Q: Does this update cover all costs changes?A: No.
The Civil Procedure (Amendment No 3) Rules 2000 deal with all the new costs rules relating to the recovery of success fees, and so on.
There is also to be a very lengthy practice direction revising the existing practice directions 43-48; it is presently available for consultation on the Lord Chancellor's Department (LCD) Web site at http://www.open.gov.uk/lcd/civil/procrules--fin/25-05-00fr.htmIt will come into effect on 3 July.Q: So what is covered by the 15th update?A: There is a revised Form N243A Notice of Acceptance of Payment into Court, the only discernible change from the previous form being the change in number from N243 to N243A.Of more substance, there is a new form N163 for the presentation of skeleton arguments to be used in appeals under the new Part 52: ignoring all the formal parts, there is only one blank page on the form for the skeleton argument itself and no suggestion on the face of the form that additional pages may be attached.There are also new forms for use by appellants and respondents in appeals in insolvency proceedings.The changes to the practice directions themselves are set out below save that the amendment to PD6B para 3.2 (containing a reference to the Falkland Islands) and a correction to a cross-reference in PD 19 para.1.4 are so inconsequential that nothing further will be said.Q: When does the 15th update take effect?A: On 14 June 2000, save for the changes to the PD relating to insolvency proceedings; which are deemed to have come into force on 2 May when Part 52 came into effect.Q: Why change PD32?A: Previously PD32, dealing with written evidence, had said that both affidavits and witness statements should give in the margin the reference to any document(s) mentioned.
No one ever complies, so the PD will now accord with reality.
In future the requirement will be to give the reference to any document(s) mentioned either in the margin or in bold text in the body of the statement.Q: But what if I forget?A: There has been a very interesting case recently, Hannigan v Hannigan and others.
A decision of Peter Gibson, Brooke and Robert Walker LJJ in the Court of Appeal on 18 May 2000, it related to a claim under the Inheritance (Provision for Family and Dependants) Act 1975.It was accepted that the particular claim had been issued in the wrong form, the statement of case had not been verified by a statement of truth, the Royal Coat of Arms had been lac king from the claim form, which also did not have marginal notes or a 3.5cm margin; and there had been a failure to serve an acknowledgement of service form.
So the litany of errors went on.
The district judge struck the case out.
The decision was upheld on appeal to the circuit judge.Fortunately for the solicitor, in the Court of Appeal their Lordships held that it could not be right to return to the arid technicalities that had existed pre-Woolf.
Of course, they said, proceedings should have been started on the correct form and the judge had been correct to say that the CPR had been drawn to ensure a higher degree of efficiency in civil litigation; but the overriding objective was to deal with cases justly.
The defendants and their solicitors knew what was being claimed and the interests of the administration of justice would have been better served if the defendants' solicitors had pointed this out.
Under rule 1.3, both parties were required to help the court to further the overriding objective.
So the claim was reinstated.But the Court of Appeal gave a warning.
Its judgment was not to be taken as giving the green light to sloppy and inefficient behaviour by advisers for which sanctions existed.
If the sanction for sloppy work is not to be visited on the client then it can only be visited on the solicitor.
And that must mean a sanction in costs.
You have been warned.Q: What if I cease to act?A: A new paragraph at para.5.1 of PD42 contains a very timely reminder that:-- when the court makes an order (or declares) that a solicitor has ceased to act for a party, the former client must give a new address for service within the jurisdiction to comply with rule 6.5(2), and;-- until this is done, the table in rule 6.5(6) determines the place of service.Q: Is my case stayed?A: The reader is in serious trouble if he or she has not heard already of the automatic stay imposed by PD51 para 19(1).
But what proceedings attract the stay? There are four exceptions already in PD51 para 19(3) -- a trial date has already been fixed, quantum-only personal injury claims have been adjourned by the court to determine the prognosis, one is dealing with an estate or the application relates to funds in court -- but a new PD51 para 19(4) adds a gloss.
Or rather, it would do if the Stationery Office release had actually contained the relevant page.
It says:'For the purposes of this paragraph proceedings will not be "existing proceedings" once final judgment has been given.'So there is no problem where one is trying to enforce an old judgment, or applying for an order for sale to enforce a charging order.
But, for instance, the stay will catch mortgage possession proceedings that were adjourned generally prior to 26 April 1999.Q: OK, who forgot Preston?A: Sharp-eyed lawyers noticed that Preston was omitted from the list of Chancery Division district registries listed in Annex 1 to the PD dealing with directors disqualification proceedings; that has been corrected, but para 12.4(3) of the same PD still awaits a similar correction.Q: Is that the only change to insolvency?A: Sadly, no.
There is a very long, new, paragraph 17 to the PD relating to insolvency proceedings bringing into effect (since 2 May) the new provisions for appeals.
At five pages in length, there is too much to summarise here: if you are involved in such an appeal, you now know where to look for all the guidance you need.Q: Well, at least the other appeal procedures have not changedA: Wrong again, unfortunately.
The appeal routes mentioned in Benchmarks (see [20 00] Gazette, 20 April, 47) are now set out in a new paragraph 2A to PD52.
Most (but not all) appeals from a district judge will go to a circuit judge; a first instance decision of a circuit judge goes to a High Court judge.
Other rules apply to final decisions in the multi-track or to the specialist jurisdictions covered by rule 49(2); those appeals go straight to the Court of Appeal.
And if you are wondering what constitutes a final decision, that is defined in the new para 2A as well.
The perceived wisdom is that a decision under s.33 of the Limitation Act 1980 would be a final decision but the contrary would apply to an order under Parts 3 or 24 of the CPR.And finally, the provisions relating to appeals by way of rehearing from the decision of a minister, person or other body set out in paragraph 9.1 of PD52 are made clearer and the provisions dealing with appeals from the Social Security Commissioners and the Special Commissioners are tweaked.
No comments yet