Minutes of the CPR Committee—May 2017

The May 2017 minutes of the CPR Committee cover a number of issues including a new pilot scheme for an online court, a new pilot scheme for a form of fixed recoverable costs, extension of Financial Markets test case pilot scheme, making the bill of costs pilot scheme mandatory as well as the format for the New bill of costs, amendments to CPR 78 and practice direction 78 following revision of the European Small Claims Regulation, closure of County Courts, further consideration of concurrent expert evidence (hot-tubbing), amendments to CPR 52.4(1) and amendments to notice of allocation forms.

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In this feature, we summarise the key areas of focus for the CPRC in its recent meeting (links in red are where subscribers can click through to more information – take a free trial to access):

For a copy of the agenda and minutes of the meeting, together with the various supporting documents, see Practice Note: Minutes of the CPR Committee meeting of 5 May 2017.

Fixed costs pilot scheme

A proposal to introduce a voluntary pilot scheme to test the use of a capped costs scheme in a limited number of courts for claims up to £250,000 was agreed to in principle.  It is similar to the Shorter Trial scheme supported by a costs capping regime—caps will be set for stages with a total maximum cap.

The scheme includes a non-disclosure clause but it was confirmed that the pilot scheme would not apply to claims for clinical negligence.  With disclosure being a 'driver' for high costs, an aim of the pilot is to test the most appropriate method to restrict such costs.Phonographic Performance Ltd v Hagan & Ors (t/a Lower Ground Bar and the Brent Tavern) [2016] EWHC 3076 (IPEC)

Consideration was given to whether the maximum 25% cap would 'take the teeth out of the Part 36 regime'.   However, it was noted that the recent Court of Appeal decision in respect of the IPEC cost capping scheme and operation of Part 36 (a reference to the case of Phonographic Performance v Hagan) had informed the drafting of the pilot to provide an incentive for Part 36 offers.

For information on the decision in Phonographic Performance, see News Analysis: Part 36 trumps IPEC stage and overall costs (Phonographic Performance v Hagan).

The 25% level is to be discussed as to whether an appropriate level.

It is intended that the pilot commence as soon as possible to enable early experience of the scheme to be included in Lord Jackson's costs report due to be finalised in July 2017. There is no information about when the pilot would actually commence.

For information on the fixed costs consultation, see Practice Note: Tracker—Fixed costs reforms.

European small claims regulation

Amendments to the regulation come into force on 14 July 2017. The minutes discuss amendments to CPR 78 and CPR PD 78 as a consequence of those minutes. The amendments were approved and are due to come into force in the next schedule CPR update which is October 2017.

For further information on the regulation, see Practice Note: European small claims procedure.

Financial markets test case scheme

The financial markets test case scheme is a pilot scheme that was set up at the same time as the Financial List came into operation and was proposed to run for two years from 1 October 2015.

The pilot scheme is governed by CPR PD 51M and applies to Financial List claims which raise issues of 'general importance to the financial markets in relation to which immediately relevant authoritative English law guidance is needed', without the need for a dispute to have arisen between the parties. It provides for a new test case procedure, with the aim of facilitating the resolution of market issues on which there is no previous English authoritative precedent, the intention being to avoid costly and time-consuming litigation through providing a mechanism for authoritative guidance before a dispute has arisen.

No cases have progressed through the scheme and it is due to end in September, but at a meeting of the users of the Financial List in February 2017, the existence of the scheme as an available facility was considered to be important and useful. The CPRC have therefore approved a renewal of the scheme for a further three years to 30 September 2020. The minutes of the meeting note that the Financial List judges are keen to make the scheme a permanent part of the CPR and so the continuation as a pilot scheme, covering the Brexit period, will allow time to test the scheme.

The CPRC also approved an amendment to CPR PD 51M to expand the scope of cases that the pilot will apply to—to be co-extensive with the Financial List itself—as it was noted that currently the scheme is limited to claims which raise issues of general importance to the financial markets, whereas the Financial List is not so limited and applies to:

  • claims of £50 million or more which principally relate to loans, project finance, banking transactions, derivatives and complex financial products, financial benchmark, capital or currency controls, bank guarantees, bonds, debt securities, private equity deals, hedge fund disputes, sovereign debt, or clearing and settlement (CPR 63A.1(2) (a))
  • claims which require particular expertise in the financial markets (CPR 63A.1(2)(b)), or
  • claims which raise issues of general importance to the financial markets (CPR 63A.1(2)(c))

For more information see Practice Note: The Financial List—starting and transferring claims — Financial markets test case scheme.

County Court closures

Amendments were proposed to CPR PD 2C (and consequential amendments to other parts of the CPR) to reflect further court closures.

Hot tubbing

Item 5 Report of the sub-committee on Hot-tubbing 3 February 2017

Following the introduction, under the April 2013 Jackson Rules, of the option for giving concurrent expert evidence (CEE) or 'hot tubbing', there has been an ongoing examination of the use and benefit of CEE in civil proceedings. In February 2017, the hot-tubbing sub-committee sought guidance from the CPR Committee on how they should develop their work on CEE. The sub-committee asked a number of questions including:

  • does the CPRC endorse the sub-committee's view that CEE is, in general, a good thing which should, subject to appropriate safeguards, be actively promoted?
  • should the sub-committee consider and revert to the CPRC on its recommendations about a re-drafted CPR PD 35, para 11, a new guidance note for judges and practitioners and a new information note for expert witnesses?
  • 'should the sub-committee address procedural reforms...which may be necessary if hot-tubbing is to become a normal part of our litigation culture' including, for example, standard CMC CEE directions, the extent to which a trial judge should be bound by any such directions, adequate judicial time where CEE is to take place, a requirement for parties to produce and agreed or draft agenda for CEE at trial, etc?

It was agreed at the February 2017 CPR Committee meeting that the sub-committee should identify specific classes of case or types of issue that might require expert determination and whether CEE was appropriate and how this might be raised with the parties.

At the CPR Committee meeting in May 2017, the subcommittee included in its note for the meeting, its preliminary re-drafts of CPR PD 35.11, and sought the CPR Committee's views. The sub-committee noted that the approach adopted to CEE would also have an impact on the proposed drafting changes to the Case Management Conference directions, directions and listing questionnaires.

The sub-committee proposed two drafting approaches:

  • Approach A—which would treat CEE as including the full range of methods including back to back issue-by-issue expert evidence and 'hybrid procedures'
  • Approach B—which would take a more restricted approach limiting CEE to classic hot-tubbing where the experts are sworn in and give evidence at the same time

The CPR Committee preferred Approach B limiting CEE and also decided that it did not think it would be appropriate for the CPR to contain signposts to guidance.

For further guidance on CEE, see Practice Note: Concurrent expert evidence.

Appeals

The CPRC approved amendments to CPR 52.4(1), which rectify an issue identified with the drafting of the rule following the recasting of Part 52 in October 2016. The issue, which was identified by the CPRC during the April meeting (see Practice Note: Minutes of the CPR Committee meeting of 7 April 2017), is that, in its current form, CPR 52.4 starts on the premise that the appellate court will determine an application for permission to appeal on paper, although this is subject to specific exceptions where permission to appeal is refused on paper and the person seeking permission requests the decision to be reconsidered at an oral hearing. On its face, therefore, this would appear to rule out the prospect of a rolled-up hearing where both permission and the substantive appeal are dealt with together. In its amended form CPR 52.4 will start from what is currently subparagraph (2) and the preceding subparagraph which formally set out that, except where a rule provides otherwise, permission will be dealt with on a paper application has been deleted.

New bill of costs

It was noted that the take up of the pilot scheme for the New bill of costs had been limited (3 bills in electronic format) but the CPR Committee agreed to make the pilot mandatory for bills submitted to the Senior Court Costs Office and the it would be extended to the County Court although that would require some further work. The proposals apply to Part 7 Multi-track claims, with detailed exceptions.

However, on 20 June 2017, the Ministry of Justice advised that in the June CPR Committee meeting, the Committee decided to defer date on which the new bill becomes mandatory until 2018.

For information on the Bill of Costs, see Practice Note: Tracker—Detailed assessment and the bill of costs reform.

Notices of allocation

The CPR Committee has approved amendments to Notice of Allocation (forms N154, N155, N157 & N15) to include new wording relating to the payment of hearing fees. However, there were concerns about potential confusion for litigants in person—there is a variation in practice with some courts adding directions to the Notice itself and some creating a set of directions separate from the notice which would mean that the proposed amendment would not work in all cases.  This is to be investigated further with a report to the CPR Committee in June.

Online Pilot Court

Papers were produced to the CPRC regarding the pilot for a new online claims procedure for money claims under £10,000 called the 'Online Court'. The intention is that the pilot will commence on 31 July 2017 and run for 28 months until 30 November 2019 and will be the first of a series of pilots planned over the next three years that, once complete, will give effect to the government’s ‘transforming our justice system’ vision for the civil jurisdiction. For more information on the government consultation on 'transforming the justice' system and the Online Court, see News Analyses: MoJ consultation on transforming the justice system and Briggs LJ's civil courts structure review—final report published — Creation of an Online Court.

More information on this development will follow.

Other business

Revision of CPR 39—open justice

The minutes also note that a subcommittee is to be convened to take forward revision of CPR 39, which deals with the requirement for hearings generally to be heard in public and the circumstances in which a private hearing may be permitted. There was no indication of how CPR 39 will be revised.

Discount rate and costs budgeting

It was suggested that the CPR Committee consider the effect of the change in the discount rate on costs budgeting.  It was agreed that a paper would be prepared for the next meeting.

Open meeting

The CPR Open Committee meeting is to be held on 3 November 2017.

Charging orders

There is a difficulty with the availability of deputy district judges and district judges to handle the volume of final charging orders being made at CCMCC.  Consideration is to be given to whether unopposed final charging orders could be made by legal advisers.

Filed Under: CPR

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