The Civil Procedure (Amendment No.2) Rules 2011 (SI 2007/1979) are a feeble affair with just three provisions, only one of which will be regarded as important by practitioners.
Part 36 (offers to settle)
The important provision is the new rule 36.14(1A), which is inserted to overrule the bizarre decision in Carver v BAA plc [2008] EWCA Civ 412, [2008] 3 All ER 911 as recommended by Lord Justice Jackson in his report on civil costs.
The rule comes into force on 1 October and provides that: ‘For the purposes of paragraph (1) in relation to any money claim or money element of a claim, "more advantageous" means better in money terms by any amount, however small, and "at least as advantageous" shall be construed accordingly.’
This removes an unwelcome complication in part 36. If a defendant has made a part 36 offer of £9,640 and the claimant obtains judgment at trial for £9,650, the claimant has beaten the defendant’s offer and it will no longer be possible for the defendant to attempt to avoid a costs order by arguing that the judgment is not ‘more advantageous’ than the offer.
Part 6 (service)
New rule 6.7(2)(aa), which came into force today and is inserted to give effect to a European directive, enables a solicitor in Scotland or Northern Ireland to give their address as the address for service, in which case the claim form must be served at the business address of the solicitor.
Part 79 (proceedings under the Counter-Terrorism Act 2008)
A drafting error is corrected in part 79 by substituting ‘appeal’ for ‘application’. There are also amendments to the rules on disclosure in these types of case.
Practice directions
Much more substantial than the statutory instrument are various amendments to the CPR practice directions (PDs):The press has made much of the fact that the Ministry of Justice cannot give figures for the number of so-called ‘superinjunctions’ granted, usually in privacy cases, or how many are currently in force. New PD51F came into force on 1 August and provides for statistical information to be recorded in an anonymised form to be completed by any judge who grants such an injunction.
- Litigants in person
- Other costs changes
- Superinjunctions
Successful litigants and witnesses in cases allocated to the small claims track can, from 1 October, be awarded up to £90 for loss of earnings instead of the sum of £50; the first increase since April 1999.
A new section 23B entitled ‘costs capping orders in relation to trust funds’ is inserted into the costs PD. The purpose of this new section is to enable the court to set at a proportionate level the amount of costs that can be recovered from a trust fund at an early stage of the litigation.
The Defamation Proceedings Costs Management Scheme (which applies in Manchester District Registry and the Royal Courts of Justice) in PD51D is extended to 30 September 2012, with amendments to the scheme following analysis of the pilot so far.
There is a new PD51G (costs management in mercantile courts and the technology and construction court – pilot scheme) introduced to manage costs at an early stage in these courts. It applies to all cases where the first case management conference is heard after 1 October.The amendments to PD52 are required to correct an oversight in relation to appeals under article 38 of the Health Professions Order 2001, article 58 of the Pharmacy Order 2010 and under the Nursing and Midwifery Order 2011.
- PD64B – applications to the court for directions by trustees in relation to the administration of the trust
- Pre-action protocol for low-value personal injury claims in road traffic accidents
- PD52 – appeals
In cases where agreement on damages is not reached in stage 2, and the case is about to proceed to stage 3 (which is the issue of proceedings governed by PD8B), paragraph 7.55 of the protocol requires the claimant to send to the defendant the Court Proceedings Pack (part A and part B).
It is important to have in mind that the district judge will assess damages on the papers filed. Part A of the pack contains the final open offers of both parties. After damages have been assessed, and for the purpose of deciding costs, the district judge then opens the sealed envelope containing part B of the pack. Part B states the final part 36 offers of both parties.
There are an astonishing number of cases where parties are inserting the same figures in both parts A and B. That is pointless. Although it is difficult to understand how paragraph 7.55 could have been misunderstood, it has been amended to make it even clearer.
Conclusion
Overall, a lot of tinkering but nothing substantial in update 57. However, of the 13 changes noted above, no fewer than eight are based on the recommendations of Lord Justice Jackson in his review of civil costs. The main Jackson reforms are due to be implemented in October 2012, so a much more substantial article than this one should be anticipated in a year’s time.
But, given the apparent lack of current activity, is it not a shame that the opportunity has not been taken to re-write schedule 1 (RSC 1965) and schedule 2 (CCR1981) to finally incorporate these into the main body of the CPR?
District Judge Hill sits at Leeds, York and Scarborough county courts. He is also a regional costs judge and a member of the Civil Procedure Rules Committee
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