REUTERS | Ali Jarekji

CPRC Snippets: October 2016

Papers from the October 2016 CPRC meeting were circulated on 23 November 2016, along with the approved minutes.

Some key points of interest include:

  • CPRC provisional work programme.
  • Legal Advisers Pilot.
  • Electronic Pilot Working Scheme.
  • “Hot Tubbing”.
  • Court reform.
  • Court of Appeal.

SETTING THE AGENDA: CPRC PROVISIONAL WORK PROGRAMME

Papers from the October 2016 meeting include a provisional CPRC work programme. Seeing their work set out in this way highlights the sheer breadth of the topics being considered by the committee. Items currently on the agenda for post-December 2016 include:

  • Court of Appeal – threshold/implementation of legislation, and procedures in the County Court and High Court.
  • Electronic Working.
  • Pilot for insolvency express trials (PD 51P).
  • Financial test markets scheme.
  • Fixed recoverable costs in clinical disputes – implementation of a costs regime following a consultation by the Department of Health – the wording suggests that the consultation might be published in February 2017.
  • Introduction of fixed recoverable costs in personal injury claims, where accidents take place abroad.
  • A progress report on the new bill of costs pilot scheme (under PD 51L), from the CPRC sub-committee, in May 2017.
  • Introduction of a pre-action protocol for debt claims which is compliant with the Jackson reforms, with simple text and aligned, where appropriate, with the Dilapidations Pre-action Protocol. This is to be reviewed after the centralisation of attachment of earnings and charging orders.
  • Review of the Shorter and Flexible Trials Pilot Schemes.

Interestingly, the paper presented at the meeting explains the criteria for prioritising amendments to the CPR. These are:

  • Required changes to legislation. No amendment will be made in response to new legislation unless “absolutely necessary”.
  • Modernisation: mainly incorporating scheduled rules (rules of the Supreme Court (RSC) and County Court Rules (CCR)) into the main body of the CPR.
  • Comprehensive reviews: These are full reviews of particular topics or parts, with a view to simplifying language and procedure, and eliminating duplication (for example, between the rule and the practice direction).

The minutes of the meeting note that it was agreed to add “supporting HMCTS reform” to these criteria.

Requests for amendments outside these areas are either held back until they fall within an appropriate review, or must pass “a reasonably rigorous test for consideration, based on urgency, scale of (potential) injustice, political imperative and scale of difficulties being encountered in practice”.

The paper also identifies the factors that will be taken into account when considering possible points for reform:

  • Nature of the perceived problem: whether the change is to remove scope for injustice, to save time or cost for litigants or the court, or to clarify the rules so as to reduce the scope for misunderstanding, error or challenge.
  • Scale of impact: whether the change will affect all or most cases, just affect a particular stage of proceedings or process, or if it only relates to particular types of case (for example, company or partnership cases).
  • Political imperative.
  • Scale of the task.

LEGISLATED DELEGATION: THE COUNTY COURT LEGAL ADVISERS PILOT SCHEME (PD 51K)

The October minutes reveal that a report on the performance of legal advisers, under the pilot scheme, was to be presented at the November CPRC meeting along with a request for the possibility of further delegation of powers (in the context of limited discretion) to be considered.

The point was made that, eventually, this pilot will be overtaken by HMCTS reform regarding Case Officers but, until then, it makes sense for a standing committee to consider matters relating to the pilot.

A STRONG IMPERATIVE TO USE E-FILING

A further item discussed at the October meeting was a proposed revision to paragraph 3.4 of PD 51, designed to clarify what can be filed at court by e-mail. This change was implemented, as part of the CPRC Autumn Update and, subsequently, further clarification was issued in Practice Note to PD51O Paragraph 3.4(2).

Although this particular aspect is “done and dusted”, practitioners are urged to note the following point:

“There is a strong imperative to get court users to use e-filing and to refine and adjust the process whilst it is a pilot.”

Do give e-fling a go before it becomes mandatory. You may need to set up internal processes to deal with aspects such as on-line payment. Preparing now, and getting internal processes in place, should pay dividends.

TALES FROM THE HOT-TUB: CJC RECOMMENDATIONS ON CONCURRENT EVIDENCE

During its October meeting, the CPRC considered a report by the Civil Justice Council’s Civil Litigation Review Working Group, chaired by Professor Rachael Mulheron: “Concurrent expert evidence and “hot-tubbing” in English litigation since the “Jackson reforms”: a legal and empirical study”. For details of the report and the key recommendations, see our previous Blog post, A plunge into the hot tub: Civil Justice Council report on concurrent expert evidence.

It was agreed that a CPRC sub-committee would consider the report and recommendations, with a particular focus on the impact on resources, and the time and work required to conduct concurrent evidence discussions. It was also agreed that the sub-committee should also consider any other provisions on evidence, if appropriate, not just concurrent evidence issues. The sub-committee will report back in due course.

JOINING UP THE DOTS: COURT REFORM

The October minutes also highlight the close connection between the HMCTS reform programme and civil procedure developments. The point is made that, although primary legislation will be required for the introduction of the “Online Court”, supporting amendments to the CPR will also be necessary. A standing committee is to be set up to consider any consequential rule changes (the minutes indicate that it was expected that the constitution of that committee would be agreed at the November CPRC meeting).

BACK IN THE FRAME: COURT OF APPEAL REFORM

Work is to start on consideration of a revised threshold test for appeals. Briggs LJ (Chair of this CPRC meeting) noted that the judiciary in the High Court and County Court are keen that reforms in the Court of Appeal should also extend to their jurisdiction (including any change to the threshold test). He suggested that respective associations should provide evidence to support these changes.

Briggs LJ also referred to certain “glitches” that have arisen out of the recent changes to the appeals rules. Some of these will be resolved through further amendment of the rules, but apparently others may require “a more holistic approach” to the way appeals work is delegated. A query regarding the vires of the second appeal test was investigated, with the conclusion that it was not well-founded.

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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