How to make use of the part 8 way

District Judge John Frenkel continues his reflections on the civil justice reforms after one year

Possession: spot the differenceBy July 1999, landlords, their advisers and the courts had worked out how the new (old) forms were to be used in the new (old) procedure.

In fact, as the CPR part 8 PD had intended, nothing had really changed.

Private landlords continue to use the CCR Order 49 accelerated possession procedure (see CPR schedule 2) if they consider that recovery of the unpaid rent is unrealistic and they want possession as soon as possible.

Social landlords and private and commercial landlords use the former fixed date summons procedure to obtain a possession order plus a judgment for rent arrears.

Landowners go on using the CCR Order 24 part 1 procedure against trespassers and no one uses the part 2 procedure to obtain an interim possession order (CPR schedule 2 again).

One snag that is often forgotten: in an undefended claim, CCR Order 38 Appendix B fixed costs still apply to a suspended possession order made in an undefended claim.

When there is an outright possession order the district judge will expect to assess the costs (summarily, of course).

The Rule Committee is currently considering an amendment.

What happens when a possession claim becomes defended? The defendant may file a defence or, more frequently, turns up at the hearing to dispute the claim without filing a defence.

The CPR part 8B PD says that the court may on the hearing date proceed to hear the case or give case management directions.

Although CPR rule 8.9(C) provides that a part 8 claim is 'deemed' allocated to the multi-track, PD8B para15 reapplies the part 26 case management provisions.

If the claim appears to be straightforward, the district judge will probably allocate the claim to the fast track, direct the exchange of witness statements, dispense with listing questionnaires and fix the final hearing.

Business tenanciesAlmost all Landlord and Tenant Act 1954 applications are made under sections 24 or 38.

The more information you give to the court staff, the quicker they process your work.

Write a covering letter with the application.

'This is an urgent joint application to exclude the right to new tenancy under section 38.

Please refer the application to a district judge in the boxwork'.

Alternatively, 'This is an application for a new lease.

Please serve the respondent with the claim.' When the statutory limitation period has caused new lease proceedings to issue, make use of the part 8 PD para 4.1 (see below).

Write to the district judge.

'Negotiations are proceeding.

The parties ask you to stay these proceedings for say three or six months.

If neither party asks for further directions before (give a date) the claim shall be struck out, deemed settled.'

Return of goods claimsThese are mostly hire purchase claims and follow the former fixed date procedure.

Nothing wrong with that, but they can have some curious bedfellows.

Do you want a fixed date in a claim for the repossession of the engagement ring and the rest of the property your client left behind when he fled his former lady friend's flat? You do, fine, but remember to include all the evidence in the statement of case or to serve it well before the hearing.

You will find your case among the repossession claims for motor vehicles sold and let on finance agreements.

How much time is there in the list? Have you checked?

Mortgagee's claimsAfter an initial flurry of problems about forms and statements of truth all appears well.

However, if the lender asks for a general adjournment because the borrower has reduced the arrears, does Greyhound Guarantee v Caulfield [1981] CLY 1808 still apply? This case was authority to keep a mortgagee's claim, once issued, alive forever to save the cost of issue of a fresh claim when the borrower again fell into arrears.

Because CPR part 1 requires the court to manage claims, you may find that the court will order that an adjourned claim will be struck out if another hearing is not requested within 12 months.

The reason is a practical one.

When the account is next in the red again the court will have shredded the file.

Part 8 managementThe management of non-fixed date part 8 claims has thrown up considerable problems particularly in the High Court.

Have in mind these examples: a claim to dissolve a partnership or under the Inheritance (Provision for Family and Dependants) Act 1975 or a probate claim.

The problem is partly caused by CPR rule 8.5 - 'A defendant who wishes to rely on written evidence must file it when he files his acknowledgement of service.' This is a duty that defendants generally find impossible to discharge: they never file their evidence.

The court does not send out allocation questionnaires because of the provisions of rule 8.9(c).

'The claim shall be deemed allocated to the multi-track and therefore part 26 does not apply.' The part 8 PD para 4.1 states piously, 'The court may give directions immediately a part 8 claim form is issued either on the application of a party or on its own initiative.' When the acknowledgement of service has been filed claimants usually write to ask for a case management conference, but fail to give a case summary or to propose any directions.

The master or district judge has as much light as a mushroom.

The court cannot exercise any case management function of its own initiative.

There is so little information that the court cannot even guess a time estimate for the case management conference appointment.

This problem occurs so frequently that the Chancery masters have devised their own allocation questionnaire substitute form.

Help the judge to help youThis last paragraph sounds similar to a stuck record.

To state the obvious, the court has to manage claims, and you get out what you put in.

Give the minimum information and you can expect delay, misunderstanding and amended timetables.

Put yourself in the district judge's seat.

What would you need to know to advance the resolution of the dispute in a businesslike manner? Supply information and suggest the next steps and, more often than not, you will get what you want.

If a case management conference is necessary, say why.

What are the questions that the court will have to answer? What are the necessary steps to prepare the claim for trial.

What expert reports does each party say they need? Why do they need them, if it is not obvious? Why is a single expert jointly instructed not appropriate? A letter can summarise the case.

The information is important, not the form.

At this stage, a ring binder of reports and statements seldom helps.There are many honourable exceptions, but in my experience, in two out of three part 8 claims the court has to ask for further information.

This is wasteful of everyone's time.

Claims are listed for a case management conference when a timetable could be given without an appointment.

One year on and this habit will still not die - the belief that you tell the court as little as possible.District Judge John Frenkel sits at the Bristol Civil Trial Centre and is the consulting editor of Practical Civil Court Precedents