Woolf - the major changes to Court practice

On 26th April 1999 the new Civil Procedure Rules came into force. They represent the most radical overhaul of the English legal system this century. In most instances the new rules reflect an entirely new approach derived from Lord Woolf’s criticisms of the old system. In particular, Lord Woolf is determined to overcome the cost, delay and complexity of the old civil litigation system.

We highlight some of the more significant changes and the likely effect on Patents Court practice.

The Overriding Objective

First and foremost the Courts have an overriding objective of dealing with cases justly. This involves:

• ensuring that the parties are on an equal footing;
• saving expense;
• dealing with cases in ways which are proportionate: to the amount of money involved; to their importance; to the complexity of the issues; and to the financial position of each party;
• ensuring that they are dealt with expeditiously and fairly; and
• allotting an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

The courts are given wide powers to manage cases to these ends - and the parties are required to help the courts. The courts will be expecting to see a high degree of co-operation between the parties and will not just let parties conduct litigation as they see fit.

Case management - the three tracks

Whilst the courts will manage cases by allocating them to one of three tracks: small claims track for cases below £5,000; fast track for cases between £5,000 and £15,000; and multi-track for cases above £15,000, all Patents Court claims will be allocated to the multi-track. This includes any claim under the Registered Design Act 1949 and will probably include claims for infringement of copyright, design right and trade marks.

The key features of multi-track are flexibility, with case management conferences and pre-trial reviews to reduce delay and expense. The Patents Judges can be expected to continue actively to manage cases towards an early trial, as hitherto.

The early stages

Much affected is the early conduct of a case, particularly before proceedings are issued. The court now expects parties to act reasonably in exchanging information and documents and generally in trying to avoid proceedings at all. When proceedings are issued, the statements of case (formerly pleadings) will now require more detail than before (and see “statements of truth” ) below. All this will “front-load” the costs. The intention is more, and earlier, settlements, achieving an overall reduction in costs.

Statements of truth

The statements of case are to be verified by a “statement of truth” - a statement by or on behalf of the party that all of the facts stated are believed by the party to be true. Other documents requiring statements of truth include witness statements (which will largely replace affidavits) and expert reports.

Disclosure of documents

Discovery was identified as one of the areas most responsible for the cost and delays of litigation. As a result it has been simplified. It is now known as “disclosure”, and is no longer automatic. The Court will, however, normally order “standard disclosure” which will require a party to disclose only:

• the documents on which a party intends to rely; and
• the documents which adversely affect his own case or that of another party, or support another party’s case;

much narrower than before.

Each party must only make a “reasonable search” proportionate to the number of documents involved, the nature and complexity of the proceedings, the ease and expense of their retrieval and the significance of any documents which are likely to be located.

Disclosure will still take place by exchanging lists of documents. The list must be accompanied with a “disclosure statement” signed by the party (not his solicitor), setting out the extent of the search that has been made, certifying that he understands his duty to disclose documents and that, to the best of his knowledge, he has carried out that duty. The disclosure statement must be signed by an “appropriate person”, who is likely to also be the person to sign the statement of truth on the statement of case. Ideally, therefore it will be a person with first-hand knowledge of the facts and who possesses sufficient seniority to determine and control strategy and tactics.

Rules relating to privilege and inspection and to applications for further disclosure continue to apply.

Costs

The court’s discretion in awarding costs is increased. While the successful party’s recovery remains the starting point, many other factors are to be taken into account, including the conduct of the parties, before and during the proceedings. However, where a party is awarded its costs at hearings during the course of the action, it is likely that these will be fixed by the court and payable immediately, rather than at the end of the case as before.

Summary judgement

As previously, it is possible to apply for summary judgment at an early stage in the proceedings. However, it is easier to succeed. It is only necessary to show that “the defendant has no real prospect of successfully defending the claim or issue and there is no other reason why the case or issue should be disposed of at a trial”. A defendant may apply for summary judgment of the whole or part of a claim against it, on the same grounds; and in conjunction with, or instead of, an application to strike out the claim.

Part 36 offers/Payments into court

The provisions in relation to payments into court and offers to settle by defendants remain much as they were under the previous rules, the idea being to give an incentive to the parties to settle early in the proceedings. However, the claimant may now say, before or after starting proceedings (in a “Part 36 offer”) the terms on which he would settle. If the defendant refuses the offer, and at trial the claimant is awarded more than he offered, the claimant will be entitled to higher interest (up to 10% above base rate) on all or any part of the money awarded, and possibly to costs calculated on an indemnity basis.

Experts

To emphasise the need for experts to be impartial the rules state that any expert has a primary and overriding duty to the Court not to the person instructing or paying him. Further, in general the Court wishes to encourage the use of a single expert. However, it is believed that the Patents Court will continue as before with both parties being allowed to introduce experts.

The procedure for using an expert will be much as it is now, but the report will be to the Court. Experts must also disclose the substance of all material instructions that they receive which form the basis of their report; and may be cross-examined on these instructions. To some extent, therefore, legal professional privilege has been eroded in this area, and caution must therefore be exercised when instructing experts. The expert may himself apply to the Court for directions should he so wish.

Summary

The new changes following Woolf do represent substantial change; although perhaps less so in the Patents Court than elsewhere. The critical questions will be the willingness of the judge to exercise their powers, and the ability of the new system to keep proper track of all the cases. As to the former, we do not think that the Patents Judges will be unwilling! As to the system, we can only wait and see.