Civil Litigation in the Commonwealth Caribbean: Preserving Continuity

Those who were in legal practice at the time of the seismic shifts affecting the rules of civil procedure in England and Wales and, almost simultaneously, in Commonwealth Caribbean jurisdictions in the late 1990s, will recall the startling dictum of Lord Woolf, architect of the new civil procedure regime, to the effect that, since the CPR was a ‘new procedural code’, judges should not “look over their shoulders” to the former Rules of the Supreme Court and the case law interpreting them, and that such case law was “generally irrelevant” in interpreting the new Rules (Biguzzi v Rank Leisure Pic [1999] 1 WLR 1926). At the same time, the introduction of the novel concept of the ‘overriding objective’, which the courts were enjoined to apply whenever they exercised any power or interpreted any of the new Rules, threatened to consign to history the doctrine of precedent in matters of civil procedure, replacing it with something akin to ‘palm tree justice’. In England and Wales, many judges applied Lord Woolf’s instruction with seemingly messianic zeal, so that citation of any civil procedure case decided before the CPR came into force in 1999 would be treated as a heresy and actively discouraged. In Charlesworth v Relay Roads Ltd [2001] 1 WLR 230, at 235, however, Neuberger J (now Lord Neuberger), two years after the advent of the CPR, took a commendably different approach, holding in this case that three well-established pre-CPR precedents dealing with late amendment of pleadings could “not be brushed aside”, since they had “a universal and timeless validity”.

In Caribbean jurisdictions, where Civil Procedure Rules modelled on the English Rules were brought into force at various times between 2000 and 2008, the judges have been much less inhibited in citing and following cases decided under the old Rules and, from the beginning, have taken the view that where the wording of a new Rule is similar to that of the old, any cases interpreting the old Rule could be regarded as being of at least persuasive authority in interpreting the new. For example, in a 2013 Barbados High Court case, Williams v Harding (Carilaw BB 2013 HC 12), Alleyne J said: “While it is important that the CPR are not hidebound by authorities relating to the old Rules, it does not follow that all such authorities are redundant. Decisions relating to provisions of the RSC may provide useful guidance where they interpret a Rule, the content and context of which is not dissimilar to a Rule in the CPR.”

Meanwhile, it may be that the English courts are moving, albeit more tentatively, in the same direction. According to one eminent authority, Stuart Sime, in ‘A Practical Approach to Civil Procedure’, 15th edition, para 3.20, the English courts have found it increasingly difficult to ignore pre-CPR case law in interpreting some of the new Rules, such as those concerning the substitution of parties after expiry of a limitation period, guidelines concerning orders of security for costs, and the circumstances in which a non-party may seek permission to appeal.

Finally, it is interesting to note that one of the declared policies of the framers of the Woolf Rules, namely the elimination of the need for voluminous case law interpreting the new Rules, has failed spectacularly, in the Caribbean at least, as there is already a vast and steadily growing body of case law on the CPR, including many authorities transplanted from the RSC era.