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CPRC Snippets: February 2017

The approved minutes and papers from the 3 February 2017 Civil Procedure Rules Committee (CPRC) meeting became publicly available on 3 April 2017. Many of the matters discussed will have moved on considerably in the meantime: for example, the proposed changes to PD 3E in light of SARPD Oil took effect on 6 April, and the MoJ has now published the new Pre-action Protocol for debt claims and confirmed that it will come into force on 1 October this year.

Nonetheless, there are still a number of snippets of interest. The papers also helpfully identify the topics currently keeping the CPRC busy, and flag up some potential changes still in the pipeline.

An appealing proposition? Stay of action…

Discussions regarding possible further reforms of the civil appeals procedures took centre stage at the February meeting.

Hot on the heels of the significant appeals reforms implemented on 3 October last year, the CPRC is now considering possible changes to the thresholds for bringing appeals to the Court of Appeal (something that was consulted on in the Ministry of Justice’s (MoJ’s) consultation, “Appeals to the Court of Appeal, proposed amendments to Civil Procedure Rules and Practice Direction”.

The minutes explain that consideration of possible changes to the threshold test for permission to appeal to the Court of Appeal was deferred last year, pending collation of data from the County Court and High Court.

Based on the data subsequently received, at the February CPRC meeting, the Master of the Rolls concluded that a change in the threshold test for the Court of Appeal was justified (even though that would mean that a different test is applied in the High Court and County Court). Currently, there is a two year waiting time for a Court of Appeal decision, which has a detrimental effect on the reputation of the judicial system in England and Wales. He noted that “justice delayed is justice denied”, and the right to appeal must be balanced against the right of the other party to finalise proceedings within a reasonable time period. He urged the CPRC to consider again the proposed change from a “real prospect of success” to “substantial prospect of success” in the light of the statistics before them.

The minutes record that there was some uneasiness about having different levels of tests if the change was made (although it was accepted that there are currently different threshold tests for first and second appeals and for appeals to the Supreme Court). Others felt that the change in the test might reduce the number of cases determined by the Court of Appeal, and therefore stifle the development of case law. There was also concern that the introduction of a more stringent test could result in “considerable delay” until there was a substantive appeal to determine what “substantial prospect of success” means. The Master of the Rolls felt that it was likely that there would be an early judicial decision from the Court of Appeal on the meaning of the test.

By a majority, the CPRC agreed that:

  • The threshold test should be changed for the Court of Appeal.
  • There should be a further consultation on this matter.
  • Every effort should be made to collect further data on appeals to the County Court and High Court.

Unfortunately, efforts to address this issue seem to be being stymied at every point.

An addendum to the minutes of the February CPRC meeting explains that data considered at the February meeting was subsequently found to contain errors (caused by a coding error compounded by a calculation error). Therefore, the CPRC’s original decision at the February meeting – that there should be a consultation on raising the threshold – has now been deferred pending further discussion. This is therefore another space to watch (although it does sound likely that a threshold change will be up for consultation before long).

As well as considering the threshold test, the February meeting noted that some further changes to the Practice Directions (PDs) in Part 52 which relate to appeals below the Court of Appeal level are required as a result of the reforms last year. The papers record that: “The details of some of this have taken longer to settle than it had been hoped and the matters are not yet ready to bring to the CPRC”, so this, too, is still very much work in progress.

However, the CPRC did take the opportunity to correct some “stand alone” minor errors in PD 52C and PD 52D, and to make a tweak to CPR 52.3.

The CPRC also considered proposals for amendments to PD 52A and PD 52B arising from the changes to the routes of appeal in CPR 52 (relating to appeals outside the Court of Appeal, namely appeals to the High Court and appeals within the County Court). The proposed amendments are intended to:

  • Clarify the kind of judge who may or should hear certain appeals.
  • Identify appropriate venues for filing and hearing appeals (including applications for permission to appeal (PTAs)).

The CPRC considered a detailed paper by Birss J, detailing the proposals.

Although some concerns were voiced about how the proposals would work in practice, particularly in terms of judicial resources and listing practices, they were agreed in principle. The minutes show that a redraft of the proposed revised rules was due to be considered at the March CPRC meeting.

Again, we should learn more, once the minutes of the March meeting are published.

Hot! Hot! Hot!… Hot-tubbing – and how to get the temperature just right…

A report from the CPRC subcommittee considering the CJC’s recommendations on hot-tubbing (chaired by Kerr J) was considered by the CPRC in February.

The report recognised the potential benefits of hot-tubbing (including improved quality of expert evidence and improved efficiency of the trial process) but, against that, cautioned that the process may make inroads into the “adversarial tradition”, which should not be done lightly.

It emphasised that, rather than being prescriptive, the intention is purely to “educate” the legal community about hot-tubbing.

A number of points of potential debate were identified including:

  • Concern that judge-led joint expert examination could curtail cross-examination to the point where the subsequently losing party felt that it never had a chance to put its case to the expert witness, nor to shake the judge’s view on the expert issues.
  • Differing views on the potential benefits of “teach-ins” with an expert (at the parties’ expense) tutoring the judge out of court, and what the evidential status of such an exercise might be.
  • Resourcing issues: hot-tubbing (particularly if judge-led) is likely to increase the necessary judicial preparation time. This could put a strain on the court’s resources, and affect other litigants. However, that must be balanced against the improvements in efficiency and the quality of expert evidence which hot-tubbing brings. In practice, judges may often lack sufficient preparation time to enable fully judge-led concurrent expert evidence. In such cases, the parties need to play at least an equal role in the questioning.

The report also referred to Kerr J’s frustration, in a clinical negligence case which he considered “a paradigm case” for hot-tubbing, that it was not used. He noted that four cancer experts gave oral evidence, and there was “wasteful duplication of effort and cost”.

The full CPRC was asked to consider a number of specific points. These included:

  • Whether it endorsed the view that hot-tubbing is, in general, a good thing and should be actively promoted, subject to appropriate safeguards.
  • Whether the subcommittee should consider matters such as:
    • standard case management conference (CMC) hot-tubbing directions;
    • whether they bind the trial judge;
    • measures to promote judicial parties’ awareness of hot-tubbing;
    • warning to parties and experts that it may be imposed;
    • adequate judicial preparation time; and
    • a requirement for parties to produce an agreed or draft agenda for a hot-tubbing session at trial.

The February minutes summarise the CPRC’s discussions.

It was noted that hot-tubbing is not the default position, and is currently not widely taken up voluntarily. There is a danger that hot-tubbing will not be used unless it is imposed through the rules/standard directions, and the onus is on a party to opt out.

As to how far hot-tubbing should be promoted in the rules, taking account of the resourcing aspects (particularly for personal injury cases), the CPRC concluded that a general requirement for hot-tubbing would be “a step too far”. However, it felt that there are probably certain types of claim for which hot-tubbing should be the default. In the Mercantile Court and the Technology and Construction Court (TCC) (where case management is handled by the trial judge) there is an opportunity to address hot-tubbing at an early stage, and it might well be an appropriate tool for such cases. Standard directions or a judicial template for directions could be used to flag up the possibility of hot-tubbing with parties, before the CMC.

It was agreed that the subcommittee would consider a number of specific issues and then report back. Points it agreed to consider included:

  • Specific classes of case or types of issue for which hot-tubbing might be appropriate.
  • How hot-tubbing should be raised with the parties in such cases.
  • Appropriate wording for standard directions.
  • Whether decisions about where and how hot-tubbing should take place should be done as part of the judicial case management process, or separately.

This is very much work in progress, so we will have to wait to see what is finally agreed by the CPRC.

Simplifying procedures: nothing added – perhaps something taken away?

The February papers show that the planned simplification of CPR 12, 13 and 14 was due to be on the agenda for discussion at the 7 April CPRC meeting.

More will be revealed once the April papers are released (hopefully, soon after the May meeting). It will be very interesting to see just how far the subcommittee goes this time (having been sent off to do something a bit more radical, after their initial review) – not least because similar review of other parts of the CPR will follow.

On with the online court!

The minutes refer to ongoing work (by the CPRC subcommittee and HM Courts and Tribunals Service (HMCTS)) on the first iteration of the online court and rules.

It is particularly interesting to see that the CPRC was set for a demonstration of the IT at its March meeting, as well as considering the draft rules. CPRC members were asked to read the relevant sections of Briggs LJ’s final report for his Civil Courts Structure Review, by way of preparation.

This demonstrates the close partnership between the MoJ, HMCTS and the CPRC, pulling together the separate strands of the courts modernisation programme. It also shows that, despite scepticism in some quarters, some early emanations of what will become the online court are already starting to emerge.

Flowers coming into bloom?

In the November and December 2016 Snippets pieces, we have reported on the work of a CPRC subcommittee that 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.

Our December Snippets piece explained that a workaround had been put in place. It also noted that, following debate, a majority of the CPRC considered that there should be “a six week targeted consultation” to address this issue. The proposed scope and timing of the consultation were not clear from the papers.

Interestingly, the February minutes show that (at that time at least) the consultation had not yet started. After confirming that the workaround is now in place, they added that a draft consultation document would be sent to the subcommittee before the March CPRC meeting.

This is a topic that has generated considerable interest, so, hopefully, more will become clear once the March CPRC papers become publicly available.

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).

Practical Law Dispute Resolution Beverley Barton

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