Michael Walker concludes his two-part study of the 40th update of the Civil Procedure Rules 1998 (CPR)

A problem that never seems to go away is the apparent failure of service. So rule 6.5(2) says that any address for service must state a full postcode 'unless the court otherwise orders'.


If the claimant fails to state the defendant's postcode, he is in real trouble, as paragraph 2.5 of practice direction (PD) 16 provides that 'if the claim form does not show a full address, including postcode, at which the claimant(s) and defendant(s) reside or carry on business, the claim form will be issued but will be retained by the court and will not be served until the claimant has supplied a full address, including postcode, or the court has dispensed with the requirement to do so'.


Paragraph 2.6 goes on to say that the claim form must be headed with the title of the proceedings, including the full name of each party. The new provision provides what is meant by 'the full name' of each party.


However, equally problematical is the need to be able to identify the debtor, particularly when one considers the registration of a judgment with Registry Trust Limited. What the CPR committee has come up with is the idea that where a defendant to a claim or counterclaim is an individual, he must provide his date of birth (if known) in the acknowledgment of service, admission, defence, defence and counterclaim, reply or other response (see paragraph 10.7 of PD 16). When the claimant applies for a default judgment under part 12, he will have to provide the date of birth (if known) of the defendant where the defendant is an individual (see paragraph 3.2 of PD 12). All these amendments ought to improve the quality of the data held on defendants, and avoid the embarrassment of judgments being registered or enforced against the wrong individuals.


But, before everyone goes into a real spin over all these data-quality amendments, note that they do not come into force until 6 April next year.




The Crown


The old rules providing for service on the Crown have gone (Rules of the Supreme Court order 77, County Court Rules order 42). In their place, is a new part 66, a new PD 66 and a whole raft of amendments to parts 6, 12, 16, 19, 24 and 30.


The Department for Constitutional Affairs Web site records: 'The result of these amendments is that the Crown will lose a number of its traditional privileges in civil litigation, including the right to dictate venue. It will also now be subject to summary and default judgment.'


How that sits with paragraph 1.2 of PD 66 is not clear. This provides that from time to time the Attorney-General will publish a note concerning the organisation of the Government Legal Service, and matters relevant to the venue of Crown proceedings, for the assistance of practitioners and judges, and 'when considering questions of venue under rule 30.3(2), the court should have regard to the Attorney-General's note in addition to all the other circumstances of the case'. There is an added steer in rule 30.3(h) that the court should consider 'any relevant public interest that the matter should be tried in London'.


Even the default judgments provisions are not automatic &150; the request for the default judgment will be considered by a master or district judge, who must in particular be satisfied that the claim form and particulars of claim have been properly served on the Crown (rule 12.4(4)). And summary judgment may only be sought 'after expiry of the period for filing a defence' (rule 24.4(1A)).


Some Crown privileges remain. When the renamed Revenue & Customs sues for arrears of taxes, penalties or charges, it will still not be possible to raise a defence of set-off or even a counterclaim. In proceedings by or against the Crown in the name of a government department, no counterclaim or other part 20 claim can be made or defence of set-off raised without the permission of the court, unless the subject-matter relates to that department (rule 66.4(4)).


Anyone thinking of enforcing an order or judgment against the Crown would be well advised to read part 66 before trying to do so. You may try, but you almost certainly would not succeed. And the commissioners for Revenue & Customs may be added as a party to proceedings only if they consent in writing (rule 19.4A).


Rule 16.2(1A) sets out what needs to be included on the claim form when suing the Crown, and rule 6.5(8) and PD 66 will together help the reader find all the information on how to serve documents on the Crown, which does not include personal service (see rule 6.4(2A)).


The cross-reference in rule 6.7 to rule 2.8 - which said that 'rule 2.8 excludes a Saturday, Sunday, a Bank Holiday, Christmas Day or Good Friday from calculations of periods of five days or less' - has been omitted to clarify the provisions of part 6, which continue to receive judicial scrutiny.


Secondly, what the court sends out when a document is returned to the court via the postal service has been clarified. The notice used to say that there had been non-service. Now, under rule 6.11, the notice will merely say that that the document has been returned. In consequence, paragraph 8.2 of PD 6B, which used to say that the party adversely affected should himself try to serve the claim form, has been omitted.


Thirdly, if a bailiff is unable to serve a document, he will now have to tell the person who asked him to do so (rule 6.11A). Rule 10.3 has been amended to ensure that the court, when giving permission to serve a claim form out of the jurisdiction, also takes into account rule 6.21(4), which requires the court to specify the period within which the defendant may file an acknowledgment of service calculated by reference to PD 6B.


Thinking of effecting service in Malta or Singapore? Look at paragraph 3.1 of PD 6B, before doing so. Or considering service abroad in connection with claims under the Pensions Acts 1995 or 2004? Then see paragraph 5.2 of that PD.


And finally, vaguely on the subject of service, part 11 provides for the procedure where one party has been served but then disputes the court's jurisdiction. If that challenge is unsuccessful, the rules have provided for the defendant to file a further acknowledgment of service. Rule 11.7(c) now requires the court to go one stage further and give directions as to the filing and service of the defence in a claim under part 7, or the filing of evidence in a claim under part 8 in the event that the further acknowledgment of service is filed.




Possession claims


It is only one amendment, but its impact will be as important to those working in the housing field as Money Claims Online has been to litigants issuing electronically. A new rule 55.10A introduces PD 55B, which heralds Possession Claims Online (PCOL). When the technology has been sorted out, it will enable rent and mortgage claims to be issued and tracked electronically.


Paragraph 2.3 of PD 55 used to require the landlord suing for non-payment of rent to set out all the rent arrears in schedule format. That occasionally produced a schedule going back decades.


The PD now restricts the schedule of arrears to 'the period of two years immediately preceding the date of issue, or if the first date of default occurred less than two years before the date of issue from the first date of default, and a running total of the arrears'. If the claimant wishes to rely on a history of arrears that is longer than two years, he should state this in his particulars and exhibit a full (or longer) schedule to a witness statement (paragraph 2.3 of PD 55).


Mortgagees do not escape consideration. Paragraph 2.5(3)(a) of PD 55 imposes a similar obligation on the mortgagor. Again, the schedule is to be limited to two years. If the first date of default occurred less than two years before the date of issue, the schedule is to run from the first date of default.


Some time ago, part 65 introduced the concept of a demoted tenancy. In my view, it has been a little-used provision. Will things start to change? Section III of part 65 has now been amended also to include the new section 121A of the Housing Act 1985, which permits a landlord under a secure tenancy to apply to the court for an order, suspending the tenant's rights to buy. Time will tell whether many cases are brought before the courts.




Electronic disclosure


This was the subject of a detailed report of a Commercial Court working party, chaired by Mr Justice Cresswell, which reported about a year ago. The CPR has finally caught up with what the working party recommended, and the update sees the introduction of a new paragraph 2A in PD 31, dealing with disclosure and inspection.


As the direction says, rule 31.4 contains a broad definition of a document. Note that it includes 'additional information stored and associated with electronic documents known as metadata'.


Paragraph 2A.2 of the direction encourages the parties, prior to the first case-management conference, to discuss the issue of electronic disclosure. What searches should be made? What preservation methods could be adopted? How, and in what format, is the disclosure actually to take place? Difficulties or disagreements should be referred to a judge for directions at the earliest practical date, if possible at the first conference. The factors that may be relevant in deciding the reasonableness of a search for electronic documents are to be found in paragraph 2A.4 of PD 31.


Form 265 (list of documents) has been amended in line with the above.




European enforcement orders


A new part 74, section V provides for the certification of English judgments as European enforcement orders (EEOs), and for the enforcement of those orders certified in other member states in England and Wales, pursuant to Council Regulation (EC) No 805/2004, creating a EEO for uncontested claims. The intention is reciprocal &150; default judgments obtained here, provided certain conditions are met (in particular, in relation to service), should be enforceable without further ado in other EU states, other than Denmark, which has opted out. Similar judgments obtained abroad are enforceable here. The detail is in PD 74B.


This is an alternative to the existing procedures under the judgments regulation. The creditor can choose. The usual rules apply under article 8 of the High Court and County Courts Jurisdiction Order 1991, namely that judgments in excess of £5,000 shall only be enforced by execution against goods in the High Court; those for less than £600 shall only be enforced in the county court; and those in between are enforceable either way.




Miscellany


The Civil Partnerships Act 2004 has necessitated amendments to the default judgment provisions of part 12 &150; civil partners are treated the same as spouses and must apply on notice for judgment. Other miscellaneous tweaks also ensure comity under the rules as between spouses and civil partners.


Presiding judges may release to certain designated civil judges county court appeals (or applications for permission to appeal) from the decisions of recorders, thereby obviating the need for them to go before a High Court judge (no CPR update is complete without at least one alteration to the provisions for appeals, and this time have been three &150; civil partnerships, small claims and recorders).


Rule 30.8 permits commercial claims that contain a competition element to be tried in the Commercial Court, as well as in the Chancery Division.


A notarial act or instrument may be received in evidence without further proof as duly authenticated in accordance with the requirements of law unless the contrary is proved. A new rule 32.20 so provides.


If you are trying to reconstruct a missing file, the list of the documents you can obtain from the court is now to be found in paragraph 4.2 of PD 5. A new paragraph 4.1(3) of that direction provides for a register of claims - open to public inspection - to be kept at the Admiralty and Commercial Registry. No county court register yet exists.


Patent cases should be heard by the patent judge. When a matter needs to be dealt with urgently, and it is not practicable or appropriate for the patents judge to deal with such a matter, it may be dealt with by another judge with appropriate specialist experience (rule 63.4A)


Orders for the delivery up or preservation of evidence or property, where it is likely that such an order will be executed at the premises of a respondent or a third party (delivery-up orders), have many of the hallmarks of a search order. In such cases, the court may include in the order, for the benefit or protection of the parties, similar provisions to those found in PD 25 for injunctions and search orders (paragraph 8).


Paragraph 9 of that PD goes on to deal with injunctions against third parties. If the third party requests a copy of any material read by the judge, including material prepared after the hearing at the direction of the judge or in compliance with the order, or a note of the hearing, then the applicant, or his legal representative, must comply promptly with the request, unless the court orders otherwise.


It is to be hoped that few practitioners will see cases under the Prevention of Terrorism Act 2005. But if one comes along, have a look at the new part 76.


Intending to appeal from a judge-arbitrator? If so, paragraph 2.3A of PD 62 helps. The arbitration claim form must, in the case of an appeal, or application for permission to appeal from a judge-arbitrator, be issued in the civil division of the Court of Appeal. The judge hearing the application may adjourn the matter for oral argument before two judges of that court.


Finally, the disqualification of directors PD has been reworked to cope with the various amendments introduced by the Enterprise Act 2002.


Thirty-one of the paragraphs of the direction have been amended, so it will be necessary to read it all. And all nine forms have been both amended and renumbered.


District Judge Walker sits at Wandsworth County Court