The most important forthcoming change to the Civil Procedure Rules (CPR) is the new part 6 on service (see [2008] Gazette, 18 September, 25]. This article considers other reforms.

Hitherto, a successful claimant represented by lawyers working free of charge, or pro bono, could not recover costs from the defendant, as he has incurred none. Thus the losing defendant was an unintended beneficiary. Section 194 of the Legal Services Act 2007 now enables courts to make costs orders in all civil (including family) cases where the successful party was represented (wholly or partly) by a pro bono lawyer.

Generally the ‘costs’ will be summarily assessed and will not exceed those that would have been paid if legal services had not been provided pro bono. Parts 43, 44 and 47 and the Costs Practice Direction are amended to give effect to section 194.

The costs paid by the unsuccessful party will be paid to the nominated charity, the Access to Justice Foundation (see [2008] Gazette, 11 September, 1 and this issue).

European claims and paymentsRegulation (EC) No 1896/2006 of the European Parliament and of the Council, introducing the European Order for Payment (EOP), comes into direct effect throughout the EU on 12 December 2008, as does the new part 78 of the CPR giving effect to it. The regulation itself, which includes all relevant forms, is included as an annex to the new PD78.

The intention is to promote swift and efficient recovery of uncontested money claims. Use of the regulation is optional. It applies only to cross-border cases. Enforcement of an EOP is streamlined, as the requirement for a declaration of enforceability and the possibility of opposing the judgment are abolished.

The procedure is intended to be very simple. A claim is made on the prescribed form and an EOP is issued and served. If no statement of opposition is sent to the court within 30 days of service, the court declares the order enforceable. If a statement of opposition is sent then the claimant asks either that the case ceases or that it be transferred to the national system as if it had not begun as an EOP application (and, thus, in England and Wales, would proceed under the CPR as an ordinary case).

Regulation (EC) No 861/2007 of the European Parliament and of the Council, establishing a European Small Claims Procedure, comes into direct effect on 1 January 2009, as do the relevant rules in the new part 78 giving effect to it.

The regulation is intended to improve access to justice by simplifying cross-border small claims in civil cases. These ‘small claims’ are limited to €2,000 (excluding interest and costs). The procedure is an optional alternative to that under the national law of the member state. Enforcement is governed by the law of the member state where the judgment is to be enforced. Part 78 is supplemented by PD78, which includes the full text of the regulation.

Mesothelioma compensationThe Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations 2008 have necessitated amendments to parts 36 and 40 and PD25B. They arise to remove a perceived anomaly whereby lump sum payments made under the Pneumoconiosis etc (Workers Compensation) Act 1979 were not being recovered from subsequent successful civil compensation claims. Accordingly, section 54 of the Child Maintenance and Other Payments Act 2008 inserted section 1A into the Social Security (Recovery of Benefits) Act 1997 and these regulations are made under the new section 1A.

The aim is to provide faster compensation to all people diagnosed with mesothelioma. The occupational link has been removed and all those with mesothelioma will be eligible for payment, irrespective of employment status, provided that they have not already received civil compensation for the same disease.

However, such payments will now be subject to compensation recovery. Under the regulations, the lump sums to be recovered will be those paid under the 1979 act, under a new scheme set out in the 2008 act, and any extra statutory payments made where the Secretary of State rejects a claim under the 1979 act.

Importantly, the lump sum is recovered from any part of civil compensation, including general damages, and not from a specific head of damages. Further, payments made to a dependant of a sufferer under the 1979 act, or the new lump sum scheme, are recoverable from any payment made to the dependant under the Fatal Accidents Act 1976.

Consumer creditThe Time Order provisions of the Consumer Credit Act 1974 have proved ineffective for assisting debtors facing difficulties making repayments.

Accordingly, section 16 of the Consumer Credit Act 2006 amends the 1974 act. ‘The creditor must serve a notice of arrears when two payments have been missed. The debtor must give the creditor notice of intention to apply for a time order and set out proposals for payment. The debtor can apply to the court for a time order 14 days after service of notice. PD7B is amended to give effect to the statutory changes and, to increase familiarity with the new act, the ‘notice of arrears’ (referred to above) must be accompanied by an information sheet produced by the Office of Fair Trading, which will include information on time orders.

Other changesPart 56 is amended to provide for applications under Section 214 of the Housing Act 2004 (tenancy deposit schemes). Part 65 is amended to remove rules on ‘Drink Banning Orders’ as the relevant provisions of the Violent Crime Reduction Act 2006 have not been implemented.

PD3D – Mesothelioma Claims is amended to include within it the amount of the ‘standard interim ­payment’, currently £50,000.

PD40E – Reserved Judgments is re-issued in an amended form. The main changes are designed to deal with concerns expressed in DPP v P (Practice Note) [2007] EWHC 1144 (Admin); [2008] lWLR 1024 (concerning availability of reserved judgments before handing down) and the fact that nowadays, before handing down, judgments are routinely circulated electronically.

A small but very important change to the rules concerning appeals is made by deleting the words ‘The court may not make such an order in family proceedings’ in rule 52 (4A). Thus, where the Court of Appeal refuses permission to appeal without a hearing, it may, if it considers that the application is totally without merit, order that the person seeking permission to appeal may not request that the decision be reconsidered at a hearing.

District Judge Hill sits at Scarborough County Court. He is a member of the Civil Procedure Rule Committee and of the senior editorial board of the White Book.