Litigator's double
District judges Michael Walker (listing questionnaires) and Chris Lethem (litigants in person) outline some crucial changes for civil practitioners from 2 December
The old style of listing questionnaire (LQ) will be replaced on 2 December 2002 by a wholly revamped and renamed form, the pre-trial checklist (PTC).
There are also consequential changes to parts 28 and 29 of the Civil Procedure Rules 1998 (CPR).
However, the change is not just a change in title.
The emphasis of the new form is to ensure that parties are ready for their trial - if there has to be one; that trial dates and trial windows are kept and that settlements at the door of the court are avoided.
It also heralds a completely different approach by the profession, and by the courts, to that period between despatch of the PTC to solicitors and commencement of the trial itself.
The title 'listing questionnaire' was the wrong one for the form.
It is filed too late in the day to be the tool triggering the actual listing of a case.
By the time of filing of an LQ, the case, whether in the fast or multi-track, will almost certainly already have an allotted date for the (start of the) trial.
If only a trial window has previously been given then the court will be listing the case within that period and, therefore, questions related to the availability of witnesses, experts and representatives relate only to that narrow window.
Also gone will be the 'blame culture' so often reflected at the moment in LQs - 'we have not been able to serve our witness statements as we are still waiting for disclosure from the other side' - and all the other excuses procedural judges regularly see.
The new PTC is expressly designed to prevent last-minute applications that may otherwise affect trial dates or trial windows.
Instead, it assumes that the person completing the PTC is himself ready for trial.
The opening question seeks confirmation that the party concerned has complied with those directions already given which require action by him.
The next asks for the date by which any outstanding directions will be done.
If directions are required then the party seeking them must return the PTC with an application notice (form N244), fee and draft order.
If possible, that draft order should be agreed with the other side.
The intention is to put an end to the present practice of treating the LQ itself as the vehicle for making a request for last minute further directions.
Tosh, you say.
Things will not change.
Don't be so sure.
One of the fundamental principles of Lord Woolf's reforms is that only in exceptional circumstances will a trial date be vacated.
Another is that judge time is properly utilised; if a case is going to settle then it should do so sufficiently in advance for the judge to be found other work.
Judges are keen to see the PTC made an effective tool of case management.
Be ready for that trial.
LIPs lose their gloss
As from 2 December 2002, one sector of the litigating community will be finding life a little less lucrative.
The 29th amendment to the CPR significantly alters the rules for the recovery of costs by a litigant in person (LIP).
Currently, successful litigants in person fall into one of two categories when their costs come to be considered.
Those who cannot prove financial loss are paid at the prescribed rate for the time spent reasonably doing the work at the rate specified in the practice direction (CPR rule 48.6(4)).
The prescribed rate is 9.25 per hour.
The second group is those who can prove financial loss.
They recover their costs at up to two-thirds of the amount that would have been allowed if they had been represented by a legal representative (CPR rule 48.6(2)).
These rules contain an anomaly.
Once litigants in person have proved that they have suffered some financial loss, no matter how small, they are entitled to claim at the higher rate for all the work that they have reasonably done in connection with the case.
This applies to areas of work where it is plain that there was no financial loss.
This 'all or nothing' approach can provide a windfall to the receiving party, although it seems that Parliament never intended that they should make a profit out of the litigation.
The 29th amendment seeks to address this anomaly.
CPR rules 48.6(3) and (4) have been completely rewritten.
The position remains the same for those who cannot show financial loss and they will continue to receive the 9.25 per hour (the new rule 48.6(4)(b)).
For those who can show that they have suffered financial loss, there still remains the ceiling that their costs will not exceed two-thirds of the costs that would have been allowed to a solicitor.
The significant change is in rule 48.6(4)(a) which states the allowable costs are, 'where the litigant can prove financial loss, the amount that he can prove he has lost for the time reasonably spent in doing the work'.
Thus the receiving party is limited to his or her actual financial loss.
Can a litigant in person claim 9.25 per hour for some work and a higher rate for the areas where he has suffered financial loss or are 48(4)(a) and (b) mutually exclusive? The wording of the new section is unclear whether one adopts the test on an item-by-item approach.
The rules remain the same for disbursements, experts and sums paid for legal services, in that the LIP can still recover a reasonable amount.
It also remains the case that a LIP who is seeking to claim financial loss must serve the evidence he relies upon to show that loss, not less than 24 hours prior to the hearing where there is a summary assessment or on starting a detailed assessment.
(costs PD 52(2) and (3)).
Finally, solicitors acting as LIPs have a special status.
Recently, in Malkinson v Trim (2002) The Times, 11 October, the Court of Appeal affirmed the old rule in London Scottish Benefit Society v Chorley Crawford and Chester (1885) 13 QBD 872 that a solicitor's firm acting for one of the partners are entitled to charge as if acting for an ordinary client.
District Judge Walker sits at Wandsworth County Court and is a contributor to Jordan's Civil Court Service.
District Judge Lethem sits at Tunbridge Wells County Court
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