The changing face of CPR

District Judge Michael Walker continues his update on civil procedure changes coming into force on 25 March 2002, including those introduced by the 27th update to the Civil Procedure Rules 1998, published on 8 March 2002

Statement of truthWord perfect?Trial bundle - watch what you agreeExpertsPractice directionsVideo conferencingJudgment summons

Statement of truth

Paragraph 1 of practice direction (PD) 22 now contains a timely reminder that a statement of truth is required to verify not just a statement of case, a part 18 response providing further information or a witness statement but also:

l An acknowledgment of service in a claim begun by the part 8 procedure;

l A certificate stating the reasons for bringing a possession claim or a landlord and tenant claim in the High Court under rules 55.3(2) and 56.2(2), and;

l An application notice for a third party debt order, a hardship payment order or a charging order under the new enforcement rules.

A new paragraph 3.6B appears in PD22.

If insurers are conducting proceedings on behalf of many claimants or defendants, a statement of truth in a statement of case may, subject to certain provisos, be signed by a senior person responsible for the case as lead insurer.

However, the person signing still needs to confirm that the lead insurer believes that the facts stated in the document are true.

Word perfect?

Applications for interim injunctions under part 25 are required, wherever possible, to be accompanied by a draft order on disk.

To date, the software has been WordPerfect 5.1.

But that changes to 'the word processing software used by the court', which often now will be a version of Word.

It might be prudent to check with the court or judge's clerk.

If you telephone the High Court then use the new number 020 7947 6000.

It will also be wise to update your database as the 27th update contains new draft freezing injunctions and search orders, although the examples may be modified as appropriate in any particular case.

Trial bundle - watch what you agree

PD32 at a new paragraph 27 deals with agreed bundles for hearings.

The court, as often happens already, may give directions requiring the parties to use their best endeavours to agree a bundle or bundles of documents for use at any hearing.

But beware all the documents contained in the agreed bundles shall be admissible at that hearing as evidence of their contents, unless either the court orders otherwise or a party gives written notice of objection to the admissibility of particular documents.

Experts

Part 35 has been significantly changed to introduce a new opening section 1, dealing with the general requirements of experts.

It is worthy of being set out in full:

l 1.1 It is the duty of an expert to help the court on matters within his own expertise - rule 35.3(1).

This duty is paramount and overrides any obligation to the person from whom the expert has received instructions or by whom he is paid - rule 35.3(2);

l 1.2 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation;

l 1.3 An expert should assist the court by providing objective, unbiased opinion on matters within his expertise, and should not assume the role of an advocate;

l 1.4 An expert should consider all material facts, including those which might detract from his opinion;

l 1.5 An expert should make it clear when a question or issue falls outside his expertise and when he is not able to reach a definite opinion, for example, because he has insufficient information, and;

l 1.6 If, after producing a report, an expert changes his view on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court.

PD35 also slightly alters the form and content of the expert's report - see what is now PD35, paragraph 2.

Furthermore, the form of the expert's statement of truth gets amplified to: 'I confirm that insofar as the facts stated in my report are within my own knowledge, I have made clear which they are and I believe them to be true, and that the opinions I have expressed represent my true and complete professional opinion.'Note those three words 'true and complete'.

Practice directions

PDs 49C, 49D, 49F, 49G and 49H are all revoked to be replaced by new PDs 58 to 62 dealing with the Commercial Court, the Mercantile Courts/business lists, the Technology and Construction Court, admiralty and arbitration claims.

All the new PDs are now available, together with a whole raft of new forms.

The majority of them relate to Admiralty.

The rest of the forms cover the Commercial Court, Technology and Construction Court claims and arbitration claims.

And be careful with PD59 - it was published with the 26th update but then amended by the 27th to include a case management information sheet, standard directions in Mercantile Courts and a pre-trial check list.

New PDs 70 to 73 supplement the new enforcement rules.

But, for the real whiz kids, try the new PD dealing with applications for a warrant under the Competition Act 1998, together with accompanying search warrants and explanatory notes.

Even our old friend PD52 (Appeals) is not left out in the cold.

A new paragraph 21.11 deals with appeals from the Proscribed Organisations Appeal Commission.

Video conferencing

By amendment to PD32 (Written Evidence), a new annex 3 sets out, in 21 comprehensive paragraphs, all anyone needs to know about how to use video conferencing (VCF), despite a disclaimer that 'it does not attempt to cover all the practical questions which might arise.'

The guide is based on a protocol of the Federal Court of Australia and must be compulsory reading for the increasing band of solicitors realising that there are considerable savings in time and costs offered by VCF.

It even goes as far as to discuss the seating arrangements, pointing out that in practice it will be most convenient if everyone remains seated throughout, even when addressing his lordship.

Judgment summons

The judgment summons procedure is due to make a comeback following numerous revisions to schedule 2 to the County Court Rules (CCR), order 28.

The decision in Murabek v Murabek [2000] All ER(D) 2302 CA had thrown considerable doubt on whether the old procedure was human rights compliant, bringing to a halt applications by wives to enforce unpaid maintenance and the Inland Revenue for unpaid tax.

All now changes.

The judgment creditor must file with the request all written evidence on which he intends to rely when issuing their application; that evidence must then be served with the judgment summons.

The debtor cannot be committed to prison unless either the order is made under section 110(2) of the County Courts Act 1984 (which covers a debtor's failure to attend an adjourned hearing or where a debtor refuses either to be sworn or give evidence) or the judgment creditor proves that the debtor has the means to pay the sum in respect of which he has made default, and refuses or neglects to pay that sum.

That shifts the burden of proof entirely onto the creditor and reverses the previous procedure.

To reinforce the change, a new CCR, order 28, rule 5(2) says that the debtor may not be compelled to give evidence.

Anyone dealing with a judgment summons is encouraged to read the whole of schedule 2 to CCR, order 28.

There are new forms, N342 and N344, which cover the request for judgment summons and request for warrant of committal.District Judge Walker sits at Wandsworth County Court