I repeat my intention to write a Guide to the procedural rules, whatever they may turn out to be. With the possible exception of the current ones, which I'm afraid are too nebulous for me to say anything useful.
And I'd also add that I don't believe that the Procedural Rules as originally drafted are complicated. They describe a relatively simple process in which:
[list:23ovx851]A claims, in writing that B has done something wrong and asks the court to do something about it.
B replies, in writing, telling his /her side of the story.
Both sides have to show their cards, so to speak, by telling the other what evidence they have and what their witnesses will say.
A hearing occurs
The Court gives judgment
Either side as the opportunity to appeal[/list:u:23ovx851]
Now, there are undoubtedly a few twiddly bits, but I suspect that most of these are things people would actually like to have, such as:
[list:23ovx851]Legal privilege, so that your conversations with your lawyer are confidential
The ability to strike out claims as vexatious, so certain kinds of griefing can be avoided
The ability to settle claims and have an agreed order.
]e.t.c.[/list:u:23ovx851]
Having said that, the Code, as drafted isn't very accessible. It describes things at length and uses very precise language. I think this is important, because it helps avoid confusion, which is a particular problem for us. By way of example, in my own principle court, the UK Employment Tribunals, doesn't describe what happens during a hearing. It just says a hearing will take place. This works because everybody appearing there knows what a English hearing looks like and expects there to be witnesses, cross-examination, submissions, e.t.c in a certain way. It wouldn't work without that common ground - which we obviously don't have here as a result of the international nature of the community.
The solution to that, seems to me to be what Ash suggests, have a Guide to the procedure which sets them out simply and gives some advice on what to do, but to have the formal procedures precise and complete.
The current rules, seem to me, to be fraught with problems. The idea that each trial should begin with creating a wholly new set of procedures seems to me fatally flawed.
Firstly, it is a waste of time in many simple cases, which really don't warrant a preliminary hearing to spend time drafting a set of rules of procedures. Even if the case is a complex one, I'd have said its still a waste of time reinventing the wheel each time.
Secondly, almost inevitably, something is going to be missed in the original attempt to draft the procedures. In many cases (even most cases), half way in somebody is going to say "But I want to do X!" or "But you can't do Y!" where the rules they've written simply don't apply. At which point they must either agree new rules or the Judge must impose some. The former seems difficult, given that presumably whatever one party wants to do will advantage them over their opponent. The latter has its own problems, most particularly that in one sense it leads to there being an overall procedure - what the Judge wants to do - which neither party is told before the hearing begins.
Thirdly, it seem wide open to abuse. Any party wishing to obstruct the process can be obstreperous over the most minor point, then, if the Judge rules against him / her, can seek to appeal the decision.
Fourthly, it is almost wholly unpredictable before litigation begins. The only sensible answer to event the most simple question, such as "I believe that Z as a chat transcript, can I call him as a witness? And what if he's reluctant to come?" is going to depend on what is decided in the preliminary stage.
Fifthly, in practice it gives far too much power to the individual Judge who can set the procedure. And this might not be against the wishes of the parties - at least initially. Two litigants in person might well say "We don't want to design a procedure, please just give us what you think sensible". Even where both sides do want to design the procedure themselves, in the event of dispute the judge will decide.
Sixly, it is almost impossible to fine tune. For example, a number of people have criticised the rules on costs in the original rules. These could have been easily changed by the RA by amending those segments. Similarly, I assume, over time the Judiciary itself would have been able to change things, as it became apparent what worked and what didn't. I don't quite see how that is going to work under a Code of Procedure which envisages the whole thing being up for grabs at the start of each hearing.
So essentially I think there are actually 3 positions, Original Rules, Simple Rules and Current Rules. I don't think the Current Rules are at all Simple - but, even if they are, they are not at all the same thing as a brief set of simple rules which will apply in all cases. They're far, far more radical than that. Indeed the more I think about them the more I'm astonished that such a truly radical proposal was proposed and ratified in such haste.
Similarly, I don't think that the Original Rules are actually all that complex on examination, but we may never know without attempting to use them.
