e Superior Court of Justice has recently made significant changes to the civil rules of procedure which govern a civil lawsuit as it proceeds through the court system to trial. The changes are the most dramatic since the rules of procedure were fundamentally revamped 25 years ago. The main focus of the changes is to reduce the high costs of litigation.
What now governs all of the rules is the rule of proportionality. It states that “[i]n applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.” This is an important change. It mandates that litigation should be conducted in a manner that takes into account what is at stake in the litigation. For example, a court has always exercised its discretion when ordering that the successful party be reimbursed by the unsuccessful party for lawyer’s fees and out-of-pocket expenses (“legal costs”). As a general rule, you never recover all of your legal costs in a lawsuit but, in the past, you could expect about 50% reimbursement. With the new rule on proportionality, a court will likely approach the costs issue differently. If the lawsuit issues are straightforward and the amount involved is $100,000 but you spend $50,000 on legal costs (which is easy to do), it is doubtful that you will be awarded $25,000 in costs as the successful party because the legal costs you incurred are not proportionate to what was involved in the litigation. The proportionality rule is telling litigants, and their advocates, to spend less when less is at stake.
The rule will have a dramatic effect on pre-trial disclosure. A litigant is entitled to an oral examination for discovery of all adverse parties prior to trial in order to find out, that is, to discover what the adverse parties’ evidence will be a trial. In the past, this stage of the litigation process has been much blamed for the high costs of litigation because of the endless hours spent on examinations. Now, there will be an actual time limit on examinations. Under the new rules, each party is limited to seven hours of examination regardless of the number of adverse parties being examined. The parties may agree to more hours but, if there is no agreement, the party wanting more time must seek permission from the court. When considering permission, the court will look at factors, such as the amount involved, the financial position of the each party, and the amount of time that would be reasonable for such an examination.