Bell sounds again for round 26

District Judge Michael Walker highlights more of the changes in the 26th update of the Civil Procedure Rules 1998 coming into force on 25 March 2002

Several changes have been made to the procedure for disputing the court's jurisdiction - a concept much misunderstood by litigants in person who equate it to disputing a claim.

Civil Procedure Rules 1998 (CPR), rule 11(4) now expressly states that the defendant must make his application for a declaratory order about jurisdiction within 14 days after filing an acknowledgment of service.

If he does so, he need not file his defence in a part 7 claim or, any other written evidence in a part 8 claim, until after the application has been heard (rule 11(9)).Keeping it in the familyIf you want to sue your co-defendants, have a look at rule 20.6.

You can sue without the court's permission if you file and serve a claim for contribution or indemnity with your defence or, if your claim for contribution or indemnity is against a defendant added to the claim later, then within 28 days after that defendant files his defence.

Fall outside those time limits and you will need the court's permission.Do stay, it's cold outsideYou obtain an interim injunction but the case then gets stayed other than by consent.

Rule 25.10 used to provide that the interim injunction would be automatically set aside unless the court expressly ordered that it continue.

The impact of rule 25.10 is now less chilly; a freezing injunction will be unaffected by the stay.Foiled extensionSo who is going to own up to agreeing with the other side that the date for filing the allocation questionnaires should be extended? Clearly someone has, and the rules committee did not like it.

Rule 26.3(6A) now provides that the date for filing the completed allocation questionnaires may not be varied by agreement between the parties.Expert disclosureA party has been entitled to inspect any document mentioned in a statement of case, a witness statement, a witness summary, an affidavit or (subject to rule 35.10(4) dealing with disclosure of the instructions to an expert) an expert's report.

That fifth and final category - documents referred to in the expert's report - is now deleted to bring everyone else into line with what has been the practice to date in the Commercial Court.

But you can still make an application to see the expert's documents.

A new rule 31.14(2) provides that a party may apply for an order for inspection of any document mentioned in an expert's report which has not already been disclosed in the proceedings.

However, the chances of persuading the court to order the other side to provide copies of all the reference documents referred to by the expert in an appendix to his report must be unlikely; they are in the public domain already.

The changes to practice direction 32, paragraph 7 reinforce the point.Open to discussionRule 35.12(1) as amended says that the court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to identify and discuss the expert issues in the proceedings and, where possible, to reach an agreed opinion on those issues.

The current wording is to 'identify the issues in the proceedings and, where possible, reach agreement on an issue'.

The new rule is more in line with current practice where the district judge will direct an experts' discussion and the filing of a statement of the issues agreed and in dispute between the experts.Expert seeks helpThe expert has the right to ask the court for directions under rule 35.14.

But now the procedure is to be on notice.

An expert must, unless the court orders otherwise, provide a copy of any proposed request for directions to the party instructing him at least seven days before he files the request and to all other parties at least four days before he files it.

The court, when it gives directions, may also direct that a party be served with a copy of the directions.CostsRule 44.13(1) has been redrafted to make its intentions clearer.

To date it has merely said that where the court makes an order which does not mention costs then no party is entitled to costs in relation to that order.

This never affected, for instance, the right of a mortgagee to exercise his contractual right to add his costs to the mortgaged security (see Costs Practice Direction, section 50).

Effective from 25 March 2002, rule 44.13(1) will say that while the general rule remains that no party is entitled to costs in relation to an order which is silent as to costs, nevertheless that general rule does not affect any entitlement of a party to recover costs out of a fund held by him as trustee or personal representative, or pursuant to any lease, mortgage or other security.

There is also an amendment to rule 48.4.

A trustee or personal representative is entitled to be paid his costs, insofar as they are not recovered from or paid by any other person, out of the relevant trust fund or estate.

But now it is mandatory, and not merely a general rule, that his costs are assessed on the indemnity basis.

A new paragraph 50A to the costs practice direction sets out the guidelines under which the court may assess whether those costs have been properly incurred.Enforcement costs The new enforcement provisions in CPR parts 70-73 also come into force on 25 March 2002 (see [2002] Gazette, 7 March, 35).

A new rule 45.6 makes provision for the fixed solicitors' charges that will apply unless the court orders otherwise in relation to post-24 March 2002 applications.

Court fees are added (rule 45.1(3)).If you attend court when a debtor is questioned under rule 71.2 (the old 'oral examination') then the costs allowable are 15 for each half-hour or part; when the questioning takes place before a judge, he may summarily assess any costs allowed.

On the making of a final third party debt order (the current garnishee order absolute) and when the amount recovered is less than 150 then the allowable costs are one-half of the amount recovered; otherwise the costs are fixed at 98.50, which is up on the previous county court maximum of 46.50 but no increase at all for those enforcing a judgment in the High Court.As for the fixed costs on the making of a charging order, they will be 110.

That is a 39 increase for those enforcing in the county court but again no increase in the High Court.

The court may also allow reasonable disbursements in respect of search fees and the registration of the orderLandlord and tenantThe new possession regime has been with us since 15 October 2001.

But in relation to possession claims issued on or after 25 March 2002, the fixed costs rules in the County Court Rules, order 38 are significantly amended.

Where one of the grounds for possession is arrears of rent (whether or not the order for possession is suspended on terms) and the defendant has neither delivered a defence, admission or counterclaim, nor otherwise denied liability, then the costs on giving judgment on the return date are fixed, unless the court orders the contrary, at 57.25.

The total of the costs (court fee and solicitors' charges) likely to be awarded when the court makes the possession order (whether outright or suspended) will either be 246.75 or 254.25, the higher figure being where service is by the claimant's solicitor.

It is the writer's view that courts will interpret the amended provision as allowing the defendant the protection of fixed costs if the defence he has filed - and been encouraged to file by Court Service guidance notes - merely admits the landlord's claim to possession or perhaps seeks the court's agreement either to an adjournment on terms or a suspended possession order.District Judge Michael Walker sits at Wandsworth County Court