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Tackling the ‘enemies of justice’

supreme court
The supreme court

Masood Ahmed, Associate Professor at the School of Law of the University of Leicester, who was in Cyprus last month, answers questions on the updated Civil Procedure Rules that have been introduced in Cyprus in order to help tackle the slow administration of justice. Ahmed was one of the speakers at the University of Nicosia’s Procedural Law Unit Annual Symposium of 2022. The general theme of the conference was “European Civil Procedure After Brexit: delays and need to speed-up, technology in justice and ADR”.

masood ahmet (002)
Masood Ahmed

The updated Civil Procedure Rules in Cyprus are based on the current CPR rules in England and Wales, drafted by a committee of experts led by Lord Dyson. Do you consider these rules to be a suitable basis for a reformed approach to the Cypriot system?
On the whole, yes, I do believe that the new rules are a suitable approach to the Cypriot system. The Civil Procedure Rule of England and Wales were introduced at a time when the three ‘enemies of justice’– costs, complexity and delays – were severely undermining access to justice. Although not all of those reforms were successful (e.g., costs have been a particular problem and led to the Jackson Reforms on Civil Litigation 2010), other aspects of the reforms have been successful, including giving alternative dispute resolution (ADR) a formal role within the civil justice system, and the introduction of judicial case management which was strengthened by appropriate sanctions. Another aspect of the Woolf Reforms which are undergoing further reform are the pre-action protocols which are a pre-litigation procedural framework which seek to govern the parties’ pre-court behaviour by encouraging the early disclosure of documents and engagement with ADR; if the matter cannot be settled, then the issues are narrowed for more efficient case management if proceedings are issued. All of these and other aspects of the reforms will assist the Cypriot civil justice system in better controlling the three enemies of justice and thereby increasing access to justice. Aside from these reforms, it will also be important for policy makers in Cyprus to consider the move towards digitisation, online reforms and the enhanced approach to ADR.

From drafting to implementing the revised CPRs, what should stakeholders have in mind in order for the transition to be successful?
It will be important for stakeholders (the profession, policy makers and the judiciary) to ensure that they are speaking and constructively working with each other and engaging in all aspects of the reforms – from drafting the rules to implementation. It will also be important that certain aspects of the reforms are subjected to pilot studies so that any particular problems or challenges are identified and remedied before that aspect of the reforms are fully implemented.

From your experience, what are the pros and costs of CPRs in England that we should also keep in mind here in Cyprus?
The CPR have a number of pros and costs:
They provide a unified procedural code which is underpinned by the overriding objective of dealing with cases justly and at proportionate costs. The courts and the parties must always have regard to the overriding objective and has, more recently, helped the courts to achieve a balance between doing justice and the principle of proportionality which has been working well especially after the Jackson Reforms to Civil Litigation Costs. It will therefore be important that the Cypriot judiciary take the same approach and that there is a clear understanding that the parties themselves have a duty to assist the court in this regard.
Controlling costs/costs budgets – the courts are much more active in controlling the amount of costs being incurred by the parties, especially in multi-track cases and they have more likely to use their powers under the CPR to do this. One element of the Jackson Reforms which has had a mixed reception from the profession has been costs budgets which are used in complex and high value claims to control costs. Whatever side of the debate you take, it is clear that the courts have been able to use costs budgets to control costs from an early stage of the litigation and this has contributed to controlling costs.
ADR – As mentioned above, the Woolf Reforms gave ADR a formal position within the English civil justice system (it forms part of the overriding objective CPR1.4(2), CPR26.4, CPR3 (judicial early neutral evaluation) and can be taken into account on the issue of costs (CPR44)). The court are increasingly penalising parties which have been found to have unreasonably refused an invitation to engage with ADR (Halsey, PGF v OMSF, Thakkar v Patel). There is some inconsistencies however on the issue of compulsory ADR within the case law (e.g. Gore v Patel) and therefore it will be important for the Cypriot judiciary and policy makers to ensure that (a) the duty to engage with ADR is upheld, enforced and parties found to have unreasonably refused to engage with ADR are appropriately penalised in costs (b) that the issue of compulsory ADR does not become a distraction and that a consistent line is taken by policy makers and, more importantly, the judiciary. This latter point has caused inconsistencies in the English jurisprudence. The Civil Justice Council Report on Compulsory ADR (2021) should hopefully resolve those issues, but we still have the case of Halsey which continues to create tension – the Cypriot judiciary and policy makers should avoid a similar situation.

Is there any specific preparation or training the involved parties should be put through before and during the application of the updated rules?
Yes, I would recommend the following which has worked well in England:
Hold seminars for the profession at which the reforms are discussed and explained – this will allow the profession to raise any questions, be educated about the forthcoming reforms, and be prepared for the changes. It will also allow the reforms to be marketed and advertised well in advance of their implementation. These seminars should be led by the Cypriot senior judiciary.
Extra-judicial lectures – this will be important for the same reasons as for seminars. it will also demonstrate that the reforms are being led by the judiciary. I would highly recommend that lectures and seminars are delivered through the Procedural Law Unit of the University of Nicosia – this is an excellent well regarded research unit in Cyprus and is conducting important research in civil procedure and is led by Dr Nicolas Kyriakides who has an established reputation in civil procedure.
Work with academia – this will be important as the reforms are being implemented and for the future. Again, the work being done by Dr Nicolas Kyriakides and his team at the Procedural Law Unit at the University of Nicosia will be extremely important in this regard.
Pilot schemes for certain aspects of the reforms – pilot schemes will be important to test particular aspects of reforms (e.g., controlling costs), allowing time to embed and to identify and remedy any particular problems.

One of the main problems of the judicial system in Cyprus is the long delays in processing cases. The average time for a hearing to start in a civil case has been 7-8 years. A project to clear the old cases is under way. Do you believe that with the proposed rules this backlog problem could be mitigated?
Yes, they will help to deal with the backlog and delay. However, this will depend on ensuring that the judiciary are robust when case managing the cases and, in particular, are robust and consistent in exercising their power in sanctioning those parties which have defaulted in complying with court orders, rules and directions.

Overall, do you believe that the rules, if implemented correctly, could also improve, or worsen the overall quality of the decisions taken and therefore people’s overall perception of the country’s civil justice?
The rules will improve the decision-making process. It will allow the courts to take a more proportionate approach to civil justice and therefore allow precious court resources to be managed more efficiently which, as a consequence, will allow courts to focus on those cases which cannot settle, for example, to receive appropriate judicial attention.


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