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New court rules mean there are no easy answers on procedure

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legal matters

Those who practised regularly in the High Court, used to keep at their elbow a multi-volume text which contained all the rules of the Supreme Court. Its proper name was The Supreme Court Practice but it took its popular name from its smart white binding and was always known as 'the White Book'.

For some the White Book was something of a nightmare, with more than 100 rules of procedure, some written in fairly arcane language, followed by closely typed explanatory notes and citations. For the student or irregular High Court goer, finding what you wanted could be daunting. One testing question we used to ask aspirant barristers at their pupillage interviews was what changes they would make to the White Book, hoping that they would demonstrate their grasp of procedure by suggesting much- needed improvements. Instead they usually said that the index was hopeless.

The last edition of the White Book came in three bound volumes, including index, and cost a hefty £600. Thanks to Lord Woolf and the Crown Prosecution Rules (cpr) I might as well bin mine.

On the one hand you can see the attraction of sweeping away all the ancient verbiage and hundreds of years of footnotes. The cpr with their clean crisp language and no historical baggage, have a lot to recommend them, superficially. The trouble is that some of the cpr are completely new to the law: requirements that the court 'ensure that the parties are on an equal footing' and 'restrict expert evidence to that which is reasonably required to resolve the proceedings' were unknown this time last year. So when the lawyers are asked to explain what they mean, they don't know (not uncommon) and have no way of finding out (unheard of).

In the past it may have meant an unhappy afternoon trawling through the index, puzzling over the rules and squinting at the footnotes of the White Book, but the chances were that you would have found the answer. Now you are on your own. Such uncertainty is undesirable. The producers of the cpr readily acknowledge that the accompanying Practice Directions will develop as the cpr are tested in the courts. Within time the cpr will become as annotated as the old rules. In the meantime, however, clients embarking upon litigation are venturing into uncharted waters, unsure how their particular case will be dealt with.

How, for example, does the court ensure that the parties are on an equal footing? In the recent case of Maltez v Lewis, the claimant claimed breach of copyright and instructed a junior barrister with seven years post-qualification experience to obtain an injunction restraining the defendants from copying and distributing the claimant's films and photographs. The defendants denied that the claimant had copyright in the material and instructed a Queen's Counsel to defend the claim. The claimant called foul and, seeking to take advantage of the new 'level playing field' rule, applied to debar qcs from acting in the case.

The judge said that however radical the cpr were they did not remove the parties' fundamental right to their choice of legal representation. If they did, the court could be bombarded by applications, issued tactically, to remove their opponents' established legal advisers. Furthermore, it would be undesirable if the court were obliged to assess the ability of the parties' legal representation and require them to change if they did not pass muster. He went on to give some guidance as to how the court might realign the playing field.

If one party's solicitors were experienced and expensive, whilst the other party instructed a small and inexperienced firm, the court could give the smaller firm more time to do some of the time-consuming and difficult tasks, such as discovery. The swanky firm might even draw the short straw and be given the job of preparing, paginating and photocopying the documents required for the trial.

We can do little more than await further judicial guidance on the numerous unanswered questions posed by the cpr: that, and look at the White Book with nostalgic affection. Kim Franklin

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