Michael Walker examines the changes to the CPR that come into effect with - and ahead of - the 42nd update


One change to the Civil Procedure Rules (CPR) was considered so important that it could not wait to come into force on 2 October 2006 with the rest of the 42nd update, and so came into force instead on 3 July.



Over the years, it is estimated that upwards of 300,000 suspended possession orders have been made by county courts based on the 2001 version of the N28 suspended possession order form. Out of the blue, the Court of Appeal held in Harlow DC v Hall (2006) EWCA Civ 156 that the wording of form N28 meant that all secure tenants with suspended possession orders actually became tolerated trespassers, even if they complied with the terms of suspension to the letter, thus losing the various rights they had as secure tenants to claim for disrepair, to exercise the right to buy or even for family members to enjoy the right of succession.



That was clearly not the desired outcome. Following some swift footwork by the Department for Constitutional Affairs, to the rescue rode a new form N28A, sanctioned by the Court of Appeal in Bristol City Council v Hassan (2006) EWCA Civ 656. The new form avoids stating a date for possession and thereby avoids the secure tenant automatically becoming a tolerated trespasser if any breach of the terms of the suspension occurs. How a landlord is actually supposed to evict a secure tenant when a postponed possession order has been made but where no date was fixed for the giving up of possession is set out in a new paragraph 10 to practice direction 55. But then everyone working in this area knew all that already; what still remains to be resolved is the fate of those 300,000 tolerated trespassers who think that they are still secure tenants.



So what comes into effect on 2 October? The 42nd update is important for those dealing in housing matters. Not only do we have the N28A postponed possession order, but also coming into effect on 2 October is a new pre-action protocol for possession claims based on rent arrears. It is the first protocol to come into being since 2003.



The protocol applies only to residential possession claims, brought only by social landlords and where the claim is based solely on rent arrears. However, and despite those qualifications, it will be of considerable importance.



The protocol does not apply to private landlords. The draft envisaged that some provisions of it, notably concerning the supply of information, would apply to private landlords. As social landlords, on the whole, already follow good pre-action practice, that policy may come to be regretted in the years to come.



Social landlords will have to provide rent statements every 13 weeks and ensure that those tenants who having difficulty reading information can understand what they are being given. Special provisions are incorporated to assist tenants younger than 18 years of age or considered particularly vulnerable. If the tenant meets the appropriate criteria, the social landlord should arrange for arrears to be paid by the Department for Work and Pensions from the tenant's benefit.



Landlords are encouraged to offer assistance to tenants in any claim the tenant may have to make for housing benefit. And proceedings for rent arrears should not be started against a tenant who can show that not only has he done all he can to obtain payment of housing benefit, but also that all other rent due has been paid. The protocol also deals with what should happen after service of the notice seeking possession and the attempts that should be made to avoid court hearings actually taking place.



Rule 5.4 receives a substantial work-over. In future, the general rule will be that a person who is not a party to proceedings may obtain from the court records a copy of a statement of case (but not any documents filed with or attached to the statement of case, such as the client's medical report) or any judgment or order given or made in public. If an application is made to the court, and permission obtained, even copies of other documents filed by a party can be obtained.



Rule 5.4C(3) restricts the disclosure to situations where at least some service has taken place or judgment has been obtained, and there is a saving provision that allows a party or any person identified in a statement of case to obtain an order preventing disclosure to a non-party taking place. Unhelpfully, however, neither part 5 nor practice direction 5 indicates when such an application might be successful. But this new rule does not apply to part 76 (namely, proceedings under the Prevention of Terrorism Act 2005).



It was in 1994 when Lord Woolf started to look at the old Rules of the Supreme Court (RSC) and the County Court Rules (CCR) with a view to bringing them together in what became the CPR. Twelve years later, that process still continues. A raft of provisions now incorporates the scheduled rules on claims made by or against partnerships into the CPR. Part 7 (commencement), part 10 (acknowledgment of service) and parts 70, 72 and 73 (enforcement generally, third-party debt orders and charging orders) are all amended as a result. Out go RSC order 81, CCR order 5 and rules 9 and 10 of CCR order 25. There is too much detail in the new provisions for it all to be set out here. If suing, or being sued as a partnership, best to look it up.



Other miscellaneous tidying up results in a new practice direction 23B dealing with applications under the Family Law Reform Act 1969 for use of scientific tests to determine parentage, and also applications in proceedings under section 55 of the National Debt Act 1870.



Also dying, but rising up from the flames, is the Central London County Court Mercantile List. It becomes the London Mercantile Court, based at the Royal Courts of Justice. As a result, there are minor amendments to practice directions 59 and 62. It is anticipated that all arbitration applications issued in the Commercial Registry should go into the Commercial List, since it will be simpler to have one judge dealing with allocation.



The old rule 17 in CCR order 49 dealt with applications under the Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995 and the Disability Rights Commission Act 1999. But it is to be no more. There is now to be a new practice direction dealing with proceedings under the various enactments relating to discrimination. That includes not just the above four Acts, but also the Equality Act 2006, the Employment Equality (Age) Regulations 2006, the Employment Equality (Religion or Belief) Regulations 2003 and the Employment Equality (Sexual Orientation) Regulations 2003 as well. Gone, in passing, is the old practice direction 39C.



Until now, it has been possible for a successful party to have its costs summarily assessed when succeeding on an appeal from a district judge's decision on a small claims case. But no more. Rule 27.14 is reworked so that the costs on a successful appeal are limited in exactly the same way as the costs at first instance in the small claims track are limited to the fixed costs of issue, court fees, witness expenses, loss of earnings, experts' fees and (rarely used) the fixed costs of obtaining an injunction.



The only escape from the rigours of the fixed-costs regime would be for the successful party to convince the circuit judge hearing the appeal that the unsuccessful party had behaved unreasonably. Succeed on that point, and the circuit judge can still summarily assess your costs. There is a school of thought that says it is always unreasonable to appeal a district judge's decision in a small claims case.



No update to the CPR is complete without an amendment to the rules governing appeals, part 52. For years, the Court of Appeal has been concerned about obsessive litigants in person clogging up their lists and detracting their lordships' attention from more serious and weighty matters.



Rule 52.3(4A) will now say that where the Court of Appeal refuses permission to appeal without a hearing it may, if it considers that the application is totally without merit, make an order that the person seeking permission may not request the decision to be reconsidered at an oral hearing. This Draconian provision will not apply in family proceedings, but it remains to be seen whether or not it will be challenged under the human rights legislation.



However, any thought of their lordships slipping off for a round of golf in the afternoon is entirely wrong. The Court of Appeal still has plenty of work to do. Its judges will also now be glued to their laptops, since an amendment to paragraph 15.1 of practice direction 52 allows a party to an appeal to file electronically an appellant's notice, a respondent's notice or an application notice using the on-line forms service on the Court of Appeal Civil Division Web site, to be found at www.civilappeals.gov.uk. The Web site also sets out the guidelines as to when you are permitted to file a notice electronically.



Their lordships also have a firm eye on the clock. Paragraph 5.10(7) of practice direction 52 adds a new requirement that when a skeleton argument is filed it must contain - in the opening paragraph - the advocate's time estimate of the hearing of the appeal. However, the direction is silent as to what happens when counsel gets his time estimate wrong.



For some time, the Court Service has been piloting the use of telephone hearings at Newcastle, Bedford and Luton County Courts. The 41st update rolled out that pilot to all other county courts, but is tweaked by the 42nd update.



In District Registries, the scheme for telephone hearings will only apply to hearings before district judges, so hard luck if you fancied telephoning the High Court judge. As for whether your local court has implemented the use of telephone hearings, visit the Court Service Web site at www.hmcourts-service.gov.uk. That Web site also contains the list of approved telecommunications providers. And just to keep everyone on their toes, the practice direction dealing with telephone conferences (PD23B) is now renumbered PD23C.



Section III of part 54 deals with applications for statutory review under section 103A of the Nationality, Immigration and Asylum Act 2002. Introduced is a new procedure for notifying the Administrative Court that an appellant in an asylum and immigration appeal wishes his appeal to continue in circumstances in which it would otherwise be treated as abandoned. The same applies to paragraph 21.7B of a new practice direction 52, which deals with appeals from the Asylum and Immigration Tribunal.



And before leaving part 54, mention should be made of a new practice direction 54C, which deals with references to the High Court by the Legal Services Commission when questions arise on a review of a decision about an individual's financial eligibility for a representation order in criminal proceedings under the Criminal Defence Service (Financial Eligibility) Regulations 2006. But lest you think this will lead to lengthy hearings at the commission's expense, paragraph 1.6 says that the question will be decided without a hearing unless the court directs otherwise.



Admiralty specialists feeling left out by all this can take some solace from the revised paragraph 11 to practice direction 61. It deals with proceedings against or concerning the International Oil Pollution Compensation Fund 1992, and the International Oil Pollution Compensation Supplementary Fund. Not exactly bread-and-butter stuff at Wandsworth County Court, but important to many.



Equally important to those practising in the area of competition law is a new practice direction dealing with applications for warrants under the Enterprise Act 2002, whereby an officer of the Office of Fair Trading is empowered to enter and search premises to take possession of and preserve relevant evidence. The direction is lengthy, as it sets out not only the approved practice, but also the wording of the warrant to enter under section 194 and the notice which must be given to the occupiers.



Inevitably, some of the minor tweaks, revisions and just plain corrections of earlier typographic errors have not been given a mention here. Many a mistake has been made over the years by practitioners assuming they knew the relevant rule or practice direction. The Civil Procedure Rules are a living animal; save yourself that embarrassing letter to the insurance brokers and always take the few minutes necessary to check the up-to-date wording of the rule.



District Judge Walker sits at Wandsworth County Court