The origin of this article lies in the July 1999 issue of Conveyancing in Focus, published by the Law Society and containing news and information from the Law Society's Conveyancing and Land Law Committee.

Two matters on procedure concerned the writer in what was otherwise a helpful leading article called 'Woolf Reforms'.Exclusion orders under s.38(4) of the 1954 Act, part 2.In essence the basic procedure for making these very common applications has remained unaltered despite the reforms introduced on 26 April 1999.

However, and based on confirmation apparently given by court service, the article says that: 'the application [under s.38] may be made to any county court whose jurisdiction the parties agree to accept, if they do not wish to use the county court having jurisdiction under the CPR [the Civil Procedure Rules 1998]'.To be fair, any solicitor coming to the CPR for the first time would not easily establish just how to go about issuing an application under section 38.The starting point is Practice Direction (PD) 8B, section B.

This complicated practice direction sets out the procedure for numerous applications not covered by the main tranche of reforms introduced but for which provision has had to be made in the CPR because of the abolition of the old originating application procedure.

Claims brought under County Court Rules ord 43 r.2(1) - still to be found in among the schedule 2 rules - for an order under section 38, are included in the procedure set out in section B of PD8B.However, paragraph B6 of the PD8B which says that: 'Where the claimant is bringing a claim [under section B of PD8B] in a county court, that claim may only be started:(1) in the county court for the district in which:(a) the defendants or one of the defendants lives or carries on business;(b) the subject matter of the claim is situated; or(2) if there is no defendant named in the claim form, in the county court for the district in which the claimant or one of the claimants lives or carries on business.'As there are, by their very nature, no defendants to consent applications under section 38, PDB8 para B6 means that applications may only be brought in the county court either where the land is situated or where one of the joint claimants carries on business.Under the pre-26 April county court rules - which for these purposes are the same as the CPR - the Court of Appeal held in St Giles Hotel Ltd v Microworld Technology Ltd [1997] NPC 54 that the court on which the parties had by consent conferred jurisdiction was the wrong court.The case was unusual and, as Millett LJ said in his judgment, the Court of Appeal had been entertained by some of the most ingenious arguments he thought he had ever heard.

It related to a property at 257-258 Tottenham Court Road, which comes within the jurisdiction of Central London County Court.

The section 38 order had been made, by consent, at the Mayor's and City of London Court.

Counsel tried to argue that the order was ineffective as the Mayor's was the wrong court to have made the section 38 order.

Millett LJ, faced with a barrage of 'ingenious arguments', would have none of it.

There was clear authority of the Court of Appeal in Faulkner v Love (t/a W Love & Son) [1977] 1 QB 937, [1977] 1 All ER 791 and Giles v Williams (unreported) 8 December 1995 that an order made by the wrong county court is not a nullity but merely an irregularity.

Millett LJ went on to say: 'In my judgment, where no objection to the jurisdiction of the court is made at the time and the court not noticing the defect proceeds to make an order, that order is not only valid as made within the jurisdiction, but also should not be taken as irregular since the court ought to be treated as having ordered the proceedings to continue in the court in which they were commenced'.The question then is this: what if the court realises when considering the section 38 application that it is the wrong court? What if court A realises that the property and both the parties are within the jurisdiction of court B, yet nevertheless proceeds to make the order sought, by consent? What does the court do once it notices that it is the wrong court?Under rule 30.2(2) of the CPR, a judge may order proceedings commenced in the wrong court to be transferred to the county court where they ought to have been started, or for them to continue in the county court where they have been started, or the judge may strike the proceedings out.

This repeats what was previously CCR ord 16 r.2.

Normally, no express order is made conferring jurisdiction on the 'wrong' court.

Yet the implicit waiving of the defect only appears to arise if the court did not notice the defect.The final argument would be one of estoppel, to which Millett LJ made passing reference in St Giles Hotel Limited.But is it safe to rely on orders made by the wrong court, or even assume that Faulkner v Love [1977] 1 QB 937 is still good law under the CPR when it is so easy to issue a section 38 app lication in the correct court? One has to remember that the CPR are a new procedural code (rule 1.1(1)) and the pre-26 April 1999 case law is no longer to be treated as authoritative.The Court of Appeal is already showing that it will not consider itself bound by old case law.

Brooke LJ on 1 September 1999, giving judgment in Thorn v McDonald (which related to an application to set aside a default judgment), said: 'The court, in my judgment, would be doing nobody any service in seeking to reintroduce into the interpretation of these rules judgments of courts which were given under the old regime, in so far as the new regime has taken over from the old .

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We are operating a new procedural code (rule 1.1) and we must not be tempted to return to earlier judgments decided under the previous rules and have them cited all over again, with attempts to distinguish one conflicting decision from another.The message appears to be a clear one.

Issue in the correct court.

Do not rely on the previous willingness of the court to waive the procedural defect.

Remember that the CPR are a new code; a challenge in the future may be somewhat more successful than was counsel with all his 'ingenious arguments' in St Giles Hotel Limited.Lease renewalsAs the Conveyancing in Focus article rightly says, the procedure for applying for a lease renewal under part 2 of the Landlord and Tenant Act 1954 is governed by PD8B.

But it goes on to say that: 'Application is to be made on a part 8 claim form as provided by Section B of PD8B'.It is this writer's view that this statement is wrong.

It is only in the High Court that the part 8 claim is commenced by using the part 8 claim form, N208.

In the county court, table 2 in section B of PD8B and paragraph B8(1) of that PD dictate the use of the old form N397 where there is an application for a new tenancy under CCR ord 43 r.6(1), which incidentally is now to be found in schedule 2 to the CPR.

Under paragraph B8 of PD8B, the claimant must - to quote the word in the PD - use the forms specified in table 2.

There are potentially serious consequences for an applicant who has an N208 returned by a county court issue clerk as being incorrectly used, only to find that the correct application using form N397 is then out of time for filing with the county court.But one final word of warning.

The N397 is a statement of case (see rule 2.3(1) of the CPR) and therefore by virtue of rule 22.1(1)(a), must be verified by a statement of truth.The consent application under section 38 also needs a joint statement of truth signed by both claimants, but everyone seems to have taken that on board already.