Civil Procedure Rules change again

District Judge Michael Walker surveys the latest update the 22nd of the Civil Procedure Rules 1998The latest Stationery Office offering, almost two inches thick...District Judge Michael Walker surveys the latest update the 22nd of the Civil Procedure Rules 1998The latest Stationery Office offering, almost two inches thick, might seem overwhelming.

The summary on the Lord Chancellors Departments Web site is an equally daunting five pages long.

The temptation is to put it to one side for a quiet day that just never comes.

But hang on to it.

While there are amendments to 26 of the practice directions, only seven actually contain amendments of any consequence.

All the rest merely correct previously inaccurate cross-references, printers errors and so on.

This article will not deal with those or the inconsequential amendments to the rules themselves.

The Civil Procedure (Amendment) Rules 2001 (SI 2001 No 256)This forms the bulk of the latest amendment but even then the really interesting bits are yet to come into force.

The 2001 Amendment Rules introduce into the Civil Procedure Rules (CPR) new parts 55 and 56 dealing with possession claims and landlord and tenant claims, but they do not come into force until 15 October 2001 and are therefore not covered by the latest update.

Property or litigation lawyers who want to get up to speed on the forthcoming changes can access the full statutory instrument on the Stationery Office Web site.

All the housing forms are undergoing revision: that lengthy process will be on going for a little while yet.Unless a different date is mentioned, the changes mentioned here came into force on 26 March 2001.Look, no names!Rule 8.2A permits a claim form to be issued without naming a defendant.

The latest amendment alters the wording so as to enable such claim forms to be issued without prior permission being obtained unless a practice direction expressly requires such permission to be obtained.

The only cases at the moment where permission prior to issue is required relate to certain classes of beneficiaries under trusts: see the practice direction relating to the Rules of the Supreme Court (RSC) order 85 paragraph 4.2.All change pleaseRules 17.4 and 19.5 are inter-related.

The former deals with amendments to statements of case after the end of a relevant limitation period.

The second deals with the addition or substitution of a party after the end of the limitation period.

The two rules apply where the limitation period has expired under the Limitation Act 1980, under the Foreign Limitation Periods Act 1984 or (and here, in rule 17.4, is the change) under any other enactment which allows such an amendment, or under which such amendment is allowed.

The previous wording had some unfortunate and unintended consequences best forgotten.

The alteration to rule 19.5 is the same, except that amendment becomes change.

Incidentally, anyone thinking that there is a significant conflict between those two rules might wish to read the Court of Appeal decision in David Gregson v Channel Four Television Corporation, (2000) The Times, 11 August.Oi! Get yer hands off!A new rule 19.5A deals with claims for wrongful interference with goods.

In his particulars of claim the claimant must name any interested non-party.

As for the defendant, he can apply for any person who might better the claimants rights to the goods or who might otherwise have a claim against the defendant under the Torts (Interference with Goods) Act 1997 to be joined as a party.

That person would then be bound by the judicial determination reached in the case, which is a useful way of ensuring that the defendant faces only one and not, potentially, two separate sets of proceedings.But I was not a partySection 47 of the Administration of Justice Act 1985 provides for the High Court to make a judgment binding on a person who is not a party to the proceedings if that person is served with notice of the claim.

The power only applies to claims relating to the estate of a deceased person or to trusts.

But the statute says that rules of court may make provision for any judgment to be binding.

That rule is now to be found in a new rule 19.8A, which sets out the procedure to be followed.

As a consequence, RSC order, 15 rule 13A is now omitted from the schedule rules.Just let me see itRule 32.13(1) used to say that a witness statement which stands as evidence in chief is open to inspection unless the court otherwise directs during the course of the trial.

From 26 March it says that a witness statement which stands as evidence in chief is open to inspection during the course of the trial unless the court otherwise directs.

Same words, but the different order gives them a totally different meaning.I say, I sayRSC order 15, rule 16 says that no proceedings are open to objection on the ground merely that only a declaratory judgment is sought.

That order is now repealed, but replaced in the CPR by a new rule 40.20 which says that the court may make binding declarations whether or not any other remedy is claimed.What about our costs?The costs provisions in rules 43.2 and 44.6 are now enlarged to include references to collective conditional fee agreements as well as conditional fee agreements themselves.

More importantly, however, rule 48.9 is revoked and instead the scope of rule 48.8 is enlarged.

Why? Because under the rules as previously drafted there was apparently nothing to permit an assessment of solicitor and client costs where the client entered into a conditional fee agreement after 1 April 2000.Rule 48.8 deals generally with the detailed assessment of solicitor and client costs and will now apply to every such bill except where the bill is to be paid by the Community Legal Service Fund.

The word every covers the previous lacuna since 1 April last.

The indemnity basis of assessment of course applies.

However, inserted into the rule is a provision previously in rule 48.9, namely that where the court is considering a percentage increase the court will have regard to all the relevant factors as they reasonably appeared to the solicitor or counsel when the conditional fee agreement was entered into or varied.

So no use of hindsight.Inevitably, but just to confuse everyone, rule 48.10 dealing with the assessment procedure is now re-numbered as rule 48.9.And what about some of the detail?Section 90 of the Access to Justice Act 1999 will come into force on 1 April 2001, a Sunday (SI 2001: 916).

It transfers certain administrative functions from justices clerks to justices chief executives.

As a result several of the rules still to be found in both schedule 1 and schedule 2 to the CPR are amended.Also possibly coming into force soon, but on 1 April, is section 23 of the Family Law Reform Act 1987 (SI 2001: 777) dealing with scientific tests (using bodily samples as opposed to blood tests) for the determination of parentage.

Again, there are detailed consequential amendments in the update warranting further consideration.But Ive been discriminated againstPractice Direction (PD) 2B (dealing with the allocation to cases to levels of the judiciary) is amended on the implementation of section 1 of the Race Relations (Amendment) Act 2000 (anticipated to come into force on 2 April 2001) to say that a district judge may not try a case but he may nevertheless case manage it where an allegation of indirect discrimination is made against a public authority that would be unlawful under the new section 19B of the Race Relations Act 1976.

The definition of public authority is wide and embraces anyone certain of whose functions are of a public nature, but there are several exemptions tucked away in the new section 19B which would merit consideration if a claim were being considered.So what, Im bustPD49B (dealing with applications under the Companies Act 1985) will also now deal with cases under that Act as applied to limited liability partnerships by the Limited Liability Partnership Regulations 2001 (to come into force probably on 6 April 2001).

The same applies under the insolvency proceedings PD and under the directors disqualification proceedings PD, the latter of which takes on board not just the Limited Liability Partnership Regulations 2001 but also the coming into force of section 6 of the Insolvency Act 2000 as well.Section 6 amends the Company Directors Disqualification Act 1996 by introducing a new section 1A providing for disqualification undertakings.

Such an undertaking would involve the person giving it agreeing not to be a director or engage in the management of a company for a period of not less than two or more than 15 years.Top marksStatements of case in clinical negligence cases now have to be so marked at the top, so says a new PD16 paragraph 10.3.But I dont want to say nothingA new procedure is introduced by PD23 (the applications practice direction) paragraph 11A dealing with applications to stay a claim where there are related criminal proceedings.

Any party to the civil case, or the prosecutor, or the defendant(s) may apply to the court identifying the prejudice if the civil case goes ahead and indicate the estimated stay sought.

The court will then decide the matter, hearing all those involved but without formally joining those not already parties to the civil case.Good old PD52Every update since last May has contained at least one amendment to the appeals PD.

This update does not disappoint.

But dont get too excited.

The changes bring child support commissioners under the same regime as appeals from social security commissioners.

The changes also confirm that certain appeals to the High Court involving specified professionals such as architects and nurses must be supported by evidence and, if the court so orders, oral evidence and will be by way of re-hearing.What about the forms?There is an amendment to the N210, acknowledgment of service of a part 8 claim.

It will now enable the defendant to say that he does not intend to contest the claim as well as asking all the other questions found on the form at the moment.

It is a sensible amendment, particularly as rule 8.3(1) requires a defendant to file an acknowledgment of service no more than 14 days after service of the claim form; as currently drafted the acknowledgment might have implied that the defendant only had to return it if he were intending to contest the claim.

As a consequence of the form change the notes for defendant N208C are also altered.LINKS: www.

open.gov.uk/lcd/ lcdhome.htm)Lord Chancellors Departmentwww.hmso.gov.uk/si/si2001/ 20010256.htm Stationery OfficeDistrict Judge Walker sits at Wandsworth County Court