Promoting Proportionate Justice: A Study of Case Management and Proportionality
This work examines the principles of proportionality and active case management that were introduced by the Civil Procedure Rules 1998 (the ‘CPR’). The aim is to consider precisely what ‘proportionality’ means in a case management context, how it has been applied to date, and whether there is any need or scope for improvement.
Consideration is given to proportionality as a general principle of law. This establishes a conceptual background against which to consider the principle in an English procedural context. After reviewing the introduction and development of both proportionality and active case management in English civil procedure, case management proportionality is placed against that background. In doing so, and in identifying similarities and differences, the principle is given greater definition. The heart of this work is a review of case law dealing with case management issues. This identifies inconsistencies in both how proportionality has been applied and the extent to which courts have taken on the management role required of them by the CPR. It also highlights the fact that litigants and their legal representatives retain a crucial role in ensuring that litigation proceeds in a proportionate manner, but that in many instances that role is not fulfilled. The review also provides a wealth of information that may assist in tackling these issues and inconsistencies.
That information, together with points drawn from a review of management techniques in other common law jurisdictions, is taken forward into some proposals for the improvement of case management proportionality. Those proposals fall into two general categories: the publication of guidance and amendments to the CPR. The aim is to provide practical suggestions that may have a tangible impact on improving the consistency with which case management proportionality is applied, and thus improving the provision of access to proportionate justice.