the CPR, the defence has to be explicit. CPR 16.5 requires a defence to
state, inter alia, which of the allegations are denied, which are admitted and
which are neither admitted nor denied. Where the defendant denies an alle-
gation he must state his reasons for doing so. If he intends to put forward a
di¬erent version of the facts, the defendant must state his own version. A
failure to deal with an allegation is taken as an admission with regard to that
allegation (CPR 16.5). Previously, the defendant could put in a simple, totally
uninformative denial and the plainti¬ tried to get further information by
requests for further and better particulars. The position under the new rules
is wholly di¬erent. The defendant has no choice. With regard to each allega-
tion he must admit it, or deny and explain why, or state that he cannot either

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