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The concept of "proportionality" is central to the Woolf reforms. It is therefore
significant (and perhaps a little surprising) that these basic questions as to how that
concept works in this important context remained outstanding until Lownds was
decided in March 2002, almost 3 years after the CPR first came into operation. Given
the doubts, there will have been unavoidable inconsistency in judges' decisions in
earlier, similar cases. Plainly, judicial guidance is an essential aspect of establishing
the new code and illustrating how the broad concepts it employs should operate. This
inexorably leads to the development of a procedural jurisprudence.
The aim of making the rules more understandable to unrepresented litigants by
eliminating the use of legal Latin and replacing archaic expressions with more modern
ones may have had some success in England and Wales. However, in the Hong Kong
context, where the vast majority of unrepresented litigants refer to the Chinese rather
than the English version of the RHC, this benefit does not accrue from adopting the
CPR. Instead, as indicated above, simplifying and modernising the English version
would require a fresh Chinese translation, but with little return to justify such an
investment of labour. While it is possible that the more modern English of the CPR
would be easier to translate and might result in rules in Chinese which may be a little
easier to understand, the problems of Latinisms and archaic English do not arise in
relation to the Chinese version of the RHC in its present form. Procedural concepts
have been given functional translations, that is, translations in contemporary Chinese
indicating the purpose or effect of the procedure in question, requiring no
modernisation.
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