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Changes to the Civil Procedure Rules: an overview for In House Lawyers

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20/06/2014

Some recent changes to court procedure

Since the introduction of the Jackson Reforms in April 2013, there have been a significant number of further changes to the Civil Procedure Rules (CPR). Here are some highlights.

Changes to the County Courts

  • On 22 April 2014, changes were made to the operation of the County Courts when the Crime and Courts Act 2013 was implemented. In summary:
    • one single County Court has been established;
    • money claims under £100,000 (except those arising from personal injury) must be started in the County Court (a substantial increase from the previous threshold of £25,000);
    • the equity jurisdiction of the County Court was increased from £30,000 to £350,000;
    • Judges will not be bound by geographical location and proceedings can  be sent between hearing centres;
    • the defendant’s residence or business address will dictate the hearing centre.
  • In addition, the County Court’s powers to make freezing orders (the old Mareva) will not now be restricted. However, its powers to make search orders (the old Anton pillar) will still be subject to restrictions.

Increases in Court Fees

  • Court fees were increased on 22 April 2014. The increases are not as high as anticipated initially but may still give potential claimants on tight budgets some pause for thought. Click here to access the Civil Proceedings Fee (Amendments) Order 2014 which sets out the new fees.

New Mediation Service for small claims (under £10,000)

  • As from 1 April 2014, the Mediation Service (i.e. the Small Claims Mediation Service operated by Her Majesty’s Courts and Tribunals Service) became a permanent operation: see CPR 26.4. It applies to monetary claims started in the County Court which would  normally be allocated to the small claims track. Parties can indicate in the Directions Questionnaire whether they are willing to mediate. If both parties agree, the claim will be referred to the Mediation Service and a mediation can be set up within four weeks. This service is not applicable to personal injury, road traffic accident and housing disrepair claims: see CPR 26.4A.
  • A standard mediation settlement agreement form for claims referred to the Mediation Service has been introduced (form N182).

New enforcement provisions governing, for example, bailiff powers

  • The Tribunals Courts and Enforcement Act 2007 (TCEA 2007), Part 3 and Schedule 12 came into force on 6 April 2014 and introduced new enforcement provisions including a new procedure for domestic enforcement – Taking Control of Goods (TCG) – for enforcing or recovering judgment debts.  There is also a new fee structure for enforcement agents who carry out the work and various consequential changes to enforcement terminology and court forms.

Costs Budgeting

  • Until recently, those cases in the Commercial, Chancery, Mercantile and Technology and Construction Courts with a quantum value over £2m were exempt from compliance with the strict new cost budgeting regime. On 22 April 2014, however, that threshold rose to £10m and was extended to Part 7 multi-track claims in all courts (including the Commercial and Mercantile Courts). The courts will still have discretion to order costs budgeting in cases over £10m. Equally there will be court discretion not to order costs budgeting in cases below that threshold although this is unlikely. Housing cases remain exempt.
  • The wording of the Statement of Truth in Precedent H (the costs budgeting form) was also changed on 22 April 2014.  It now reads:‘This budget is a fair and accurate statement of incurred and estimated costs which it would be reasonable and proportionate for my client to incur in this litigation.’

Changes that affect disclosure

  • The Technology and Construction Court (TCC) Guide has been revised and a new eDisclosure Protocol and eDisclosure Guide for use in the TCC have been published. The latter documents relating to eDisclosure will be of interest to all court users and those new to eDisclosure:
    • the new eDisclosure Protocol was approved for use in the TCC from 1 January 2014 [1]. The Protocol is accompanied by Guidelines and should help to make the eDisclosure process more effective by encouraging early, focused consideration of the issues. It achieves this by promoting early engagement and discussion between the parties and encouraging them to record what they agree on disclosure. The protocol deals with the identification of documents and their preservation, collation, location and custodians as well as document processing and reduction and agreeing key words, exclusions, the use of technology and what categories will/ won’t be reviewed;
    • the TCC has also recommended the eDisclosure Guide [2] prepared by TeCSA, TeCBAR and the Society for Computers and Law and published by AllVision Computing. The Guide, which has been recently updated, provides a comprehensive explanation of the eDisclosure process, the tools available and how best to choose from the wide range of eDisclosure experts in the marketplace.
  • While the eDisclosure Guide and the TCC eDisclosure Protocol are for use in TCC disputes, all those involved in eDisclosure would benefit from reviewing their content before embarking on eDisclosure processes – particularly the eDisclosure Guide.

Guidance from the courts on Case Management

  • Some aspects of the Jackson reforms have caused more upheaval than others and in particular the imposition of stricter case management and the need for compliance with Court Rules, Orders and Practice Directions. Non compliance has led to a sharp increase in the number of applications for relief from sanctions and the resulting decisions have caused some confusion about the interpretation of the new rules.
  • The Court of Appeal sought to provide guidance in the case of Mitchell v News Group Newspapers Ltd [3] on when relief from sanctions can be given. However, these ‘Mitchell Guidelines’ have also proved problematic to both legal representatives and the judiciary.
  • The Court of Appeal is currently taking the opportunity to review three cases [4] in which there has been an order relating to sanctions or relief from sanctions in order to give clarification and further guidance. In particular, the judges are expected to clarify the guidance on the appropriate criteria for giving relief and the meaning of ‘trivial’. A change in the CPR themselves is not expected.

Case Management – parties can now agree to extend time

  • Civil Procedure Rule 3.8(4) was amended on 5 June 2014 to allow the parties in court proceedings to agree extensions of time for certain procedural steps between themselves provided hearing dates are not affected. This is being referred to colloquially as a ‘buffer order/agreement’ and is intended to reduce the need for parties to make applications to court for reasonable extensions of time less than 28 days. It also minimises the risk of parties manipulating requests for extensions for tactical or strategic reasons.

What’s expected in the next few months?

  • The Civil Justice Costs Committee is reviewing the Guideline Hourly Rates used by Courts for assessing costs, following a survey undertaken last December 2013. The results have been delayed but are expected shortly.
  • The revised Protocol for the instruction of experts, drafted by the Civil Justice Council is understood to be nearing completion. The Civil Procedure Rules Committee has commented on it and it is expected to be released as guidance by the Master of the Rolls. (The current version can be accessed here.)
  • A “substantial” revision of CPR Part 36 is expected to be issued in April 2015.  An increase is anticipated in the enhanced recovery for successful Claimants that beat the Part 36 they offered.
  • Ramsey J, who is now responsible for the implementation of the Jackson Reforms, is considering various issues arising from the reforms including:
    • a new model form bill of costs compatible with Precedent H, which is being developed by the Association of Costs Lawyers;
    • changes to the cost budgeting procedure to allow judicial consideration of pre-action costs;
    • case management (including the time being taken on dealing with case and costs management at the initial case management conference);
    • funding options (with a view to achieving access to justice at proportionate cost);
    • suggested amendments to the Damages-Based Agreement (DBA) regulations (expected to be addressed by the Ministry of Justice in October 2014, to include allowing hybrid agreements); and
    • the fall out from the Mitchell case and the Court of Appeal’s Guidelines. In this regard, the Court of Appeal is currently hearing appeals on three cases [4] and is expected to give further clarification and guidance including on how to deal with applications for relief from sanctions.

For our tips on how to handle litigation in house following the Jackson Reforms, click here.

For more information on any of the above changes, please contact Sue or Gwendoline.

[1] TCC eDisclosure Protocol: http://www.tecsa.org.uk/e-disclosure
[2] Edisclosure Guide: http://www.tecsa.org.uk/sites/default/files/Guide%20to%20eDisclosure_v0.1.pdf (although note that a 2014 version is now available but not through the TeCSA site.)
[3] Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537
[4] Decadent Vapours Ltd -v- Bevan et al, 18 February 2014, Utilise TDS Ltd v Davies and others [2014] EWHC 834 and Denton and others v TH White Ltd and another (unreported)

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