Practical Law

Papers from the November 2016 Civil Procedure Rule Committee (CPRC) meeting were circulated on 13 December 2016, along with the approved minutes.

Topics under consideration included:

• CPRC sub-committees.
• The use of legal advisers.
• References to the European Court.
• Tackling “schedule” rules.
• Applications for permission to issue a warrant of possession in the County Court.
• Appeals.

There were also a couple of “mystery” items, on which the minutes and papers have been redacted.

Naming of the parts: the constitution of the various sub-committees

Interestingly, the November minutes start by setting out the membership of the various active CPRC sub-committees. This highlights the sheer breadth of the CPRC’s work. Separate sub-committees are currently grappling with issues around:

• “Hot-tubbing” (concurrent evidence).
• Court reform (including legal advisers’ work).
• Court of Appeal reforms.
• Welsh law.
• The Immigration Act.

Mr Justice Birss is going to be kept busy, as he is leading both the court reform sub-committee and the Court of Appeal working group.

Boxing clever: a proposal to extend the role of legal advisers

The County Court Legal Adviser pilot scheme commenced at the County Court Money Claims Centre on 1 October 2015. It involved the delegation of 16 separate judicial powers to “tier two” legal advisers (qualified solicitors or barristers) to deal with elements of civil box work. A further four delegated powers were approved to be piloted from 3 October 2016, with an extension of the pilot to 31 March 2017.

A paper put to the CPRC by the HMCTS Court Improvement Team provides an interesting evaluation of how the pilot has worked (finding that it has been a success in terms of quality of decisions, timeliness, and cost). It considers the following points:

• Whether the current delegated powers under the pilot scheme in Practice Direction (PD) 51K should now be formalised in the Civil Procedure Rules (CPR).
• Whether a further six possible delegated powers should be added in the CPR, or whether they should be piloted under PD 51K.

HMCTS gave assurances that, where new powers are delegated, there will be testing and measuring of decisions. There will also be further training.

The minutes record Briggs LJ as having observed that extension of the powers of legal advisers is likely to be “a continuing theme”.

It was agreed that, now that the concept has been tested in a pilot scheme, it is appropriate to “bring the pilot into the rules”.

The CPRC also examined the six proposed new functions for delegation to legal advisers:

• Application for an order permitting service at an alternative place (under CPR 6.15(2)), limited to an order permitting service on the defendant at their place of work.
• Application for default judgment against a child or protected party.
• Application for default judgment against a defendant served out of the jurisdiction (where the permission of the court is not required) or a defendant domiciled in Scotland, Northern Ireland or any other Convention territory or member state (CPR 12.10(b)).
• Application to extend time for service of a defence.
• Certificates of money provisions (CPR 74.12 and CPR 74.17): certificates required when a judgment creditor seeks to enforce a County Court judgment abroad or in another part of the UK.
• Application to lift a stay of proceedings (not limited – as currently under the pilot – to lifting a stay pursuant to CPR 26.4(2A) (to allow for settlement).

HMCTS estimated that 61 extra pieces of box work per week would be generated if all six proposals were approved.

The CPRC decided to approve all of these “functions”, with modification, except for applications for default judgment against a child or protected party.

It was suggested that the Judgment Regulation should be considered in the context of applications for service out of England and Wales, and that parties seeking a certificate of a County Court judgment for enforcement abroad, must ensure that a certificate signed by a legal adviser is acceptable in the country where enforcement is sought.

Lost in translation? References to the CJEU

In earlier CPRC Snippets, we referred to concerns that had been voiced about the length and complexity of English references to the ECJ. The minutes of the February meeting recorded that Eleanor Sharpston (a UK Advocate General of the ECJ) and Christopher Vajda QC (a UK judge of the ECJ) were being asked for their views. The guidance received from them was up for discussion at the November meeting.

In the light of the guidance provided, amendments to CPR 68 were agreed. It was also agreed that a new PD 68 should be substituted (rather than making individual amendments).

The papers before the CPRC included the letter addressed to Briggs LJ from Christopher Vajda QC and Eleanor Briggs, which makes for fascinating reading. The letter was dated 22 July 2016, and they observed that:

“…following the outcome of the referendum on 23rd June, this discussion may at some point become of historic or academic interest”!

The letter provides an extremely useful reminder of the formal requirements for requests for preliminary rulings by the CJEU under Article 267 of the Treaty on the Functioning of the European Union (TFEU), as well as some invaluable practical tips. It also responds to Birss J’s comment (referred to in the February minutes) about references going unanswered, making a number of points including:

• When framing questions it is important to remember that the judges in the CJEU come from a variety of legal backgrounds and not all are comfortable with the English drafting style of “dotting every “i” and crossing every “t””. Also, some references seem to seek an answer to every possible scenario, and can give the impression that the national court is posing a set of difficult exam questions, some of which may be hypothetical.
• The number and complexity of some questions from the UK courts may be the product of negotiations between counsel, who agree lists of all the questions each side wanted to ask. This might suggest that the referring court had not “fully engaged” with the list, and asked if it was really necessary to ask all of the questions.
• Where a reference is a “pilot” case for others in the referring court’s list, it is essential that the facts of that case make it necessary to answer all of the questions put to the CJEU. In some cases, it may be wise to refer (as a single reference) a group of two or three cases, where that will make it possible to get answers to a group of questions that will then allow for the disposal of further cases.

Interestingly, before turning to the technical requirements on what should be included in a reference, Christopher Vajda QC and Eleanor Briggs took the opportunity to point to helpful guidance on whether a national court should be making a reference at all. They referred, in particular, to a recent series of references (relating to Google) which the CJEU had rejected and declared itself incompetent to entertain. The CPRC decided that it would be useful to include a link to this decision from the CPR.

On schedule: bringing outstanding “schedule” rules into the body of the CPR

Briggs LJ commented on the need to bring the remaining schedule rules (detailed in a memo put to the CPRC) into the main body of the CPR. The most substantial relate to judgment summonses and administration orders. A sub-committee is to progress this, and report back to the CPRC in February.

Making lee-way: potential changes regarding applications for permission to issue a warrant of possession in the County Court

The CPRC was asked to consider possible amendments to Form N325 and CPR 83.26 in light of the Court of Appeal’s judgment in Cardiff City Council v Lee (Flowers).

In that case, the Court of Appeal considered whether a warrant for possession obtained using the incorrect application procedure resulted in the warrant being void. The application in that case followed a breach of a suspended possession order and should have been made using CPR 83.2(3)(e) (which requires the court’s consent to the issue of the warrant). Instead, the landlord applied for a warrant for possession using Form N325 under CPR 83.26. This error of procedure meant that the landlord did not obtain the court’s permission for the issue of the warrant and the landlord did not evidence the breach of the suspended order to the court. The court acknowledged the importance of CPR 83.2 but, in this instance, relied on CPR 3.10 to remedy the defect and validate the warrant.

A key issue was whether permission of the court must be obtained for the issue of a warrant of possession where the possession order is suspended on terms. Arden LJ suggested that the CPRC might consider whether any amendment should be made to Form N325 to make it clear that there are cases in which permission must be sought first.

At the November meeting, it was agreed that amendments to CPR 55 and CPR 83 were “probably required”, and that work should be taken forward by a sub-committee, who would report back in February.

Papers from the December CPRC meeting (which have since been published, although the minutes of the December are not yet available) show that this point was back on the agenda at the December meeting.

Practitioners should note that matters have since moved on. On 19 December, the CPRC published the following details of a short-term “work around”:

“Many of you will be aware of the recent Court of Appeal decision in Cardiff County Council v Lee (Flowers) in respect of issue of a warrant of possession following a suspended order of possession made on terms. The Court of Appeal indicated that the Civil Procedure Rule Committee should consider the wording on form N325. Having considered at the November and December meetings the issues raised by the judgment the Rule Committee will be consulting in the new year on the current rules and the safeguards available to tenants and occupiers.

In the interim, HMCTS are introducing a work around. Where a possession order is made and suspended on payment of monies in respect of rent or mortgage, and the terms are breached, the claimant must make their request for issue of a warrant on new Form N325A. For reissue of a warrant Form N445 (as amended) must be used.

In both instances a statement of the payments due and those made must be attached to the N325A or N445. The request will be considered by the District Judge and if it is determined that the warrant can be issued, an order will be drawn and the warrant issued. If the case is proceeding using PCOL the warrant will be issued through that facility. The usual fees for issue or re-issue of the warrant are payable. This does mean that requests cannot be made through PCOL, but must be made on paper to the appropriate County Court hearing centre. A copy of the new N325 and amended N445 are attached and will be available to download from Formfinder shortly.

For requests for issue of a warrant where an immediate order has been made the existing process using N325 should be followed.”

Any queries about the interim work around can be addressed to Jane Wright, Secretary to the CPRC.

An appealing prospect: an update on possible further appeals reforms

Finally, in the “Any other business” section of the meeting, Briggs LJ noted that proposals regarding the threshold for appeals had been “adjourned” and indicated that the High Court Judges Association and the Circuit Judge Association will be considering the proposals in the context of their jurisdictions.

This remains a definite space to watch, and we will report on any developments.

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 (found under the section headed “Featured: key trackers and guides for dispute resolution lawyers” on the Practical Law Dispute Resolution site). The papers include the minutes, which provide a really useful summary of all of the matters discussed.

Although papers from the December CPRC meeting have been made publicly available, the minutes will not be published until after they have been approved at the February 2017 meeting. In many ways, the minutes are key (as they explain what action the CPRC has decided to take on each agenda item), so we will publish our next CPRC Snippets once we have had sight of them.

In the meantime, we have published the papers, as they do provide a sneak preview of what might be on the cards. Just a few examples of topics considered at the December meeting include possible costs budgeting amendments in the light of SARPD Oil International Ltd v Addax Energy SA and another, proposed amendments to CPR 12, 13 and 14 (and relevant PDs), and the thorny issue of the new Pre-Action Protocol for Debt Claims.

Wishing you a very merry Christmas, and a happy healthy 2017!