Civil procedure rules

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A previous article summarised the new Civil Procedure Rules (CPR) Part 81. This article summarises the further changes effected by the Civil Procedure (Amendment No 2) Rules 2012 (SI No. 2208) and Update 59 which came into force on 1 October.

Appeals

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Most practitioners have from time to time a case which is taken to appeal. Yet few, if any, spend all their time on appeals. Part 52 of the CPR governs appeals. But its supplementing practice direction, PD52, has long been regarded as unsatisfactory at best and misleading at worst. Apart from anything else, it was excessively long, being surpassed in length only by the Costs Practice Direction, and the answer to any particular query was not easy to find. All has now changed.

PD52 is repealed and replaced. What has replaced it is even longer, but it is so much clearer and more helpful that the provisions relevant to a particular appeal are more easily found and there will be less time spent researching and reading. There are now five practice directions supplementing Part 52. The good news is that, for any particular appeal, you will need to refer to only two of them.

PD52A – appeals: general provisions

The starting point is the law. Part 52 complements the provisions of sections 54 to 57 of the Access to Justice Act 1999 and provides a uniform procedure for appeals in the county courts and the High Court, and a modified procedure for the civil division of the Court of Appeal. The practice is in Part 52 supplemented by its PDs. PD52A is divided into eight sections. Sections 1 and 2 are introductory. ‘Destinations of Appeal’ is in section 3 which includes clear tables and explanations.

There should never be any doubt as to where an appeal lies in any particular case as all eventualities are catered for. Section 4 explains how to get permission to appeal. Section 5 governs skeleton arguments. This is completely recast. Although, strictly, this section applies only to appeals, it is in fact a good guide to the correct way to draft any skeleton argument. For example, paragraph 5.1(2) provides: ‘A skeleton argument must:A good skeleton argument is helpful in any case (and, if the case is successful can be used by the judge as an aide-memoire when giving judgment) and PD52A is useful to anyone who has to file one.

  • be concise;
  • both define and confine the areas of controversy;
  • be set out in numbered paragraphs;
  • be cross-referenced to any relevant document in the bundle;
  • be self-contained and not incorporate by reference material from previous skeleton arguments; and
  • not include extensive quotations from documents or authorities.

Section 6 of PD52A deals with ‘Disposing of applications and appeals by consent’; Section 7 supplements rule 52.17 on reopening appeals and the final section, Section 8, contains transitional provisions.

The first PD to read in any appeal is PD52A. Thereafter, it will be necessary to consider one further PD of the following:

  • PD52B – appeals in the county courts and the High Court;
  • PD52C – appeals to the Court of Appeal;
  • PD52D – statutory appeals and appeals subject to special provision;
  • PD52E – appeals by way of case stated. It will be obvious which PD to study in any particular appeal. Each PD is self-contained and clear.

Part 51

Part 51 provides for pilot schemes. There are currently five such schemes all due to end on 30 September. It was anticipated that the Jackson Reforms would come into force on 1 October, but they are now postponed until 1 April 2013. All but one of the pilot schemes have therefore been extended until 31 March 2013. PD51B – Automatic Orders Pilot Scheme – has not been extended and has now lapsed. This provided for automatic strike-out for failure to file an Allocation Questionnaire. Like all previous automatic strike-out provisions (remember CCR Order 17 rule 11?) it was not a success. It is now replaced by a new rule 26.3(7).

Now, where a party does not file the Allocation Questionnaire the file is referred to a district judge (or master in the High Court in London) who will make such order as appears to be appropriate. This can include entering judgment, striking out, giving directions or listing for a case management conference. However, there are costs sanctions on the party in default. This provision is itself only temporary as the Allocation Questionnaire is to be replaced by a new Directions Questionnaire as part of the Jackson reforms.

Patents County Court

Since the 2009 amendments to the CPR, the Patents County Court has been hugely successful. No doubt this is in large part due to its limited costs regime. This is now taken a stage further by new rules 63.27 and 63.28 which introduce a ‘small claims track’ with an even more limited costs regime. The general small claims limit applies (currently £5,000) and such cases will be tried by a specialist district judge.

Judicial review of decisions of the Upper Tribunal

Until the Supreme Court decided otherwise, (see R (on the application of Cart) v The Upper Tribunal [2011] UKSC28) it was thought that it was not possible to seek a judicial review of a decision of the Upper Tribunal. But as it is possible, a new rule 54.7A applies where an application for judicial review is made following refusal by the Upper Tribunal of permission to appeal against a decision of the First Tier Tribunal. Of particular note is rule 54.7A(7) which provides: ‘The court will give permission to proceed only if it considers:

(a) that there is an arguable case, which has a reasonable prospect of success, that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the First Tier Tribunal against which permission to appeal was sought are wrong in law; and(b) that either(i) the claim raises an important point of principle or practice; or(ii) there is some other compelling reason to hear it.’

Other amendments

In addition to those mentioned above and, in particular, the new Part 81, all other amendments are inconsequential or very minor. The next SI/Update is due in December and will include the costs reforms recommended by Lord Justice Jackson.

District Judge Robert Hill sits at Leeds, York and Scarborough county courts. He is a member of the Civil Procedure Rule Committee

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