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CPRC Snippets: June 2017

The approved minutes and papers from the June 2017 Civil Procedure Rule Committee (CPRC) meeting were made publicly available on 10 July 2017.

I am keeping this Snippets piece “bite sized” as we have previously reported on the papers relating to the new bill of costs (which were released early) and we have recently published a blog post, by Maura McIntosh of Herbert Smith Freehills, summarising latest developments regarding hot- tubbing.

Think of this piece as an hors d’oeuvres for the July Snippets, which should provide a veritable feast of information!

Points of interest from the June meeting (other than developments regarding the new bill of costs and hot-tubbing) include:

  • Renaming of the Mercantile Court.
  • Power for District Judges in the County Court to hear certain committal proceedings.
  • Further tweaks to Practice Direction (PD) 51O (Electronic working).
  • Credit hire standard directions.
  • Further details of the first online court pilot scheme.

A rose by any other name? Renaming of the Mercantile Courts and Mercantile judges

The minutes record that the CPRC “reluctantly” approved a proposal to rename the Mercantile Court as the Commercial Circuit Court (as already approved by the Judicial Executive Board).

The covering memo put to the CPRC explains that the term “mercantile” was considered to be “obscure and in need of modernisation”: one of the aims of the project to bring courts under the new “umbrella” of the Business and Property Courts is to simplify and clarify – for both domestic and international users – the names of the specialist courts and lists, and to get rid of antiquated wording. The memo explains that, as mercantile judges are not puisne judges (inferior in rank) of the High Court, they cannot be renamed Commercial Court judges. Commercial Circuit has been chosen, as it shows the connection with the Commercial Court whilst indicating that it is “not on a level with the Commercial Court in the High Court”.

Concerns were voiced that, due to the urgency of the “re-branding”, the mercantile and regional judges were not consulted on the changes. The CPRC asked that their concerns about the lack of consultation should be relayed to the Business and Property Courts Implementation Group.

An exercise to identify all references to the Mercantile Court in the Civil Procedure Rules (CPR) will be undertaken, and CPR 59 and PD 59 will be added to the list of parts of the CPR to be reviewed.

The “mercantile” brand is the only one that will disappear as a result of the introduction of the Business and Property Courts of England and Wales. The strength of brands such as the Commercial Court, the Admiralty Court and the Technology and Construction Court (TCC) is recognised, so these courts will continue, as will the Queen’s Bench and Chancery Divisions. More information on the launch of the new courts can be found in my blog last week.

Power to the… who exactly? Committal by district judges

The CPRC considered a proposal to amend the rules (CPR 65 and PD 81) to make it clear that district judges in the County Court can hear committal proceedings for breach of anti-social behaviour injunctions (ASBI) made pursuant to the Anti-social Behaviour, Crime and Policing Act 2014 without requiring specific authorisation from the designated circuit judge (as they did for ASBI injunctions made under the Housing Act 1996 which preceded it).

This was agreed in principle, but some additional points of principle for consideration were identified, namely:

  • Should the power also be extended to masters?
  • Should deputy district judges be excluded?
  • Would there be any crossover to criminal jurisdictions?

It was agreed that a sub-committee would consider these points and liaise with the judicial college.

Directing practice: further news of the Electronic working Practice Direction

Electronic working became mandatory for professional users of the Rolls Building courts on 25 April 2017, but the Practice Direction has still not been published.

The June minutes show that, as at 9 June 2017, it was still a bit of a work in progress. The papers from the meeting usefully highlight all of the latest tweaks, which were approved by the CPRC. Some key points to note, which will no doubt be welcomed by insolvency practitioners, include:

  • A tweak to paragraph 2.1(c) to specify that the procedure outlined in paragraph 3.20 of the Insolvency Rules should only apply “out of hours” (when the court is closed), and not to all notices of appointment by qualifying floating charge holders under chapter 3 of the Insolvency Rules 2016.
  • An important change to paragraph 11.2, as requested by the Registrars in Bankruptcy and the judges of the Commercial Court, to clarify that a paper bundle will also be required for hearings (unless the court orders otherwise). As they deal with many short hearings, it is considered that having access to a paper bundle will help to keep things “expeditious”.

Other changes include the addition of information on where to find guidance (see paragraph 2.5), a requirement for documents filed using e-filing to be categorised or labelled by document type (paragraph 5.1(d)), provisions on what happens when there are procedural or other errors with submitted documents (paragraph 5.3) and clarification of the approach to be adopted regarding the filing of confidential documents (paragraph 5.2A).

There seems to be an incorrect reference in paragraph 5.3(4). We have raised this with the CPRC.

At the time of the meeting (on 6 June), it was hoped that the changes would be approved, and the PD published, “as soon as possible” – it having been delayed by the unexpected calling of the general election. The papers from the June meeting do not confirm when the PD will be published, but it seems that it is well on its way now, fortunately.

Call for consensus over credit hire standard directions

Redrafting of standard model directions in credit hire cases was another topic up for discussion in June. The minutes refer to the fact that a number of credit hire companies have raised concerns about the redrafting. What the judiciary wants is a set of directions that work for all parties and the court.

It was agreed that, once the redrafting had been finalised, there would be a two-step informal consultation: with the judiciary and then with interested parties.

This item has moved on since the June meeting. On 27 June, the CPRC published a Consultation Document on Model Order for Directions to be used in all Credit Hire cases. The document explains that it has been highlighted that the existing draft “might be a cause of avoidable contested directions hearings”. The consultation asks for comments on proposed new wording. It is hoped that the eventual credit hire directions will be used by the judiciary in all tracks.

The consultation paper notes that this is “a highly contentious area of litigation”, but expresses a determination to “ensure that the directions do not add to this problem”, noting that:

“There appear to be relatively simple steps that need to be negotiated in order to narrow issues and present the judge with the necessary evidence on which to make a determination, subject to oral evidence if required, in the usual way.”

It goes on to emphasise the need for cooperation:

  • The CPRC is likely to be particularly attracted to wording reached through consensus by practitioners, and “special pleading” by either side is unlikely to be well received; these are directions designed to encourage the proportionate and efficient resolution of the litigation and they must not be used as tactical staging posts in the action.
  • Consultees are urged to confer constructively to try to achieve a consensus, or risk a solution being imposed.

The heading of the consultation document suggests that it runs until Tuesday 1 August 2017, whilst the details on how to respond state: “Responses to be received no later than 5pm on Tuesday 2 August 2017”. The first Tuesday in August is 1 August, so it seems safest to respond by 1 August…

Piloting the online court

At the May meeting, the CPRC was given information on the proposed incremental roll out of the online court, including details of a series of pilots to test the phases on a rolling basis. A draft of the pilot for the issue stage for Part 7 specified money-only claims and was put forward for discussion.

In June, the committee was provided with details of the response stage of the first proposed pilot. The papers from the meeting include an updated draft of the proposed practice direction for the pilot scheme, including drafting notes.

According to the memo put to the CPRC, as of June, it was proposed that the pilot would commence on 31 July 2017 and run until 30 November 2019.

A word on costs budgeting

Whilst outside the usual scope of the Practical Law Dispute Resolution service, it is interesting to note that the June meeting also considered some tricky little points around costs budgeting in the context of high value personal injury claims. The discussion was prompted by concerns that changes to the discount rate could lead to a large number of high value personal injury claims falling out of the costs budgeting and costs management regimes.

After what the minutes describe as “a wide ranging discussion”, the CPRC decided that it would not be appropriate to react to this change, as there is ongoing consultation about how the discount rate should be calculated. It was felt that the outcome of Jackson LJ’s review of the fixed recoverable costs regime should also be taken into account.

These are just selected examples of the topics up for discussion at the June 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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