First of all, we should thank the Experts Authors and the Rules Committee for their efforts and their thorough, detailed and high calibre work.
The purpose of this speech is not to exhaustively analyse and interpret the text of the proposed Civil Procedure Rules. The interpretation will be done at the appropriate time, by the Courts, in implementing the new Rules. The purpose of my speech is to provide an initial indication of how Judges in the Courts of First Instance, who will be called upon to implement the new Rules, are likely to be impacted in the discharge of their duties.
While reviewing the proposed Civil Procedure Rules, it becomes immediately clear that Judges in the Courts of First Instance will be directly affected at many levels in their daily judicial tasks. The philosophy embedded in the new Rules is completely different to that of the current ones. The Judge will no longer be the arbiter in a process driven by the parties. Rather, the Judge will become an active player and the main driver in the process and acquire the power to ensure compliance with his/her directions and orders, in many instances, through the imposition of sanctions on the parties.
Part 1 of the proposed Rules establishes their Overriding Objective. Rule 1.2.1 specifies that:
1.2. Overriding Objective
(1) The Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
The aforementioned provision succinctly sets out the philosophy of the proposed Rules. The Rules that follow lay out provisions aimed at providing Judges with a number of important tools to succeed in bringing about a speedy and effective civil court process.
I mention, some of the radical changes introduced by the proposed Rules.
- The Court has the power where it considers appropriate, to issue an order on its own initiative.
- The Pre-Action Protocols are established in Section II of Part 3, the non-compliance with which may penalise the party responsible, including the payment of the costs of the proceedings.
- Parts 28-30 of the proposed Rules categorise cases in “small claims” and “standard claims”. Small claims are defined in Part 28 as claims of a value up to €10.000,00 and standard claims are defined as claims of a value exceeding €10.000,00. However, the Court may at any time order that a claim be tried as a small or standard claim irrespective of the value of the claim amount, if in the opinion of the Court the circumstances of the case so allow, always aiming to further the Overriding Objective.
- The case management conference is established, which is intended to clarify the determination of the factual differences between the parties. The role of the Court of Justice is essential since at this stage, in accordance with Regulation 30.2.2, the Court gives detailed instructions on the subsequent conduct of judicial proceedings.
- In furthering the Overriding Objective, the Court may issue procedural directions but, if it considers that it is appropriate, may also encourage the parties to use alternative dispute resolution procedure. The parties are also encouraged to settle their dispute through the mechanism of Part 35 or the Proposed Rules, under the heading “Offers to Settle”, which also provides for cost consequences if an offer to settle is unjustifiably rejected.
- The various ways of instigating legal action are abolished (writ of summons, originating applications, petitions etc) and a unified claim form is introduced. The content of pleadings is verified by a statement of truth, to the effect that the party submitting the pleading believes the facts stated therein to be true. The contents of any other document that will be filed pursuant to any direction or order issued by the Court must also be verified by a statement of truth. Furthermore, the pleadings verified by a statement of truth may be used as evidence in certain intermediate proceedings, thus eliminating the need for affidavits.
- Part 8 of the proposed Rules significantly sets out the circumstances in which the trial may be conducted on the basis in part of written evidence or no evidence at all.
I have indicatively mentioned above some of the provisions of the proposed Rules to demonstrate the wide powers they afford to the Court, to manage both the cases before it and judicial time. This is an entirely different philosophy than under the current Civil Procedure Rules. Of course, currently Rule 30 does afford some powers to the Court to manage the process but not to the extent of the proposed Rules. In addition, the proposed forms, pleadings, pre-trial and interim applications, radically change the current regime. It would not be an exaggeration to say that we should forget most of what we now know about civil procedure as the proposed Rules introduce an entirely different basis and philosophy.
Like all big changes, the proposed radical amendments to the Civil Procedure Rules, will inevitably encounter problems at the initial stages. It is expected that differences in the interpretation of the provisions of the new Rules will transpire. As is currently the case, English case law may provide helpful guidance in this respect since the proposed new Rules follow the evolution of English Civil Procedure Rules, adjusted to the Cyprus system.
In my opinion, most problems will result from the adjustment to the philosophy of all factors in the civil trial, Judges included. Judges in the Courts of First Instance will be the first to implement the new system and it is necessary that they are extensively trained before its implementation so that they can confidently handle the new procedures and philosophy, especially as regards case management.
I note at this point the reference of the Honourable President of the Supreme Court in introducing the proposed Rules, who referenced the team of Experts in their report on the “Review of the Rules of Civil Procedure of Cyprus”, June 2018, who stressed that setting a realistic hearing date and conducting the hearing on consecutive dates, is of “paramount importance for correct case management and effective distribution of court resources. All players in the system must understand that hearing dates are not postponed or amended unless in truly exceptional circumstances and as a last option”.
Furthermore, aside from thorough knowledge of the new Rules and the powers they convey, Judges in the Courts of First Instance will have to study each case in their docket and the respective positions of the parties in order to be able to identify the points in dispute and take appropriate actions to further the Overriding Objective and handle each case fairly and in a cost-effective manner.
It will not be up to the Judge’s discretion to actively manage cases but rather a duty, and the Judge will not be able to leave the initiative of moving a case forward to the parties. The Judge, at his/her discretion and depending on the nature of each case, will be expected to use of the various procedural tools made available in order to advance the trial process.
In this context, the trial Judge should act decisively. He/she must not hesitate to give appropriate instructions and definitively decide on all pre-trial matters that may be raised, be it through interim applications of the parties or through his/her own initiative as deemed appropriate. The Judge should also not hesitate to encourage the parties to use alternative dispute resolutions methods and reach out of court settlement.
The Court will require the assistance of all other factors in the trial in order to achieve the Overriding Objective. However, the duty rests directly with the Judge to ensure the strict compliance with all directions and timetables he/she sets, and he/she should not hesitate to impose sanctions in the event of non-compliance so as to prevent delays. In the alternative the result would be more adjournments and further delays and the frustrations of the Overriding Objective.
At this point, I should convey the concern of the Judges’ Association about the volume of cases that Judges in Courts of First Instance have to deal with on a daily basis. Judges will not be able to exercise their duty to actively manage the trial process under the proposed Rules unless they are able to dedicate a considerable amount of time to each separate case on their docket. If Judges handle large numbers of already delayed cases, they will not be able to allocate the time required to actively manage cases under the new Rules. One possible solution to this issue might be to designate a certain number of Judges who will exclusively deal with cases that will proceed under the new regime.
An important development is the establishment of a permanent Rules Committee in which three Judges of Courts of First Instance – members of the Judges’ Association also participate. This Committee is mandated to address the problems that will inevitably arise in the implementation of the new Rules. The resources of the Judges’ Association will always be available to the Rules Committee to address any problems that may transpire.
In conclusion, I would like to mention that Judges in the Courts of First Instance are fully aware of our mission which is none other than the speedy, effective and fair, evidence based, resolution of all disputes brought before us. Compared to the current Civil Procedure Rules, the proposed Rules afford Judges a large array of new tools they can use to accomplish their mission. I am certain that Judges in the Courts of First Instance will raise to this new challenge, with the professional integrity and dedication that they have always demonstrated.
The Judges’ Association in cooperation with the Supreme Court and the permanent Rules Committee, as always, will be standing by to assist Judges in any manner required.
President of the Cyprus Judges Association