Ask the judges

Our panel of district judges returns to tackling some of the posers set by Gazette readers on civil procedure

Q My firm has unfortunately had cause to issue proceedings against a former client for recovery of professional fees.

Confusion arose when considering whether my firm, acting for my firm, could endorse fixed costs on the claim form.

The Civil Procedure Rules 1998 (CPR) rule 48.6(6)(b) defines a litigant in person as including 'a barrister, solicitor, solicitor's employee or other authorised litigator who is acting for himself'.

Is this definition intended to include a firm suing in the firm's name? Although also referring to a solicitor in the single form, the decision in London Scottish Benefit Society v Chorley (1884) 13 QBD 872, CA was that 'he is entitled to the same costs as if he had employed a solicitor, saving only such costs as are rendered unnecessary by his acting for himself, primarily the costs of obtaining instructions from attending upon himself'.

If the CPR is intended to oust that decision, is my firm entitled to seek costs as a litigant in person which, by rule 48.6(2), are limited to 'two-thirds of the amount which would have been allowed if the litigant in person had been represented by a legal representative'? What, if anything, can be claimed by way of 'solicitors' costs' provided for on the N1 claim form when a firm of solicitors sues in the name of the firm? The Practice Advice Unit at the Law Society was intrigued but unable to assist and I wonder if you would invite the comments of your panel of District Judges.

A Have a look at PD48 paragraph 1.10: '...A solicitor who, instead of acting for himself, is represented in the proceedings by his firm or by himself in his firm name is not, for the purposes of the Civil Procedure Rules, a litigant in person.' That is quite clear.

If the solicitor acts for himself and sues/is sued in his individual name, he is a litigant in person.

But if proceedings are brought in the name of the firm or by the firm as solicitors for one of its partners/employees, the firm can claim costs as usual.

In the common case of a firm of solicitors or a sole practitioner suing to recover unpaid fees, costs are recoverable as in any other case and rule 48.6 does not apply.

Q Guidance would be appreciated on how to deal with actions that have been stayed pursuant to PD 51 para 19 (because they did not come before a judge between 26 April 1999 and 25 April 2000).

In particular, comment on what a party will have to show to have a stay lifted, whether it is claimant or defendant that has counterclaimed.

A Guidance from the Court of Appeal is some way off.

Meanwhile, the only guidance is to be found in the rules themselves: the overriding objective in part 1 and the relevant provisions of CPR rule 3.9, dealing with relief from sanctions, must be the starting points.

Look at the checklist in rule 3.9: it mentions, for instance, that any application for relief must be made promptly and the court will be looking for a good explanation as to why the case was not brought before a judge in the first year of the CPR.But always consider all of the factors listed in rule 3.9(1)(a) through to rule 3.9(1)(i).

In Bansal v Cheema 2 March 2000 CA, Lord Justice Brooke said: '...it is essential for courts, exercising their discretion on an occasion like this, to consider each matter listed under CPR 3.9(1) systematically in the same way, as it is now well known that courts go systematically through the matters listed when an application is made for the exercise of the court's discretion under section 33 of the Limitation Act 1980.

In the present case, there is no sign in the judge's brief ex tempore judgment that he took into account the matters which he was bound to take into account under the rules which are set out in 3.9(1)(g), (h) and (i)....'There is also an emerging thread from the Court of Appeal that 'justice' is more important than strict adherence to the rules: look at the recent decisions on strike-out as justification for that proposition.

And that is despite Biguzzi v Rank Leisure plc [1999] 1 WLR 1926, in which the Court of Appeal held that compliance with time limits is more important under the CPR than under the old regimes of the RSC and CCR.In practice, what does all this mean? In the panel's opinion, the courts are likely to adopt a more lenient view than happened in the old automatic strike-out days of CCR Ord.

17 r11.

Justice and the overriding objective to deal with cases justly make it unlikely that courts will decline to lift a stay introduced by PD51 para 19 unless the delay involved in the individual case brings it within the criteria that would otherwise justify an order striking out the case for want of prosecution.

But be warned: not all district judges would agree with this approach.

Some procedural judges might decline to lift the automatic stay, pointing out that theprofession has had a year to put its house in order.

Even if a stay is lifted, the case will not then be adjourned generally but will be case managed to a conclusion.

This applies particularly to those moribund applications under the Landlord & Tenant Act 1954 for a new tenancy.

Q Is the court obliged to accept a part 36 payment into court in satisfaction before allocation in what is prospectively a claim bound to be small claims tracked? If so, and the claim is in fact allocated to the small claims track, can the money stay in court? A Under the old CCR, the filing of a defence resulted in an appropriate case being automatically referred to arbitration, so the prohibition on making payments into court tripped in immediately the defence was filed.

But under the CPR, the case only enters the small claims track at the time of allocation subsequent to the filing of the defence.

Can money be paid into court beforehand?Rule 27.2(1) says that part 36 (offers to settle and payments into court) does not apply 'to small claims'.

Because it avoids the expression 'cases allocated to the small claims track', it might be argued that the exclusion of part 36 operates from the commencement of the claim.

However, the counter and possibly stronger argument is in rule 27.1(1), which states that part 27 sets out the special procedure for dealing with claims that have been allocated to the small claims track.

Pre-allocation, then, there is probably no exclusion of part 36 so that money can be paid in.But why make a payment in? It has no automatic costs consequences.

Costs do not follow the event in the small claims track, where the normal rule is one of 'no costs': see rule 27.14(2).

The payment in can only be made after the start of proceedings.

The failure prior to commencement to pay/tender the amount in question means that the other party will usually be entitled to the costs on the claim form.

The payment in is costs-neutral.Furthermore, once it is in court, the money stays there.

PD37 paragraph 4.1 says that the court's permission is required if the payer wants to take the money out.

That means a part 23 application on a form N244.

X The answers given are not authoritative to the extent that they should not be considered binding on any court.

The panel regrets it is unable to enter into correspondence with readers.

Questions for publication should be e-mailed to: steve.jones@lawsociety.org.uk