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CPRC Snippets: April 2017

The approved minutes and papers from the April 2017 Civil Procedure Rule Committee (CPRC) meeting became publicly available on 15 May 2017. There was a varied agenda, and a considerable number of developments of real interest.

The papers give a clear sense of just how the various modernisation initiatives are building up steam, with topics under discussion including the online court, simplification of the Civil Procedure Rules (CPR), and implementation of recommendations arising out of Briggs LJ’s Civil Courts Structure Review (including changes to the thresholds for bringing claims in the County Court and the High Court).

Snippets of particular interest for commercial litigators include:

Piloting the online court from July 2017

The approved minutes start with a detailed update from Birss J on the work of the sub-committee drafting the rules for the online court pilot. Key points of interest include:

  • The online court pilot is on track for launch in July.
  • One particularly challenging issue is drawing the right line between the rules describing the procedures and the software implementing the procedure.
  • The rules will be in a user friendly language, aimed at litigants in person, but certain CPR principles will continue to apply (for example, on service).
  • The pilot is aimed primarily at testing the software. It is similar to Money Claims Online, and allows completion of the early stages of the claim, issue, service and response online. The pilot will be limited to specified claims under £10,000. Users will be invited into the pilot. They will be encouraged to remain in the online system as long as possible, but will be free to leave at any time, and go into the mainstream system subject to the CPR.
  • Future pilots will add increased functionality: for example, allowing for legal representation.
  • Although the system will be designed so that it can be navigated without reference to the rules, a Ministry of Justice (MoJ) representative explained that the rules lie behind the software “to give it the vires [power] to function”.
  • It is expected that, for the purposes of the pilot at least, the court fee will be the same as for Money Claims Online (as there has been insufficient time to consider different fees).
  • Briggs LJ noted that, although the pilot is being drafted within the confines of the CPR, it will not be necessary to factor in the CPR once the full online rules are developed (after the Prisons and Courts Bill has gone through).

Less paper… not paperless: views on compulsory e-filing

Electronic working was on the agenda again in April. The CPRC was asked to approve a draft PD (possibly to be inserted in CPR 5) designed to make electronic working “permanently entrenched” in the rules, rather than merely operating on a pilot basis.

The covering memo put to the CPRC noted that more than 350 law firms had now opened accounts on CE-File.

Despite drives to reduce the volume of paper in the courts, it seems that it is not considered appropriate to go completely paperless. The CPRC voiced concerns about the absence, in the draft Practice Direction (PD), of a postal alternative. It did not consider that it would be sufficient simply to offer terminals at court and assistance from court staff even though it is recognised that there are only a “very small” number of litigants in person in the Rolls Building. It was felt that the pilot should make e-filing compulsory for professional users of the Rolls Building courts, but allow litigants in person to file on paper if they wished. It was agreed that the pilot will continue (albeit on an extended basis) and a redraft of the PD would be prepared. When working on the drafting, consideration would also be given to some other amendments: for example, regarding the size of documents filed.

Of course, e-filing became compulsory for professional users of the Rolls Building Courts with effect from 25 April 2017 – although there is no sign of the new PD… Presumably, now that Parliament has been dissolved pending the general election, we could be in for a bit of a wait for the necessary statutory instrument (SI) and making document…

Civil Courts Structure Review: changes on the threshold(s)

The minutes provide advance notice of an intention to implement recommendations 38, 44 and 45 arising out of Briggs LJ’s Civil Courts Structure Review, namely:

  • The County Court at Central London should be given a short term non-issuing District Registry status (for as long as the District Registry concept survives) if that is the only way of enabling its resident section 9 of the Senior Courts Act 1981 judges to conduct High Court work there, provided that adequate back office facilities are put in place while case handling remains paper-based. (See paragraphs 8.43-4 of the Civil Courts Structure Review Final Report (FR) for more details.)
  • All the remaining financial limits on the jurisdiction of the County Court should be removed. (See paragraph 8.75 of the FR.)
  • The value thresholds below which a claim cannot be issued in the High Court should be increased immediately to £250,000, with a view to a second increase to £500,000. (See paragraphs 8.74-79 of the FR). They should apply to all types of claim, with no lower limit for personal injuries as at present. (See paragraph 8.76 of the FR.)

It will be necessary for the MoJ to consult publicly on the proposed threshold changes. Birss J noted that this will cut across Jackson LJ’s work on the fixed recoverable costs regime.

The minutes also refer to concerns raised by the judiciary about pushing work up to the High Court from the County Court following the lowering of the discount rate: a change that will also have an impact on costs budgeting. This was also identified as something to be considered further at the May meeting.

Hotting up… further consideration of concurrent evidence (hot-tubbing)

Following on from discussions at the March meeting about the Civil Justice Council’s (CJC’s) proposals on hot-tubbing, a detailed memo was put to the April meeting by the hot-tubbing sub-committee, addressing the following points:

  • Possible draft amendments to PD 35.11.
  • What types of case or issue might be most suited to hot-tubbing.
  • How the benefits of hot-tubbing (where appropriate) might best be secured.

The minutes record that the CPRC has agreed in principle that hot-tubbing should be promoted “where possible and appropriate”.

A couple of interesting points came out of the CPRC’s discussions:

  • Some felt that hot-tubbing needed to be raised as an issue very early in the process – possibly even in the pre-action protocols. Perhaps surprisingly, some felt that it might be too late to consider it at the directions questionnaire or case management conference (CMC) stage.
  • It was suggested that offering a streamlined process similar to the shorter trials scheme – or an earlier hearing date – where parties use hot-tubbing, might incentivise use of the pilot, particularly if it saves costs.

The sub-committee agreed to work on further amendments to the draft, for consideration at the May meeting, so this is very much work in progress. All should hopefully become clear once the May papers are public.

Simplifying the CPR: a new direction?

At the December meeting, the members of the sub-committee working on simplification of CPR 12 (Default judgment), CPR 13 (Setting aside or varying default judgment) and CPR 14 (Admissions) were sent away to consider more radical drafting changes.

The minutes of the April meeting note that CPR 12 and 13 have been shortened, and the associated practice directions have been removed. Where necessary, material in the PDs has been added to the rule so that nothing of value has been lost.

The minutes don’t refer to CPR 14 (Admissions), but the papers put to the meeting include copies of the latest drafts, which show that CPR 14 has received similar treatment! It will be interesting to see whether this approach of integrating useful material in PDs to the CPR itself and deleting the PD, will become the norm. That would certainly reduce duplication, and avoid confusion about the status of the PDs.

The sub-committee is to continue work on the drafts with MoJ lawyers.

Power to the court users: reduced requirement regarding witness statements and exhibits in Part 8 claims in the Administrative Court

The CPRC approved the following changes envisaged to take effect from 1 May:

  • The removal of PD 8A.22.10, so that claimants will no longer be required to file an additional copy of witness statements and exhibits for the use of the court.
  • Amendment of PD 8C.3.1 (relating to statutory review of certain planning matters) to require the claimant to file only one (rather than two) paginated and indexed bundles to the court.

These issues were raised by users of the Administrative Court following a procedural change from 28 February 2017 to remove the need for parties lodging judicial review claims under CPR 54 to file an additional bundle for the court

Speaking candidly: a discussion on the duty of candour and disclosure in judicial review proceedings

The April papers provide an interesting update on developments regarding the duty of candour and disclosure in judicial review proceedings.

In April 2016, Lewis J and Cranston J presented a discussion paper on potential reforms and, subsequently, in January of this year, responded to responses received by the Lord Chief Justice. Copies of the initial paper and the response are included in the papers for the April CPRC meeting. The response paper sets out the proposed amendments to PD 54A as well as the reasons for the changes.

The Lord Chief Justice now wishes that the recommendations be taken forward, and has asked the CPRC to consider amendments to the CPR.

The minutes from April confirm that the CPRC agreed in principle with the proposals. Kerr J will work with drafting lawyers to prepare suitable amendments to the CPR.

Coming soon to a CPRC meeting near you…

The minutes reveal that CPR 39 has been identified as one of the next parts for reform. PD 39A in particular has been identified as out of date and “inconsistent with principles of open justice”. It was noted that a paper on this topic would be put before the CPRC at its 5 May meeting. Even the brief discussion at the March meeting prompted discussion of a “culture problem” over private hearings, misconceptions regarding confidentiality, and issues regarding rights of audience. It seems likely that this will have generated considerable debate at the May meeting. We will see once the minutes are publicly available!

The “Any other business” section of the minutes highlights the following points of interest:

  • The new bill of costs – something that featured regularly on the CPRC agenda last year – was due to be discussed at the May CPRC meeting.
  • A draft of the proposed fixed recoverable costs pilot scheme (for cases up to £250,000) will be considered by the CPRC at its meeting on 9 June.

These are just selected examples of the topics up for discussion at the April CPRC meeting. To view the papers in full on our website, see the Civil Procedure Rule Committee Meetings link (found under the section headed “Essential resources” on the Practical Law Dispute Resolution site).

Practical Law Dispute Resolution Beverley Barton

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