Practical Law

The May papers provide a useful snapshot of how work is progressing on a number of ongoing initiatives.

Intriguingly (and quite unusually) item 5 on the agenda has been redacted on the basis that it “concerns government policy and as such is restricted”. Speculation is dangerous, but might this possibly relate to the MoJ’s consultation, Proposals for further reforms to court fees, that sought views on proposals to increase court fees in relation to:

• General applications in civil proceedings.
• Commencing applications for the recovery of land (possession claims)?

Time will no doubt tell.

The May papers clearly illustrate the ongoing impact of Jackson LJ’s costs recommendations, with proposals including plans for increased docketing, and matters for consideration including an extension of the fixed costs regime and possibly putting an end to the costs capping regime.

All the indications are that the July meeting (which will be the final one before the summer recess) will be one of significant interest, where important changes might be approved.

Items already on the agenda for consideration then include:

• Final proposals for shorter and flexible trial procedures in the Rolls Building courts, and for a new Financial List.
• Proposals for rule and practice direction changes regarding access to court documents for accredited law reporters and media reporters.
• Proposals from Coulson J’s sub-committee currently reviewing the costs management regime.

Shorter and flexible trial procedures

We previously reported on a consultation, by the Commercial Court, Technology and Construction Court, Chancery Division and Queen’s Bench Division, regarding shorter and earlier trial procedures. The consultation ran until 29 May 2015.

At the May CPRC meeting, Birss J provided a briefing on the proposals. Interestingly, the minutes record that Master Marsh queried whether these discussions should take place before the consultation had closed. As the CPRC was not making any decision, it concluded that it was not inappropriate to discuss the initiative and, in fact, having discussions early would be useful, in case decisions had to be made quickly in the future.

Birss J’s briefing note includes a number of points of interest, including that the Judicial Executive Board approved proposals for shorter trial and flexible trial schemes on 23 April 2015. It usefully summarises the proposals, as follows:

• “The Shorter Trial procedure involves a streamline procedure leading to judgment within a year of issue of proceedings. For commercial parties it offers dispute resolution on a commercial timescale. Cases would be case managed by docketed judges with the aim of reaching trial within approximately 10 months of the issue of proceedings and judgment within six weeks thereafter. The procedure would be suitable for cases which can be fairly tried on the basis of limited disclosure and oral evidence. The maximum length of trial would be four days.”
• “The Flexible trial procedure involves the adoption of more flexible case management procedures where the parties so agree, resulting in a more simplified and expedited procedure than the full trial procedure currently provided for under the CPR.” It goes on to note that the default flexible procedure would involve limited disclosure and limited factual and expert evidence (although, subject to the court’s overriding discretion, the parties could adapt the procedures to their own case, for example to allow standard disclosure or wider oral evidence, if appropriate). It also notes that flexibility and choice are key.

Of course, Lord Dyson firmly endorsed this kind of flexible approach to court procedures in his speech at the Law Society’s Magna Carta event on 22 April 2015.

Although he described this as “something for the future”, it seems that it might be arriving pretty soon!

Interestingly, though, although this initiative has been endorsed by the Judicial Executive Board, a number of concerns were voiced by CPRC members. In particular:

• The risk that it would encourage forum shopping.
• Potential delays in listing other lengthy cases.
• The omission of costs management and budgeting from the scheme.

If necessary, these points will be considered in more detail at the July CPRC meeting, in the light of the post-consultation form of the proposal.

Financial List

This is another proposal that has been approved by the Judicial Executive Board, and has also been the subject of a consultation that ended at the end of May.

In a paper for the CPRC, Birss J usefully summarises the proposals:

“The proposal is for a new single specialist list sitting in both the Chancery Division and the Commercial Court. Parties will be able to commence proceedings in the Financial List in either the Commercial Court or the Chancery Division. Wherever the proceedings are lodged, the case will be dealt with by a docketed judge who will manage the case from inception, through the pre-trial stages, through trial, and through enforcement if necessary.”

He also notes the following points of interest:

• The impetus for the proposal came from the Lord Chief Justice’s Mansion House speech in July 2014.
• In January 2015, when it was decided that the proposals set out in a 2014 report should be progressed, the committee looking at this was extended to include Blair J, Birss J, Ali Malek QC, Joanna Perkins (CEO of the FMLC) and Simon Firth, partner of Linklaters.

The CPRC agreed that it should consider the final, post-consultation proposal at the July CPRC meeting.

Open justice

Our CPRC snippets from the March and April CPRC meetings mentioned the report from a sub-committee (chaired by Richards LJ) considering access to documents by the press. This followed requests from the press for improved access to materials, such as skeleton arguments, which they say are necessary for reporting purposes.

The minutes of the May meeting provide a useful update on developments:

• It was agreed that PD 52C should be amended to require represented parties appearing in the Court of Appeal to bring two additional copies of their skeleton argument to the hearing, for use by accredited law reporters and accredited media reporters, but that this should not be required by litigants in person.
• The CPRC decided that CPR 5.4C (on the supply of documents from the court records to a non-party) should not be extended to include appellant’s and respondent’s notices.
• There would be a “short targeted consultation” – presumably that means that it has been addressed to selected stakeholders, rather than more widely – with a view to the matter returning to the CPRC in July (by when, apparently, the consultation responses will have been considered). A draft of the consultation paper is included in the papers (it was noted that it would have to be revised to reflect the CPRC’s decision on CPR 5.4C, before being circulated).

Costs management and costs budgeting: an end to costs capping, and more fixed costs, on the cards…?

Coulson J, who is chairing a CPRC sub-committee charged with reviewing the operation of the costs management rules, reported back on progress. The sub-committee has been considering a number of points including issues arising out of Jackson LJ’s recent lecture for Harbour Litigation Funding.

The minutes record several points of interest, notably:

• Coulson J’s sub-committee will be presenting proposals for reforms to the costs management regime, at the July CPRC meeting.
• Nick Bacon QC noted that one point up for consideration is whether the costs capping provisions should be removed from the rules. On that point, it is interesting to note that, in answer to a question from the audience at the Harbour event, Jackson LJ emphatically agreed that, with the costs management regime in place, there should not be a need for costs capping provisions.
• Coulson J noted that his sub-committee has also been asked to consider the issue of fixed costs in the fast track and in lower value multi-track cases, which they will do, but observed that it will be for the government to take this forward.

These are just selected examples of the topics up for discussion at the May CPRC meeting.

You can view the papers in full on our website. See the resources page and the section headed “Civil Procedure Rule Committee Meetings”. The papers include approved minutes, which provide a useful summary of all of the matters discussed.