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Accessible legal tips, know-how and news for anyone with a complaint or legal issue from Stephen Gold, author of The Return of Breaking Law, the book

Monday 29 July 2019

The Very Very Latest Court Procedure Rule Changes

It could be said that if you take a deep interest in the Civil Procedure Rules 1998 (CPR), you are some sort of judicial pervert. Nonsense. These rules govern how you go about pursuing or defending civil court proceedings in England and Wales and how the courts will deal with them.  They are as dry as old boots but, whether you be a lawyer or a litigant in person, you need to know what they say or you could find that your case is killed off by a judge because you have failed to follow them. You'll get a pretty good idea of what they say from reading my book Breaking Law (this guy will write anything to collect a few bob in royalties) and the rules, like everything in the book, are updated here FREE!

The rules themselves and the practice directions which supplement them are updated at least twice a year. They've just issued update 109. Yeh, really cool. Which takes me to this post. A warning. You could fall asleep before you finish the post. Perhaps, get someone to pinch your toes every five seconds. And, if you want to fall asleep before you begin, you can take a look at the Civil Procedure (Amendment No 3) Rules 2019 (SI 2019/1118) on which part of the update is based.

Everything summarised comes into force on 01 October 2019 bar one thing. Here goes with the best bits. 

Costs budgeting  Practice Direction 3E  is clarified to make it clear that the costs of and including the first costs management conference will be incurred costs so that they will not be open to adjustment by the court at the budgeting stage.
Reviewing the situation  The pre-action protocol for judicial review is amended - as from 17 September 2019 - to specify to where the letter before claim should be sent when the Treasury Solicitor acts for the intended defendant and has already been involved or where a decision of HM Revenue & Customs is involved.
Small but beautiful  A hearing of a small claim (that usually means a claim that has been valued at £10,000 or less) will generally take place in public at a county court. That means that your arch enemies, next door neighbour, local newspaper reporter and former Latin teacher can all turn up and enjoy the proceedings. In practice, it is very rare indeed for anyone to be present apart from the judge, the parties, any legal representatives or McKenzie Friends and the witnesses, so don't worry. But just occasionally someone else might attend. Practice Direction 27 has been amended to clarify that the fact the parties agree the hearing should be in private will not of itself be a sufficient ground for the judge to direct a private hearing. The only situations in which a private hearing can be ordered are set out in rule 39.2 of the CPR. They include that publicity would defeat the object of the proceedings or that the hearing involves confidential information, including information relating to personal financial matters, and publicity would damage that confidentiality.
Aha, Aarhus  A claim under the Aarhus Convention is an environmental judicial review or statutory review and the Convention was devised to see that the public has access to proceedings which challenge public authorities over environmental issues and that these proceedings are not prohibitively expensive. The latest update tweaks the CPR at rule 45.41(2)(a). This will bring statutory reviews relating to national environmental law within the environmental cost protection regime.
Media Mad Unless agreed by the parties in writing, the county court lacks jurisdiction to deal with claims for libel or slander (although it can deal with claims for malicious false hood - see Breaking Law  for more info on them). That’s s15 of the County Courts Act 1984 and  Practice Direction 7A. A new para 2.9A provides that, subject to this, any media and communications claim, including business within the media and communications list, can be started in the county court or High Court and the £1000,000 threshold to claim in the High Court will no longer apply. But to the High Court the claimant must go if they believe that a High Court judge is needed on account of value and/or complexity and /or public importance. Also, the pre-action protocol for defamation cases is replaced by one for media and communication cases.
What a Business A new Practice Direction, swingingly entitled 57AA and devoted to he Business and Property Courts, will only come into force if we Brexit without a deal - along with a million other pieces of legislation. Help!!!!

That's yer lot

Friday 26 July 2019

MasterCard: Supreme Court Appeal Permission Result

Sorry but put the champers back on ice and stick to gripe water for the time being. In the Walter Merricks collective claim on behalf of virtually all of us against MasterCard - take a look at http://www.breakinglaw.co.uk/search/label/MasterCard%20claim - the Supreme Court has just given MasterCard permission to appeal to it against the Court of Appeal's ruling that the collective claim could continue. I'll be back soon with news of when the appeal is likely to be heard.

Monday 22 July 2019

Hugging A Debtor: County Court Judgments

The government’s recently announced 60 day ‘breathing space’ scheme to protect debtors who are individuals is planned to rear its head in legislation to be put before parliament later this year with implementation in early 2020. But don't hold your breath. They tell me that anything could happen Westminster way between now and then.

But there's good news for debtors NOW which might conceivably bring on some creditor cursing. When the creditor has a county court judgment for less than £5,000 they can send in the county court bailiff to the debtor. They do this by applying to the court for a warrant of control. Centres called - wait for it - warrant of control centres - are being established in 12 locations in England and Wales by the Courts Service. Some of these centres are already functioning. All warrants of control will be referred to the centre servicing the relevant patch rather than immediately to a bailiff. The centre will then make contact with the debtor and attempt to engage with them with a view to arranging a pay up, probably by instalments, and offering support when it is needed. This will last for up to around 12 days. If the debtor has paid up or come to an arrangement to pay with the creditor then it should be unnecessary for the bailiff to be involved.

The Courts Service reckons that the scheme is working well. If it helps debtors or creditors or both, all well and good. If it means that the scheme gives the debtor an opportunity to get rid of of their Roller or fifth television set before it can be seized by the bailiff, then not so good - for the creditor. It is always open to the creditor who has no faith in the debtor playing ball to attempt to stop the warrant being referred to one of these centres by making an application to the court for the warrant to go straight to the bailiff and for the debtor not to be given prior notice of the bailiff's intention to call on them.

A creditor can have the judgment referred to the High Court and a writ of  control issued there which would be dealt with by an enforcement agent who is the High Court's version of a bailiff. This can only be done if the judgment is for at least £600. Disadvantages? The enforcement agent's charges ultimately payable by the debtor are higher than the charges involved in using a county court bailiff and will take priority over the debt. This means that if the debtor has only very limited assets then there may be nothing left for the creditor. The arguable advantages? A control centre will be avoided and interest on the judgment at the rate of 8% will be attracted as from when the case goes to the High Court until the debtor gets their money.

There are loadsatips for debtors and creditors about how the law can help them in my book Breaking Law.  Be careful though, debtors, to hide it under the bed. Otherwise, the bailiff or enforcement agent might seize it!

Sunday 7 July 2019

Matrimonial Finance Cases: New Costs Rule

  • 'Please be sensible and talk to me about the matrimonial finances.'
  • 'Go to hell.'
  • 'If you carry on like that, I'm going to court, not hell.'
  • 'Bitch.'
  • 'You attitude is going to mean big lawyers' fees for us both and that can only reduce what is available to be shared.'
  • 'Bitch.'

Four months later
  • 'We're in court in three weeks. My lawyers have sent you my proposals for settlement and you've torn the letter into small pieces and returned it to them. Not even a stamp on the envelope. Be sensible and accept the proposals or let me know how you suggest we settle. Please, please, please negotiate.'
  • 'I don't negotiate with bitches.'
Whether it's a divorce, nullity, civil partnership dissolution or separation,  there is a near certainty that there will be finances to be sorted out and nothing in the proposed matrimonial reforms will change that. If the couple can reach an agreement about who is to get what in terms of capital and income, then the court can be asked to make a consent order which incorporates what has been agreed. Provided the agreement is within the range of what the court would regard as fair if it had to decide on the split, the order will be made. Probably no court attendances necessary and no crippling lawyers' fees or just a modest bill.

Many cases fail to settle because one of the parties is intransigent, bloody-minded or just refuses or neglects to engage in attempts to settle through negotiation. If you are involved in matrimonial finance proceedings and you recognise that attitude in your partner then your armoury has been strengthened by a legal change which came into effect on 27 May 2019. 

'My dear partner, do take a look at the Family Procedure Rules 2010 Practice Direction 28A. It's been amended with you in mind. If you don't start openly negotiating with me and fast, my lawyers will be asking the court to order you to pay my legal costs - so put that in your pipe and smoke it.'

The legal change covering England and Wales means this. Although the general rule is that in matrimonial finance cases, each party picks up their own legal bill, this rule can be ditched by the judge when this is justified. And now, when deciding whether to ditch the rule and order one party to pay the legal bill of their partner,  the court is to take a broad view of the conduct of that other party. It will generally decide on a ditching if the other party has refused to openly negotiate in a reasonable and responsible way.  

A party who fails to engage in open proposals and counter-proposals, openly offers peanuts or openly refuses manifestly fair offers could now be in costs conduct trouble. Making protected proposals which cannot be shown to the judge if there is a contested hearing - Calderbank communications the lawyers call them - will not get them off the hook. 

For much much more on dealing with matrimonial finances cases, treat yourself to a copy of my book Breaking Law.