Papers from the CPRC meeting on 7 July 2017 became publicly available on 2 November 2017. A lot of water has flowed under the bridge in the intervening four months. Nonetheless, there are still a few snippets of interest.
The papers from July draw out a pervasive theme of working together – whether in terms of pooling expertise from different courts and judges, or jointly working to achieve the ambitious modernisation plans for civil justice. They also highlight frustrations over the time it is taking for Practice Directions to be signed off at ministerial level which, it must be assumed, has much to do with the parliamentary time currently being taken up by Brexit.
Items on the agenda in July included:
- Proposed amendments to CPR 3.1(2) allowing hearings to be listed before Divisional Courts constituted of judges of different divisions.
- Discussion of work to centralise procedures for charging orders and attachment of earnings.
- The Business and Property Courts, which came into operation on 2 October 2017.
- Development of the online court.
Evolution of devolution: proposed changes to enforcement procedures
Delegation down from judges to legal advisers is something that has been on the agenda a few times recently. The concept of “shove down” (as it was referred to by Lord Briggs at a recent Westminster Legal Policy Forum event) also featured quite prominently in the final report for the Civil Courts Structure Review, which was carried out by Briggs LJ (as he then was), including his proposals for the use of “case officers”.
Interestingly, at the July meeting, the Charging Orders and Attachment of Earnings CPRC Sub-committee sought guidance from the CPRC on whether it would be appropriate to delegate the making of unopposed charging orders to legal advisers, or whether changes to primary legislation would be required before this could be done.
The minutes show that the CPRC felt that there was an important general point of principle to be decided regarding delegation of powers, as a policy issue, before detailed consideration should be given to the specific types of work that might be devolved.
The minutes also show that there were divided views regarding delegation of the power to grant final charging orders. Some felt that, in circumstances where the order was being made in default of any objection by the defendant, it did not need to be a judicial act, whilst others felt that judicial oversight was important.
As a way forward, it was agreed that HMCTS and the Ministry of Justice should present some evidence on the success or otherwise of devolution, to court officers, of the interim charging order stage, plus details of safeguards that would be put in place if final orders were also delegated.
Across the divides: power to order hearings with judges from different Divisions
An amendment to CPR 3.1(2) was sought to make explicit that the court may, under its general case management powers, direct that a hearing may proceed before a Divisional Court of the High Court.
Section 66(1) of the Senior Courts Act 1981 provides for hearings in the High court to be held, where necessary, before a Divisional Court “as required by legislation or rules of court”.
The CPRC noted that, increasingly, proceedings are raising complex issues of law that go beyond the expertise of judges of specific Divisions and there is a clear need to list proceedings before Divisional Courts constituted of judges of different Divisions of the High Court. One recent example was a case about matrimonial property, which required the expertise of the Family and Chancery Divisions. The most effective case management approach had been to list it before a Divisional Court of the High Court, constituted with a judge from each division. That had been done using the general case management power in CPR 3.1(2)(m) (with no objection from the parties) but it was felt that, due to the wording, in the Senior Courts Act (with the reference to a requirement of legislation or rules of court), the CPR should be amended to “put the matter beyond doubt”. It was felt that making it clear to practitioners and judges, in this way, might also lead to the power being used more readily than in the past.
(Subject to a minor amendment) the proposed changes to CPR 3.1(2) were approved by the CPRC.
Joined up courts: launch of the Business and Property Courts
The minutes note that the Business and Property Courts (B&PCs) had been successfully launched “to popular acclaim” earlier that week. In a policy paper to the CPRC, Sir Geoffrey Vos, Chancellor of the High Court, highlighted the importance of the B&PCs as follows:
“The UK needs to demonstrate to international business users, as the UK leaves the European Union, that English law and the courts of England & Wales will continue to offer integrated world class dispute resolution services.”
The policy paper explained that a Practice Direction was necessary to address the following points:
- Define the B&PCs and their scope, identifying the lists and courts making up the B&PCs.
- Address concerns about how to start proceedings in the B&PCS (he noted that it was “unfortunate, although not the fault of the CPRC” that the final e-working PD had still not been published).
- B&PC work that can be done at a County Court level (effectively replacing the Hart Lloyd Guidelines of 2004, which were attached with the papers for the meeting – and which he noted were “not very well-known”).
It concluded by referring to “numerous inquiries” about the changes, being received by the Chancellor’s office, and noting that it would be “unfortunate” to pass the “go live” date of 2 October without being able to produce the Practice Direction that would give effect to the ideas behind the B&PCs.
It also noted that changes resulting from the introduction of the B&PCs would be “incremental”. The CPRC was asked to consider adopting a procedure that could “cater for” the tight time scales.
At the meeting, Sir Geoffrey Vos outlined the remit of the courts, emphasising the need to ensure that cases are dealt with in the appropriate court (and referring to the fact that, often, cases are listed in London when they should be listed in the regional court with the closest connection to the case). The rules on transfer are being tightened to achieve this aim, and the Practice Direction will seek to reinforce the message that the B&PC is not “London centric”.
As of today, the final approved Practice Direction (PD) has still not been published, as it awaits ministerial sign off. Fortunately, the judiciary and CPRC have taken a pragmatic approach to “fill the gap”. Sir Geoffrey Vos has published an Advisory Note, which now appends a copy of the draft PD (which is not expected to change). The draft PD should be the starting point, and the Advisory Note usefully fleshes out some of the details; for example, to help users identify the correct court, list or sub-list in which to issue, paragraph 14 provides a brief (not exhaustive) description of the type of work dealt with by each of the constituent courts, lists and sub-lists.
Online court: co-pilots sought for the pilot schemes
At the July meeting the CPRC discussed two pilot schemes being launched in connection with the work to introduce an online court.
- Part 7 money claims under £10,000
The CPRC was asked to consider and approve a draft Practice Direction providing for a pilot scheme for a new digital procedure for the issue stage in relation to Part 7 money-only claims under £10,000. This pilot (to test the issue and response stage) is the first of a series of planned pilot schemes, which will run over the next three years.
Birss J provided an update on the proposed pilot. He noted that “longer term timetabling” was required to make the most of the CPRC sub-committee’s limited time.
- Part 7 unspecified money claims
Clare Galloway, Civil Courts Lead, HM Courts and Tribunals Service outlined proposals for a pilot for online issue of Part 7 unspecified money claims, where the claimant is represented (capturing claims issued through the County Court Money Claims Centre).
Again, matters have moved on considerably. PD 51S (The County Court Online Pilot) was introduced in the 91st CPR update. The new PD introduces an invitation-only pilot scheme (which runs from 12 September 2017 to 30 November 2019) to test a procedure enabling legally represented claimants to issue certain specified and unspecified money claims online at the County Money Claims Centre (CCMCC), using the County Court Online website. These claims will then be returned online to the claimant’s legal representative for service.
A focus of the discussions at the CPRC meeting was on how best to deploy the CPRC sub-committee, and whether additional expertise was required to “bolster” things up. Briggs LJ (as he then was) suggested that there might be an “expression of interest campaign” to attract interested stakeholders and members of the judiciary.
This concept of inviting wider contribution seems to have been acted upon. At the Westminster Legal Policy Forum event, on 13 October 2017, Clare Galloway noted that HMCTS will not be able to achieve what is the most ambitious courts modernisation programme in the world, alone. She said that a recent example of collaboration was a successful Hackathon event (with a number of the ideas generated over that weekend being considered in more detail), and added that HMCTS needs help with the project, and anyone who would like to get involved should let them know.
Susan Acland-Hood, Chief Executive of HMCTS made similar calls for participation in her blog post HMCTS’s priorities for the next phase of courts and tribunals reform dated 26 October, where she concluded:
“The changes we are making are far-reaching. The task is to make justice easier, faster, and simpler to access, underpinned by slicker and more reliable processes, using the best the modern world can offer. But they do not change the underpinning principles of our system, which remain precious and enduring, and must be our most fundamental yardstick in all we do.
I have written a lot in recent blogs about the importance of engaging and discussing what we are doing, and providing ways to get involved …. We’re also looking for legal professionals who represent defendants in civil money claims for our research, if you’re interested please sign up now. Everything I set out above will come with ways to get involved – whether early on in setting out what’s needed, or later in testing early versions of new systems. If you’ve got a bit of the programme you’d particularly like to be involved in, or get updated on, please email us with your details.”
Paragraph 13 of the July minutes notes:
“The committee were advised that the procedure for obtaining approval of and laying statutory instruments is changing, and that there will be some change in the timing around finalising material to be included in the Statutory Instrument and PD Making Document and signing off of those documents.”
Unfortunately, practitioners still await formal publication of the PD on Electronic working (which has been mandatory for professional users of the Rolls Building Courts since 25 April 2017)! Further, although pragmatic steps have been taken to provide procedural guidance on the new B&PCs – with the Practice Direction having been circulated in draft, and an Advisory Note provided by Sir Geoffrey Vos – that Practice Direction too still awaits ministerial sign off although the courts came into operation on 2 October 2017. Against that backdrop, it is refreshing to see that details of the draft disclosure pilot scheme, which it is proposed should run for 2 years in the B&PCs, have been circulated for consultation before the drafts have been submitted to the Civil Procedure Rule Committee for review and approval. Comments are sought by 28 February 2018. Practitioners are strongly encouraged to review the proposals and think positively about how the reforms can be made to work.
Papers from the 6 October CPRC meeting were published last week, so I will be back again soon with some more Snippets on topics ranging from open justice to costs protection in environmental claims and the CPRC’s forthcoming programme of work.