Proposal for Welsh Civil Procedure Rules?

The Civil Procedure Rules Committee (CPRC) is considering the development of Welsh civil procedure rules.

In its meeting on 9 October 2015, the CPRC announced the establishment of a subcommittee to address this issue, which would include a District Judge based in Wales and, if possible, a Welsh speaking High Court Judge.  According to the meeting minutes, Lord Justice Richards, the CPRC Chair, reported that there was “a gradual departure from law covering England and Wales and that the likelihood of different sets of procedural rules for England and Wales was increasing”.

Areas for reform

A new set of civil procedural rules has the potential to secure better quality decision-making for Wales by enabling certain cases to be tried in Welsh courts with Welsh judges (i.e. practise makes perfect), and greater access to justice through increasing the number of hearings in Wales. This could also be a prime opportunity to facilitate the use of the Welsh language within the judicial system.

The following areas within the existing Civil Procedure Rules appear to be the prime candidates for reform: filing of originating process; jurisdiction in claims for judicial review of the decisions of Welsh public bodies; and routes of appeal from Welsh Courts.

Currently, proceedings for judicial review should be conducted in the region with which the claimant has the closest connection. This is subject to a number of considerations contained in Practice Direction 54D, including whether the claim raises devolution issues.

However, in R (Deepdock Ltd) v The Welsh Ministers [2007] EWHC 3347 the High Court confirmed that, barring a good reason to the contrary, cases challenging decisions made by Welsh Ministers in devolved areas should be tried in Wales.

Turning to appeal routes, in Condron v The National Assembly for Wales [2006] EWCA Civ 1573 Richards LJ found it to be “a matter of considerable regret” that the case had not been listed appropriately as it “cried out to be heard in Wales”.

In their most recent meeting of 4 December 2015, the CPRC approved amendments to Practice Direction 52D, inserting a new procedure for appeals to the High Court under certain enactments relating to Wales only. Richards LJ noted that there are currently no specific procedural provisions governing Welsh statutory appeals and that these changes aimed to “plug this procedural gap”. The amendments are expected to come into force in April 2016.

New Debate?

The debate about separating the English and Welsh legal jurisdiction is not new: indeed it began with the Government of Wales Act 1998. However, the question regarding separate procedural rules is relatively novel and goes hand in hand with the debate about the appropriate channels for challenging decisions made by Welsh public bodies.

If Welsh law continues on a path of divergence from English law then it would be sensible to codify the practices which are merely encouraged by the courts presently. But whether there is a real need for a distinct set of Welsh Procedure Rules is up for debate.