The approved minutes of the December 2016 Civil Procedure Rule Committee (CPRC) meeting became publicly available on 17 February 2017. Quite a number of the matters have moved on significantly in the meantime – not least, as several of the procedural changes discussed are being implemented as part of the 88th CPR Update.
You may remember that the papers from the October CPRC meeting included a note explaining how the CPRC prioritises its work. The December meeting illustrates the sheer breadth of the CPRC’s responsibilities, as items on the agenda included:
- Matters on which the Civil Procedure Rules (CPR) require review in the light of judicial decisions, namely costs budgeting (in light of SARPD Oil International Limited v Addax Energy SA and another), the approach to warrants for possession (following Cardiff County Council v Lee (Flowers)) and amendments to CPR 45 (to reflect the Court of Appeal’s decision in Qader and others v Esure Services Limited).
- Changes required to implement legislation (for example, amendments required due to implementation of the Damages Directive).
- Ongoing work in connection with modernisation of the courts (being undertaken in tandem with the HM Courts and Tribunal Service (HMCTS) Reform Programme) – for example, relating to the Online Court, virtual hearings, and hearing fees.
Some topics of particular interest include:
- Pre-action protocols: the tricky issue of the Pre-action Protocol for Debt Claims, plus news of the new Technology and Construction Pre-action Protocol.
- Costs budgeting: amendments to the costs budgeting rules in light of SARPD Oil.
- Warrants of possession.
- Virtual hearings.
- The Online Court.
Pre-action action
Pre-action protocols took up a significant amount of CPRC time in December.
The Pre-action Protocol for debt claims
First up was consideration of the rather contentious matter of the pre-action protocol for debt claims: something described as “a very difficult exercise” and “a long running exercise, with two public consultations, with distinct parts of the stakeholder community on both the credit and debt advice side dissatisfied with the proposed protocol”.
The CPRC noted that “careful thought” needs to be given to a document that generates opposition and debate, before its adoption is recommended to the Master of the Rolls” (MR).
At the December meeting, the key issues for debate were:
- At what stage a creditor should be required to provide details of the outstanding debt (upfront, or on request by the debtor).
- Whether the new protocol should be introduced before the introduction of the Online Court.
- If the Standard Financial Statement (SFS) should be incorporated, to help achieve consistency in terms of the information provided.
- Views on the risk of a legal challenge, based on “disregard for due process” following receipt of a letter from Cabot Credit Management. On this, it was noted that “the threat of a judicial review should not discourage the Master of the Rolls from making the PAP”.
After detailed discussion, the CPRC approved the wording of the new protocol (subject to some agreed amendments), and agreed that it should be recommended for adoption. The December papers include a copy of the then latest draft that, subject to the agreed further amendments, has been approved for recommendation.
Although the protocol has been signed off by the CPRC, the MR’s decision is still awaited. Perhaps that is not a foregone conclusion given the degree of debate that it has generated. Time will tell.
The new Technology and Construction Pre-action Protocol
Briggs LJ reported that the new Technology and Construction Pre-action Protocol had been published. He did not state the date of publication (something that was, unfortunately, at the time, rather less clear than it might have been).
Interestingly, the minutes record that the CPRC has been asked to review the protocol in October 2017.
Costs budgeting: refining the boundaries in light of SARPD Oil
Master Roberts, Chair of the sub-committee considering this point, confirmed that a form of words had been agreed.
To some extent, this is “old news”. Details of the amendments to CPR 3.15, CPR 3.18 and PD 3E in light of the Court of Appeal’s decision in SARPD Oil form part of the 88th CPR Update, and will take effect on 6 April 2017. Consequential amendments are also being made to Precedent R.
Nonetheless, there is still some interest in hearing how the sub-committee approached things.
Master Roberts explained that the tension in the rules – between incurred costs and budgeted future costs – had been addressed by:
- “De-coupling” costs already incurred, from budgeted costs.
- Clarifying the rules regarding detailed assessment on budgeted costs.
- Retaining the court’s power to comment on incurred costs.
- Retaining the parties’ right to agree incurred and budgeted costs.
The minutes note that the sub-committee did not consider the amendments to be controversial, or that consultation was required. They also record that there was discussion of a number of related issues (including the court’s consideration of proportionality regarding incurred costs, and the effect on appeal proceedings, and on the assessment process), but the detail of those discussions is not set out in the minutes.
For a more detailed review of the changes, see Blog post, Sarpd Oil International v Addax Energy SA and another: managing the costs of a changing landscape.
Is brevity the soul of wit? A review of CPR 12, 13 and 14
The December meeting brought forth the “first fruits” of Briggs LJ’s initiative to simplify the CPR (as canvased during the May and June meetings), with some proposals for stylistic changes to CPR 12, 13 and 14.
The CPRC’s response to these “tentative” proposals reflects the current “zeitgeist” and zeal to tighten and streamline procedures. It was suggested that “more radical” changes could be made, and that they might result in “very brief rules”.
The sub-committee agreed to go back to the drawing board.
It was due to present a further draft at the CPRC meeting on 3 February, so it will be interesting to see just how radical the changes prove to be.
On target? Consultation on warrants of possession where the court’s permission is required
The CPRC Snippets for November noted that a sub-committee has been considering possible changes to the procedure for obtaining warrants of possession where the court’s permission is required, in light of the Court of Appeal’s decision in Cardiff County Council v Lee (Flowers). A key issue is whether permission of the court must be obtained for the issue of a warrant of possession, where the possession order is suspended on terms.
DJ Hovington, who has been chairing the sub-committee, reported back in December. He noted that the Court of Appeal’s decision had “taken parties and courts by surprise”, and the issue is creating difficulties for claimants who must take an additional step, and pay an additional fee. The courts have not been adopting a consistent approach, so the CPRC needs to decide whether the requirement for an application for permission should continue and, if so, whether that requirement should extend to all cases where a suspended order was made (or whether the rule in place pre-April 2014 should be re-instated, making the issue of a warrant on a suspended order, an administrative function).
Briggs LJ asked the CPRC to consider whether:
- The rules should be amended to revert to the pre-2014 position.
- They should remain as currently drafted.
- There should be a “compromise”.
- There should be a consultation before making any changes.
An interim solution was proposed, pending the outcome of the consultation. Matters have moved on since the December meeting. As our November Snippets piece mentioned, a temporary Form N325A (for requests for warrants for possession of land following a suspended order of possession) and an updated Form N445 (for reissue of a warrant) took effect from 20 December 2016.
However, what emerges from the December minutes is that, following debate, a majority of the CPRC considered that there should be “a six week targeted consultation” to address this issue. It is not clear exactly how “targeted” the consultation was to be, or whether it has now concluded. No doubt, the next set of CPRC papers will provide some answers.
Virtual (hearings) reality?
The minutes record that Richard Viney volunteered to join a “Virtual hearings team”, which is being set up by HMCTS, to look at hearings in civil and tribunals cases.
Although, this only gets a brief mention in the CPRC minutes, it provides a reminder of the significant work underway “behind the scenes” as part of the HMCTS Reform Programme.
Rules for the Online Court v CPR
Modernisation was also to the fore, with an update on work to introduce the Online Court.
Briggs LJ has previously identified a need for the Online Court to have standalone rules, quite separate from the CPR (see, for example, paragraph 6.21 of his Civil Courts Structure Review interim report):
“The rules for the OC will need to be constructed from scratch, as a self-standing set of rules designed from the outset to be understood by litigants without lawyer… These rules would be best drafted by a very differently constituted committee and drafting team than the CPRC. Current experience (for example with the new Help with Fees form and the LIPs’ guide to the Chancery Applications Court) suggest that those best qualified to draft rules for litigants without lawyers are to be found among the employed and voluntary members of LIP-facing advice and assistance agencies. There will, in practice, need to be close co-operation between lawyers, software experts and drafters of that kind, supervised by a committee with a predominantly lay membership…”
In the short term at least, it now seems that the CPR might have a role to play after all.
Briggs LJ explained, at the December meeting, that the rule committee that will develop the rules for the Online Court cannot be convened until “the appropriate legislation” has been made. Therefore, the CPR is to be used as “a vehicle” to produce rules for the online prototype (which will focus on lower value claims). The simple rules underpinning the prototype, will be drafted by the Reform sub-committee, chaired by Birss J, and will, apparently, become what is described as “a continually evolving practice direction”.
There is no doubt that these are interesting times. The Jackson reforms (which, it is hard to believe, were implemented nearly four years ago now), far from being the end of the story, seem to have been only the beginning!
These are just selected examples of the topics up for discussion at the 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).
