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CPRC Snippets: May, June and July 2016

Not for the first time, the latest set of Civil Procedure Rule Committee (CPRC) papers have been just like buses – none for ages, then three sets all at once.

Papers from the June and July CPRC meetings were circulated on 18 October, along with the minutes of the May meeting. The papers from the May meeting were made publicly available on 20 October 2016.

Even though the papers are a little dated, and some things have moved on over the intervening months – notably with the implementation of the extensive changes to CPR 52 and the associated practice directions, from 3 October 2016 – there are still a number of choice snippets.

I have decided to pick out my “top ten” tastiest morsels!

1. Behind the scenes of the appeals changes

This is rather “old hat” now: the appeals changes having been implemented earlier this month. What the papers do reveal, though, is the tension behind the scenes.

At the May meeting, Lord Dyson (then Master of the Rolls (MR)) referred to the delays in the Court of Appeal (19 months from issue to finalisation of an appeal), which indicated a “looming crisis”. He described this as unacceptable for court users, and added that it did not support initiatives designed to speed up the justice process (including the Express Trials pilot scheme for insolvency cases, and the Shorter and Flexible Trials Pilot Schemes in the Rolls Building courts). He explained that the possibility of increasing the number of judges had been “explored with the government” but, due to current financial constraints, was “unlikely”. Master Roberts observed that there should be continued pressure on the government to provide sufficient resources, to avoid degrading the “justly renowned justice system”.

The appeals reforms took centre stage at the July CPRC meeting. Lord Dyson (still MR at that stage) observed again that the Court of Appeal was in a “state of crisis”. He referred to a recent report stating that the average time from filing of an application of permission to appeal (PTA) to the hearing of the PTA on renewal was 23 months. He recognised that, as many respondents to the consultation on the proposed changes had noted, the obvious solution was to appoint more judges. Interestingly, the minutes reveal that the Court of Appeal estimated that seven additional judges were needed to bring down the backlog. Lord Faulks’ response (for the government) was to say that the number of Court of Appeal judges was set by the Senior Courts Act 1981, and to say that “there are no plans to increase judicial resource in the Court beyond that statutory number”.

Lord Dyson noted that, at the end of his time as MR, there had been a 50% increase in the Court of Appeal’s workload, but no commensurate increase in the number of judges.

At the July meeting, there was detailed consideration of the responses to the consultation on the proposed appeals rule changes. The minutes include some interesting observations about the proposal (now implemented) to remove the automatic right to oral renewal of an application for permission to appeal. It was accepted that “in an ideal world” this automatic right would continue, but “hard reality” had to bite: people who suggested that the change amounted to a denial of justice had failed to suggest alternative means of reducing the delays in the Court of Appeal. It was noted that delays in themselves can amount to a denial of access to justice: a swift decision in a lower court then a delay for two years before there is an appeal is not acceptable.

2. Adding it all up: New Bill of Costs Pilot Scheme

The May minutes note that take up of the New Bill of Costs Pilot Scheme has been “poor”.

The committee (chaired by Alex Hutton) that has been looking at this, agreed to develop an alternative electronic version of the bill, without J-Codes, for review at the July meeting. This followed proposals in a speech by Jackson LJ on 21 April 2016, on “The New Form Bill of Costs“.

At the July meeting, it was agreed to extend the pilot scheme until 30 September 2017, using the new form costs bill (without J-Codes) as a model. The papers for the meeting referred to an “impressive” demonstration that had been given of the new bill. It looked as if it would “greatly facilitate” the process of detailed assessment, allowing the paying party and the judge to see the big picture summaries but then also drill down into the detail.

The model is not compulsory; parties are still able to compile an alternative electronic version that fulfils the required criteria. Interestingly, on this point, the papers for the meeting note that this is intended to give firms freedom to do what they wish, but within a consistent, standardised framework, so that bills are comparable, and to allow IT suppliers to compete. The point was made that:

“The problem of the interaction between procedural rules and IT systems is becoming familiar to the CPRC and arises in relation to the proposed Online Court. In effect the PD acts like a mandatory functional specification which would be produced at the systems analysis phase of an IT systems contract.”

Interestingly, although the pilot is being extended, further consideration is also to be given to the question of whether the new form bill should be mandatory from May 2017. This draws a parallel with the plans for e-filing (where the pilot scheme in the Rolls Building Courts has been extended until November 2017 but there are plans afoot to introduce mandatory e-filing in those courts, before then – more on which, below). It highlights the potential benefits of engaging with pilot schemes early, to get a head start, try them out, have the chance to clarify points, and gain experience, before the procedures become compulsory.

3. Automatic transfer of London Group multi-track cases (and skills?) to the County Court at Central London (CCCL)

At the May meeting, based on the success of the pilot scheme, the CPRC agreed to make the automatic transfer scheme permanent (a change that was implemented as part of the 86th CPR update).

The minutes identify the potential pros and cons of this kind of centralisation. DJ Lethem remarked on “a palpable de-skilling” in the feeder courts, as local district judges were not getting experience in case and costs management, so lacked expertise. However HHJ Dight pointed to the significant benefits for court users in terms of reduced waiting times, fewer hearings and reduced costs, plus the advantage of docketing, which helps to ensure consistent case management. He suggested that local district judges could take advantage of the “rota scheme” to get experience at CCCL.

4. “Simples”: the little task of re-writing the CPR

During the May meeting, Briggs LJ referred to the complexity of the CPR (particularly for litigants in person) and the fact that changes only ever seem to add extra material. This provided impetus for the CPRC to work towards “streamlining, reducing or reforming” the rules: something subsequently put up for discussion at the June open CPRC meeting.

Papers for the June meeting include a summary of suggestions received, which makes for interesting reading. Just a few of the more radical proposals put forward include abolition of Part 36 and abolition of Practice Directions generally!

It was agreed that the CPRC would review the rules on a rolling basis, starting with relatively simple rules (such as CPR 3, 12, 14 and 39) and then moving on to CPR 7, 8, 32 and 40. It was agreed that a sub-committee would consider CPR 12 and 14, and report back in the autumn. Consideration of CPR 3 and 39 would follow.

5. A mandate for mandatory electronic filing

E-filing was on the agenda for the June meeting with two key proposals up for consideration:

  • Extension of the pilot scheme operating in the Rolls Building courts for a further year.
  • Making use of the scheme mandatory for professional users (in the Rolls Building courts currently subject to the pilot scheme), with an aim of rolling out the pilot to other jurisdictions.

The explanatory memo put to the CPRC referred to the potential costs savings for HM Courts and Tribunals Service (HMCTS) when cases are filed electronically (the filing process is streamlined, and available 24 hours per day, 7 days per week, so might, potentially, reduce staff time manning counters). It was noted that, according to evidence from Thomson Reuters, in jurisdictions where e-filing is not compulsory, only about 30% of cases are filed electronically. Due to the potential benefits, it was agreed that the aim should be to make use of the system mandatory (in the Rolls Building courts currently subject to the pilot scheme) for all law firms and direct access barristers by 1 April 2017.

It was also agreed that, to increase both use and visibility of the CE-File system, certain measures would be introduced from 1 October 2016. These included rule changes designed to require parties wishing to submit documents to Rolls Building courts electronically, to use CE-File rather than email (so that, generally Practice Direction (PD) 5B would not apply). These changes took effect as part of the 86th update (although, subsequently, a Practice Note was issued clarifying the position regarding “day to day correspondence” and skeleton arguments).

At the July meeting, it was confirmed that “stakeholders” were also content with the proposed changes discussed during the June meeting, so those amendments would be included in the next CPR update (presumably to take effect in Spring 2017).

6. Fixed recoverable costs in clinical negligence cases: a “change of policy”

Proposals for an extension of the fixed costs regime have been in the spotlight recently: with speeches by Jackson LJ (see, for example, “Fixed costs – The time has come“) and then proposals in Briggs LJ’s final report following his Civil Courts Structure Review.

In many ways, those developments have overshadowed the fact that it all started with proposals to extend fixed costs to clinical negligence claims (which I referred to in a number of my CPRC Snippets posts, last year).

Originally, a consultation on the proposals for clinical negligence claims had been expected for spring this year, but that seemed to go on to the back burner and, instead, there was talk of widening the fixed costs regime generally.

Fixed costs for clinical negligence cases are apparently back on the agenda. After a “change in policy” at the Department of Health, it is now expected that there will be a consultation regarding claims up to £25,000 (which comprise about 60% of all clinical negligence claims). The exact timing is not yet known.

This is an interesting “U-turn”. At the July 2015 CPRC meeting, there was a suggestion that fixed costs might be considered even in clinical negligence claims of up to £250,000. The CPRC then voiced concerns that a scheme originally expected to be targeted at “low value” claims might encompass claims of up to £250,000, noting that this could have a major impact on other rules.

Whilst possibly encouraging that the parameters have been scaled back, it is not clear how this sits with Jackson LJ’s exhortation (see paragraph 2.9 of his IPA speech) to “avoid lop-sided reform” and his observation that:

“It would be illogical to fix the costs of clinical negligence claims in the multi-track (as the Government is now proposing) without sorting out the fast track at the same time.”

7. SARPD Oil: costs budgeting and incurred costs

The decision in SARPD Oil International Ltd v Addax Energy SA and another raised some concerns about the approach to incurred costs in the context of costs budgeting.

The question of whether the rules needed changing in the light of this decision was up for discussion at the July CPRC meeting.

No papers were circulated on this issue, but the minutes record that Coulson J urged caution, pointing out that this issue was “left alone for pragmatic reasons”. Being more prescriptive in the rule might lead to more difficulties. Possibly, guidance could be provided. Alternatively, the rule might be amended to say that incurred costs are irrelevant. It was agreed that the CPRC’s costs sub-committee (chaired by Master Roberts in place of Coulson J) would consider this point further, and report back to the full committee in due course.

8. Flexing the Shorter and Flexible Trial Pilot Schemes

At the July CPRC meeting, it was agreed that the pilot schemes should be extended for a further 12 months until 30 September 2018.

The committee also agreed to tweak PD 51N to clarify that:

  • The schemes apply to cases commenced in, or transferred into, the schemes while the PD is in force (so that, when the pilot expires, cases within the schemes will continue to be dealt with in the same way).
  • Chancery masters can transfer cases in the Chancery Division into the Shorter Trials Scheme.
  • Statements of case do not need to be re-pleaded after transfer in.
  • Cases transferred into the scheme can be tried by a Chancery master if appropriate.

These changes were implemented (again as part of the 86th CPR Update) with effect from 3 October 2016.

Birss J’s explanatory memo to the CPRC noted that:

  • As of 8 July 2016, about 10 cases had been commenced in (or transferred in to) the Shorter Trials Scheme. Many of those were Chancery Division cases, but there were also cases from the London Mercantile Court and the Commercial Court. A Patents Court case being run under the scheme is due to come to trial this month. This is seen as a positive start.
  • Despite favourable comments about the scheme, so far no cases have taken advantage of the Flexible Trials Scheme.

Practitioners are strongly encouraged to engage with the schemes and think about how they might work for them and their clients. It is worth keeping in mind the number of pilot schemes that eventually lead to mandatory requirements. Why not engage early and have the chance to shape the procedures? For more thoughts on the Shorter and Flexible Trial Schemes, see Birss J’s recent blog post.

9. Hearing fees

Right at the end of the July meeting’s minutes, under “Any other business”, there is a brief reference to the proposed changes regarding hearing fees. It states that the making of the Civil Proceedings (Fees) Order has been deferred until December.

No detail is provided in the minutes, but I believe that this relates to the government’s intention to remove refunds for hearing fees in civil courts, and move the date at which the hearing fee is payable to four weeks before the date of the hearing.

The reference to December suggests that the proposed changes will take effect from spring 2017, if not sooner.

10. Disclosure of material in proceedings under CPR 25 (Interim Remedies and Security for Costs)

A point considered at the June meeting stemmed out of a letter submitted by a specialist editor of the White Book, Richard Walford of Serle Court. Referring to a number of cases where orders had been made for “delivery up” of confidential information (in circumstances where an employee had copied electronic files containing their employer’s confidential information), he queried whether the rules as currently drafted actually provide a jurisdictional basis for such orders.

He recognised the need for injunctions allowing a company to recover its own property (confidential information now stored on another person’s computer or other device), but considered that such orders should be on a sound jurisdictional basis, and suggested new wording that might achieve that.

The CPRC agreed that a “tidying up of the rules” is “desirable if not essential”, and asked the drafting lawyers to prepare some wording for consideration at the July or October CPRC meeting.

These are just selected examples of the topics up for discussion at the meeting. To view the papers in full on our website, see Civil Procedure Rule Committee Meetings link (found under the section headed “Essential resources” on the Practical Law Dispute Resolution site). The papers include the minutes, which provide a really useful summary of all of the matters discussed.

 

Practical Law Dispute Resolution Beverley Barton

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