Michael Walker pores over the fine print of the 40th update of the Civil Procedure Rules 1998
The 40th update of the Civil Procedure Rules 1998 (CPR) introduced an enormous amount of new material. Here, we start at the small end, and work upwards.
Unless otherwise stated, all the amendments have already come into force. Most did so on 1 October 2005, a whole day after the material appeared on the Department for Constitutional Affairs Web site. The only mitigation is that the content of Civil Procedure (Amendment No 3) Rules 2005 (SI 2005/2292) had been available for a little while beforehand.
Small claims
There are several amendments to part 27, designed to:
Practice direction 27, which supplements part 27 of the CPR, has also been amended to emphasise the power the court will have to require a party to give further information about his case. While the court will retain the power to order a party to provide a witness statement, the court must have regard to whether either or both the parties are represented; the amount in dispute; the nature of the dispute; whether the need for clarification could be better dealt with by an order for further information; and the need for the parties to have access to justice without undue formality, cost or delay.
The standard directions set out in PD 27 are revised and updated. The information the court will usually need in particular types of cases has been simplified (a visit to appendix A to the PD is a must), and the parties are now expressly encouraged to contact each other with a view to trying to settle the case or narrow the issues. There is a simpler form of notice of appeal (N164) for use in the comparatively few cases taken on appeal.
Case management
This update has seized the opportunity to tighten up on several procedural matters.
For some time the court has been under a duty, when dismissing a claim or application as totally lacking in merit, to record that fact and to consider whether to make a civil restraint order.
Rule 3.3(7) is now extended so that it also covers an application for permission to appeal or for permission to apply for judicial review. There are corresponding amendments to rule 23.12 and PD 3C. And it will now be easier to persuade the more senior judiciary to make a civil restraint order 'in circumstances where an extended civil restraint order would not be sufficient or appropriate' (see paragraph 4.1 of PD 3C). These provisions will upset some litigants in person.
Non-payment of fees has always been a problem for court staff. Rule 3.7 is now tightened up so that, where the court sends out notification that a fee is due, the case will automatically be struck out without further order if the fee is not paid in time. The same will apply where fees are payable on a counterclaim - so do not forget to pay that fee when filing the defence and counterclaim (new rule 3.7A). Do not bounce a cheque on the court; do so and these provisions will again be applied (new rule 3.7B).
If no party files an allocation questionnaire, the file will no longer be referred to a district judge for directions but rather the court will itself - automatically - order that unless an allocation questionnaire is filed within seven days from service of that order, the claim, defence and any counterclaim will be struck out without further order of the court (paragraph 2.5 of PD 26). Automatically means just that &150; if there remains any doubt, see paragraph 1.9 of PD 3.
The get-tough policy applies also to pre-trial check-lists (PTCLs). Up until now, the court would 'give directions' if PTCLs were not filed. Now, rules 28.5 and 29.6 are amended to make it clear that the court will order that, unless a completed PTCL is filed within seven days from service of that order, the claim, defence and any counterclaim will be struck out automatically, without further order of the court. If one party files a PTCL but the other does not, the court will give such directions as it thinks appropriate.
The courts are always accused of failing to police breaches of the pre-action protocols. One to watch now will be paragraph 2.6 of PD 24, which says that 'where the claimant has failed to comply with any relevant pre-action protocol, an action [sic- "application" must surely be intended] for summary judgment will not normally be entertained before the defence has been filed or, alternatively, the time for doing so has expired'.
A stay for settlement purposes can now be ordered for more than a month. The amended rule 26.4(2) says that, where all parties request a stay, or the court of its own initiative considers that such a stay would be appropriate, then the court will direct that the proceedings, either in whole or in part, be stayed for one month, or for such specified period as it considers appropriate. A realistic view taken when first asking the court for a stay, and a sensible explanation of the situation, may help to avoid those annoying chasers that come winging in from the court a month later.
The drive towards more alternative dispute resolution (ADR) is given a sharper focus by an amendment to PD 29 (so it applies to the multi-track only), which says (paragraph 4.10(9) of the direction) that the court may give specific directions to the parties to consider ADR or be prepared to justify a refusal to do so.
That message is reinforced by a change (paragraph 4.7) to the protocols PD, which now stresses that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still likely. There is a useful link to the Legal Services Commission's (LSC) booklet on Alternatives to Court - the Community Legal Service Direct Information Leaflet 23 (go to www.clsdirect.org.uk/legalhelp/leaflet23.jsp), which lists several organisations that provide ADR services.
Where a case is issued by the bulk-issue centre at Northampton in the name of Northampton County Court, the case will remain there (and not be transferred to a defendant's home court) where enforcement of the judgment takes the forms of a warrant of execution, charging order or third-party debt order (paragraph 1.3(2)(f) of PD 7C).
PD 5B has been amended to make it clear that applications may be filed electronically both at Preston County Court (using the Preston e-mail applications protocol) and in the civil appeals office of the Court of Appeal. But otherwise, an application cannot be filed electronically. And paragraph 8.9 of PD 5B makes it clear that a document that is required by a rule or PD to be filed at court is not filed when it is sent to the judge by e-mail.
Have you got an order or judgment in the Queen's Bench Division at the Royal Courts of Justice, other than in the Administrative Court? Well, except for orders made by the court of its own initiative and unless the court otherwise orders, you will have to draw the order up yourself in future (see rule 40.3(4)). Using the Technology and Construction Court offers no escape - the new provisions apply there too (rule 60.7).
The telephone pilots at Newcastle, Luton and Bedford County Courts are all extended to 31 March 2006. The smart money is on a more general roll-out thereafter. Annexed to PD 35 (experts) is a protocol for the instruction of experts to give evidence in civil claims. As the introduction to the PD says, 'experts and those instructing them are expected to have regard to the guidance contained in the protocol'.
If you actually do get to trial in the Queen's Bench or Chancery Divisions at the Royal Courts of Justice, or to appeal before the Court of Appeal (Civil Division), have a look at the new PD 40E, which deals with the procedure for the handing down of reserved judgments.
Costs estimates
The court's general case management powers in part 3 are augmented by an additional power to order any party to file and serve an estimate of costs - at any time (rule 3.1(2)(ll)). That brings part 3 into line with section 6 of the costs PD, which already contained such a provision.
But the changes in relation to costs estimates do not stop there. Section 6 of the costs PD 43-48 has been given a significant make-over.
Paragraph 6.4 of the costs direction, which does not apply to litigants in person, says that when a party to a claim that is outside the financial scope of the small-claims track files an allocation questionnaire, or a party to a fast-track, multi-track, or part 8 claim files a PTCL, he must normally file an estimate of costs and serve a copy of it on every other party. Where a party is represented, his legal representative must also serve an estimate on him.
A new paragraph 6.5A then goes on to say that if there is a difference of 20% or more between the base costs claimed on detailed assessment and the costs shown in an estimate filed by that party, the receiving party must provide a statement of the reasons for the difference with his bill of costs. If the other party claims that he reasonably relied on an estimate, or wishes to rely on the estimate to dispute the reasonableness or proportionality of the costs claimed, he must serve a statement setting out his case in this regard in his points of dispute.
Paragraph 6.6 drives the message home - where an estimate is exceeded by 20% or more and the receiving party has not provided a satisfactory explanation for that difference, or the paying party reasonably relied on the estimate of costs, the court may regard the difference between the costs claimed and the estimate as evidence that the costs claimed are unreasonable or disproportionate.
These provisions, reversing Leigh v Michelin Tyre plc [2003] EWCA Civ 1766, [2004] 2 All ER 175 (where the costs were three times the estimate), are clearly designed to try to put the lid on some of the more unbelievable claims for costs coming before the courts for detailed assessment. To ignore the above will be to put your costs recovery at significant risk.
On the subject of costs, there is a further big amendment to part 45. A new section V deals with the fixed recoverable success fees in employer's liability disease claims. The scheme will not apply where the claimant sends a letter of claim to the defendant containing a summary of the facts on which the claim is based and main allegations of fault before 1 October 2005. Nor will it apply to small-claims cases. The detail is too long to set out here. The scheme covers three different classes of diseases, with different percentage increases applying.
Rule 44.13 has been amended to provide that if a court grants permission to appeal, or to bring a judicial review, or any other order or direction is sought by a party on an application without notice and the court's order does not mention costs, the order will be deemed to include an order for the applicant's costs in the case. In the past, these types of orders have often been silent as to costs, with consequent uncertainty.
What of the solicitor who acts for a child and who fails to recover all the client's costs when the case is settled? It is a problem that has caused increasing concern to district judges when being asked to approve compromises where there are unrecovered elements of a conditional fee agreement-related insurance premium. If reasonably incurred and reasonable in amount (and that is for the court to decide in the light of the facts and circumstances as they reasonably appeared to the litigation friend or child's or patient's legal representative when the expense was incurred), rule 21.11A permits the litigation friend to recover the insurance premium or any related loan interest.
But there is a cap. Where the claim is settled or compromised, or judgment is given, on terms that an amount not exceeding £5,000 is paid to the child or patient, the total amount the litigation friend may recover towards the unrecovered costs and loan interest shall not exceed 25% of the sum agreed or awarded, unless the court directs otherwise, and in any event shall not exceed 50% of the award.
Conducting a detailed assessment in a case in one of the 19 London county courts? Well, do not forget to file the request for the detailed assessment at the Supreme Court Costs Office. What was a pilot has now been established as a full procedure under the rules (see paragraph 31.1A of the costs PD).
Or perhaps you want an order for the LSC to pay your client's costs. If so, have a look at the costs direction, paragraph 21.16 to 21.19 &150; the guidelines have been significantly amplified compared to what we had before. And go on to read sections 22 and 23 of the same direction so far as the determination of the costs is concerned.
District Judge Michael Walker sits at Wandsworth County Court
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