Robert Hill looks at the latest set of amendments to the Civil Procedure Rules


The Civil Procedure Rules Committee aims to have just two sets of amendment rules each year. One is made in July and, generally, will come into force the following October. The second is made in December, to come into force the following April. So the 45th update came into force on 1 October 2007 and the 46th update will come into force on 6 April (with some limited exceptions which come into force earlier).



There have always been rules to protect 'persons under disability', whether that person is the claimant or defendant. The new part 21, re-titled 'Children and Protected Parties', came into force on 1 October 2007.



The rules on children are unchanged; indeed, procedurally the rules are hardly changed for 'protected parties', but the test is different.



The Civil Procedure Rules (CPR) used the simple term 'patient', defined by reference to the Mental Health Act 1983. The test was simple: either a party was or was not a patient. That simple test has now gone, to be replaced by one which is undoubtedly fairer but may be more difficult to apply.



The change was required because Parliament changed the substantive law in the Mental Capacity Act 2005, the relevant provisions of which came into force on 1 October 2007. It is irrelevant whether a party is or is not a patient. The rule is now concerned with whether the party 'lacks capacity' within the meaning of the Mental Capacity Act 2005.



Under the new Act, the test is issue-based. A person may lack capacity for some purposes but not for others. The term 'patient' is replaced by 'protected party' - meaning a party, or an intended party, who lacks capacity to conduct the proceedings.



Those advising a client must, as always, consider whether the client is competent to give instructions. A 'protected party' must have a litigation friend to conduct proceedings on his behalf. If it is the defendant who lacks capacity, new rule 21.3(2) prevents any application before proceedings have started without permission of the court, and limits the steps that can be taken to issuing and serving a claim form or applying for the appointment of a litigation friend (see rule 21.8).



The rule on service has also changed - see the new table in rule 6.6 (1). Service is affected upon the attorney under a registered power of attorney; the donee of a lasting power of attorney, the deputy appointed by the Court of Protection or, if there is no such person, an adult with whom the protected party resides or in whose care he is.



Because the test of capacity is now issue-based, it will not always be easy to apply. An unusual, eccentric or even bizarre lifestyle cannot, of itself, be conclusive. What of the person on incapacity benefit due to severe depression, who is unable to cope with the vagaries of life? It cannot be automatically assumed that such a person 'lacks capacity' within the meaning of the Mental Capacity Act 2005. And yet he may do so.



Compromise of a claim where a protected party is claimant or defendant requires approval of the court (rule 21.10). Where money is recovered on behalf of a protected party, before giving investment directions under rule 21.11, the court must first consider whether the protected party is a protected beneficiary.





Amendments

There are consequential amendments to other rules and, in particular, to the part 21 practice direction, which is replaced in its entirety. Although many changes relate to the change of terms, the new practice direction is not confined to that. The Mental Capacity Act 2005 reconstitutes the Court of Protection as a superior court of record for England and Wales with a jurisdiction far greater than under the former Mental Health Act 1983. Thus, for example, the new practice direction 21 includes provisions for appeals to the Court of Appeal from the new-style Court of Protection.



Rule 19.9 was amended, and new rules 19.9A to 19.9F inserted as a result of new procedures for derivative claims under the Companies Act 2006 from 1 October 2007.



There is also a new practice direction C supplementing part 19. This is a specialist area and, once again, the rule changes were necessitated by changes in the substantive law. A derivative claim is one where a company, other body corporate or trade union is alleged to be entitled to claim a remedy and a claim is made by a member of it for it to be given that remedy. The company must be made a defendant to the claim. The rules are necessarily complex so as to permit genuine claims but prevent frivolous, vexatious or purely tactical claims. Thus, a 'permission application' (see sections 261 (2), 262(2) or 264(2) of the Companies Act 2006) is required. The company must not be made a respondent to the permission application.



It was the intention of Lord Woolf's 'Access to Justice' enquiry (which reported in 1998 and led to the CPR) that there should be a fixed-costs regime for the fast track. That has not been achieved. The CPR did make a start by enacting fixed costs for the advocate conducting the fast track trial and (where allowed) for the solicitor or clerk attending trial with counsel. Those fees were fixed in 1998. The first and, so far, only increase in them came into force for trials which started on or after 1 October 2007 - see the new table in rule 46.2(1).



The general time limit for appealing, or seeking permission to appeal, a judicial decision is 21 days. Rule 47.22 - appeal from a decision of an authorised costs officer relating to detailed assessment of costs - has been brought into line by increasing the time limit from 14 to 21 days.



Several minor amendments to part 52 came into force on 1 October 2007:



A new rule 52.12A makes provision for third parties to apply for permission to file evidence or make representations at an appeal hearing relating to statutory appeals.



New rule 52.18 provides for an appeal from the decision of the Secretary of State under paragraph 16 of schedule 15 to the Law of Property Act 1922 to the High Court.



New rule 52.19 provides for an appeal from a decision of a tribunal referred to in section 11 Tribunals and Inquiries Act 1992 to the High Court. Further, the tribunal may, either of its own initiative or at the request of a party to the proceedings, state a case for the decision of the High Court.



Finally, new rule 52.20 provides that an appeal from certain decisions or the Secretary of State under the Town and Country Planning Act 1990, or under the Planning (Listed Buildings and Conservation Areas) Act 1990, lies to the High Court.



Table 1 in paragraph 2A.1 of the practice direction supplementing part 52 has been amended with a view to making it clearer.





Sum of all parts

Part 65 of the CPR already dealt with Housing Act 1996 injunctions and various provisions relating to anti-social behaviour. As a consequence of sections 24 to 27 of Police and Justice Act 2006, rules 65.1, 65.8, 65.9 and 65.10 have been amended and new rules 65.37 to 65.41 inserted. Thus to part 65 is added new section VII, 'Parenting Orders under the Anti-Social Behaviour Act 2003'.



Some progress has been made in incorporating into CPR practice directions some provisions, for example on bills of sale, which were still languishing in schedule 1 (RSC) or schedule 2 (CCR) to the CPR. There were also minor changes to the practice direction on Directors' Disqualification Proceedings and on Insolvency Proceedings, and amendments to the Pre-Action Protocol for Housing Disrepair Cases. All of these changes came into force on 1 October 2007.



A new part 77, entitled 'Provisions in support of Criminal Justice', comes into force on 6 April. It will be of interest to very few civil litigators. It deals solely with applications for a Serious Crime Prevention Order under the Serious Crime Act 2007, which can be made only by the Director of Public Prosecutions or a Senior Crown Prosecutor authorised by him. The Home Office anticipates about thirty applications a year, so this is likely to become a specialist and highly contentious area.



Part 75 is concerned with Traffic Enforcement. It exists as a result of Parliament's decision to decriminalise parking offences and similar, for example congestion charging. The county court has a very limited jurisdiction. Part 75 enables penalties to be converted into court orders and enforced as such. The county court does not adjudicate in traffic enforcement. Local authorities are responsible for issuing penalties and disputes are resolved by the parking/traffic adjudicator. Any hearing before a district judge is solely for the purpose of deciding whether permission should be given to file a witness statement out of time.



The practice direction supplementing part 75 is amended as a consequence of new regulations, but has also been made clearer. Part 75 itself is amended as from 31 March to provide for witness statements instead of statutory declarations and to make clearer the various forms used by local authorities.



A new practice direction supplementing part 3 dealing solely with mesothelioma claims, both for a living claimant and in fatal claims, comes into force on 6 April. The issues in such cases are usually clear-cut. Further, in many cases, the claimant has a severely limited life expectancy. An urgent case management conference will be arranged, where the defendant should be prepared to show cause why judgment should not be entered and a standard interim payment ordered. A defendant must identify the evidence and legal arguments that give the defendant a real prospect of success on any or all issues of liability.



Where a trial is required, it is intended to give a trial date, whether on liability or quantum or both, not more than 16 weeks from service of the claim form in cases where the claimant is living.



The practice direction is detailed but self-explanatory and requires study by all who act in such cases. Those already experienced in mesothelioma claims will recognise that the new practice direction is based on the practice of the Royal Courts of Justice pioneered by the Senior Master, Steven Whitaker.



Amendments to the practice direction supplementing part 49 were necessitated by the Companies (Cross-Border Mergers) Regulations 2007. These came into force on 14 January. Further amendments come into force on 6 April.





Civil recovery proceedings

The Practice Direction - Civil Recovery Proceedings is amended as from 1 April. The amendments were required as a consequence of the Serious Crime Act 2007 which has amended the Proceeds of Crime Act 2002. In particular, the Assets Recovery Agency is abolished and 'detained cash investigations' are introduced.



This practice direction is clearly a provision 'in support of criminal justice'. As such, it is submitted that it needs to be revisited by the Civil Procedure Rules Committee with a view to all its relevant provisions being incorporated into the new part 77 and the practice direction that supplements part 77.



The Equality Act 2006 establishes the Commission for Equality and Human Rights to replace various other Commissions. As a consequence of this Act and the Equality Act (Sexual Orientation) Regulations 2007, the Practice Direction - Proceedings under Enactments relating to Discrimination is amended as from 6 April.



The CPR 1998 will be one decade old later this year. For understandable reasons, they were brought into force in an adequate but unfinished state, and thus contain in schedule 1 such provisions of the Rules of the Supreme Court 1965 as still remain in force and in schedule 2 those provisions of the County Court Rules 1984 still in force.



The schedules have much diminished in size over the past ten years and further progress was made in 2007. Nevertheless, there are still some important topics in daily use that languish in the schedules and have not yet been incorporated into the main body of the CPR. These include interpleader proceedings and many aspects of enforcement such as writs of fieri-facias, warrants of execution, attachment of earnings and, most astonishingly of all, committal proceedings still governed by RSC Order 52 and CCR Order 29 (and Practice Direction - Committal Applications which supplements both).



It is to be hoped that the task of incorporating schedules 1 and 2 into the main CPR will be completed in 2008 and that the CPR will not have to enter a second decade still unfinished.



District Judge Hill sits at Scarborough County Court. He is a regional costs judge and a member of the Civil Procedure Rules Committee