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

New Civil Procedural Rules: MORE!

I've provided you with the first dose of the new civil procedural rules coming into force next month. Please digest http://www.breakinglaw.co.uk/2019/03/new-civil-procedural-rules-open.html with a glass of cold water but not on an empty stomach. Here's some more to be taken with your evening meal.

Summary assessment of costs This is only likely to interest you if you are a lawyer,  professional litigant. or slightly eccentric. On 01 April 2019 a pilot scheme for the summary assessment of costs is introduced. It doesn't matter when the claim was started. If the assessment is to take place on or after that date then the party who will be asking for costs can use a new form instead of the current N260 and can utilise an electronic spreadsheet. For an interim application, use new form N260A: for an assessment which is going up to and including trial, use new form N260B. You''ll find the new forms with CPR update 104. With that update, you will also find a new budget discussion report form for multi-track cases which must be used as from 25 April 2019.

What did the judge say? The court hearing will have been recorded and you can request a transcript of what was said. If the judge raised their eyebrows during the hearing or your jaw dropped a few feet when you heard the judge's decision then that, of course, will not show up on the transcript! The cost of the transcript has to be borne by whoever asked for it. It can be high. The longer the hearing, the longer the transcript and the costlier it will be. If you want the transcript for an appeal then the likelihood is that only the judgment - the judge's announcement of their decision and why they have reached it - will be needed. However, judgments can be lengthy and, for a variety of reasons, there can be delays in the transcript being produced for you. This can hold up the appeal. A new provision in the procedural rules which will come into force on 01 April 2019 encourages the judge to assist a party, and particularly a litigant in person, to give directions for the compilation and sharing of any note or other informal record of the hearing which has been made by another party or their lawyer or, indeed, by the judge. This is to be welcomed and should accelerate the determination of any appeal.

Court Fees: New Regime

There are some important changes to the procedure in civil cases which mainly burst into action on 6 April 2017. The Civil Procedure (Amendment) Rules 2017 (SI 2017/95) are to be cursed or thanked, as the case may be.

I previewed the most impacting procedural change in my 8 December 2016 post Civil Hearing Fee Refunds Scrapped. The new rules cater for the change with this one coming in to force on 8 March 2017. The hearing fee is now called the trial fee. It will become payable by whoever is bringing the claim (or by the defendant if the claim has been knocked out and the case is going ahead on a counterclaim only). And it will be payable later in the case which will generally be by four weeks before the trial date. That's good. What isn't so good is that if the case settles in the run up to the trial, no part of the trial fee will be refundable as is presently the position. So you might be saying to your opponent something like -

"Be sensible. I am just about to pay the trial fee to the court. If you are going to settle with me, do it now. That's because once the fee has been paid, I won't get any of it back from the court should there be a later settlement and the trial be avoided. This being so, I will have to charge you up for the trial fee as well."

If the trial fee is not paid on time - and the court will notify you of the date for payment - the claim will be automatically struck out and you will have to pay the costs of the other side, unless the court orders otherwise. No period of grace and no reminder. It will be open to you to apply to the court for forgiveness and for the claim to be reinstated on condition you pay up or obtain remission (help with the fee). You certainly would not be able to bank on the success of such an application.

The new scheme for trial fees will NOT apply where before 6 March 2017 the court has notified to you the date of the trial or a trial window (the period during which the trial will take place).

Other changes which are somewhat technical and may send you to sleep unless you are a lawyer (or married to one in which event they will certainly send you to sleep)-

• the pilot scheme for legal advisers (barristers or solicitors) to deal with some of the more straightforward court box work is made permanent and tweaked.
• where costs budgeting applies in multi-track cases, the court is empowered on a detailed assessment to cut down the costs which were incurred before a costs management order was made notwithstanding that no point was taken on them at the costs management conference and the court can say nasty things about how high they are even at any case management conference, whether or not it makes a costs management order, and what is said can be taken into account on  a detailed assessment.
• if a case which started its life on the portal is later allocated to the multi-track, the costs will not be limited to fixed costs.

You can wake up now.

THE LiP FRIGHTENERS

Losing a civil case can be expensive not only when the winner had a lawyer throughout but when they were a litigant in person. Yes, the litigant in person can charge up £19 an hour for their time on the case (more if they actually lost more) plus expenses which may include taking legal advice along the way and even having an advocate at court for one or more of the hearings.  That's why it may be a good idea at an early stage to warn smug lawyers on the other side of what your bill might come to as a litigant in person if you win and that you will be asking the other party to settle it! Different rules apply to small claims. There's more in Breaking Law at chapter 26.

In the more substantial cases which are going ahead in court on what is called the multi-track (they usually involve claims for more than £25,000, claims where the trial is likely to last more than one day or claims which are very complex), the parties who have lawyers on the record as acting for them have to prepare a costs budget which sets out how much they have spent and how much they reckon they need to spend on the case in the future. The budget must be agreed by the other parties or approved by the court which will go on to manage (poke its nose into) what is happening costswise as the case progresses. 

But, on the face of it, the court rules do not require litigants in person to come up with this costs budget though they will see and may object to the budget of the other parties with lawyers. However,  a High Court judge has just decided that the court could order a litigant in person to come up with their advance budget - and did so. In addition to what the claimant in the multi-track case had already spent, his future estimated costs were just over £315,000. The judge ruled that they could include the fees of a QC who the claimant would use by instructing him directly rather than through a solicitor and fees for other legal advice and help.