District Judge Christopher Tromans assesses whether the old civil procedure rules are really obsolete

The Civil Procedure Rules 1998 (CPR) rule 1.1(1) boldly state that they are a new procedural code.

They contain much material that did not appear in either the Rules of the Supreme Court (RSC) or the County Court Rules.

Rules expressed in mandatory terms must be strictly applied with no room for discretion.

If a rule gives the court discretion, the overriding objective must be applied (Totty v Snowden [2001] EWCA Civ 1415).

So far, all this seems straightforward.

However, soon after the implementation of the CPR, attempts were being made in strike-out cases to rely on pre-CPR authorities such as in Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426 CA in support of the argument that wholesale disregard of rules and orders should be treated as an abuse of process.

The Master of the Rolls, Lord Woolf, set the scene in Biguzzi v Rank Leisure Ltd [1999] 1 WLR 1926 CA by holding that where the CPR applies, earlier authorities on civil procedure were generally no longer of any relevance.

Judgment in that case was delivered only three months after implementation, but by December 1999 the position was becoming less clear.

In UCB Corporate Services Ltd v Halifax (SW) Ltd CA 6 December 1999 (unreported), Lord Justice Ward analysed the judgments in Biguzzi and concluded that, certainly in strike-out cases, the thought processes in pre-CPR authorities should not be completely thrown overboard.

Unfortunately, he did not expand on the wider application of that principle beyond strike-out cases in the post-CPR world.

The Court of Appeal returned to the issue in February 2000.

In Walsh v Misseldine [2000] All ER (D) 261, Lord Justice Brooke reviewed Biguzzi and UCB and cited with approval the judgment of Lord Justice May in Purdy v Cambran [1999] CPLR 843 that it is unnecessary and inappropriate to analyse the issue by reference to the rigid and overloaded structure which a large body of decisions under the former rules had constructed.

Matters rested there until September 2003, when a new and more general backward movement emerged in Omega Engineering Inc v Omega SA (2003) The Times 29 September ChD.

In this trademark action, an order provided that certain steps must be taken within 28 days of the order.

Nothing was said about a stay or extension of time in the event of an appeal.

The party subject to the order applied for permission to appeal and for a stay under CPR rule 3.1(2)(a).

The other party argued that the court was now functus officio and could not order either.

Mr Justice Pumfrey held that the present rule was derived from RSC order 3 rule 5.

When read together with order 45 the court formerly had power to extend time in these circumstances and it was unlikely that the CPR were intended to be narrower than the RSC.

Therefore, time was extended.

It remains to be seen whether there will be further movement back to the ancient regime.

District Judge Tromans sits at Plymouth Combined Court Centre