CHANGING THE RULES - ROUND 26

District Judge Michael Walker takes a look at the 26th update of the Civil Procedure Rules 1998A quick glance at the latest update, published on 28 January, might cause the casual reader to think that the whole of the Civil Procedure Rules (CPR) have been rewritten.

Fear not and read on.Two major revisions come into effect on 25 March 2002.

Specialist jurisdictionsThe first relates to the specialist jurisdictions, currently to be found within part 49 and its accompanying raft of practice directions.

As part of the on-going process of incorporating all the rules within the main body of the CPR, the whole of practice directions 49C, 49D, 49F, 49G and 49H are to be revoked and will be replaced with new CPR parts 58-62 inclusive covering the Commercial Court, the Mercantile Courts and business lists, the Technology and Construction Court, the Admiralty Court and claims or applications under the Arbitration Act 1996.

Four of the five new parts come supplemented by practice directions, the exception being the Admiralty Court where a practice direction is promised with the 27th CPR update on 8 March.

However, for the time being, applications under the Companies Acts 1985-89, the Insurance Companies Act 1982 and part VII of the Financial Services and Markets Act 2000 continue to be covered by practice direction 49B and patent claims by practice direction 49E.EnforcementThe other big change on 25 March is the first stage of the enforcement review.

Initially, the reforms merely take most of the enforcement rules out of schedules 1 and 2 and place them, suitably updated and reformed, within the main body of the CPR.

The really exciting reforms are still to come in two to three years' time after a slot for the necessary primary legislation has been found.

Under consideration within the Lord Chancellor's Department are issues such as a data disclosure order mandating banks and others to divulge information they hold on the financial affairs of judgment debtors and a possible unified system of bailiff law and procedure.A later article will look in more detail at the 25 March changes to the enforcement procedures.

As a taster:l There are new parts 70-73 inclusive dealing with the general rules about enforcement, 'orders to obtain information from judgment debtors' (21st century-speak for oral examinations), 'third party debt orders' (the new phrase for garnishee proceedings) and, fourthly, charging orders, stop orders and stop notices.

Each part comes supplemented by a practice direction.

l The first stage of the procedure for obtaining information from judgment debtors resembles the existing procedure.

However, the creditor's solicitor will know that the court will question the debtor using a standard form of questionnaire.

This enables the solicitor, when requesting the order for the debtor to attend court, to specify in the application the documents the creditor wishes to see brought to court or the additional questions the creditor would wish the court to put to the debtor.l If the debtor fails to attend court on the specified date then the circuit judge may issue a suspended committal order.

The terms of the suspension will be that the debtor attends court on another specified date.

If he again fails to show up, a warrant for his arrest will be issued; faced with either answering the questions or a short stay at Her Majesty's Prison, even the most difficult of debtors ought to see sense.

As can be seen, the new part 71 is designed to introduce a streamlined procedure while, at the same time, putting the emphasis on achieving a satisfactory questioning of the debtor.l Part 72 (third party debt orders) is also designed to be a more effective remedy than the one it replaces.

Henceforth, the creditor need only identify the bank; it will not be necessary to specify the branch and/or account number.

However, the bank might not, despite being under an obligation to search for all accounts held in the debtor's sole name, be able to trace the right account(s) without that information.l If a debtor suffers hardship once his bank account is frozen after service of the interim (nisi) third party debt order, then any court can be asked to make a hardship payment order to release monies to pay for the week's rent, grocery bill or whatever.

Out of necessity, these orders will have to be treated as emergency applications at the court where they are issued.

If the district judge decides to deal with a hardship application without the creditor being served then practice direction 72 says that the judge will normally give the creditor the opportunity to make representations 'by telephone, fax or other appropriate method of communication'.

Changes on 14 JanuaryEven before this issue of the Gazette went to press, the Rules of the Supreme Court (RSC), order 92, rule 3A and RSC order 93, rule 23 relating to the Banking Act 1987 will have been revoked; RSC order 93, rule 22 will have been updated to take account of the Financial Services and Markets Act 2000.

Much more excitingly, anyone who, since 14 January 2002, has wilfully insulted a judge, juror, witness or other officer of the court but who managed to leg it out of court before being arrested can now be summoned to attend court and then fined or imprisoned under a revised County Court Rule (CCR), order 34 procedure.

To complete the picture, also revised in January is practice direction 8B where certain out-of-date provisions have been deleted.Changes from 1 MarchOn 1 March 2002, numerous amendments to the CPR are made to take account of the coming into force that day of 'Council Regulation (EC) No 44/2001 of 22 December 2000', shortened in the rules to 'the Judgments Regulation', but in the flesh a lengthy 23-page document.

It applies to all EU member states with the exception of Denmark.

However, the Brussels and Lugano Conventions and the Civil Jurisdiction and Judgments Act 1982 still govern relations between the member states and Denmark and the non-EU parties to the Lugano Convention, namely Iceland, Norway, Poland and Switzerland.Added to all of that is the fact that EU regulations are directly applicable in the member states and one has the perfect recipe for some difficult drafting that borders on the impenetrable.

The rules committee has done its best in a difficult situation.The main amendment is to schedule 1 RSC order 71 where there is a new rule 33, substituted wording to rule 36 and a whole new part V spanning rules 45-57 and dealing with reciprocal enforcement under the Judgments Regulation.

The detail is important.Even the county courts do not escape attention - a new CCR order 35, rule 3A deals with applications for a certificate of judgment under article 54 of the Judgment Regulations.

And, in the wake of all of this, are consequential amendments to rules 6.18, 6.19, 6.22, 6.23, 12.10, 12.11 and 25.13(2) as well as a wholly new practice direction to RSC order 71.If that were not enough, watch practice direction 6B.

The wording of the statement required by the amended rule 6.19(3) when issuing a claim form for service out of the jurisdiction without permission of the court is changed with effect from 1 March; in future, there will be six different forms of statement, all to be found at practice direction 6B, paragraph 1.

Miss out the statement and the claim form will be marked 'Not for service out of the jurisdiction'.

Lest you forget, the point gets repeated in a new paragraph 3.5A to practice direction 7 dealing with how to start proceedings.District Judge Walker sits at Wandsworth County Court and is a contributor to Jordan's Civil Court Service.