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CPRC Snippets: March 2017

The approved minutes and papers from the 3 March 2017 Civil Procedure Rule Committee (CPRC) meeting became publicly available on 15 May 2017.

Largely speaking, the March meeting continued themes from the February meeting (appeals and the Online Court amongst them).

Many of the matters discussed will have moved on considerably since early March. Nonetheless, as usual, there are still a few snippets of interest.

An entrée to the Online Court

The minutes record that, as foreshadowed in the February papers, the CPRC was given a demonstration of the prototype model for the Online Court (as it currently stands), at the March CPRC meeting.

Although the minutes do not reveal anything at all about the CPRC’s thoughts on the prototype, the fact that there is already something in place that can be “demoed” shows that progress is being made behind the scenes.

There is clearly a lot of activity on this at the moment. It is understood that the system will be delivered in “bite sized” chunks of functionality, allowing rigorous testing and feedback before additional functionality is bolted on. There is no doubt that we will be hearing (and, hopefully, seeing) a lot more on this, later this year.

An unappealing proposition?

We previously reported on a “stay of proceedings” regarding possible changes to the thresholds for bringing appeals to the Court of Appeal – moving from a “real prospect of success” to a “substantial prospect of success”.

Given that the consensus seemed to be for change, it comes as a matter of some surprise that, at the March meeting, it was agreed – in the light of “further data on appeals to the Upper Tribunal and Court of Appeal” – that “no further action should be taken, and that the decision at the February meeting be rescinded”. Therefore, it now seems that, contrary to expectations, this issue – and the planned consultation – are off the agenda for the time being.

The minutes do not reveal much about the basis for this apparent “about turn” (apart from pinning it on the data). However, it will no doubt be welcomed in many quarters. As the minutes from the February CPRC meeting noted:

“[In] the earlier consultation… the majority of respondents were not in favour of the change. The Chair acknowledged the proposals were against the balance of the public view, but that the Committee had already made changes in respect of right of oral renewal in appeals in the face greater public opposition.”

Still on the subject of appeals, 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 to the High Court and appeals within the County Court). The amendments are designed 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)).

These proposals were previously on the agenda at the February meeting, at which (despite some concerns about how they would work in practice, particularly in terms of judicial resources and listing practices) they were agreed in principle.

Birss J reported back to the March meeting, with a detailed note setting out the final proposals. He noted that there had been “extensive discussions and a consultation exercise… involving senior judges, presiding and supervising judges, DCJ, listing officers and staff”. He added that, although it had been anticipated that a Practice Note would be agreed between the Chancery and Queen’s Bench divisions, that is no longer envisaged. He also recognised that some of the provisions are “very sensitive” and explained that it is proposed that the working, in practice, of the new provisions should be monitored, with a review after six months.

The minutes of the March CPRC meeting record that the CPRC also recognises the “sensitivity and tensions regarding levels and types of judges and their deployment, and the relationship between civil and insolvency proceedings brought together in the appeal procedure”. Birss J said that Heads of Division are aware of the tensions, and the fact that there will be a review six months down the line.

The CPRC agreed the amendments, subject to some drafting changes.

Making Lee-way: consultation on possible changes to the procedure and forms for issuing writs and warrants of possession in the context of suspended possession orders

So, no consultation on routes of appeal – but a consultation on another tricky issue that has generated considerable interest, is now in the offing.

We have previously reported on the CPRC’s ruminations regarding the procedure for issue of a writ or warrant to enforce a possession order suspended on terms (see, for example, CPRC Snippets: November 2016). This was a point put in the spotlight by the Court of Appeal’s decision in Cardiff City Council v Lee (Flowers).

At the March meeting, the CPRC was asked to consider a draft of a consultation paper seeking views on whether amendments to rules and forms are required.

The minutes refer to “a long and wide ranging discussion” (which, perhaps, gives a further indication of just how difficult this is all proving to be). It was agreed that further material should be included in the consultation paper, and that a further draft would be considered at the April CPRC meeting.

Update: The April CPRC papers (which were also made publicly available on 15 May) note that amendments had been made to the consultation paper to ensure that it is broad enough to cater for the potential impact of Cardiff City Council v Lee on all cases in which a suspended order on terms or conditions, is made. The revised consultation document was approved subject to further amendments to the questions posed in the consultation. The minutes do not indicate the proposed timing for launch of the consultation but, as it was approved on 7 April, it is presumably imminent. This is definitely a space to watch!

Just to give a flavour of the sorts of questions being consulted on, those in the draft put to the April meeting (which might be subject to amendment) included:

  • Do you think that additional safeguards (namely a requirement for an application with supporting evidence and judicial oversight) should apply in all cases where a suspended order is made and the claimant wishes to enforce the order? Please give your reasons.
  • Should certain cases be excluded from the additional safeguard (for example, particular types of possession orders such as those based on conditions other than payment of rent or mortgage instalments, return of goods orders and so on? If so, which types of cases do you think should be excluded and why?
  • Do you think that the rules for issue of warrants in the County Court and writs in the High Court should be aligned in respect of permission requirements? Please give your reasons.

Fixing up a fixed costs pilot scheme

You will hopefully be aware that Jackson LJ is currently undertaking a review of the fixed recoverable costs regime, and is due to publish his report and recommendations by the end of July.

Jackson LJ has already indicated that he has considerable sympathy for the view that a “one size fits all” approach will not be appropriate, and has also shown considerable interest in the possibility of an adapted model of the Aarhus regime for certain types of case.

There is a huge range of views on the topic: some of which we have been highlighting in our series of blog posts on Fixed Recoverable Costs: The Big Debate (see, for example, Blog posts, Fixed recoverable costs – The Big Debate: Neighbourhood tort actions: the costs balance and Fixed recoverable costs for everything: bring it on!).

At Jackson LJ’s Birmingham seminar on 16 March, HHJ David Waksman QC revealed that consideration is being given to a Fixed Costs Pilot Scheme.

Interestingly, the minutes of the March CPRC meeting note that a draft “voluntary pilot testing a fixed recoverable costs regime in the Mercantile courts in London and Manchester” was to be presented to the full CPRC at its April meeting. In the meantime, Richard Viney agreed to assist the working group developing it.

Update: The timing has slipped slightly. At the April CPRC meeting, Birss J reported that the draft pilot, for cases up to £250,000, would be put before the CPRC at its June meeting. This definitely remains a space to watch, and we will report on further developments.

Last but not least

The final item on the March agenda was “minor corrections and amendments“.

The CPRC agreed to a number of small but important changes to update “various information and addresses”. These included amendment of the draft injunction and freezing order annexed to PD 25A (Interim Injunctions) to update the addresses for communicating with the Chancery Division, Queen’s Bench Division (QBD) and Commercial Court, as well as the substitution of a revised list of authorised government departments and solicitors for service in Annex A to PD 66 (Crown Proceedings).

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