Goodbye to indemnity principle

District Judge Michael Walker runs the rule over the 32nd update of the Civil Procedure Rules 1998 (CPR)

The Civil Procedure (Amendment No 2) Rules 2003 SI 03/1242 are well represented in the latest update.

The new CPR rule 43.2(3), which is effective from 2 June 2003, provides that: 'Where advocacy or litigation services are provided to a client under a conditional fee agreement, costs are recoverable under parts 44 to 48 notwithstanding that the client is liable to pay his legal representative's fees and expenses only to the extent that sums are recovered in respect of the proceedings, whether by way of costs or otherwise.'

In other words, it is finally legitimate to say to the client: 'Look, I'll charge whatever I get; nothing more and nothing less.

It won't cost you a penny.

Trust me.'

This abrogation of the indemnity principle has been a long time coming.

It also heralds in the Conditional Fee Agreements (Miscellaneous Amendments) Regulations 2003, 'the CFA-simple' agreement and the implementation of section 31 of the Access to Justice Act 1999.

A brave new world opens up ahead.

Will this world see an end to many of the technical challenges on costs of the past two years? It is to be hoped so, although the rule changes themselves are not retrospective.

The need to draw a line under the present satellite litigation was the clear message the Court of Appeal delivered in the recent decisions in Hollins v Russell and other appeals [2003] EWCA Civ 718, [2003] All ER (D) 311 (May).

Here, the appeal judges introduced the test of 'materially adverse effect either upon the protection of the client or upon the proper administration of justice' when assessing whether a technical breach of the CFA regulations should render the CFA itself unenforceable.

But why introduce into rule 43.2(3) the words 'or otherwise'? Those two words clearly hold out the prospect of a client seeing his solicitor deduct costs from the client's damages.

Will the client be at risk when an all-inclusive settlement is reached with the insurers? What if the claimant fails to beat a part 36 offer? It is understood that the Law Society is concerned about the possibilities for abuse - both the Society and the Association of Personal Injury Lawyers are issuing guidance to the profession.

Mixed bag

After the important change to rule 43, what else is there in the update? It is not all downhill but it is difficult to get excited over the fact that the CPR do not directly apply to election petitions in the High Court (rule 2.1).

On the other hand, it would be important when applying for a statutory review under the Nationality, Immigration and Asylum Act 2002 to remember to file a copy of the relevant decision and any documents giving reasons for that decision with the application notice (rule 54.22(3)(a)).

How about court fees? Judging by the reluctance often expressed by solicitors in their letters to the court to pay fees which are clearly due and payable, many solicitors have no interest in the Court Service's financial good standing.

So, your case gets struck out for non-payment of a court fee.

You apply for reinstatement; granted.

But if the order was made without a hearing, being told that the fee has to be paid within two days of the order hardly helps when the order is sent out second class and takes four days to reach your desk.

Help is at hand - if the order for reinstatement is made other than at a hearing you will have seven days, rather than two, in which to come up with the cash.

Rule 3.7(7)-(8) so provides.

The long vacation is not a creature known to the county court.

For many years, every day has been the same.

So, it came as a surprise to this writer to discover that from this August the Supreme Court offices will stay open in August until 4.30pm, the same as every other day they are open.

Were they still closing at 2.30pm for the whole month of August, every year? Apparently so - practice direction 2 paragraph 2.1(2) so stated - but not any more.

Service by electronic means could be important.

Practice direction 6 paragraph 3.1-3.4 is replaced with new text (effective from 31 July 2003) and includes provision that:

- A person who is to be served electronically or his legal representative must previously have expressed a willingness to be served by such a method;

- A written indication of the fax number on the solicitor's stationery or a fax number, e-mail address or electronic identification on a statement of case will be a sufficient indication of such consent;

- Before serving electronically, the serving party must check whether there are any limitations on the receiving party's ability to receive the documents to be served.

As to telephone hearings, of limited application - just at Newcastle upon Tyne County Court between 1 September 2003 and 27 February 2004 - will be a pilot scheme for hearings of anything up to an hour involving up to four parties.

For those wanting to save the travel time to the law courts at Quayside the new practice direction 23B is worth reading, even if nothing will change for another few months.

And the rest?

A tweak to practice direction 40 paragraph 15 will provide that as from 31 July 2003 interest on legacies will be payable at the basic rate on funds in court rather than being at such rate as the court may direct.

While on the subject of probate matters, practice direction 57 paragraph 2.2(3) has been amended to make it clear that a probate claim may be started not just in Chancery chambers, or at one of the eight Chancery district registries, or at one of those eight county courts which are also Chancery district registries, but also at the Central London County Court.

This update's amendments to practice direction 52 are to tidy up the wording of paragraph 2A.2 to clarify which appeals from final decisions are to be made straight to the Court of Appeal and to correct an error at paragraph 20.3.

Minor corrections are also the order of the day in relation to practice direction 75 (Traffic Enforcement) and to practice direction 56 (Landlord and Tenant Claims).

And that is it, apart from the publication of an information note on references by national courts to the European Court of Justice, a redesigned form of witness summons (form N20), and the revocation of what was a redundant CCR order 6.

Until the next update, in early September.

District Judge Walker sits at Wandsworth County Court and is a contributor to Jordan's Civil Court Service