Neil Hickman reviews the latest procedural changes for civil litigators in the 36th update of the Civil Procedure Rules 1998


The 36th update to the Civil Procedure Rules 1998 (CPR) is bad news for the vexatious litigant. Following on from Bhamjee v Forsdick [2003] EWCA Civ 1113; [2004] 1 WLR 88, new provisions in parts 3, 23 and 52 and a long and detailed practice direction 3C deal with the making of various kinds of civil restraint orders. Under the new rules 3.3(7) 3.4(6) and 23.12, if the court strikes out a statement of case or dismisses an application, and considers the claim or application totally without merit, its order must record that fact, and the court must consider whether to make a civil restraint order. Rules 52.10(5) and (6) introduce similar requirements if an appeal court refuses an application for permission to appeal, strikes out an appellant's notice, or dismisses an appeal, and considers it totally without merit.


Practice direction 3C sets out the powers of various levels of judiciary and the requirements and procedures which apply. Because any kind of civil restraint order is a serious restriction on a litigant's rights, the requirements must be followed strictly.


Oh no! Now in every neighbour's dipute both parties will also apply for a civil restraint order against the other!
A limited civil restraint order may be made by a judge of any court where a party has made two or more totally unmeritorious applications. Form N19 makes it clear that the applications must be in the same proceedings, though the text of the practice direction omits to say this specifically. It restrains the party concerned from making any further applications in those proceedings without the permission of an identified judge.


Although an application for permission will be determined without a hearing, seven days' notice must be given to the other party and any written response from that party will be placed before the judge determining the application. If a party who is subject to a limited civil restraint order repeatedly makes unmeritorious applications for permission, a Court of Appeal judge, High Court judge or master, or designated civil judge (or his deputy) may make a further order under paragraph 2.3(2) limiting the right of appeal. However, the original order may be made by any judge, including a district judge.


An extended civil restraint order may only be made by a judge of the High Court or Court of Appeal or, in the county court, a designated civil judge or his deputy. It restrains the party concerned from issuing claims or making applications 'concerning any matter involving or relating to or touching upon or leading to' the proceedings in which it is made without first obtaining the permission of an identified judge. An extended civil restraint order must identify the courts in which it applies.


If, despite the existence of an extended civil restraint order, a party persists in making totally unmeritorious claims or applications, a general civil restraint order may be made.


When made by a judge of the Court of Appeal, the order will restrain the issue of claims, or making of applications, in any court. If made by a High Court judge, it will restrain the issue of claims or applications in the High Court or any county court; if made by a designated civil judge, it will restrain the issue of claims or applications in any county court identified in the order.


Similar provisions to those already discussed provide for notice of an application for permission to be given to the other party, and for the right of appeal from a refusal of permission to be restricted if repeated unmeritorious applications are made. An extended or general civil restraint order will run for a specified period of not more than two years, which may be extended for up to two years at a time. If these more drastic forms of order are contemplated, cases must be transferred up to the appropriate level of judge.


Paragraph 5.1 of the practice direction allows a party to apply for any civil restraint order to be made against his opponent, but this should only be contemplated after serious thought.


Part 65, which deals with anti-social behaviour and harassment, sees some amendments to the text and an important new provision. Witness statements may be used in proceedings under part 65 instead of affidavits being required. That provision came into force on 1 September, as did the amendment to the text of paragraph 1.1 of the practice direction.


With effect from 1 October 2004, a pilot scheme is established by SI 2004/2168 in 11 named county courts allowing an authority to apply to join a child to proceedings for the purpose of seeking certain anti-social behaviour orders against that child. Normally, a litigation friend will need to be appointed, and paragraph 13.3(6) of the part 65 practice direction replaces rule 21.3(2)(b) in those circumstances.


A new part 5.4 makes detailed provision for the supply of copy documents from court records. Rule 5.4(1) envisages that county courts will keep publicly accessible registers of claims, but as the accompanying new text in the practice direction makes clear, the only registers currently available are at Chancery chambers and the central office of the Queen's Bench Division. A party may normally obtain copies of a statement of case, a judgment or order given in public, an application notice and the written evidence relating to it (save for applications to remove a solicitor from the record or conceal the identity of a party or witness), a notice of payment in, or an appellant's or respondent's notice. With permission, a party may obtain a copy of any other document filed by a party, or any communication between the court and any person relating to the proceedings.


Non-parties may normally obtain copies of a claim form or judgment or order given in public, subject to certain restrictions set out in rules 5.4(6) and (7), and with permission may obtain copies of other documents. A requirement for permission involves a requirement for a formal application under part 23, which, even if made without notice, will attract a court fee in addition to the usual fees for the supply of copies.


Practice direction 37, relating to payments into court under certain enactments, is amended and a new section IV in part 45 provides for fixed recoverable success fees in certain employers' liability cases arising from injuries sustained after 1 October 2004.


Some minor tidying up relating to EU competition law came into effect immediately on 28 August 2004. Practice direction 47B relating to the pilot scheme for detailed assessment of costs in cases in certain London county courts to be carried out in the Supreme Court Costs Office, is retrospectively amended with effect from 6 July. Save for that, and certain changes to part 65 as already noted, all these changes will come into effect on 1 October 2004.


District Judge Neil Hickman sits at Milton Keynes County Court