Michael Walker continues his look at the changes coming into effect next month in the 44th update to the Civil Procedure Rules 1998


There is not a civil litigator in the country who is not familiar with the concept of payments into court. They have existed since time immemorial.



The advantages are obvious. A defendant can show the claimant the colour of his money, and the claimant knows he can settle his case, assured that the sum agreed by way of settlement is already 'cash in the bank'.



So it will come as a considerable surprise to many to wake up on 6 April and discover that payments into court have been abolished. Any defendant wishing to settle a claim with a money offer will simply make a written offer to settle. If the claimant accepts the offer, then the sum involved must be paid within 14 days. Failure to do so will entitle the claimant to enter judgment (see rule 36.11(7)) for the unpaid sum, and the defender will lose the cost protection afforded by part 36.



Of course, there are winners in this situation as well &150; with most of them being practitioners in the personal injury field. What can be more frustrating than settling a case, and then having to wait several weeks, if not longer, for the money that has been sitting in court for some while to be paid out to the successful claimant? Insurance companies always say that it takes up to four weeks to arrange for a payment to be made. But at least that ought to be quicker than the time it takes to have money paid out of court, and a lot less frustrating.



Needless to say, all of this necessitates a complete rewriting of parts 36 and 37 and the two practice directions (PDs) that supplement them. Part 36 is now entitled simply 'Offers to settle'. There are also consequential changes to parts 3, 27, 44, 47 and 52 - every update has to have its changes to part 52, dealing with appeals.



One to watch in appeals is the costs consequences of a part 36 offer. They only apply to the proceedings at first instance; they do not apply to any appeal proceedings. Therefore, a fresh part 36 offer needs to be made in the appeal proceedings themselves.



An insurer's solicitor wishing to give the claimant's solicitor a resounding headache might wish to consider the option of making a payment into court just before the 6 April cut-off date. But, if he does so, the costs consequences after payment in will be the same despite the rule changes on 6 April. The position is largely preserved by a series of transitional arrangements that will not themselves appear in the CPR, but which can be found at rule 7 to the Civil Procedure (Amendment No 3) Rules 2006, statutory instrument 2006/3435.



Crucially, and helpfully, the 44th update introduces PD 36B, which explains how the transitional arrangements will work. The PD deals with offers and payments made before 6 April, the situations where permission of the court is required, and what happens when payments into court, or pre-issue offers, are made before the operative date. That statutory instrument is also worth downloading for the texts of the new parts 36 and 37, to be found at schedules 1 and 2.



Another piece of consequential tidying up has brought in a new rule 41.3A. Where a claim includes claims arising under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934, and a single sum is ordered or agreed to be paid in satisfaction of the claims, the court will apportion the money between the different claims or, where necessary, between the various persons entitled to it.



Just how popular this particular new remedy will be remains to be seen, but after rule 65.30 there is to be a new section VI introduced into part 65, dealing with drinking banning orders under the Violent Crime Reduction Act 2006. The order may be applied for in any proceedings in a county court, regardless of who is the claimant and who is the defendant. That could be an unexpected outcome to, say, a tenant's claim for damages following breaches of the local housing authority's repairing obligations. The text of rules 65.31-65.65.36 can be found at schedule 3 to statutory instrument 2006/3435. District judges will have the jurisdiction to make the necessary orders (see PD 2B, paragraph 8.1A(2)).



However, what should prove popular is the extension of the pilot scheme for telephone hearings to all county court and district registries. The pilot scheme is effectively now at an end, and every county court has to offer the possibility of telephone hearings in accordance with a revised PD 23, paragraph 6. Paragraph 6.2 presumes that any allocation hearing, listing hearing, interim application, case management conference or pre-trial review with a time estimate of less than one hour will be conducted by telephone, unless the court otherwise orders. The only exceptions are where applications are made without notice, or where all the parties are unrepresented, or where more than four parties wish to make representations at the hearing. Concerns still exist as to whether either the service providers or the county courts themselves can cope with this considerable shift towards telephone hearings. Only time will tell.



Getting a complete makeover is the pre-action protocol for construction and engineering disputes, which is revised in its entirety. One of the refreshing amendments is a specific reference to proportionality and the observation that the protocol must not be used as a tactical device to secure advantage for one party or to generate unnecessary costs, particularly in lower-value claims. In all cases, so it says, the costs incurred at the protocol stage should be proportionate to the complexity of the case and the amount of money which is at stake.



One important change manages to get only two, very brief, mentions at PDs 34 and 52. As a result of the splitting up of the Wales and Chester Circuit, the Chester part slips into the Northern Circuit; the Wales Circuit is born. Chester ceases to be an appeal centre for the new circuit; that responsibility under paragraph 8.2 of PD 52 will now fall just to Cardiff and Swansea.



District Judge Walker sits at Wandsworth County Court