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CPRC Snippets: February 2016

Welcome back to CPRC Snippets – it has been a while!

The reason for the delay is that papers for each CPRC meeting are usually released once the minutes have been approved (which is at the following meeting). The next CPRC meeting after the February one was on 13 May, so papers from the 5 February CPRC meeting were only published on 22 May 2016.

Even though the papers are a little dated and some things have moved on over the intervening months, I’m pleased to say that there are still a few snippets of note.

CPRC response to Briggs LJ’s interim report on his Civil Courts Structure Review

At the February meeting, the CPRC (chaired by Briggs LJ) decided that it would be appropriate to send a “corporate response” to Briggs LJ’s interim report arising out of his Civil Courts Structure Review (as well as any responses that individual committee members might send).

As far as I can see, the response has not been published, as some others have been, but it is interesting to see the proposal.

The Master of the Rolls (MR) suggested that the CPRC’s response should focus on the following points:

  • The introduction of an online court with new rules drafted by a separate committee.
  • Use of case officers.
  • Routes of appeal.
  • Enforcement.

Expedited process for Court of Appeal issues

Briggs LJ aims to deliver his final report and recommendations arising out of his Civil Courts Structure Review to the Lord Chief Justice and MR in mid-July, and it will then be for them to decide when it should be published. Although routes of appeal fall within the remit of that review, a pressing need to reduce the burden on the Court of Appeal has led to the expedition of that aspect of the work. Hopefully that will, in turn, lead to expedition of Court of Appeal appeals which are currently facing a backlog of some 19 months.

The February CPRC meeting approved certain amendments to the Destination of Appeals Order and further amendments were proposed. It was noted that consequential amendments to CPR 52 and changes to CPR 63 (regarding routes of appeal for IPEC claims) would be prepared by the MoJ.

Interestingly, the papers considered at the February meeting included letters from the IP Federation, the Chair of the Intellectual Property Law Committee and the Institute of Trade Mark Attorneys, plus comments from the Intellectual Property Lawyers’ Association, all expressing concerns about the proposal to change the appeal route from final decisions in the Intellectual Property Enterprise Court.

It is worth noting that things have moved on since the February meeting. On 20 May, the MoJ published a consultation seeking views on on the detail of the proposed CPR and PD amendments regarding appeals to the Court of Appeal.

Responses are welcomed by 5pm on 24 June 2016.

Fixed recoverable costs in clinical negligence…and beyond…

Originally, the CPRC was focused on the possible extension of fixed costs to clinical negligence cases, with a consultation expected for Spring 2016.

As most people will be aware, the whole piece around fixed costs has moved on quite dramatically, not least following Jackson LJ’s address entitled “Fixed Costs – The Time Has Come” at the Insolvency Practitioners Association annual lecture on 28 January 2016 and, more recently, his lecture entitled “The Future for Civil Litigation and the Fixed Costs Regime” at the Westminster Policy Forum event on 23 May 2016, where he has called for the fixed costs regime to be extended to the “lower reaches of the multi-track” which, he has suggested, should embrace all claims up to £250,000. As we noted in our Snippets post about “work in progress” from the July CPRC meeting, the minutes recorded that the CPRC then voiced concerns that a scheme for “low value claims” might encompass claims up to £250,000.

The MoJ is driving work on this aspect of reform so, to some extent, the “purdah” period arising out of Brexit will be causing delay. The papers relating to this have been designated as confidential, but there are a few snippets of interest in the minutes:

  • The MR noted that the senior judiciary (through the CJC and Jackson LJ) have continued to press for a fixed recoverable costs regime for the fast track and “the lower reaches of the multi-track”. He commented that the principle of fixed recoverable costs was not at issue but recognised that the fixed costs figures “may be controversial”.
  • The MR observed that he considered it to be the wrong approach to “cherry pick” certain areas for fixed recoverable costs: the scheme should apply to all areas of litigation.
  • Interestingly, the CPRC has expressly minuted that, whatever the CPRC’s views might be, once the government has reached a decision, the CPRC is obliged to ensure that the rules implement that policy.
  • The “under-resourced” government has asked the CJC to assist with a consultation.

Prolix EUR-LEX?

The minutes record that the Court of Justice of the European Union (ECJ) has raised concerns about the length and complexity of UK requests for preliminary rulings from the ECJ. Apparently, the problem lies with the form of such requests, and difficulties translating them, rather than the substance of the requests.

Interestingly, Birss J noted that he and his colleagues in IP cases have had concerns about the number of questions that have gone unanswered, and suggested that that may have led to longer questions being formulated.

Richards LJ has asked Paul Lasok QC for a view on this, and Eleanor Sharpston (a UK Advocate General of the ECJ) and Christopher Vajda QC (a UK judge of the ECJ) will also be asked for their views. Birss J and Briggs LJ will consider their responses.

An interesting point to have arisen just as we’re facing the Brexit vote!

Ad hoc issues

A couple of interesting points were raised on an ad hoc basis with the CPRC:

  • The Personal Injury Bar Association (PIBA) raised concerns about the increasing use of unregistered barristers as solicitor’s agents to conduct advocacy in open court at stage 3 personal injury quantum hearings, under the applicable pre-action protocol (where liability is not in issue but the parties cannot agree quantum). They sought confirmation that the drafting of the Legal Service Act 2007 was intended to limit any unregistered barristers’ rights of audience to proceedings in chambers, noting that the issue was causing difficulties for practitioners and the lower courts, and exposing unregistered barristers to potential criminal liability. They asked for a clarifying amendment to PD 39A. The CPRC concluded that it was not their function to clarify ambiguities in the Legal Services Act 2007, but asked this issue to be brought to the attention of the appropriate MoJ policy team.
  • The Forum of Insurance Lawyers (FOIL) submitted a paper setting out grounds for fixing the costs of costs-only proceedings. In their submission, fixing these costs at a reasonable level would reduce incentives for “costs-building” and “premature litigation”. They suggested that claimants abusing the process were often represented by “one of the large claimant costs drafting firms, geared up for bulk work”. They also suggested that fixing costs to discourage the commencement of costs-only proceedings would relieve administrative pressure on the courts and also save some judicial time. The paper included a list of costs-only proceedings by volume and court centre (from November 2014). The CPRC took the view that, if this needed to be addressed, it should be looked at together with other costs initiatives, rather than dealt with as a discrete issue. It was agreed that the paper would be forwarded to the MoJ costs policy team.

Seeing the CPRC in action

Next month (17 June) will see a return of the (usually annual) open CPRC meeting, which is excellent news.

The open meetings provide an opportunity to attend, observe proceedings and ask questions.

In the autumn, the CPRC will be looking at ways of reducing the volume of the CPR, and has said that it will welcome ideas about how this might be achieved. This is deceptively simple, and no one will want to risk opening a Pandora’s box! Although not the CPR itself, I personally think that rationalisation of the court guides (so that they follow a uniform structure and do not simply repeat points already stated in the CPR) into one Courts’ Guide might be a good starting point in terms of tackling the problem with “encrustation” of the rules, that Briggs LJ has referred to in his interim report.

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 resources tab on the Dispute Resolution homepage and click the “Civil Procedure Rule Committee Meetings” link (found under the section headed “Essential resources”). The papers include the minutes, which provide a useful summary of all of the matters discussed.

Practical Law Dispute Resolution Beverley Barton
Practical Law Dispute Resolution Beverley Barton

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