CPR Committee Open Meeting—2 May 2014

The Civil Procedure Rule Committee (CPRC) held an open meeting attended by practitioners on 2 May 2014. Janna Purdie attended.

The meeting dealt with some committee business and then opened out to take questions from the attendees. The Committee hope that the information provided will be circulated to enable those using the rules to have an understanding of the work being undertaken and that concerns as to the application of rules will be considered.

Consultation

The whiplash consultation was presented by MOJ Policy team. The consultation in relation to low value RTA claims involving whiplash runs from 2 May to 28 May.

The timetable for the implementation of changes to the CPR as a consequence of the consultation is very tight with the MOJ Policy team putting forward that it would revert to the CPR Committee with its proposals following the consultation so that the committee would be in a position to approve on any CPR changes at its meeting on 6 June ie just a week after the end of the consultation so that the changes could be implemented as part of the CPR October 2014 update.

CPR updates

A new SI for CPR amends is due in June 2014 dealing with

(1) the costs budgeting clarification notice re the application of CPR 3.12,

(2) a glaring omission in relation to the Planning Court provisions and

(3) the 28 day extension of time as agreed between the parties (so called buffer agreements).

After that the intention of the CPR Committee is to seek to revert to SI release in July for the October CPR updates and December for the April CPR updates.

We will be dealing with the June CPR updates in our May newsletter - make sure you sign up using the box on the top right of the page so that you don't miss out.

Pre-action protocols

The review and amendment/updating of the pre-action protocols has been taken on by the CPR Committee; previously responsibility lay with the Civil Justice Council. The sub committee for this is chaired by District Judge Suzanne Burns. This was considered in detail in the 4 April CPR Committee meeting and the minutes are available here.

 October CPR changes:

  • Amended protocols for Pre-action conduct and the 3 housing protocols
  • New protocol for debt

Protocols undergoing review:

  • Professional negligence, construction and engineering
  • Judicial Review
  • Defamation

Protocols to be reviewed:

  • Dilapidations protocol. This review is on the basis of concerns raised by practitioners in the meeting that because the protocol refers to ‘surveyors’ rather than ‘experts’ this is causing substantial difficulties in getting relevant costings, rather than inflated ones, at the pre action stage because surveyors are not bound by the same requirements as an expert

Protocols not under review:

  • RTA protocols on the basis it is too soon since their implementation date

Part 36

The Part 36 provisions were previously under view but went on a backburner as the Jackson Reforms were brought in. The sub committee for this is chaired by Edward Pepperall QC. Now resurrected the sub committee will be looking at the following:

  • authorities provide that Part 36 offers cannot state that the offer will be withdrawn after a certain number of days. However, this is anomalous with the fact that an offer can be withdrawn, with the court's permission, prior to the expiry of the relevant period or at any time after the expiry of the relevant period (so called sunset clauses)
  • should a pre-action Part 36 offer require court approval
  • Claimant case 95% offers ie where a claimant makes an offer to settle at 95% or a similar high percentage simply to ensure that they obtain all the costs benefits of having made a Part 36 offer. The issue for the rule committee is that these are not made as genuine offers to settle but simply for costs purposes and result in defendants being put in a difficult position on whether to accept the offer due to the costs consequences rather than the genuine issues in dispute
  • what should the position be in relation to split trials and Part 36 offers. Should judges be able to look at the offer and what happens if there is a global settlement (AB v CD—Henderson J judgment)
  • what is the position with derisory offers (AB v CD and Huck v Robson)
  • the issues raised in FC Alternative Investments of what happens where a Part 36 offer is not easily available
  • excess technicality

If you have any specific issues you consider are not included on that list please set these out in an email and they will be provided to the sub committee for consideration.

Other work

  1. Damages Based agreements—concerns were raised by a number of attendees in relation to DBAs. it was confirmed that although this is not an issue for the CPR Committee the Master of the Rolls is well aware of the issues and has been pushing the MOJ for this to be addressed. It will be raised with the Justice Minister again.

  2. Part 6 dealing with service—no review. The courts are not encountering any difficulties with the way in which practitioners are using the provisions

  3. Costs management and appeals—there are no plans to look at extending costs management to appeals

  4. Outstanding Schedule rules (RSC and CCR)—these are being considered and will be integrated into the CPR. It is intended that this process will be complete next year for October 2015 CPR update. This will result in new Parts 87 and 88

  5. Accelerated possession procedure—this is being reconsidered as a consequence of an issue raised at the meeting which is that the use of the accelerated procedure is resulting in a longer wait to get before the court than using possession procedures. The CPR rules for Possession procedures stipulate that the matter must be heard within 8 weeks, there is no such stipulation for the accelerated possession procedure.  There was a concern about this and the CPR Committee will consider the provisions for the accelerated procedure again in light of this

  6. Guidance for the instruction of experts in civil claims—this to be removed from CPR PD 35. No date was provided for when this will occur but subject to a small amendment it will be available for publication

  7. Detailed assessment of costs payable by a child or protected party—is being reconsidered due to issues in applying CPR 21.12 in practice. This provides for reimbursement of expenses out of the child’s fund but not costs.   The general rule is that a detailed assessment is required for costs unless, inter alia, there is no need to do so to protect the interests of the child or the protected party.  Some courts are dealing with this by dealing with costs on summary assessment whilst others are requiring detailed assessment. The CPR Committee is therefore looking at how to deal with this and is setting up a subcommittee. The sub committee for this will be chaired by District Judge Hovington

  8. Litigants in person—a sub committee is being set up which will be chaired by District Judge Lethem to look at proposals for rule changes when dealing with litigants in person. The aim of the sub committee will be to support the Judicial Committee and to implement the proposals of the Higginbottom Report which made specific recommendations to facilitate access to justice by litigants in person following the implementation of the provisions in LASPO 2012.

  9. Use of 'Will' in the CPR provisions—the word 'Will' is used in the CPR rules where a function is essentially to be performed by the court automatically on the occurrence of an event; ie the court has no discretion. The CPR Committee discussed whether the word 'Will' should continue to be used given comments external to the CPR Committee. The MOJ is to consider this issue.

  10. Appropriate thresholds for pre-action fixed costs—this was a consequence of a recommended by Jackson LJ that there should be a threshold figure pre-action above which the claimant would have to apply to the court for authority to exceed that figure.  The difficulty arises in setting that figure.  The primary legislation and rules to introduce this threshold is due in about 2 years time.  Qasim Nawaz, of the CPR Committee set out the need to gather information to assist in setting the threshold level.  The CPR Committee decided that this is a task more suited to the CJC which had a standing costs committee.

  11. Snagging list—the CJC conference earlier this year, Mark Harvey put together a list of snagging issues following the implementation of the Jackson Reforms.  The CPR Committee will look at this although the review is being undertaken by the CJC itself.  For more information on the conference see here  (under 14 May – latest news).

  12. Access to court documents—the planned amendment to CPR 5.4C to address issues for judicial review proceedings is to be picked up again.

Practical points

Directions—a practical issue raised by the CPR Committee in relation to Directions was that practitioners are not using the directions template as set out in CPR 29.1 but rather are providing their own. The courts are going to be much more stringent in policing this failure to comply with the requirement in CPR 29.21 going forward.

Differences in practices across the courts—the CPR Committee considered that the judicial inconsistency we have seen over the past year will start to settle down over time.  To assist in seeking a consistency of approach the Judicial College will be running a new case management course this year

The CPR Committee discussed the impact of the changes to the rules and practice directions which they introduce. In doing so they noted that they did not have the resources to be able to proactively seek feedback on the impact of the changes but that they would consider setting up a comments section on their website to enable practitioners and others to provide feedback. The first stage was to consider whether this was possible.

In the meantime if you have any feedback on the impact of the CPR reforms in practice then please do let Janna know and we will collate comments and provide them to the CPR Committee.

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