Practical Law

The approved minutes and papers from the May 2017 Civil Procedure Rule Committee (CPRC) meeting were made publicly available on 21 June 2017.

Modernisation initiatives – including those being trialled through pilot schemes – feature prominently again this month, with topics of interest including:

• The introduction of a new fixed recoverable costs pilot scheme.
• Work to develop the online court.
• Developments regarding the new bill of costs (currently subject to the voluntary pilot scheme under PD 51L).
• Extension (in time and scope) of the Financial Markets Test Scheme.

A guest appearance by Jackson LJ: fixed recoverable costs pilot scheme

The proposed fixed costs pilot scheme was up for discussion in May so it is no great surprise that Jackson LJ was in attendance. Some key aspects of the proposed pilot, include:

• It will run in the London Mercantile Court, and the Mercantile, Technology and Construction Court (TCC) and Chancery courts in the Manchester and Leeds District Registries, for two years.
• It will apply to High Court claims up to £250,000.
• The fixed costs scheme will have its own streamlined court procedure (albeit heavily based on the Shorter Trials Scheme). There will be a list of issues (reviewed at the case management conference (CMC)), streamlined disclosure, limited factual and expert evidence, and a trial of no more than two days (excluding reading). The trial will be fixed within eight months of the CMC.
• Use of the scheme will be voluntary. Both sides will have to agree to participate. However, once a party has agreed to join the scheme, they will not have “an unfettered right” to leave it.
• The scheme will be based on summary assessment with costs capping (rather than setting fixed amounts for any stage or task). There are capped figures for separate stages of the proceedings plus a proposed maximum overall cap of £80,000.
• Based on experience in the Intellectual Property Enterprise Court (IPEC), consideration has been given to what potential impact the capped costs regime might have on Part 36 offers. It is proposed that, although costs will still be assessed on an indemnity basis, that will be subject to a higher cap (25% of what the caps would have been). It is felt that that will allow the aims of Part 36 to be achieved whilst preserving the certainty provided through fixed costs.
• It is recognised that a decision will have to be made regarding what should happen when the County Court/High Court thresholds change.
• Jackson LJ confirmed that the scheme will not apply to clinical negligence cases.

The papers put to the meeting include full details of the procedure, which includes details of the capped costs for each stage of the proceedings (for example, £6,000 in respect of disclosure).

The CPRC was particularly interested in (i) how the proposed limited disclosure is likely to operate in practice (with some reassurances provided, based on experience in the IPEC) and (ii) the potential impact the cap might have on the Part 36 regime.

It agreed, in principle, to the scheme, subject to a number of drafting points being addressed.

The original hope was for the pilot scheme to start early enough for Jackson LJ to be able to include some early feedback on it, in his report following his review of fixed recoverable costs. However the Ministry of Justice (MoJ) advised that the pilot should not start until after the general election. Jackson LJ’s report is due by the end of July, so it now seems unlikely that there will be any significant feedback within that timeframe.

Reaching parts not previously reached: extension of the Financial Markets Test Scheme

The Financial Markets Test Scheme was introduced on 1 October 2015, for two years, until 30 September 2017. At the May meeting, the CPRC agreed to extend this for a further three years, and to extend the scope of the cases that it will cover.

Points of particular interest in the explanatory memorandum put to the CPRC by Birss J, include:

• To date, no cases have gone through the scheme. Even so, feedback from a meeting of the users of the Financial List on February 2017 indicated that the availability of the scheme is considered important and useful.
• Recently, the scheme was nearly used in a “very serious piece of litigation”. The circumstances around that case showed that the current scope of the scheme is too narrow and, to get successful “take up”, the scope needs to be expanded. The senior judges responsible for the Financial List called for the scope to be co-extensive with that of the Financial List (as set out in CPR 63A.1(2)), rather than being limited to “issues of general importance to the financial markets”.
• Senior judges responsible for the Financial List agree that the Brexit process is likely to throw up the need for speedy market test case determinations, and that there is no question of the utility of the scheme. They consider that abandoning the pilot, just as people are becoming aware of it and considering using it, would be a mistake.

The expanded scheme will run until 30 September 2020.

It will be interesting to see if the expanded scope does lead to some cases actually taking advantage of the scheme.

The online court: more than the sum of its parts?

Birss J, chair of the relevant sub-committee, provided an update on progress regarding the online court.

It is clear that the calling of the general election – with the resulting derailing of the Prisons and Courts Bill (which was intended to establish the new online court rules committee) – has also had an impact on this work. Birss J noted that the aim was for the online court rules to be short and simple: something compromised now that they are being developed through the CPR. It is hoped that there might be “more scope to simplify further when the online rules scheme is launched properly”.

The rules have been aimed at “a reasonably intelligent non-lawyer litigant in person”. Straightforward language has been used “as far as possible”, but it is recognised that concepts such as “service” do put limitations on that. Getting the balance right is clearly going to be challenging.

Moving from the rules to the technology (although the two aspects are inextricably linked), interestingly, the explanatory memorandum put to the CPRC by the working group considers the “digital confidence” of Civil Money Claims users. In terms of claimants, it suggests that 31% are “Digital Self Servers”, 52% are “Digital with assistance” and 17% are “Digitally Excluded” (although research apparently suggests that, in fact, a higher proportion might be Digital Self-Servers).

The memorandum put to the CPRC explains that there will be 11 separate releases. When complete (by January 2020), these will deliver the streamlined digital pathway for money claims over £25,000 as well as the Online Court for resolving most types of civil money (including damages) claims up to £25,000. Formation of the Online Court will be an “incremental” process, with each stage being trialled and tested before moving on to the next stage.

The phases are:

Release 1: Issue and response for single-to-single users.
Release 2: Issue and response for multi-party and represented parties
Release 3: User notifications and enhanced A1 and A2 functionality.
Release 4: Integrated mediation/conciliation and case officers.
Release 5: Box work, applications and hearing preparation.
Release 6: Online Dispute Resolution.
Release 7: Hearings.
Release 8: Decision trees.
Release 9: Part 8.
Release 10: Bulk users and warrants
Release 11: Pre-issue (stage 0), costs, infant settlement and so on.

As at the May meeting, the target date for the first release (issue and response) was the end of July (subject to clearance by Government Digital Services, and possible delay as a result of the general election).

The target is for a “private beta” stage (where the service is available to eligible users by invitation only) to commence on 31 July 2017, with public beta (where the service is available to all eligible users) by early January 2018.

The project team intends to invite up to 2,000 claimants to use the service, so as to get feedback from a representative sample of users and claim types.

The CPRC was asked to approve a preliminary pilot scheme to test the issue and response stage. This will be the first of a series of pilots that will take place over the next three years. The papers put to the meeting include the draft Practice Direction for the pilot scheme, which sets out the required conditions for claims to fall within the scheme. Some key requirements include:

• The claim is for a specified sum of money not exceeding £10,000 (including interest).
• The claim would not normally follow the Part 8 procedure.
• The claim is not being brought under the Consumer Credit Act 2006.
• The claim is not for personal injury.
• There is only one claimant and only one defendant.
• The claimant is not under 18 and not a “protected party”.
• The claimant’s address for service is within the UK, and the claimant has an email address that can be used for the case.

The new bill of costs: in, out, shake it all about!

The May meeting was asked to approve a proposal for use of the new bill of costs (currently being piloted under PD 51L) to become mandatory in respect of costs incurred after 1 October 2017, and for the pilot scheme to be extended to assessment of costs in the County Court.

Previous CPRC papers have highlighted the very real dilemma around voluntary pilot schemes. Pilots are aimed at providing practitioners with an opportunity to test new procedures so that they can be refined and improved before they become mandatory. That does not happen when there is limited, or no, take up. The May minutes reveal that, since the pilot commenced on 1 October 2015, only three bills have been filed in an electronic format. Senior Costs Judge Gordon-Saker observed that uptake would be limited while it remained a pilot.

The new bill of costs sub-committee has called for the new format bill of costs to become mandatory for a number of reasons, including:

• Take up of the new bill of costs has started (albeit on a very limited basis) and no problems of significance have emerged.
• The main reason the new bills have not been used seems to have been due to a reluctance to incur time and expense whilst there is uncertainty about implementation.
• All “major firms” now use electronic time recording so, for such firms, the effort to use the new form bill of costs is “modest”. The sub-committee considers that smaller firms should use a time recording system that allows the new bill to be produced or use a costs draftsperson to report the time appropriately.
• Using the new bill and spreadsheet will simplify the detailed assessment process, increase transparency and save costs.
• Continuation of the pilot would be “futile”.

At the May meeting, the CPRC agreed that the pilot should be made mandatory for bills submitted to the Senior Courts Cost Office (SCCO), but that further work should be done before extending the scheme to the County Court.

That is not the end of the story. Subsequently, in her email circulating the May papers, the Secretary to the CPRC provided the following update:

“Please note the New Bill of Costs was also discussed at the June 2017 [meeting] and the Committee decided to defer date on which the new bill becomes mandatory until 2018. I will circulate a copy of the revised bill of costs shortly.”

The June CPRC papers relating to the new bill of costs were made publicly available early (on 22 June 2017). They explain that, following further consideration, it has been decided that the best option is to bring in the amendments to the rules and PDs as planned, but with the date on which the new bill becomes mandatory pushed back to 6 April 2018. The April date will apply in both the SCCO and the County Court. Points to support this approach include:

• The risk of confusion if the new bill is made mandatory on different dates in different courts.
• Delaying for a few months will mean that, by the time the new bill is used, the availability of dual screens, Wi-Fi and laptops in the County Courts will have improved substantially.
• The extra months will allow for testing/training of court staff using the example electronic bills in the interim period. It will also allow for time to arrange any training needed for judges.

The June papers include a draft revised CPR 47.6, PD 47 plus a revised version of Precedent S (new form bill of costs) with some minor improvements.

Hot tubbing: the challenge of getting the temperature just right

At the May meeting, the CPRC sub-committee looking at hot-tubbing sought a decision from the wider committee on which of two approaches should be adopted in the rules.

“Approach A” treated “concurrent expert evidence” as embracing “the full range of methods” including back-to-back, issue-by-issue expert evidence and “hybrid” procedures. Approach B limited it to “classic hot-tubbing” (where experts are sworn, and give their evidence, at the same time as one another).

Kerr J, Chair of the sub-committee, suggested that Approach B would provide “greater linguistic clarity, simplicity, brevity and avoidance of confusion”, and that it would involve minimal change to PD 35.11. He added that the approach adopted would also impact on the scope of drafting changes required to standard form CMC directions, directions questionnaires and listing questionnaires.

A memo to the full CPRC set out both forms of draft wording for consideration. The CPRC favoured the more limited approach (Approach B), and also decided that it would not be appropriate to include more detailed “signposting” to more extended guidance, in the rules.

Miscellanea: revision of CPR 39

The minutes reveal that a sub-committee, to be chaired by a senior judge, is being convened to take forward revision of CPR 39.

Despite its rather innocuous title “Miscellaneous provisions relating to hearings”, this section of the CPR sets out some pretty fundamental principles: for example, on open justice (the general rule that hearings will be in public) and the position where a party or parties fail to attend a trial.

CPR 39 also includes provisions on trial bundles. It is probably too much to hope that the sub-committee might suggest that it is time for some joined up thinking, across court divisions, on best practices regarding trial (and other!) bundles, rather than having a whole panoply of slightly different rules in court guides.

A charge of charging orders

With centralisation of charging orders, the sheer volume of charging orders now being made at the County Court Money Claims Centre is causing resourcing difficulties. There are simply not enough District Judges and Deputy District Judges to handle them all. Therefore, the possibility of legal advisers making unopposed final charging orders is now being considered.

See the CPRC

The minutes reveal that the open CPRC meeting will be taking place on Friday 3 November 2017. This is always an excellent opportunity to see the CPRC at work. I will definitely be hoping to attend and have the chance to put some questions to the committee.

These are just selected examples of the topics up for discussion at the May 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).