Observing Justice by Adhering to the Civil Procedure Rules as Written: Paralel Routs Ltd v Fedotov [2019] EWHC 2656 (Ch)

To say that Civil Procedure Rules and Practice Directions are always interpreted strictly by judges, would be factually inaccurate.

A recent example of the Courts’ flexible approach towards non-compliance with procedural requirements transpired in Mark v Universal Coatings & Services Limited & Others [2018] EWHC 3206, a case which featured in our article: ‘A Barrister’s Comment on the Issue of Whether Service of Particulars of Claim Always Requires Concurrent Service of a Medical Report?’

At paragraph 54 of Mr. Justice Spencer’s judgment, regarding the duty expressly conferred by Practice Direction (PD) 16 para 4.3, he construed that:

 ‘... the use of the word “must” indicating ... a mandatory provision ... this is a characteristic of the drafting of the CPR and the word “must” is used liberally ... to imply the need to apply for relief from sanction ... where a rule or practice direction contains such wording would ...  result in the courts being inundated with applications quite unnecessarily’.

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Contrary to a literal reading of PD 16, therefore, the High Court Judge was adamant that there should be no implied sanction for failing to serve a medical report with the Particulars of Claim. The modal verb, ‘must’, implying certainty and obligation, was effectively replaced with the modal verb, ‘may’, implying doubt and conditionality.

This judicial determination was, at least in part, driven by Spencer J’s subjective forecast on the likely impact of his decision on claims handling and access to justice.

With the best will in the world, however, is it right for judges to question the degree of justice delivered by applying our enshrined procedural code word-for-word?

Weeks ago, judgment was handed down in the case of Paralel Routs Ltd v Fedotov [2019] EWHC 2656 (Ch), which goes some way towards answering the question, above.

His Honour Judge Matthews, remarked that ‘judges are not superhuman, and do not possess supernatural powers’ and went on to comment that:

‘... it is sometimes thought that the English procedural rules are too time-consuming and expensive to operate, without any corresponding advantage in terms of justice. But this is a case which amply illustrates the importance of procedural rules in ensuring a fair trial and the best opportunity to deliver a just result between the parties’.

Paralel Routs clarifies that the intention behind the Civil Procedure Rules and Practice Directions is to deliver justice for both claimant and defendant parties. Thus, it emphasises the need for judges to ensure that they do not tip the balance of justice too far in favour of either party where the purpose of the language used is both clear and obvious.

Full text judgment can be accessed here.