CPR Committee annual open meeting—15 May 2020

CPR Committee annual open meeting—15 May 2020

The annual open meeting of the CPR Committee (CPRC) took place remotely on 15 May 2020 and covered a number of topics, including the postponement of the whiplash reforms, reforms to CPR 81, the Commission for Welsh Justice, CPR PD 2B, the CPRC’s response to the coronavirus (COVID-19) crisis, proposals for measures to protect vulnerable court users, amendments to CPR 73, consequential amendments arising out of the amended statement of truth, various costs reform proposals and the relationship between rules and Practice Directions.

Action Log and any matters for update not covered by later items (item 2c)

Whiplash reforms postponed

The Chair confirmed that the proposed whiplash reforms are delayed until April 2021.

Contempt (CPR Part 81) Consultation update

The sub-committee on reform of CPR 81 has prepared a draft revision, which cuts the number of rules down to ten, as opposed to the current 38. A public consultation has recently concluded and the sub-committee will present their final proposals at the next CPRC meeting on 5 June 2020. If the proposed changes are adopted by the CPRC then the new rules will come into effect either this year or early 2021.

Commission for Justice in Wales update

Following two years of evidence-gathering, the recommendation by His Honour Judge Jarman QC was that it should be compulsory for challenges to the validity of decisions made by a Welsh public body to be heard in Wales.

The CPRC agreed in principle to take that forward. A proposal has been drafted and will be considered fully at the CPRC meeting on 5 June 2020.

Issues with CPR PD 2B

Although not a formal agenda item, Master Dagnall confirmed that questions posed to the CPRC by LexisPSL regarding drafting issues with CPR PD 2B would be considered by the relevant sub-committee, who would bring their recommendations to the CPRC either in June or July. For details of the relevant points concerning CPR PD 2B, see Practice Note: Injunctions—jurisdiction—County Court—jurisdiction of District Judges.

COVID-19 related matters (item 3)

The Chair raised eight matters relevant to the CPRC’s work in relation to coronavirus:

  • the speed and clarity with which the four coronavirus-related Practice Directions were produced was praised
  • the document entitled Civil Listing Priorities, produced at the end of March and revised on 14 May 2020, ensures that judges are in control of whether or not cases are capable of being heard at this time
  • it is not known whether the current 90 day stay of possession actions will be extended; that is a question for the Ministry of Housing
  • there is likely to be a backlog of cases that would exist even after current restrictions lift, and it is anticipated that there will be a continued need for remote hearings conducted by Deputy District Judges to help tackle the backlog
  • a Civil Justice Council (‘CJC’) consultation exploring the experiences of court users in relation to remote hearings is ongoing
  • there would be no lifting of the restrictions on the size of emails that could be sent to the court
  • the issue around extending limitation periods is a matter for government policy but that it was ‘exceedingly unlikely’ there would be any change to limitation periods

in relation to the prospect of a move more generally to remote hearings in a post-coronavirus world, we are still some way away from video hearings becoming the norm

In relation to two further points raised by CPRC members, the Chair also discussed the following:

  • in relation to CPR PD 51ZA and the 56 day limit for agreed time extensions, attempts to allow the parties even greater autonomy had not been successful. He did, however, note that matters had moved on since then and there may now be scope for reconsideration
  • in relation to possession claims and the need for the court to comply with certain timescales for possession hearings as set out in CPR 55.5(3), this point had been considered at the outset of the crisis and because there is no sanction for failure to meet those timescales it was not considered a real problem

Vulnerable parties sub-committee (item 4)

Four proposals were presented from the vulnerable parties sub-committee:

  1. an amendment to the overriding objective to underline the need to give specific consideration to the needs of vulnerable parties
  2. an accompanying Practice Direction addressing vulnerable parties
  3. an amendment to CPR 44.3(5) to specifically include vulnerability as a factor relevant to the consideration of proportionality in costs decisions
  4. that an approach be made to the Ministry of Justice to suggest amending the fixed costs and scale costs rules to account for the fact that cases involving vulnerable parties involve a lot more work and therefore higher legal costs

Subject to a requirement that the individual amendment proposals be subjected to proper drafting scrutiny, the CPRC confirmed that the sub-committee should move forward with those proposals.

Legal Adviser Scheme CPR Part 73—Unless orders (item 5)

The CPRC approved amendments, to be included in the next updating SI, to CPR 73. These amendments will enable Legal Advisors to make an unless order where the judgment creditor fails to file a certificate of service pursuant to CPR 73.7(2), and also clarify certain matters in CPR 73.10.

Consequential changes re 113th PD Update (Statements of Truth) (item 6)

There was recognition by the CPRC that the amendment to the wording of the statement of truth in CPR PD 22, para 2.1 caused some issues with other parts of the CPR that also specifically set out the wording of the statement of truth (these issues are highlighted in Practice Note: Statements of truth—Form of statement of truth).

The CPRC agreed that the best way forward was to simply remove the specific wordings from elsewhere in the CPR (other than in respect of experts) and replace them with references to the wording in CPR PD 22, para 2.1.

Lacuna sub-committee (item 7)

Four matters were raised by the lacuna sub-committee for consideration by the CPRC, all of which related to costs:

  1. the CPRC agreed to recommend the deletion of the upper limit of £25,000 from tables 6 and 6A in CPR 45.18
  2. the CPRC declined to take any action in relation to the fact that, as a result of amendments to Section IIIA of CPR 45 following the case of Qader v Esure Services Ltd, a personal injury case that settles prior to allocation will attract fixed costs, even if it would have been allocated to the multitrack, whereas if the same case settles post-allocation the fixed costs rules do not apply
  3. following the Court of Appeal’s reluctant conclusion in Ho v Adelekun (No 2) that defendants can set-off costs awards in their favour against the claimant’s costs awards as well as judgments on damages, the costs sub-committee will review the relevant provisions in CPR 44.14 at the same time as awaiting the Supreme Court’s determination of the appeal in Ho
  4. the fixed costs provisions in relation to the Intellectual Property Enterprise Court (IPEC) currently allow for VAT to be recovered on ‘scale costs’ but not ‘total costs’, and it is said this is an anomaly. This issue will be referred to the IPEC court users’ committee before determining whether it needs to be referred to the costs sub-committee

Future CPR drafting—‘Rules v PDs’ (item 8)

The Chair noted that the practice of supplementing rules with Practice Directions sometimes worked well but in other cases made the rules cumbersome and less accessible. There was not sufficient time to discuss the matter in detail but members of the public at the meeting were invited to put forward any strong views they had on the subject.

Public question forum (item 9)

Due to time constraints only six questions from the public were posed. The questions and answers are summarised as follows:

Question Answer
Will the disclosure pilot in the Business and Property Courts (‘B&PC’) be extended in those courts and/or rolled out more generally next year? The experience of the B&PCs has generally been positive, and it may be that the pilot is extended, but it is for the B&PCs to seek that extension and there is no indication of that at present.
It is unlikely that the pilot will be rolled out to civil litigation more generally.
What is the impact of the end of the Brexit transition period on civil litigation—both generally, as well as specifically on parts of the CPR that have a European aspect, such as obtaining foreign evidence?

 

The answer was the same for both points raised. A lot of work was undertaken in 2018 and 2019 to refine the CPR rules and prepare them for Brexit. Those provisions are already primed to come into effect either on 31 December 2020, or on such later date as may be agreed if an extension to the implementation period is sought.

 

How can litigants in person access up-to-date knowledge relevant to litigation?

The short answer was—not very easily. Libraries tend to have old versions of books, which is a problem. Ultimately, there is a gap in provision here.

 

CPR 36 is slightly unclear about what happens with the costs in pre-action settlements. Although CPR 36.13(1) refers to ‘recoverable pre-action costs’, CPR 44.9(2) provides that there is no ‘deemed’ costs order recognising the right to costs under CPR 36.13(1) and (2) where the offer is accepted before proceedings are issued. Should something be added to CPR 36.13 regarding pre-action settlements?

The costs sub-committee will look into this, although it is probably only a theoretical problem.

 

Can the CPRC give any information on the pre-action protocol for boundary disputes and a timescale for taking this forward?

This is on the agenda for the July meeting of the CPRC.

 

Any other business (item 10)

Two points of other business were raised:

  • the CJC is conducting a general review of pre-action protocols. Any recommendations will be considered by the CPRC in due course
  • the Chair welcomed David Marshall as the new solicitor member of the CPRC

 

 

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About the author:

Richard is a barrister with over 10 years’ experience in the civil courts in England and Wales.  Through extensive exposure to the courts on a nearly daily basis he has developed an in-depth understanding of the practical application of the CPR in day-to-day litigation, both in interim hearings and substantive trials.