Practical Law

Papers from the CPRC meeting on 6 October 2017 became publicly available on 7 November 2017.

The papers, including the programme of forthcoming CPRC work, again highlight just how busy the CPRC is, on a huge range of fronts. There are also hints about how it is often put under pressure to consider things at the last minute.

• Coulson J (currently Deputy Head of Civil Justice (Designate)) chaired the meeting. He was “dismayed” to learn that the CPRC had been named as an interested party in a judicial review claim (regarding changes to the environmental costs protection rules). He felt that this was “as a result of matters being rushed through the Committee”. He observed that the CPRC has a lot of work, all on a voluntary basis, and it is important to give sufficient time to each matter. As a starting point, he made it clear that papers submitted later than 4pm the day before a CPRC meeting might be deferred to the next meeting.
• Birss J provided an update on the pilot schemes for the online court. A practical problem is making practice direction amendments quickly in order to keep pace as new phases of the online court are developed. Birss J noted that the Chair of the CPRC and the MR are content to consider, and sign off, amendments to practice directions on the basis of the Online Court Sub-committee’s recommendations, without taking matters to the full CPRC (save when a particular matter requires their expertise). Birss J observed that, due to the delay in enacting the Prisons and Courts Bill, “the not inconsiderable burden” of the pilots currently falls on the Online Court Sub-committee. A further ten releases to the online court are expected (with private and beta stages) which will require a quick turnaround in the Practice Directions. It was agreed that the Sub-committee should make its recommendations direct to the Chair and the Master of the Rolls, and report back on progress at each CPRC meeting.

A paper considering whether it would be appropriate to delegate the making of unopposed final charging orders to legal advisers, which had been expected to be on the agenda in October, was deferred to the November meeting (as not all of the points raised by the CPRC had been considered in the draft paper prepared by the MoJ).

Specific topics on the agenda in October included:

• Open justice.
• The Business & Property Courts (B&PCs).
• Costs protection in environmental claims – not covered in this blog post, but definitely worth a look for those environmental lawyers amongst you.
• The CPRC’s work programme.
• Changes to the process for making Statutory Instruments and practice direction making documents.

Not an open and shut case: an update from the Open Justice Sub-committee

Kerr J, chair of the Open Justice Sub-committee provided an update on their work, asking the CPRC to approve “the direction of travel”.

The “Preliminary note on the work of the Sub-committee”, put to the CPRC, provides a fascinating overview of all the facets of “open justice” which, it notes, is “fundamental to the rule of law”, so that derogations from it should be “the minimum necessary and require specific and compelling justification”. The Sub-committee sees its purpose as ensuring that the procedural regime in the CPR fully reflects the substantive law, and promotes compliance with it. It recognises that it is a sensitive area, which should be subject to public consultation.

The plan is to prepare a revised draft of CPR 39 without any Practice Direction, plus to make associated necessary changes to CPR 3 and CPR 5. It is expected that there will be a draft ready for public consultation – possibly by the MoJ – next year.
Specific issues being considered include:

• Whether there should be an explicit CPR rule stating that hearings are in public (and parties and witnesses are named) unless an exception is made on specific grounds provided for, and justified on the facts. Currently CPR 39.2(3) states that the court “may” sit in private in the circumstances in points (a) to (g). That should probably be amended to “must” sit in private, so an amendment does seem justified.
• The appropriate definition of “hearing”.
• The extent to which steps need to be taken to accommodate the public at hearings: for example, where a case raises acute local controversy but is listed to be tried in a very small court.
• Appropriate procedures for dealing with objections regarding derogations from open justice.
• Public access to court documents
• Whether CPR 39.2 should be amended so as to correct a common misconception that parties can agree to bestow anonymity on a witness or party, or agree to a hearing being in private.
• The “disturbing increase” in unilateral communications with the court (often by email) without copying the other party (and without good cause).
• The appropriate approach for some specific types of applications, including those relating to variation of trusts, Beddoe applications, and applications in the context of mortgage proceedings and landlord and tenant proceedings.
• Recording and transcription issues – including the difficulty (and delay) when transcripts of private hearings are required.
• Whether, for clarity, there should be an express reference to the exclusion, from CPR 39.2, of claims challenging the course or outcome of arbitration proceedings.
• Whether PD 39A and 39B are necessary.

The CPRC confirmed that it is content with the way matters are proceeding. Members identified a number of additional points to be considered, including:

• The need to take account of modernisation issues, such as the online court and video hearings, as well as public access to justice.
• Care over the definition of “hearing”. District Judge Hovington referred to “a major problem” in Manchester, arising out of the courts closure programme. Due to a shortage of court rooms, some hearings have been moved to private rooms. That has caused problems, as a hearing in a private room is not a public hearing. The CPRC noted that this was an “estates problem”. It is an issue that will be considered at a forthcoming Civil Business Authority meeting.
• Information for court users, recording of hearings, access to court rooms, and the time it takes to obtain a transcript of proceedings in a lower court, for the purposes of an appeal.
• Provisions regarding claims under the Aarhus Convention (environmental claims).

Naming of the parts: a new rule for the Business and Property Courts

Birss J outlined plans to add a new Part on the B&PCs, in the CPR (along the lines of CPR 58 (Commercial Court)).

The supporting memo put to the CPRC explains that (like rules for other specialist courts such as the Commercial Court and TCC) the new Part would include an “enabling rule” along the following lines:

“These Rules and their practice directions apply to claims in the [specialist court or list] unless this Part or a practice direction provides otherwise.”

The new Part would link to the B&PCs Practice Direction. Importantly, adding enabling wording would allow the practice direction to contain provisions different from the general rules in the CPR. The memo identifies a number of areas where this would be of particular benefit:

• Transfers between B&PCs: It was originally intended that decisions on the transfer of cases between different B&PCs should be made by the “receiving court” but, as that was contrary to CPR 30.2(6), it was not possible to make that provision in the practice direction. An enabling rule for the B&PCs wouldallow this approach.
• Electronic working: The Electronic Working Practice Direction is currently a pilot (PD 51O). It contradicts a number of provisions in the rules, but that works because it is in the context of a pilot scheme. The pilot ends in November 2017, so “a single comprehensive provision” in respect of electronic filing using CE-File is required. Although CE-File is currently only in the B&PCs of England and Wales (the Rolls Building courts), it is hoped to extend it to all of the B&PCs “very soon”. The new Part and enabling rule could be used for this.
• Other provisions: A number of other initiatives that specifically relate to the B&PCs (for example, any permanent scheme that is introduced based on the Shorter and Flexible Trials Pilot Schemes (once the pilots end in October 2018), and the proposed disclosure pilot scheme) could also be implemented through the new Part on the B&PCs.

The CPRC supported the proposal in principle. They identified a number of issues requiring clarification, including the handling of specialist lists, Chancery Division work, and transfer of cases.

Work has started on drafting the new Part, so this is definitely a space to watch!

In the pipeline

The papers from the October meeting include a note of the CPRC’s challenging programme of work over coming months.
It is interesting to see that topics up for consideration during the Autumn term include:

• The Fixed Recoverable Costs pilot scheme for cases under £250,000. The draft Practice Direction was actually signed off at the May 2017 CPRC meeting. Jackson LJ originally hoped that the pilot would start to operate before he delivered his report on the fixed recoverable costs regime, so that he could include early feedback in his report. That plan was scuppered by the unexpected calling of the general election. Interestingly, when he spoke at a recent Westminster Legal Policy Forum event, Jackson LJ called on the government to at least indicate whether it plans to take forward his recommendations, and did not seem to be aware of the likely timing of implementation. The reference to the pilot scheme, in the CPRC’s work plan, suggests that things might get moving soon-ish.
• A new CPR Part for the Business and Property Courts (as mentioned above).
• Follow up work – the outcome of the consultation and next steps – regarding the two summer CPRC consultations on:
  • A Model Order for Directions to be used in all Credit Hire cases.
  • Possible changes to procedures and court forms for the issue of writs and warrants following a suspended order (in light of the decision in Cardiff City Council v Lee (Flowers) [2016] EWCA Civ 1034).

Further ahead, just a few examples of weighty matters to be addressed (from February 2018 onwards) include:

• An increase in the County Court limit for money claims – this is something recommended by Briggs LJ (as he then was) in his final report and recommendations following his Civil Courts Structure Review.
• “Costs – Jackson report” – presumably, this is a reference to Jackson LJ’s recommendations for extending the fixed recoverable costs regime!
• Ongoing work to develop the online court.
• Changes to the small claims limit.
• A review of the “TCC pre-action protocol” (presumably, the Pre-action protocol for Construction and Engineering Disputes).
• Review of CPR 3, CPR 7 and CPR 8.

The minutes record that the CPRC identified a number of additional matters to be covered: review of Form N260 (Statement of costs: summary assessment), extension of pilot schemes, and disclosure (presumably a reference to the proposed disclosure pilot scheme to run for two years in the B&PCs, details of which were announced on 2 November 2017). The deadline for responses to the proposals for the disclosure pilot scheme is 28 February 2018.

All in the timing: ministerial sign of Statutory Instruments and Practice Directions

Jane Wright, Secretary to the CPRC, provided an update on the procedure for securing ministerial sign off of Statutory Instruments (SIs) and Practice Direction making documents, noting that it has become “a lengthy process with clearance by several interested parties being required before the documents are submitted to the Minister for sign off”. This will come as no surprise to practitioners, who still await signed off versions of Practice Directions for electronic-working and the B&PCs.

Encouragingly, it was emphasised to the CPRC that any CPR amendments need to be finalised at the June and December meetings (for the Autumn and Spring Updates respectively) so that the SIs and making documents can be made in late June/early July (before the Parliamentary recess) and in January (immediately after the Christmas recess). Rule amendments presented at the July CPRC meeting will be carried over to the Spring Update.

See the CPRC: open meeting 2018

After a gap in 2017, the good news is that there will be an open CPRC meeting back on the agenda for 2018. The minutes record that it has been scheduled for 11 May 2018. The open meetings provide a unique opportunity to see the CPRC at work and, usefully, to ask questions. Practical Law hopes to be there.