Rounding off the rest

District Judge Michael Walker concludes his look at the 18th update of the Civil Procedure Rules 1998

Last week's article looked at some of the changes introduced by the Civil Procedure (Amendment No 4) Rules.

This article summarises the rest of the more significant changes in the 18th monthly update from the Stationery Office.

Everything comes into force on 2 October 2000.

Pre-action protocolsNew protocols have been published dealing with:l Construction and engineering disputes;l Defamation.

Both follow a familiar pattern, but the former makes the useful suggestion of a meeting between the parties once initial letters have been exchanged.

As for the defamation pre-action protocol, that makes it incumbent on the parties to have considered alternative dispute resolution before proceedings are issued.

Several more protocols are no doubt about to come to fruition.

Human rightsWhere do you issue your claim under the Human Rights Act 1998? Practice Direction (PD)7 para 2.10 contains a new prompt that the normal rules apply to venue and how to start the proceedings (part 7, part 8 or the new part 54 Judicial Review) with the one exception that a claim for damages in respect of a judicial act should be commenced in the High Court.

If you are considering asking the High Court (or a court above) for a declaration of incompatibility under section 4 HRA 1998, then notice will probably need to be given to the Crown.

How to go about doing that is all in a new paragraph 6 to PD19.

Or if you are after damages for a judicial act then notice must be given to the Lord Chancellor and be served on the Treasury Solicitor: see PD19 para 6.6.

Where there is the possibility of the court making a declaration of incompatibility then rule 30.3(g) steers the court in the direction of a transfer to the High Court, but PD30 para 7 says this should only happen if there is a 'real prospect' of the declaration being made.

That should give rise to some interesting arguments in the county court.

Who can try the HRA case? In the High Court a deputy High Court judge, master or district judge may not try a case relating to a judicial act under the HRA 1998 nor a claim for a declaration of incompatibility.

There are no surprises in that amendment to PD2B, nor in the subsequent one that in the county court prevents a district judge or recorder trying a case in a claim made in respect of a judicial act.

And if you intend to cite authorities, then have a look at a new PD39 para 8.1.

Considering raising an HRA point for the first time on an appeal? Then take a look at PD52 para 5.1A (this, incidentally, continues the tradition of amending PD52 every month since its introduction!)

Committal applicationsOne area of civil procedure susceptible to criticism for potential HRA infringement is that relating to committals for contempt.

How, for instance, is the court to deal with a contempt in the face of the court? How is the respondent to be told what he is said to have done? The PD dealing with Committal Applications has received a complete makeover in advance of 2 October, and is compulsory reading for anyone involved in such an application.

Home courtLast week's article mentioned the change to the definition of 'home court': no longer will it be dictated by the office address of the defendant's solicitor but rather by where the individual defendant lives.

Rule 13.4 gets a similar treatment: where judgment has been obtained and where the automatic transfer rules would have applied had a defence been filed, the application to set aside judgment goes to the defendant's home court as now defined.

How will the court know this address? A change to PD16 para 2.2 says that where the defendant is an individual the claim form must include the address where the defendant resides/carries on business - even if solicitors have agreed to accept service on his behalf.

Get that wrong or miss it out, and PD16 para 11.4 says that the defendant must provide the information in his defence.

That applies even if the defendant's address for service is elsewhere.

Feeder courtsAt the moment, if a district judge in a feeder court is faced on allocation with a multi-track case other than a defended possession claim then they must transfer the case to a civil trial centre.

No longer: see PD26 para 10.2(11).

The designated civil judge will in future be able to permit the feeder court to keep some multi-track cases for trial.

How that will work out on the ground depends on many factors, including the ability of the feeder court to cope with the extra work and to be able to give appropriate trial periods.

The more lengthy cases are still likely to go to the civil trial centres.

Small claim appealsLast week's article dealt with the revocation of rules 27.12 and 27.13.

PD27 para 8 gets the consequential treatment, and says that where the first instance decision was without a hearing under rule 27.10 or in the absence of a party who had given notice under rule 27.9 then any application for permission to appeal must be made to the circuit judge.PD52 para 5.8A now deals with the documents required to be filed on an appeal from a small claim decision: do remember to ask the court for the transcript of the judgment.

Group litigation ordersThese cannot now be made in the Queen's Bench Division, Chancery Division or county court without the consent of the Lord Chief Justice, vice-chancellor or head of civil justice: see PD19A paras 3.3 and 3.4 for the detail.

Judicial reviewThe old Rules of the Supreme Court Orders 53 and 57 go on 2 October; the rules for judicial review will be found in a new part 54 save where a person has filed an application for permission to make an application for judicial review before that date.

Part 54 contains 20 rules: the new PD54 goes to an additional 17 paragraphs.

There is no alternative but to read this material if your client wants you to make an application to proceed with a claim.

The application will now be to the administrative court.

HousingThe new County Court Rules Order 49 rule 6A(17), mentioned last week, is supplemented by a new PD.

If the paperwork is all in order, the district judge will make an accelerated possession order.

However, if the tenant has set out a case for exceptional hardship in his reply and unless the landlord has said in the claim form that the court can deal with such an application without a hearing, the judge will go on to direct a hearing.

The court will have to act promptly as the judge - at the hearing - cannot postpone possession to a date more than six weeks from the date of the order for possession.

And finallySpace does not permit consideration of the PDs dealing with Welsh devolution, insolvency and directors' disqualification: all are slightly amended.

Several cross-references in the Costs PD have been corrected and the pre-action protocol PD now has a timely reminder that where a person enters into a funding arrangement he should inform other potential parties.

Sadly, it does not say when.

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