Michael Walker rings up the changes brought into effect by the 41st update of the Civil Procedure Rules 1998
Family practitioners need not read on - rule 2.1 of the Civil Procedure Rules 1998 (CPR) ensures that the provisions of the Adoption and Children Act 2002 are not trapped by the CPR, but instead are subject to the Family Procedure (Adoption) Rules 2005. But civil litigators should pay attention.
A hugely important change is made to paragraph 4.7 of the practice direction on pre-action protocols. It is so important it merits being quoted in full:
'The parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt. Both the claimant and defendant may be required by the court to provide evidence that alternative means of resolving their dispute were considered. The courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that if the protocol is not followed (including this paragraph) then the court must have regard to such conduct when determining costs.
It is not practicable in this protocol to address in detail how the parties might decide which method to adopt to resolve their particular dispute. However, summarised below are some of the options for resolving disputes without litigation:
The Legal Services Commission has published a booklet Alternatives to Court, CLS direct information leaflet 23 (www.clsdirect.org.uk/legalhelp/leaflet23.jsp), which lists a number of organisations that provide alternative dispute resolution services.
It is expressly recognised that no party can, or should, be forced to mediate or enter into any form of ADR.'
So there it is. And, lest the message is forgotten, most of the eight specific pre-action protocols have also been amended to ram home the same message.
But, perhaps the biggest of all the 41st update changes for the courts themselves is the roll-out to all county courts (but not to the High Court) of the presumption that all allocation hearings, listing hearings, interim applications, case management conferences or pre-trial reviews of no more than an hour in length - or, indeed, any other application with the consent of the parties and the judge - will be conducted by telephone unless the court orders otherwise.
Undoubtedly, this is going to involve a big upheaval for both the courts and for the telephone providers, so the process of implementation is to be phased. The north-east - with the exception of Leeds, which comes on stream in September - has already gone live. The Northern Circuit was scheduled to go live on 1 May and the plan is then for Wales and Chester to go live on 1 June, the Western Circuit on 3 July, the Midland Circuit on 1 August, South-East on 1 September and, finally, London on 2 October. But all these dates are tentative; for more information, see the Courts Service Web site at: www.hmcourts-service.gov.uk.
Practice direction 23B excludes from the scheme applications where all the parties are unrepresented, where more than four parties may wish to make representations at the hearing or where the hearing could result in the final determination of the whole or part of the proceedings.
The telephone pilot at Newcastle, and then more latterly at Bedford and Luton, went remarkably well. But district judges elsewhere are concerned about whether telephone hearings of more than 30 minutes or where parties are unrepresented are as effective as is hoped. Therefore, the Courts Service will be conducting a limited evaluation of those two types of telephone hearings later in the year.
Applications for permission to appeal are infrequent. But when they are made, the order at first instance must itself now state whether the judgment or order was final, to which court the appeal lies, whether the court below gave permission to appeal and (if not) the court to which any further application for permission to appeal may be made (see CPR rule 40.2(4)). This is all because the Court of Appeal is fed up with appeals going up to it when they should not.
But is an order interim or final? And what are the appeal routes? The judge ought to know, but if there is any doubt have a look at the vastly improved tables 1 to 3 at paragraph 2A.1 of practice direction 52, listing 25 different permutations of possible appeal. And if you are in any doubt as to what is a final order, the answer is at paragraph 2A.2 of practice direction 52. But the techies can avoid all of that by using instead the interactive version to be found at: www.hmcourts-service.gov.uk/infoabout/coa_civil/routes_app/index.htm. And do not forget the new requirement to file a copy of the order allocating a case to a track (if any) with the appellant's notice (see paragraph 5.6(2)(g) of practice direction 52).
However, that is not the only change on the appeal front. Up until 6 April, rule 52.3(6) said that permission to appeal will only be given where either the court considers that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard. Now, for 'will only be given', read 'may be given only'. The notes to accompany the 41st update, published by the Stationery Office, say this is to emphasise the court's discretion in granting permission to appeal and that it is intended in particular to be exercised when the court considers the issue of the proportionality of an appeal. So you will have to give even more consideration than you do at the moment before deciding whether to appeal. But at least you will be given longer to do so; the period for appealing has gone up from 14 days to 21 days (rule 52.4(2)(b)). And, if you are running up against even that limit, you can now file by e-mail an appellant's notice, a respondent's notice or an application notice to the Court of Appeal, provided you use the e-mail account specified in the 'Guidelines for filing by E-mail', which appear on the Court of Appeal, Civil Division Web site at: www.civilappeals.gov.uk (see paragraph 15.1A of practice direction 52).
Lord Woolf was keen to do away with Latin words such as plaintiffs and writs, as well as every other piece of terminology it was felt the man on the Clapham bendy-bus would not understand. But one innovation that never worked was the idea of the part 20 claimant or, even worse, 'the claimant/part 20 defendant'. So, after seven years of valiant struggle, the Rules Committee has admitted defeat. Out goes the old part 20 and its practice direction, and in comes the new, headed 'counterclaims and other additional claims'.
Claimants and defendants should now always be referred to as such in the title to the proceedings, even if they subsequently acquire an additional procedural status. The changes to part 20 are to terminology rather than to substance, but paragraph 7 of practice direction 20 is well worth a read to ensure you get the titles right of all the multitudinous parties in a big case.
With the expansion of delivery companies, rule 6.2(1) now permits service not only by first class post but also by 'an alternative service which provides for delivery on the next working day' with the deemed day of service being, as now, the second day after it was posted. There is a real contradiction there, but at least the rules acknowledge that we live in the real world. A similar change has been made to the provision for service of possession claims (rule 55.13(3)).
Included now in the mandatory requirements for a claim form, where the only claim is for a specified sum, is a statement of the interest accrued on the sum claimed. That will increase the claim, and that increases the court fee payable on issue.
And while we are on the subject of issuing proceedings, the certificate that used to be found in practice direction 32, designed to deal with persons unable to read or sign a witness statement, has been brought forward to practice direction 22 - so it now applies to all instances where a person is unable to read or sign a document to be verified by a statement of truth.
There are two other changes to note. The first is that paragraph 2.1 of practice direction 26 catches up with the new allocation questionnaire N149, introduced last December and designed to be more user-friendly for the unrepresented litigant. Unrepresented parties also get a further advantage from a change to paragraph 5.17 of practice direction 52. If either the district judge or the circuit judge involved with an appeal in the small claims track is satisfied that either an unrepresented appellant or an appellant whose legal representation is provided free of charge, and not funded by the Community Legal Service, is in such poor financial circumstances that the cost of a transcript would be an excessive burden, the court may certify that the cost of obtaining one official transcript should be borne at public expense. But there remains the sting in the tail at paragraph 5.18 of the same direction, which says that in such cases the court must also be satisfied that there are reasonable grounds for appeal.
Inevitably, there is a series of miscellaneous changes of significance only to those practising outside the mainstream of civil litigation. To flag some of them up:
Not part of the 41st update, but of importance to many clients, is statutory instrument 2005/3595, otherwise known as the Register of Judgments, Orders and Fines Regulations 2005, which came into effect on 6 April.
Many debtors have for years been filled with dread at the prospect of 'a CCJ' being registered against them. But now it will no longer just be county court judgments. The scope of the register is being expanded so that it will now embrace not just the infamous CCJs but also High Court judgments, county court administrative orders, magistrates' court fines and Child Support Agency liability orders. The only exceptions will be judgments made in family proceedings, by the Administrative or Technology and Construction Courts, under appeal, for arrears of rent or mortgage until the judgment is enforced, where the hearing was contested, until payment is ordered by instalments or steps are taken to enforce the judgment.
As judgments remain registered for six years, advise clients to act quickly if they wish to avoid the inevitable nosedive in credit rating. If a debt is satisfied within a month from the date of the judgment, then any registration is cancelled. But discharging the judgment outside that month merely results in the entry being endorsed as satisfied; it does not go off the register.
To search the register, go to: www.registry-trust.org.uk. Sometimes, it may just not be worthwhile suing that debtor with a stack of judgments already registered against him, as you might be throwing the client's good money after bad.
District Judge Walker sits at Wandsworth County Court
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