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CPRC Snippets: November 2015

Papers from the 13 November CPRC meeting were published on 8 December 2015. It is a rather more streamlined set this month, but there is still plenty of interest!

Interestingly, the papers include a draft of the CPRC Annual Report (which was approved during the November meeting). In his foreword, Lord Dyson notes that, although the CPRC’s work is not high profile, it is “essential to the efficient functioning of our system of civil justice”, and he refers to the “remarkably wide range of issues that the Committee has to address so as to improve existing procedures, tackle identified problems and enable the introduction of new ways of conducting civil business in the courts”. The report provides a useful summary of all the sub-committees’ work and key rule changes over the last 12 months.

The “Future Business” section provides some helpful pointers to things on the cards over coming months, noting that the CPRC expects to consider rule and practice direction changes in the following areas:

  • Costs Management and Costs Budgeting.
  • Centralisation of the Attachment of Earnings and Charging Order process.
  • Judicial Review claims.
  • Access to Court Documents.
  • HMCTS Civil Reform.
  • Fixed Recoverable Costs in Clinical Negligence Disputes.
  • Pilot for the Insolvency Express Trials.
  • Extension of pilot for electronic working.

Most of these are already “work in progress” and will not come as any surprise. However, “HMCTS Civil Reform”, the insolvency pilot and the extension of electronic working all demonstrate a continuing, and increasing, resolve to modernise the civil courts, and could lead to significant changes in practice. Hopefully, Briggs LJ’s interim report, expected by early 2016, will provide some more details.

Coming back to the present, issues under discussion in November included:

  • Proposals to introduce fixed recoverable costs for clinical negligence claims.
  • Tweaks to the costs budgeting and costs management regimes.
  • Ongoing work to centralise charging orders and attachment of earnings procedures.
  • The introduction of a pilot scheme for “insolvency express trials”.
  • Details of a public consultation on costs protection in environmental claims.

It is noteworthy just how many of these initiatives bear the imprint of Jackson LJ and his recommendations seeking to control the costs of civil litigation.

Fixed costs in clinical disputes

Again this month, due to the sensitivity of this issue, and the fact that the Department of Health is still at a pre-consultation stage, no papers have been published on this.

The approved minutes record that there was discussion of a number of practical details, including possible exit points, exemptions from the scheme, the place of interim applications within the scheme, and transitional provisions.

The appropriate approach for consulting on the proposals was also up for debate, including whether draft rules should be included as part of the consultation process. Some felt that that might encourage responses that focused on drafting points rather than broader policy issues, whilst others felt that practitioners would prefer to see the detail. It was agreed that including rules for illustrative purposes would be useful. The CPRC noted that a thorough and wide ranging consultation by the Department of Health at this stage should avoid the need for further consultation when the rules were developed.

A Department of Health representative told the CPRC that Professor Paul Fenn has been engaged to consider the fixed costs structure and that its own panel of lawyers would be carefully examining the steps in the existing process, so that appropriate cost scales can be determined.

Tweaks to costs budgeting and costs management: costs capping lives on!

Coulson J provided a further update on progress, explaining that there was one key issue that his sub-committee had been unable to resolve: the timing of filing and service of the budget. He explained that they had kept two options in CPR 3.13(1) (the budget must be filed and exchanged either on the date specified in the CPR 26.3(1) notice, or not later than 21 days before the first CMC). Most sub-committee members favoured the “simplicity and clarity” of one rule requiring budgets to be filed 21 days before the CMC, but District Judge Chris Lethem made a strong case for the option to remain, in order to allow the DJ to undertake cost management at an early stage, well in advance of the CMC. The CPRC decided on a compromise: budgets for a claim of a monetary value less that £50k should be filed with the Directions Questionnaire, and those with a monetary value over £50k should be filed 21 days before the CMC.

At the October CPRC meeting, it was agreed to delete the costs capping provisions in the CPR. Interestingly, the issue was back on the table at the November meeting. Coulson J’s explanatory memo to the CPRC noted that, although Birss J had suggested one or two areas of Chancery practice where costs capping was regarded as useful, it seemed to the sub-committee that the costs budgeting regime would be equally efficacious and, for reasons of clarity and emphasis, costs capping should be deleted. Interestingly, the CPRC formed a different view on this, noting that the Chancery Division had flagged up that the rules were still relevant and used in pension and trust fund cases, where they proved a useful tool for capping costs in cases with a finite amount of money. The majority of such cases were agreed without the need for a cost capping order, but with the knowledge that the court had the power to make such an order. The CPRC found this to be a persuasive point so, phoenix-like, the costs capping provisions have risen, unscathed from the fire!

The CPRC also agreed that Precedent H should incorporate relevant assumptions within the form itself. It is hoped that in the majority of cases this will keep them down to the critical assumptions being made. In a big, or more difficult, case, the parties could put assumptions in a separate document.

Interestingly, Coulson J’s memo to the CPRC considers another tricky issue: whether the budget discussion report or some other document should indicate, for each phase, the fixed costs and the assumptions made by the judge in assessing the future costs (as suggested by the Senior Costs Judge). Coulson J recognised the potential benefits, as detailed assessment will relate back to the budgeting process, but observed that this highlighted “one of the many tensions arising out of the cost budgeting process”. On the one hand, judges were being told that the process was designed to be no more than a high-level budgeting exercise whilst, on the other, this requirement would require the judge to do a much more detailed assessment. He also noted that efforts are being made to get parties to agree each other’s budgets much more often than they do now. If they agree the figures, no-one can say what assumptions are incorporated into the agreed figures. With these points in mind, Coulson J’s sub-committee concluded that it would not be appropriate to make the budget discussion form more complicated and that it would be counterproductive to the whole costs management regime to require this sort of level of detail as part of the judge’s ruling. They recognised that this would not make life easy for a costs judge doing a detailed assessment, but concluded that it is the “least worst option”.

The latest drafts still seem to have the same discrepancy I mentioned in my last CPRC Snippets post. New PD 3E.6(c) provides as follows:

“In cases where a party’s budgeted costs do not exceed £25,000 or the value of the claim is less than £50,000 there is no obligation on that party to complete more than the first page of Precedent H and in such cases the budget will be filed with the Direction Questionnaire.”

In contrast, paragraph 1 of the draft Precedent H Guidance Notes states:

“Where the monetary value of the case is less than £50,000 [or the costs claimed are less than £25,000] the parties must only use the first page of Precedent H.” (Emphasis added):

As PD 3E.6(b) (as worded in the latest draft) requires parties to follow the Precedent H guidelines “in all respects”, it might be said that this should “all come out in the wash”, but it would seem preferable to avoid any possible inconsistency. In my book, stating that there is no obligation to use more than the first page is definitely not the same as saying that parties must only use the first page! I will mention this to the Secretary to the CPRC.

Streamlining steps: charging orders and attachment of earnings

Work to centralise procedures relating to charging orders has been continuing. Revised drafts of CPR 70 and CPR 73, plus PD 70, were approved at the November meeting. The papers put to the committee include a helpful destinations table on the changes to CPR 73 (which has been re-numbered). Amendments to PD 73 were earmarked for consideration at the December CPRC meeting.

According to the explanatory memo to the CPRC, the intention is that the new provisions will be included in the December 2015 CPR SI (which may now not be published until January), to come into force in April 2016. The covering memo refers to transitional provisions, noting that it is intended that the new rules will apply in relation to all applications for charging orders made on or after the commencement date. The current provisions will continue to be relevant to applications for charging orders begun before the new provisions come into force.

In tandem, work to streamline the attachment of earnings process for all civil judgment applications from receipt to the making of the full order (or suspended order in cases where a response is received from the debtor) is also underway. The current rules are in Schedule 2 Order 27. Amendments have been made to move the rules to the main body of the CPR. The covering memo to the CPRC explains that the main impact of the policy on handling attachment of earnings applications is that all applications to the County Court will be handled at the County Court Money Claims Centre and, where the debtor files a response form, the order will be handled by a court officer.

Revised drafts of the new rules were circulated for approval at the November CPRC meeting. It was agreed that a further draft reflecting points discussed at the meeting (plus further amendments to other parts of the CPR) would be considered at the December CPRC meeting. The changes being considered were also being communicated to the Family Procedure Rule Committee, which needs to address parallel provisions in the family rules.

Again, it is intended that the new provisions will be included in the December 2015 CPR amending instrument (now expected in January), and come into force in April 2016.

All aboard!: the Insolvency Express Trials Pilot Scheme

Insolvency Express Trials is an initiative intended to provide litigants in the Bankruptcy and Companies Court of the High Court with a speedy, streamlined procedure, and an early date for trial or disposal of simple applications by the Bankruptcy Registrars. Proposals for this scheme were endorsed by the Bankruptcy and Companies Court Users’ Committee in April 2015, and a plan for a pilot was submitted to the Judicial Executive Board in July 2015. A draft practice direction was submitted for approval to the November CPRC meeting with a view to commencing a two year pilot scheme between 1 March 2016 and 1 April 2018.

The minutes of the November meeting record that the pilot has been cleared within the Rolls Building but is subject to clearance by the MoJ and HMCTS. The CPRC suggested that it would be helpful to have an explanation of the steps that will be taken to evaluate the operation of the pilot. It will reconsider the proposal in due course.

Back in the frame: revisions to the Technology and Construction Pre-Action Protocol

Coulson J referred to previous consideration, by Mr Justice Ramsey, of the extent to which the current Pre-Action Protocol has led to a front-loading of cost. He explained that he has now taken on the task of considering whether amendments are required and, following a major market research exercise by Tecbar, amendments to the Pre-Action Protocol are in hand.

These are just selected examples of the topics up for discussion at the meeting. To view the papers in full on our website, see the resources page and the section headed “Civil Procedure Rule Committee Meetings”. The papers include the minutes, which provide a useful summary of all of the matters discussed.

Practical Law Dispute Resolution Beverley Barton

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