In the first of two articles, Michael Walker looks at the changes brought into effect by the 43rd and 44th updates to the Civil Procedure Rules 1998




Just in case anyone wonders what happened to the 43rd update of the Civil Procedure Rules (CPR), it contained just one amendment, thanks to the intervention of the Law Society and the declaration it procured from Mr Justice Keith.



The rule change provides that rule 5.4, as it was prior to 2 October 2006, relating to the access to court documents by non-parties, continues to apply after that date in respect of statements of case filed before

2 October. The more liberal access regime introduced by the 42nd update will only apply to statements of case filed on or after 2 October last year.



Turning to the 44th update, all but one of the changes come into effect on 6 April 2007. The exception relates to practice direction 55B, which, as all solicitors for landlords know, relates to the issuing of possession claims online. In short, the information that needs to be keyed in when a possession claim is issued electronically is considerably reduced, providing that all the prescribed information about the tenant's or mortgagor's arrears are served on the defendant separately no more than seven days after the date of issue. That came into effect on 1 January 2007 (refer to the practice direction for the full text at paragraphs 6.3A-6.3C).



Much confusion has centred on the differences between admissions made before the issue of proceedings and those made after issue, and between admissions made in fast-track proceedings and those in the multi-track. All that now changes, but only in relation to admissions made on or after

6 April.



Rule 14.1 will now relate just to admissions made after the commencement of proceedings, with rule 14.1(5) saying that the permission of the court is required to amend or withdraw any such admission. Under what circumstances would the court give its permission? The answer lies in paragraph 7 of new practice direction 14, which says that the court will have regard to all the circumstances of the case, including the grounds on which the applicant seeks to withdraw the admission, the conduct of the parties (including any conduct which led the party making the admission to seek to withdraw it), the prejudice that may be caused to any person if the admission is withdrawn, the interests of the administration of justice, and so on.



Wholly new is a rule 14.1A relating to admissions made before the commencement of proceedings. The new rule only applies to admissions made after 6 April 2007 and only in proceedings to which the personal injury, clinical disputes or diseases and illness claims pre-action protocols apply. (The pre-action protocol for personal injury claims is amended to remove the distinction between fast-track and multi-track claims so far as pre-issue admissions are concerned.)



A defendant will be able to give notice in writing admitting the truth of any part, or indeed the whole, of the case before proceedings are issued. Where the new rule 14.1A applies, a defendant may, by giving notice in writing, withdraw a pre-issue admission, either before the commencement of proceedings if the person to whom the admission was made agrees or after commencement of proceedings if either all parties consent or if the court grants its permission. Paragraph 7 of practice direction 14 will again apply. After commencement of proceedings, a claimant may apply for judgment based on the pre-issue admission; equally, the party who made the pre-issue admission may apply to withdraw it.



Whether any of this results in a significant change in practice on the part of insurers remains to be seen.



Does anyone fully understand the logic behind, and operation of, part 8 of the CPR? Even district judges have been known at times to wring their hands in despair. For those with long memories, a major part of the problem was the realisation, quite close to implementation of the CPR on 26 April 1999, that there was a gap in the rules that needed to be filled, and that hole was temporarily plugged by practice direction 8B. Confusion has reigned ever since.



But now, thanks to some inspired thinking on the part of the Civil Procedure Rules Committee, all becomes clear. Both the existing practice direction 8 and direction 8B go, in their entirety. In their places, we have the one new practice direction 8 substituted instead.



Paragraph 3 in the new practice direction 8 makes it much clearer when the part 8 procedure should be used, and there are equally clear rules as to how it should be operated; indeed, direction 8 must be compulsory reading for any litigator. A new section B to the direction sets out where, in particular instances, the part 8 procedure must be used; section C contains special provisions relating to some of the more esoteric section B claims which might come before the courts.



In effect, part 8 should only be used on or after 6 April where the court's decision is sought on a question that is unlikely to involve a substantial dispute of fact, or a rule or practice direction requires or permits the use of the part 8 procedure. That includes claims by or against a child or patient, or claims for provisional damages, or cases where the new section B to practice direction 8 applies. Everything else will be a part 7 claim.



On the other hand, practice direction 7B has just got that little bit more difficult. Aficionados will recall that this deals with Consumer Credit Act claims. Several amendments have had to be introduced to deal with the Consumer Credit Act 2006, which itself introduces concepts such as 'unfair relationships' between creditors and debtors and the possibility, for instance, of a debtor or a surety seeking an order from the court in relation to that unfair relationship or for a credit agreement to be reopened as extortionate. No doubt it will be required bedtime reading for every Citizens Advice Bureau or debt adviser.



District Judge Walker sits at Wandsworth County Court