Perhaps the most surprising thing about the decision of the Court of Appeal in Qadar -v- Esure  EWCA Civ 1109 is the route that had to be taken to get to the result. The Court of Appeal added, to the rules, words that (it held) the Rules Committee had left out. (Also available on Bailli – here)
THE CASES ON APPEAL
The appeals related to the issue of whether fixed costs continued to apply when cases that had started in the RTA Portal were later allocated to the multi-track.
The Court of Appeal held that fixed costs no longer applied in these circumstances.
(1) A close analysis of the history of the rules demonstrated that it was never the intention that cases in the multi track should be subject to fixed costs.
(2) The court could put right obvious drafting errors. The Rules Committee had failed to implement the obvious intention of the Government and exclude multi track cases from the fixed costs regime.
(3) The best way to give effect to the intention was to add, to Part 45.39B, after the references to 45.29J
“… and for so long as the claim is not allocated to the multi track”.
Lord Justice Briggs gave the judgment of the court. He stated:-
In the Inco Europe case to which I referred at the beginning of this judgment, Lord Nicholls described the court’s jurisdiction to put right drafting errors in statutory provisions in the following terms, at 1 WLR 586, at 592C-H:
“It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross’s admirable opuscule, Statutory Interpretation , 3rd ed. (1995), pp. 93–105. He comments, at p. 103:
“In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.”
This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation: see per Lord Diplock in Jones v. Wrotham Park Settled Estates  A.C. 74 , 105–106. In the present case these three conditions are fulfilled. “
It may be said that the interpretative jurisdiction to put right obvious drafting errors in a statute is fortified by the difficulties which typically face Parliament in doing so, in relation to primary legislation, in the light of its heavy workload. The same difficulties do not affect the Rule Committee to any similar effect. It can, and regularly does, re-consider rules when invited to do so by the court, either to correct drafting errors or other infelicities which have been proved to cause procedural difficulty. Nonetheless it is almost invariably the case that corrections cannot be made with retrospective effect, so that parties in ongoing litigation who are adversely affected by the relevant error do not thereby obtain relief from their predicament.
In the present case the Rule Committee’s apparent failure to implement the continuing intention of the Government, in response to stakeholder concerns, to exclude multi-track cases from the fixed costs regime being enacted for cases leaving the RTA and EL/PL Protocols seems to me to satisfy all three of Lord Nicholls’ preconditions. The intended purpose of the fixed costs regime in this context was that it should apply as widely as possible (and therefore to cases allocated to the fast track, and to cases sent for quantification of damages at disposal hearings), but not to cases where there had been a judicial determination that they should continue in the multi-track. The intended restriction on the ambit of the fixed costs regime is clear, and the only reason for that restriction not being enacted in section IIIA of Part 45 appears to be inadvertence, rather than a deliberate decision by the Rule Committee to take a different course. Similarly the substance of the provision which the Rule Committee would have made, if it had taken steps to enact that restriction would have been to provide that, from the moment when a case was in fact allocated to the multi-track, the section IIIA fixed costs regime should cease to apply to that case.
By contrast, I do not consider that the Rule Committee would have carried back to a pre-allocation stage a policy to dis-apply fixed costs, merely because a claim properly started in the Protocols had grown in value beyond £25,000, or had become the subject of a pleaded defence of fraud or dishonesty. As I have said, it by no means follows that every such case would be inappropriate for management and determination in the fast track. To require the parties to guess, or the court to decide, whether a case which settled prior to allocation (to which therefore part A or the first column of part B of Table 6B would apply) was or was not subject to fixed costs would introduce a damaging and unnecessary degree of uncertainty into a scheme which depends upon its predictability for its contribution towards the proportionate, speedy and effective disposal of civil proceedings.
“…and for so long as the claim is not allocated to the multi-track…”