Part 79The Civil Procedure (Amendment No. 2) Rules 2008 (SI No.3085) were made on 2 December 2008 and came into force on 4 December 2008.

Bypassing the civil procedure rules committee entirely, these rules were made by the Lord Chancellor personally under powers conferred by the Counter-Terrorism Act 2008 and insert a new part 79 into the CPR. Frankly, there is not much here of interest to civil practitioners as such, though it will undoubtedly be of interest to civil libertarians.

The new CPR part 79 is necessarily detailed but will be of specialist interest only. Once again parliament has created a procedure which, used wisely, could be a useful tool in the fight against terrorism but which, used inappropriately, is an instrument for oppression.

The rest of this article concerns the Civil Procedure (Amendment No.3) Rules 2008 (SI No.3327) made on 29 December 2008 and which, together with amendments to various practice directions, came into force on 6 April 2009.

Fast-track limitFor claims issued on and after 6 April, the financial limit for allocation to the fast-track is increased from £15,000 to £25,000, and only claims exceeding £25,000 can be issued in the High Court.

The advocate’s fee is fixed for fast-track trials and, accordingly, a new fee for such cases in the £15,000 to £25,000 band is introduced at £1,650.

Filing of particulars of claimRule 7.3(3) is substituted as follows: ‘Where the claimant serves particulars of claim separately from the claim form in accordance with paragraph (1)(b), the claimant must, within seven days of service on the defendant, file a copy of the particulars except where: (a) paragraph 5.2(4) of the practice direction (production centre) supplementing part 7 applies; or (b) paragraph 6.4 of the practice direction (money claim online) supplementing part 7 applies.’ The change is minor. However, I remind practitioners of the importance of complying with this rule, for it is surprising how often the obvious need to file particulars of claim is overlooked.

Administrative courtHitherto cases in the Administrative Court have had to be issued and tried in London. From 6 April, see Practice Direction 54D – Administrative Court (Venue). This new PD concerns the place where a claim before the Administrative Court should be started and administered and the venue at which it will be tried. The claim form may be issued at the Royal Courts of Justice or (unless it is one of the excepted classes of claim) in the District Registry of the High Court at Birmingham, Cardiff, Leeds or Manchester. Claims will normally be determined on the circuit where issued. There is provision for urgent applications both during and outside normal court hours.

The PD needs to be studied before issuing, as practitioners are expected to issue at the appropriate venue. There are, of course, provisions for transfer.

Pre-action conductThere is a new freestanding PD concerning pre-action conduct replacing the existing PD protocols.

The new PD is important and needs to be read by everyone concerned in civil litigation no matter the specialism. It describes the conduct the court will normally expect of all prospective parties prior to the start of proceedings.

There are 10 specific pre-action protocols and prospective parties are expected to comply with the relevant pre-action protocol. Annex A to the new PD sets out detailed guidance on a pre-action procedure that is likely to satisfy the court in most circumstances where no pre-action protocol or other formal pre-action procedure applies. It is intended as a guide for parties, including parties without legal representation, in straightforward cases that are likely to be disputed. However, it is not intended to apply to debt claims where it is not disputed that the money is owed. Annex B sets out some specific requirements where the claimant is a business and the defendant is an individual. Annex C sets out guidance on instructing experts.

Section IV of the new PD contains requirements that apply to all cases, including those subject to a pre-action protocol. Hence the need for all civil litigators to be familiar with it.

Costs-capping ordersAt the request of the CPR committee, the Ministry of Justice carried out a consultation in 2008 on a proposal to insert rules on costs capping into the CPR. New rules 44.18 to 44.20 are now inserted into the CPR to provide for applications for costs-capping orders. However, there is nothing substantially new here, for the new rules amount to no more than a (nonetheless welcome) codification of existing case law. This is entirely appropriate at this point in time given that Lord Justice Jackson is currently undertaking a review of costs in civil cases and will report at the end of this year.

Amended rule 70.5 and new formsThe Employment Tribunal Act 1996 was amended by section 142 of the Tribunals Courts and Enforcement Act 2007 to enable compromises (as well as awards) in employment cases to be enforced using the court’s enforcement procedures. The new rule and the new forms effect this change.

Amended rule 55.10A mortgagee seeking possession has been required to give notice of the hearing to ‘the occupiers’ of the mortgaged property not less than 14 days before the hearing. If ‘the occupiers’ are not also the mortgagors (which is increasingly common given the current recession and the number of buy-to-let mortgages) this gives little time to the occupiers to seek advice. Accordingly, the new rule 55.10 requires notice to be given to ‘the occupiers’ by the claimant ‘within five days of receiving notification of the date of the hearing by the court’.

Practice Direction 52The one exception to the commencement date of 6 April is the new paragraph 17.4A inserted into PD 52 appeals. This concerns appeals in tribunal cases and it came into force on 9 January. Where the appellant wishes to appeal against a decision of the Administrative Appeals Chamber of the Upper Tribunal, the appellant’s notice must be filed within 42 days of the date on which the Upper Tribunal’s decision on permission to appeal to the Court of Appeal is given. In the case of any other chamber of the Upper Tribunal, the appellant’s notice must be filed within 28 days.

District Judge Hill sits at Scarborough County Court. He is a member of the Civil Procedure Rule Committee and visiting Professor of Law at Leeds Metropolitan University