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Chapter 18    Crown Office List

1.    Many of the public law proceedings which are administered by the Crown Office are of considerable constitutional significance, since they are the means whereby the lawfulness of decisions of public bodies can be examined by the courts and individuals who have been improperly detained can secure their liberty. As has so often been stated, the growth of public law and, in particular, of judicial review has been one of the most significant developments in the English legal system in the last 25 years. It is therefore important to consider how the procedure and management of these proceedings are to be absorbed into the reformed civil justice system which I am advocating.

2.    My objective is to secure greater uniformity of procedure among those cases which are dealt with by the Crown Office, which can at present be bedevilled by disputes as to procedure, notably where there may be an option as to what remedy to seek. For the same reason, there also needs to be greater uniformity between the procedures in public law cases and those in private law cases. The procedural exclusivity rule, whereby it is normally an abuse of process not to use judicial review when it is the appropriate procedure, has led to wholly undesirable procedural wrangles and has been much criticised by distinguished commentators. It continues to cause problems, notwithstanding some clarification by the House of Lords in the Roy case (Roy v Kensington and Chelsea and Westminster FPC [1992] 1 AC 624).

3.    The Law Commission, in its 1994 report, Administrative Law: Judicial Review and Statutory Appeals, has made a series of recommendations for procedural reform which for the most part I warmly endorse. That report was published before the date of my interim report, on which my present proposals are also based. I have benefited considerably from the advice of the Crown Office Working Group under the chairmanship of Lord Justice Brooke, the former chairman of the Commission. I am also grateful to the members of the Justice/Public Law Project and to those who have organised and attended a series of conferences on public law proceedings, and made written submissions to me arising out of them.

4.    Cases administered by the Crown Office List rarely involve determining factual evidence or hearing witnesses. Any necessary evidence is nearly always given by affidavit. Discovery, too, is rare. Crown Office proceedings are therefore on the whole free of the excesses that plague other proceedings. They can proceed rapidly to a hearing which will usually be quite short. They should involve relatively modest expenditure by the parties.

Nominated judges
5.    The use of judges specially nominated to hear Crown Office cases is one of the strengths of the Crown Office List. I hope, however, that in the future more judges from other Divisions can be nominated to hear Crown Office cases where their experience in a specialist area would be valuable.

Local disposal
6.    There is also a real need for the resolution of some Crown Office List cases on Circuit. Some cases, for example those which involve central government or an issue of general importance, would not be appropriate for this, but many Crown Office List cases are no less local than disputes between two individuals. An example is judicial review of those housing cases which are not disposed of by the new procedure I am recommending. There has been a number of experiments designed to ascertain whether it is practicable for selected cases to be heard on Circuit, but they have not been successful. Nevertheless I am convinced that certain cases ought to be heard locally. The problem is that until the facility for cases to be heard at a local centre is firmly established, the cases do not surface. How best to achieve this depends on the resources available. However, I recommend that a start should be made. One way would be to select a single provincial centre for the hearing of Crown Office List cases. Unless a High Court judge could be made available, which I accept is unlikely, one or preferably two Circuit judges, sitting as deputy High Court judges, should be nominated for the purpose. The experience with Chancery and Mercantile lists suggests that it is essential to have a judge with the required expertise available with sufficient regularity to persuade local practitioners to take what will be on offer seriously.

Judicial review
7.    Some of the general recommendations which I am making apply as much to Crown Office cases as to private law cases. Some apply even more strongly. Among these is the recommendation that applicants should be encouraged to resolve their complaints without resorting to litigation. There is an increasing number of grievance procedures and ombudsmen available for this purpose. Applicants should normally use these procedures first. Judicial review ought to be conserved as a remedy of last resort. Before an application is made to initiate proceedings for judicial review, the proposed applicant should have taken advantage of any system of dispute resolution available, unless it would be unreasonable to do so, for example because the complaints procedure is too slow. If there is no satisfactory system of ADR the applicant should notify the proposed defendant of the claim, giving sufficient information to enable a response to be made rapidly so that the applicant could still comply with the three month time limit within which the claim must usually be brought. The defendant would not be obliged to respond, but should notify the applicant that there was to be no response. The fact that the court can extend time should avoid an applicant who waits for a reasonable period for a response from being prejudiced. This will put on a slightly more formal basis the growing practice of writing a letter before commencing proceedings, which was strongly urged by Brooke J in R v Horsham DC ex p Wenman [1994] 4 AER 681.

The form of application
8.    Rather than being a completely separate form, as at present, an application for judicial review should follow the standard claim form. In other words, it must include a summary of the facts relied on and its contents must be verified. It will therefore replace the application and principal affidavit in support. I hope that it will also overcome the current problem of excessively lengthy applications and affidavits. There will, of course, be particular requirements for claims for judicial review, for example that a copy of the decision which is the subject matter of the claim and any response by the defendant to the pre-application process must be attached.

The remedies which should be available
9.    I see no reason why any remedies which could be obtained in a private law action, or a writ of habeas corpus, should not also be included in a claim for judicial review, so long as it is not inconvenient to do so. The court should be able to direct that additional claims should be disposed of separately or made the subject of a separate claim if their inclusion would interfere with the disposal of the claim for judicial review. When considering whether to grant relief the court should be able to take into account any offer by the defendant to pay compensation.

10.    I recommend that the court should have an express power to grant advisory declarations when it is in the public interest to do so. However, this should be limited to cases where the issue was of public importance and was defined in sufficiently precise terms, and where the appropriate parties were before the court.

11.    Litigants will be encouraged to issue their claims for judicial review at the Crown Office, since it will continue to administer them. However, the originating process will not be invalidated if the claimant issues a claim in another court and it will be for that court to transmit the claim to the Crown Office.

Preliminary consideration
12.    I agree with the Law Commission that the leave stage should be renamed the preliminary consideration stage. This will also demonstrate that the initial filtering process is very much the same as that which will take place in private law proceedings. It should, however, take place on the application being made, before any defence is filed, rather than after the defence has been filed, as usually happens in private law proceedings. The same criteria should also be applied in determining whether the case should proceed, namely whether there is a realistic prospect of success or some other reason why the case ought to be disposed of at a substantive hearing. The judge should give brief reasons where he refuses permission to proceed.

13.    After a written refusal there should be a right of renewal to a single judge at an oral hearing and a further right of appeal to the Court of Appeal, but only with the leave of the judge or a Lord Justice, from a refusal at the oral hearing. In my view it would be sensible if this procedure applied in criminal causes and matters as well as civil causes. I recognise, however, that it raises questions of judicial deployment in criminal cases and further consultation will be needed to ensure that any difficulties can be overcome.

14.    The preliminary consideration should be in writing, as the Law Commission proposes, unless the court directs an oral hearing. The judge conducting the preliminary consideration should be able to call upon the defendant to provide information, in a standard questionnaire, or to make representations, although I hope that greater use of the pre-application process will mean that this is not normally necessary. It would not be obligatory for the defendant to respond but failure to do could be taken into account in the decision whether the application should proceed.

15.    The court should be able to grant interim relief before the preliminary consideration of the claim, although interim relief on an ex parte basis would only be granted in a very clear and urgent case. The rules should also make it clear that any appropriate remedy, including a stay, an interim declaration and bail, can be granted. The provisions on bail will be clarified, as recommended by the working group.

16.    Case management is applicable to judicial review claims as well as to private law claims. At the preliminary consideration the judge should consider giving directions for the future conduct of the proceedings and the claimant should be able to indicate on a pro forma or standard form what directions should be given. The judge should also be able to ask the defendant for his views, although in most cases it will be preferable to make the directions subject to any written representations by him. Directions could be given as to:

(a) the persons on whom the claim should be served (the court should consider whether any public body other than the proposed defendant will be affected by the decision);

(b) whether there should be a defence;

(c) what, if any, further evidence is required and the form it should take (usually witness statements but exceptionally affidavits);

(d) the form which the hearing should take.

The judge should lay down a timetable, with as precise a date for the hearing as can be given. By giving directions the court should be able to limit the number of interlocutory hearings.

17.    If the issues are sufficiently clear from the claim the judge may decide to inform the defendant that he need only provide a skeleton argument. Otherwise, he will indicate that there should be a defence, although the defendant will have the option of saying on the notice of intention to defend that he will not file a defence. The defence should be in the standard form of a defence to the claim. Like the claim, it will not be a lengthy and complex document but should be restricted to a succinct statement of the facts (so far as they differ from those set out in the claim) relied on by the defendant and his contentions. It should have annexed to it any documents relied on. It would replace the present principal affidavit, since there will be a requirement that the defendant verify the truth of its contents.

18.    The defendant should be able to counterclaim for a declaration or other appropriate remedy which arises out of the matters to which the claim relates, unless the counterclaim could not be dealt with conveniently with the claim, as might happen where it would add extra parties. In certain cases it may be appropriate to impose a condition that a public authority should not seek the costs of the counterclaim.

Further evidence
19.    The parties will be allowed to put in additional evidence, but they will have to justify the costs of doing so, since judicial review is not the normal way of resolving issues of fact.

20.    I support the Law Commission's recommendation that the present generous practice of the courts in interpreting the requirement that the applicant must have a 'sufficient interest' in the matter to which the application relates should be incorporated in the new rules. This should be in general terms, although a practice guide could indicate relevant factors. I agree with the Commission that the applicant will have standing if he has been or will be adversely affected or if it is in the public interest that the proceedings should be brought. This is the test which I consider should be of general application: in appropriate private law cases, such as claims for a declaration, the courts should on occasion be able to allow proceedings to continue if it is in the interests of justice or in the public interest that they should do so. As the Justice/Public Law Project paper points out, the question of the applicant's standing can ultimately be treated as secondary to the merits of the case.

21.    Consideration should be given to conferring on the court a discretion to allow third party intervention, both in the applicant's interest and in the public interest. If this is thought desirable, it should be a principle of general application, although the courts' approach should be more cautious when considering whether to allow intervention in proceedings concerning private rather than public law rights.

22.    I agree with the Law Commission that legislation should confer a discretion on the court to order costs to be paid out of public funds where it is in the public interest that proceedings should be brought. If this recommendation is not implemented I recommend that the court should have a discretion not to order an unsuccessful party to pay the other party's costs, on the grounds that the proceedings have been brought in the public interest. Initially the discretion should only be exercised where there would otherwise be substantial hardship.

Written determination
23.    As judicial review and some statutory applications in the Crown Office List do not usually involve oral evidence, they are susceptible to disposal in writing. This would not be appropriate for cases involving a point of principle, but it could sometimes be a valuable option for a straightforward case where the parties agreed on its use. Arrangements would need to be made for the documents and the judgement to be inspected by the public. Subject to these points I recommend that the judge should have a discretion to direct that there should be no hearing.

Divisional Court and appeals
24.    At present judicial review in criminal causes and in the heaviest civil cases are heard by a Divisional Court of at least two judges. The justification in criminal causes is the restricted right of appeal to the House of Lords. In my view all cases of judicial review should be heard by a single judge unless there are exceptional circumstances. The proposals in paragraph 13 as to renewal at the preliminary consideration stage should be applied to appeals from substantive decisions. In criminal causes the appeal should be to the Criminal Division of the Court of Appeal and in non-criminal causes to the Civil Division. In both cases leave from the judge or the appeal court would be required. The requirement of leave is justified because of the need for certainty in criminal matters; it already exists in most civil appeals. As with the proposals on renewal of applications, there should be further consultation about this.

The prerogative orders
25.    Although I am an enthusiast for adopting modern English, I am not in favour of the Law Commission's proposal to replace the names certiorari, prohibition and mandamus with a quashing, prohibiting and mandatory order. The Latin names are used throughout the common law world and have become synonymous with the duty of superior courts to protect the public against the abuse of power. I am not sure that the proposed alternatives are that much easier to comprehend. On the other hand I agree with the Treasury Solicitor that the title of judicial review proceedings, R v A, ex parte B, is outmoded and should be changed to A v B.

Bridging the divide
26.    The recommendations which I have made are intended to bridge the divide between public law and private law claims by bringing the two procedures together. The same statements of case will be used in both, so that there will be no need for a claim in one area to be treated as though it had been begun by another procedure. It is nevertheless important that the safeguards of the three month time limit and of standing, which are necessary in judicial review claim, should not be bypassed, but these can be retained without making it an abuse of process to adopt the wrong procedure.

27.    If a question arises as to whether the proceedings should have been brought by judicial review it will be possible to transfer the claim to the Crown Office for a case management conference, at which the same filtering process, without the court having to consider whether the issues are ones of public or private law, will apply, unless the answer is obvious or unless the issue needs to be resolved for substantive as opposed to procedural reasons. If the case is without merit, it can be dismissed irrespective of whether it raises public or private law issues; if it has merit the judge can direct it to proceed without determining whether it is a public or private law case. Furthermore, if the court thinks this is the best course to adopt in all the circumstances, it will be possible to leave consideration of standing and time limits until the final hearing. This is often necessary at present because the merits can affect both questions of standing and delay.

Habeas Corpus
28.    So venerated is the writ of habeas corpus that law reformers have been cautious about interfering even with the procedure by which it is obtained. I share the Law Commission's view that it should not be absorbed into judicial review. However, I believe that its procedure should be as similar as possible to that for judicial review and it should be possible to seek a writ of habeas corpus on a claim for judicial review.

29.    The application will be made by using a claim and will be verified by the applicant or some other appropriate person. The applicant will be able to apply ex parte to a single judge orally or in writing and the judge will be able to order the claimant's release, dismiss the claim, adjourn a written application for a hearing or adjourn for a full inter partes hearing, giving directions for the hearing. The person served with a claim should answer it in a defence, setting out the facts relied on to justify the detention.

30.    At present, in a criminal case where the judge does not order release, he has to refer the application to a Divisional Court. I recommend that he should have the same powers as the Divisional Court. Otherwise the judge on the inter partes hearing should have the same powers as at present. There should be the same routes of appeal as in judicial review. The Law Commission favoured assimilating the procedure in criminal and civil cases but were concerned about adding to the burdens of the Criminal Division of the Court of Appeal. If judicial resources are an impediment then I recommend that the appeal should be heard by a Divisional Court.

31.    I also recommend that English names (writ of release, writ to give evidence, writ to answer a charge and writ of transfer) should replace the Latin names of the four forms of the writ. These names do not have the same significance as the names of the prerogative orders.

32.    The working group has made suggestions to clarify and improve RSC Order 52, which deals with committal for contempt of court. I agree that the rules should distinguish more clearly between civil contempt, ie breach of an order or undertaking, and criminal contempt, which usually relates to conduct interfering with the administration of justice. The former should be dealt with by general provisions, since applications are made to the court which made the order, whereas the latter is dealt with in the Crown Office List. The new rules will give effect to the working group's proposals and will aim to treat all litigants in the same way.

33.    The same form of order should be used in the High Court and the county courts and there should be a requirement that copies of all orders for committal should be sent to the Official Solicitor. I also agree that the county courts should have the same power as the High Court to issue bench warrants for the arrest of contemnors, so that orders for committal are not made in their absence. It would be desirable if the Official Solicitor were to review all orders which, for whatever reason, had not been served within six months.

My main recommendations are as follows.

(1) The procedures in public law cases should be brought into line with one another and with those in private law cases wherever possible. Use of the wrong procedure should not lead to the case being dismissed. Instead it should be dealt with so far as possible under the proper procedure.

(2) More judges from other Divisions should be nominated to hear Crown Office List cases.

(3) Certain Crown Office List cases should be heard outside London.

(4) Claimants for judicial review should use available methods of ADR.

(5) Claimants should notify the defendant of their proposed claim before starting proceedings.

(6) A claim for judicial review and any defence should follow the standard claim form and defence. Unless it would inconvenience the hearing of the claim for judicial review, it should be possible for the claimant to include any remedies which could be obtained in a private law action and for the defendant to make a counterclaim.

(7) The court should be able to grant advisory declarations in limited circumstances.

(8) At the preliminary consideration stage (formerly 'leave'), which should be in writing, the judge should allow the claim to proceed if there is a realistic prospect of success or some other reason why the claim should be disposed of at a substantive hearing. He should consider giving directions for the conduct of the claim and set a timetable.

(9) There should be a right to renew the application in non-criminal cases at an oral hearing before a single judge and a further renewal to the Court of Appeal, with leave. Consideration should be given to the same procedure applying in criminal causes.

(10) The court should be able to grant interim relief before the preliminary consideration but should only do so ex parte in a clear and urgent case.

(11) The claimant will have standing if he has been or will be adversely affected or if it is in the public interest that the claim should be brought.

(12) All cases of judicial review should normally be heard by a single judge. There should be an appeal, with leave, to the Court of Appeal, Civil Division in non-criminal causes and consideration should be given to enabling appeals in criminal causes to lie, with leave, to the Court of Appeal, Criminal Division.

(13) The court should have a discretion to order costs to be paid out of public funds or to order that the unsuccessful party is not to pay the other party's costs where the proceedings have been brought in the public interest.

(14) It should be possible to determine some claims in the Crown Office List in writing where the parties agree.

(15) The rules on habeas corpus and committal for contempt will be clarified and simplified.

Chapter 19    Specialist Jurisdictions

1.    In chapter 26 of my interim report I stressed that the same general principles, rules and procedures need to apply as far as possible throughout the system. High Court and county court procedures should be brought together in a single code of rules, and different procedures within the Chancery Division and the Queen's Bench Division of the High Court and within the High Court and county courts should be assimilated wherever possible. Divergences of approach which make the civil justice system more complex, expensive and slower should be avoided. Some special types of case do require different procedural provisions, but I believe that their number and extent should be kept to a minimum.

2.    Accordingly I invited a number of judges in specialist areas of High Court work to appoint small working groups to advise on those matters in their areas for which it would be essential to have provisions which departed from the standard procedure. I also wished to know of specialist practices or procedures which might usefully be adopted more generally. The areas covered are Chancery, Intellectual Property, Commercial Court, Official Referees, Admiralty and Crown Office. All six groups produced substantial reports, which will be available on request. They have made a significant contribution to this report and their advice has been invaluable. Having considered their reports I have come to the conclusion that the matters for which there will need to be special provision for particular areas of litigation are limited.

3.    Most cases in the Commercial Court and the Official Referees' Court follow the present procedure for writ actions. The focus here has therefore been on elements of the new claim procedure, in particular, case management, disclosure of documents, witness statements and expert evidence. They have few rules of their own. (RSC Order 36 applies to Official Referees' and RSC Order 72 to commercial actions.) The same is true, although to a lesser extent, of the Intellectual Property and Admiralty groups. The Chancery and Crown Office groups, on the other hand, have had to cover a wide range of existing rules dealing in detail with questions with which they are concerned. The Crown Office List is covered in chapter 18.

4.    The rules for the different specialist areas are in part as diverse as they are because hitherto there has been no particular desire to harmonise the different procedures. Many of the differences of detail are either unintentional or for reasons no longer relevant or remembered.

The business of the Division
5.    The principal business of the Chancery Division, leaving aside insolvency and patents, concerns proceedings involving charities, civil fraud, companies, contracts for the sale and purchase of land, intellectual property, landlord and tenant, mortgages, partnership, professional negligence and trusts, wills and probate.

6.    The Chancery Division, therefore, contains a number of specialist areas. It was partly for that reason that in chapter 12 of my interim report I accepted that the Chancery Division should not be merged with the Queen's Bench Division. However, because much of its work is now similar to that heard in the Queen's Bench Division, in particular the Commercial Court, I recommended that the administration of the two Divisions be brought closer together. This would enable judges of the Queen's Bench Division with appropriate experience to hear cases in the Chancery Division and vice versa when this would result in the more efficient disposal of cases. It would also mean that it would be of less significance in future which Division the case was commenced in.

7.    The report of the working group makes it clear that many of the present Chancery procedures can be readily accommodated by the general provisions of the new rules.

8.    At present jurisdiction to hear family provision claims under the Inheritance (Provision for Family and Dependants) Act 1975 is shared by the Chancery Division and the Family Division. The group considers that this is inefficient and can lead to inconsistency and recommends that all such claims should be heard by the Family Division. The judges of the Family Division agree. I accept that this should be the normal practice but, as the Vice-Chancellor has pointed out to me, claims under the 1975 Act may be linked to other claims which are more appropriate for disposal in the Chancery Division, and there should therefore be no rigid rule confining proceedings to the Family Division.

9.    My Inquiry does not extend to proceedings under the Insolvency Act. This is a largely quasi-administrative jurisdiction, and concerns issues of enforcement, rather than ordinary civil litigation between two parties. There are a number of applications under the Companies Act which are dealt with by the Companies Court and governed by the Rules of the Supreme Court. I recommend that such proceedings should be entitled "In the Companies Court", which reflects what happens in practice, even though technically only Insolvency Act matters ought properly to be so described. Indeed, I recommend generally that where proceedings are usually disposed of in a particular list the heading of the case should identify that list.

10.    In the new rules the definition of 'the Court' will continue to include the Companies Court Registrar. They will also make it clear that the Registrars in Bankruptcy have all the powers of Masters in addition to those specifically conferred upon them by the Insolvency and Companies Acts and the Insolvency Rules.

11.    The group's suggestion that the Vice-Chancellor institutes an annual review for the Chancery Division, similar to those published by the Court of Appeal and Commercial Court, is welcome. This could summarise the procedural developments of the previous year, draw attention to any common procedural shortcomings, give current targets for hearing dates and look ahead to forthcoming changes. Again I would go further and recommend that the Head of Civil Justice publish an annual review covering the civil justice system as a whole.

12.    Many Chancery actions proceed at present by way of writ and will be suitable to the new claim procedure. Issues arising from the Chancery Group's comments on such general matters as case management, experts, witness statements etc will be found in chapter 12. The Chancery Guide, which was produced in April 1995, already provides very useful advice on the conduct of cases. As I have indicated in chapter 12, cases which are at present begun by originating summons will proceed by way of a verified claim form which will replace the originating summons and affidavit in support, and, where necessary, a defence in the standard form, which will replace the affidavit. The claimant will still be able to ask for a date to be fixed for the hearing when he issues the claim. Where the defendant does not return the notice of intention to defend or indicates on it that he will not be filing a defence, the procedural judge will then fix a date for the hearing. Where a defence is filed the judge will consider the statements of case and fix a date or give directions as to the conduct of the claim.

13.    The Chancery Working Group has provided me with invaluable advice for the new rules, in particular in relation to rules and procedures for the more specialised areas of their work. The new rules will reflect the great majority of their advice and so it is not necessary for me to include in this report all the technical details to which they refer. I should, however, give some indication of ways in which the working group has met the aims of my detailed study of specialist jurisdictions.

Simplifying complex matters

(a) The working group points to RSC Order 102 (The Companies Act 1985) as a prime example of unnecessary complexity in the types of originating process and a prime candidate for simplification. Although it will be more appropriate for some applications to be heard by a judge and some by the Companies Registrar, that is not something which needs to be reflected in the form of originating document. Nor is there any logical reason for certain applications to be begun by petition (although there is a statutory requirement that applications under section 459 of the Companies Act 1985 should be begun by petition). A petition, unlike an originating summons or motion, must itself contain all the facts necessary to found the relief required. In future, the claim form will do this and the new rules will merely record that a claim which does so will be a petition for the purposes of that section.

Removing separate rules where these are no longer necessary

(b) An example is the present RSC Order 86. I agree with the group that there is no longer a need for a special order on summary judgment in actions for specific performance. Order 86 is therefore to be combined with Order 14.

Taking matters out of the rules which are more suitable for practice directions and guides

(c) The group refers to RSC Order 31. This Order gives the court wide powers to refer matters to Conveyancing Counsel. It also goes into details as to the reference, which are matters more appropriate to a practice direction or guide. Order 43, rules 4 to 7 contain various matters of detail which could be incorporated into a practice direction. Order 44, rules 4 to 8 (accounts of debts) relate to the old administration action, which is now almost obsolete and need only be put in a practice direction or guide. A third example is that the procedure for inquiries as to creditors in the context of a reduction of capital under section 136 (3) to (5) of the Companies Act (now in Order 102, rules 7 to 15) can be left to a practice direction or guide, as again such inquiries are very rare.

Achieving uniformity with equivalent county court rules

(d) The particulars required from both parties in a number of Landlord and Tenant Act applications are more extensive in the county court. I agree with the working group that these are more useful and informative for the court and that these should be the model for the new rules.

Pointing to existing rules which already fit well with my proposals

(e) The wide powers contained in Order 43, rule 3 and Order 44, rule 3 (directions in accounts and proceedings under judgments) are very much line with the approach which I am proposing generally and should continue.

Indicating which matters will continue to need separate treatment

(f) Probate actions, in which the court is asked to pronounce for or against the validity of wills in order that proof of a will in solemn form may be obtained, have characteristics which require special rules. Because the court has to consider the evidence, it is not possible either to obtain judgment by default or, usually, judgment by consent and the rules which indicate this and make alternative provision (Order 76, rules 6 and 10 to 12) need to be included in the new rules. The importance of the documents, ie the disputed wills, is also such that the special rules for tracking them down and bringing them into the custody of the court should remain (rule 5).

Making useful suggestions which are of general application

(g) The group notes that at present it is possible to transfer only the whole case and they suggest that there should be power to transfer particular issues to another court. I adopt this suggestion. It accords well with my proposal for more emphasis to be placed on the identification and disposal of specific issues in a case.

Intellectual property
14.    In the case of Chaplin Patents Holdings v Group Lotus (The Times, 12 January 1994), Sir Thomas Bingham MR summarised very clearly the developments that have taken place in patent litigation in the last 10 or 15 years. He noted that the high reputation of the Patents Court within the High Court had never been in question but that in the 1980s problems of cost, delay and complexity were felt to be making access to justice difficult for smaller enterprises. As a result, the Patents County Court had been created by the Copyright, Designs and Patents Act 1988 with the purpose of improving access to justice by providing cheaper, speedier and more informal procedures than those in the Patents Court. Its object was to handle smaller, shorter, less complex, less important, lower value actions, but in considering whether to transfer cases to the Patents Court it was also to have regard to the financial position of the parties.

15.    The creation of the Patents County Court was supported by industry but there are now differing views as to its success. It has been pointed out by some commentators that the number of cases which are brought in the court has been falling, although this is also true of the Patents Court. The court has also been the subject of some adverse comments by the Court of Appeal, most recently in Sony Corporation v Pavel (The Times, 22 March 1996), a case which had involved over 250 pages of pleadings, nearly eight days of hearings about interlocutory disputes and a trial lasting nearly four weeks. Aldous LJ said that "some alteration is necessary if the purposes of the PCC are to be achieved". Again, I am aware that supporters of the Court have said that this was not a typical case.

16.    Clearly improvements could be made to the ways in which intellectual property litigation is handled. It continues to suffer from the vices of cost, delay and complexity. As the new draft rules make clear, dealing with a case justly includes handling it so as to ensure that, so far as is practicable, the parties are on an equal footing, and handling it in ways which are proportionate to the amount of money involved, the importance of the issues and the parties' financial position. I recognise that these matters may point in different directions, when it comes to considering which court should hear a case in intellectual property litigation. For example, the likely commercial effect on each party if relief is, or is not, granted, may not be apparent from a figure representing the value of the right being litigated.

17.    In my view there is a pressing need for both the Patents Court and, more especially, the Patents County Court to develop procedures which go further than existing ones in providing rapid resolution of disputes, with a strict timetable and a trial limited in time, and a fixed budget for costs, as I am recommending for the fast track. This will enable smaller firms to compete on a more level footing with larger companies. I outline my proposals for such a procedure in chapter 5.

18.    Like the Chancery Working Group, the Intellectual Property Group has made a number of valuable recommendations to me about specific procedural issues and these will influence the new rules.

19.    I accept that there are a number of rules in RSC Order 104 which cannot be assimilated into the general rules and need to be retained. The Patents Acts require an amendment to the specification of a patent to be advertised and the group has proposed a simpler rule for the procedure to be followed on an application for leave to amend, since the present procedure can be cumbersome and expensive. The rules requiring certain matters to be pleaded, such as obviousness and commercial success, also need to be retained, although it might be possible to put them in a practice direction rather than in the rules themselves. Other rules which need to be retained are those on scientific advisers, the inspection of equipment etc pleaded in relation to an allegation of prior use, the requirements on the Patent Office to inquire and report and employee compensation claims. The recently made rules on service at the address for service given at the Patent Office in respect of certain registered rights held by foreign proprietors should also be preserved.

20.    A recently introduced practice in the Patents Court, and in the Official Referees' court, is the use of telephone summonses. I looked forward to the possibilities of using telephone and video conferencing in chapter 13, paragraphs 15-18 of my interim report and if the experience of the Patents Court and Official Referees is favourable I would hope that greater use can be made of telephone summonses in other courts. I appreciate that initially the profession is showing little enthusiasm for this initiative but with experience I would expect its popularity to grow.

21.    The Intellectual Property Group also helpfully draws attention to the Patents Court's practice, contained in a practice direction, of requiring the parties, about a week before the trial, to produce an agreed reading guide indicating to the judge the material he should pre-read and the order in which it should be read, as well as identifying what the parties conceive to be the issues. In the future more active case management could mean that the guide would be useful at an earlier stage. I welcome the use of pre-reading guides and agree with the group that they should be extended to other areas of multi-track litigation.

22.    At present, under the Copyright, Designs and Patents Act 1988, the High Court does not have the power, which it has in relation to other county court cases, to entertain an application to transfer a case from the Patents County Court to itself. The majority of the Intellectual Property Group has said that where either party wishes to have a case transferred from one court to the other, such an application should be heard by the High Court judge in charge of the Intellectual Property List, in order for there to be predictability and uniformity of approach. They add that uncertainty as to which court will hear a case is a factor affecting foreign parties' choice of the jurisdiction in which to bring their litigation. The contrary view is that an application to transfer should be made to the judge of the court in which the case has begun and that it would go against the policy accepted by Parliament in the 1988 Act to permit the High Court to transfer Patents County Court cases to itself. I do not recommend at present that intellectual property litigation should differ from other litigation, in which the general principle will be that decisions on allocation should be taken by the procedural judge at the court where the claimant issues his claim. Nevertheless, I recognise that there are strongly held views on the issue, and it may be that the Head of Civil Justice, in consultation with all those with an interest in intellectual property litigation, will wish to look again at the question of allocation. To my mind improving the procedures of both courts is the first task.

Commercial Court
23.    The Commercial Court is a good example of a specialist court which has a valuable and detailed practice guide to its proceedings but relatively few rules which are specific to it. Such rules as there are are contained in RSC Order 72 and in CCR Order 48C for the Central London Business List. Most of the working group's very valuable report deals with general issues such as pleadings, discovery, witness statements and case management, which I discuss in chapters 12 and there is little to which I need draw attention here.

24.    I recommend the continuance of the Commercial List in the High Court in London. The definition of 'commercial action', which refers to 'merchants and traders', should be replaced by a more modern definition. I also welcome the growing use of the Central London County Court's Business List and of the Mercantile Lists in the High Court outside London.

25.    I propose that there should be uniformity in the description of claims and defences. I do not see any necessity for the Commercial Court to retain the description of points of claim and points of defence, since the requirements as to statements of case reflect what their use was intended to achieve. Nor do I consider that special rules are needed for the transfer of commercial actions, since the new rules will contain wide provisions on the transfer of cases.

Official Referees
26.    In my interim report I noted that many contributors to the Inquiry had commented on the advantage of having specialist judges in certain areas, among them Official Referees' business. I said that specialisation was likely to increase but added that most judges should hear more than one type of case. I recommended that Official Referees' business should form one of the lists to which all High Court proceedings should be attached. Accordingly, I do not propose to alter the existing arrangements whereby the Official Referees' court is a 'court' for the purposes of the Rules, or the entitlement of a party to begin proceedings in the Official Referees' court. Nor do I believe that the nature of their business should be changed (subject to possible drafting modifications, since it is not readily apparent from the present provisions that their work essentially concerns construction cases).

27.    As with the Commercial Court I believe that the wide, general provisions as to transfer should apply to transfers to and from the Official Referees' court.

28.    I welcome the proposal in the working group's report that the rules should provide that trials or other hearings may take place anywhere and I agree that this power should be generally available.

29.    Again like the Commercial Court Group's report, the Official Referees' Group's report deals chiefly with issues which are common to all ordinary claims on the multi-track: discovery, witness statements and experts, which are covered in chapters 12 and 13 of this report. Their proposals for case management in the Official Referees' courts are also covered in chapter 12. I agree with the group that there may be occasions when it would be useful to hold a case management conference even before the defence has been filed. The management needs of each case must be considered. However, there must also be consistency in the approach to case management and I do not favour the practice whereby each judge works from his own standard directions.

30.    Admiralty proceedings are another specialised area which clearly needs to retain a number of special rules. Examples are the provisions relating to arresting a vessel, the sale of a ship and limitation actions. Again I should like to pay tribute to the detailed work which the Admiralty Working Group has carried out, which is of great use to those who are assisting in drafting the new rules. Consideration should also be given to reducing the number of county courts which have Admiralty jurisdiction. About one third of them have heard no Admiralty cases in the last five years and many others have heard very few.

The Crown
32.    Government departments and the Treasury Solicitor have at my request reviewed the existing rules which give the Crown advantages which are not available to other litigants. They have concluded that a number of provisions are no longer justifiable and these will be omitted from the new rules. This is a small but not totally insignificant step.

My main recommendations are as follows.

(1) Many of the present Chancery procedures should be accommodated by the general provisions of the new rules.

(2) Where proceedings are usually disposed of in a particular list or court, the heading of the case should identify that list or court. For example, all Companies Act proceedings should be entitled 'In the Companies Court'.

(3) The Vice-Chancellor should institute an annual review of the Chancery Division, similar to those published by the Court of Appeal and the Commercial Court.

(4) The Head of Civil Justice should publish an annual review covering the civil justice system as a whole.

(5) There should be a power to transfer particular issues, as well as whole cases, to another court.

(6) The Patents Court and the Patents County Court should develop procedures which go further than existing ones in providing rapid resolution of disputes, with a strict timetable and a trial limited in time, and a fixed budget for costs.

(7) A number of the special rules for intellectual property, Chancery and Admiralty proceedings should be retained.

(8) Pre-reading guides for trial judges, as currently used in the Patents Court, should be extended to other areas of multi-track litigation. Where it would assist with case management, they should be made available at an earlier stage in the litigation.

(9) Both the Official Referees' Court and the Commercial List in the High Court in London should continue. The definition of 'commercial action' should be replaced with a more modern one.

(10) There should be uniformity in the description of claims and defences, and there is no need for the Commercial Court to retain the description of points of claim and points of defence.

(11) There should no longer be special rules for the transfer of commercial actions, since the new rules will contain wide provisions on the transfer of cases.

(12) As proposed by the Official Referees' Working Group, there should be a general provision in the rules that trials or other hearings may take place anywhere.

(13) Consideration should be given to reducing the number of county courts with Admiralty jurisdiction.

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