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

NEVER GIVE UP

A High Court decision in a libel case the other week demonstrates that while there is life, there is hope. It was alleged that the defendant had written and sent two letters which were defamatory of the claimant. He denied he was the author or sender. But the defendant failed to deal with correspondence from the claimant's solicitors (called Wright Hassall who the defendant came to unjustifiably accuse of unprovoked harassment!) and then to take essential steps in the proceedings which followed. His serious and significant default led to the claimant obtaining a judgment against him which, if it stood, would quite possibly have led to a five figure award of damages with a liability for the claimant's legal costs on top.

The defendant asked the court to set the judgment aside so that he could defend the case. To succeed, he had to show he had a real prospect of winning the case if the judgment went. However, failing to act promptly in making an application for a judgment to be set aside - three and a half months here - will more often than not be fatal to the application being granted even though the defendant might have won the case if the judgment was set aside. 

The High Court judge decided that the defendant did have a real prospect of successfully defending. But what about his delay? The judge bore in mind that the defendant had hoped the case would simply go away; he had no spare funds to spend on lawyers and litigation; and he is the sole carer of his invalid wife. There were also some unsatisfactory aspects to the handwriting expert report on which the claimant was relying and there was a special point relevant to defamation cases in which the primary object was to achieve vindication of the claimant's reputation. It is that if the claimant has secured a judgment through the defendant's default as here, those ill disposed towards the claimant may find it easier to dismiss the outcome and not accept it as a vindication.

So, by the narrowest of margins, the judge did set the judgment aside allowing the defendant to defend but the defendant must pay the claimant's legal costs which have been thrown away by his inertia.