The latest rule changes

District Judge Michael Walker looks at the provisions in the 16th update to the Civil Procedure Rules 1998

What is effective when?The new Costs Practice Direction and paragraph 4A in the Protocols Practice Direction (PD) came into force on 3 July 2000.

That was the same day as the latest update to the Civil Procedure Rules 1998 (CPR) was published, which is hardly a satisfactory position.

About that, more in due course.

Everything else came into force on 14 July.

So what is para 4A of the Protocols PD all about?It is a gentle reminder in the new age of the potential recovery of success fees and insurance premiums that where a person enters into a funding arrangement - which includes an agreement that a trade union, or whatever, will meet his costs - he should inform other potential parties to the claim that he has done so.But this provision does not just apply to cases covered by a pre-action protocol; it applies to all proceedings.

Fail to inform the other side and the additional liability (i.e.

the percentage success fee, the insurance premium, or the additional amount in respect of the provision of legal services by the membership organisation) may not be recoverable during the period of default.

But why alter the Application Notice N244?Read the form quickly and you might not notice any change.

The familiar layout is still there: what do you want the courts to order and why, on what evidence do you rely and are you completing the Part C section on the reverse side.

The change is in the box in the top left hand corner where, for instance, the time estimate for the hearing is given.In addition to the information that has been provided before, you will now have to state the dates of any trial period or fixed trial date.

That of course makes total sense.

If the court has fixed a trial date of 28 July, it is no use the court listing your application for hearing in August.The other very important change is in asking how you wish the court to deal with your application.

Previously the choice was between a hearing or not.Now there are three choices:l at a hearingl at a telephone conferencel without a hearingDo permit a slight digression.

Frequently it is said that judges do not wish to hold telephone conferences.

That is not the case.

Procedural judges appreciate the costs savings to be had if one holds a telephone conference; it also is more likely to guarantee that the judge will end up speaking to the actual fee-earner having the conduct of the case.

The procedure is set out in PD23 paragraph 6.Admittedly there are problems where particular courts lack the proper equipment and such conferences are really only possible first in either the morning or afternoon lists; the need for the judge to be available makes it difficult to hold them in the middle of a running list.

Also remember that, from the judge's point of view, in advance of the telephone conference the parties need to file a summary of issues, all the documents (e.g.

reports) necessary and a set of suggested directions.

Documents cannot - yet - be handed up during a telephone conference.It does not help if the request to hold the telephone conference is only made the day before the application is due to be heard.

The new form N244 should put an end to that from the applicant's point of view; if you are the respondent to the application and you would like it heard over the telephone then raise the possibility with the court and the other side as soon as possible.

A new paragraph 6.1A to PD 23 (perversely, to be found in The Stationery Office release only after paragraph 6.5) emphasises that an applicant should indicate on the N244 if he seeks an order for a telephone hearing; where he does not do so, 'the request should be made as early as possible.'

What, PD52 has been changed again?In what is becoming a regular monthly tradition, PD52 relating to appeals has again been amended.PD52 para 2A was introduced as recently as the 15th update and set out the routes of appeal.

By way of a quick refresher, most (but not all) appeals from a district judge now go to a circuit judge; a first instance decision of a circuit judge goes to a High Court judge.Other rules apply to final decisions in the multi-track or to the specialist jurisdictions covered by rule 49(2); those appeals go straight to the Court of Appeal.But the reference in paragraph 2A.2 only concerned cases allocated to the multi-track under rules 12.7, 14.8 or 26.5.

What were overlooked were the Part 8 cases: under rule 8.9(c) such cases are treated as allocated to the multi-track, subject to the qualification in PD8B paragraph B15.

A new paragraph 2A.6 to PD52 makes it clear that where rule 8.9(c) has applied the court to which permission to appeal a final decision is made should, if permission is granted and unless the appeal route is to the Court of Appeal in any event, consider whether to order the appeal to be transferred to the Court of Appeal under rule 52.14.

Interested in patent law? PD52 paragraph 21 has been tweaked slightly.

There is a new paragraph 21.2 making it clear that the paragraph applies where an appeal lies to the Court of Appeal from an order for the revocation of a patent.

As the whole PD deals with appeals and the paragraph heading is 'Appeal against order for revocation of patent' it all seemed pretty obvious!Interested in minutiae?In PD6B there is a list of statutes under which if a claim is made then the claim form may be served out of the jurisdiction with the Court's permission.

The list of enactments has been enlarged.

If you need to check, have a look at paragraph 5.2.Thinking about service out of the jurisdiction, a claim may be served out of the jurisdiction with the permission of the court if the claim is a Part 20 claim and the person to be served is a necessary or proper party to the claim against the Part 20 claimant.

A new rule 6.20(3A) so provides.Or perhaps you issue out of the Production Centre.

If you do, you will be familiar with PD7C.

A new paragraph 1.4(4) makes it clear that the provisions of PD16 para 8.3 (which requires documents to be attached to the particulars of contract claims) do not apply to contract claims issued by the Centre.

What about summary judgment?Everyone is familiar with Part 24.

The court may give summary judgment if there is no real prospect of succeeding on/ defending the claim or issue and there is no other compelling reason why the case or issue should be disposed of at a trial.How many sharp-eyed readers spotted the amendment to rule 24.2, quoted in the previous sentence? An amendment to the rule has introduced the additional word 'compelling', making the test even tougher than it was before.

Got any partly discontinued proceedings?Rule 38.8 used to say that if proceedings were partly discontinued but the claimant failed to pay any consequential costs within 21 days of when they were agreed to be paid or ordered to be paid by the court, then the court may stay the remainder of the proceedings until the costs were in fact paid.Well, that 21-day period was out of kilter with many other provisions in the rules that talk of a 14-day period.

So an amendment to rule 38.8 has brought it into line.

What about discrimination?Readers who practice in the equal opportunities' field will be familiar with CCR Ord.

49 r 17, to be found in Schedule 2 to the CPR, which set out the procedural requirements when claims were brought in the county court under either the Sex Discrimination Act 1975 or the Race Relations Act 1976.

Whilst the detail has not been altered, the rule itself has been enlarged so that it also now embraces the Disability Discrimination Act 1995 and the Disability Rights Commission Act 1999.

Well, is that all?If only it were! The above deals with the amendments to the Rules, Practice Directions and forms introduced by the 16th update with the one very big exception of costs.

There are numerous amendments to the rules to take account of all the changes on the cost front or because of the demise of the Legal Aid Board.

The release also includes a mammoth 122-page draft Practice Direction about Costs.

The PD contains text running to 79 pages, and then 13 costs precedents.

While the costs practice direction came into force on 3 July, what has been published by The Stationery Office is referred to as a draft only.

Furthermore, there is an editorial note saying that the update 'does not include some final changes to the Costs Practice Direction' which whilst available on the LCD website will not be published by The Stationery Office until the 17th update is released.

Many will say this is not very satisfactory, but it reflects the immense pressure under which the drafters of the PD worked.

Only after the rule changes were put to bed and all the regulations drafted could the task of drafting the PD commence in earnest.

That is the curse, as they say, of living in interesting times.

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

How the update has changed the pre-action protocol (PAP) for personal injury claims

Paragraph in PAP2.2

2.4

2.11

3.8

3.16

3.21

Provision prior to 14 JulyThe protocol applies to all PI claims

There should always be a 'cards on the table' approach, including in multi-track claims and those not covered by a PAP

The Notes of Guidance annexed to the PAP mentions the joint selection of, and access to, experts.

The PAP promotes the practice of the claimant obtaining his medical report, disclosing it to the defendant who asks questions and / or agrees it but who then does not obtain his own report.

But after issue the court can grant permission for each party to obtain their expert's report; the costs of doing so would be for the court to decide.

If the accident occurred outside the jurisdiction, the 21 days provided for the defendant to identify the insurers (if any) and the three months' period within which to reply on liability may reasonably be extended up to 42 days and six months

The claimant provides his list of nominated experts: the defendant then has 14 days within which to object to one or more of them.

The mutually acceptable expert is then nominated

If a defendant admits liability pre-issue, any medical report obtained under the PAP should be disclosed and proceedings not issued for 21 days thereafter to enable the parties to reach a settlement.

Part 36 permits both parties to make offers to settle pre-proceedings

Provision thereafterIndustrial disease claims are excluded

Additionally, in multi-track PI claims, parties are expected (in the hope of avoiding the issuing of proceedings) to comply with the protocol as far as possible, e.g.

in respect of letters before action, exchanging information and documents and agreeing experts

The Notes now additionally stress that 'if proceedings have to be issued, a medical report [in PI cases] must [writer's emphasis] be attached to these proceedings'.

The Notes also explain that the nomination of the expert by the claimant arises because of the early stage of the proceedings and the particular nature of such claims.

For 'may reasonably' now read 'should normally'

If the claimant nominates his experts in the letter of claim, then the defendant had 21 days within which to reply identifying the insurers but the provisions opposite meant the claimant could nominate his expert after only 14 days.

That was a drafting error of obvious unfairness to the defendant.

From 14th July the PAP emphasises that if the claimant does nominate his experts in the letter of claim (and why not?) the defendant has 14 days after the initial 21 days within which to raise his objections.

The PAP has been expanded to contain helpful guidance that: 'Parties should always consider before issuing if it is appropriate to make a Part 36 offer.

If such an offer is made, the party making the offer must always supply sufficient evidence and / or information to enable the offer to be properly considered'