The weighty matter of CPR

The weighty matter of CPR

The 23rd update of the Civil Procedure Rules is the last one before August - but still has plenty to occupy lawyers over the summer.

District Judge Michael Walker

Many practitioners understandably complained in the past that monthly updates from the Stationery Office were just too much to absorb along with everything else that makes up the matrix of a frantic professional life these days.

The Lord Chancellor's Department agreed.

This latest update was published on 17 May 2001 and will not be followed by another one until August.

But as the frequency reduces, the weight increases: the 23rd update weighs in at a hefty 1.2kg.So four became fiveComing into force on 16 July 2001 is a fifth pre-action protocol covering claims for professional negligence or an equivalent breach of contract or of fiduciary duty (save as against construction professionals and healthcare providers, where pre-action protocols exist already).

As with other protocols, considerable detail is called for in the letter of claim, to which the professional has three months from his letter of acknowledgment to reply.

That response should take the form of a letter of response and/or a letter of settlement.

For further detail there is, of course, no alternative but to read the pre-action protocol in its entirety.Possession claimsWith effect from 15 October 2001 all the old Supreme Court and County Court Rules (CCR) dealing with possession - mortgage as well as rent and trespass claims - will go, to be replaced by one new part 55.

Also there is the inevitable practice direction (PD) and a whole raft of forms.

To enable practitioners to get to grips with it all, the update covers all three.

The following is a brief initial glimpse:l The claim must be started in the district where the land is situated (rule 55.3(1)).

l The one exception is where the claimant files a certificate, verified with a statement of truth, justifying by reference to PD55 that the case should start in the High Court.

Circumstances justifying so doing are if there are complicated disputes of fact, points of law of general importance or (where the claim is against trespassers) there is a substantial risk of public disturbance or serious harm to persons or property requiring immediate determination.

In other words, where the sheriff's officers are needed quickly or in significant numbers.l The claim form N5 on issue and the particulars of claim (N119 in rented residential claims, N120 for mortgaged residential premises and N121 in relation to trespassers) have all been updated.

So have the notes to go out to the parties.l The hearing date will - as now - be fixed on issue.

It will have to be not less than 28 days from date of issue unless time is abridged under PD55 paragraph 3.2.l The 'standard period' between issue and hearing will be not more than eight weeks (rule 55.5(3)(b)) with at least 21 days between service and hearing.

Note the use of the word 'standard' - that eight week period is not mandatory, so those courts which have listed further ahead than that may well continue to do so even after 15 October.l The court will on issue send the claimant a new form N206B that will remind the claimant to file any witness statements on which he intends to rely no later than two clear working days before the hearing.

By doing so, and if the arrears figure does not alter, it may be possible to avoid oral evidence in rent possession cases in the same way that such evidence has for many years been presented in writing in mortgage cases.l The defendant is encouraged to file a defence, where appropriate, within 14 days of service, but may appear at the hearing even if he has not done so, thereby preserving the present practice of always hearing from any defendant who might appear at court on the day.l Where a case is genuinely disputed on grounds which appear to be substantial, case management directions will usually include the allocation of the case to track (rule 55.8(2)).

But there is no presumption that because the value of the property exceeds 15,000 the claim should be allocated to the multi-track (PD55 paragraph 6.1).

Factors such as the anticipated length of trial will be equally determinative of the track.Assured shorthold tenanciesThese too are taken out of Civil Procedure Rules (CPR) schedule 2 - County Court Rules Order 49 rule 6A - and placed in the main body of the CPR at rules 55.11 to 55.19.

Again, the changes are not effective until 15 October 2001.

The proceedings will basically follow the pattern already established.The real change comes in the new style N5B.

While all the information presented to the court now is covered in the new form, there should be less opportunity for landlords or their solicitors to complete the form wrongly.

Just when most repeat players were starting to get it right.

Also, for the first time, the N5B will go out to the tenant with attached explanatory notes.

In addition, the defence form N11B has been given a makeover.

All this is commendable updating, but there has still been no effort made to address the needs of those whose first language is not English and who comprise a disproportionate percentage of those in rented accommodation.Anything else changing on 15 October?Two other parts join the CPR on 15 October.

A new part 56 covers landlord and tenant claims, with rule 56.2(4) dealing with one matter which has exercised the district bench for the past 37 years.

Henceforth, a joint claim by landlord and tenant to authorise an agreement under section 38(4) of the Landlord and Tenant Act 1954 may be started in any county court, thus endorsing for the first time by rule or regulation the practice for many years of the Mayor's and City of London Court.A claimant applying for a new tenancy under section 24 of the 1954 Act must use a modified version of the part 8 procedure.

The claim form has to be served within two months (and not four months as the rules elsewhere provide) and then within 14 days of service the defendant must either ask for a three month stay or file his acknowledgment of service.

Fourteen days after the stay has either expired or been lifted or after service of the acknowledgment of service, the claimant must file and serve his evidence and the defendant must file and serve his evidence in reply within 14 days thereafter.

After that the court will case manage the claim, which will trigger court control of the claim at a much earlier stage than has hitherto been the case.Of course there is much more detail in part 56 and its supplementing PD56 to which no doubt the experts have already turned.

In this era of user-friendly rules, it is interesting to consider what the man in the Clapham estate agents would make of expressions in PD56 such as 'the mesne landlord to whose consent a claim for the determination of any question under paragraph 4(3) of schedule 6 of the 1954 Act shall be made a defendant to the claim'.

It is to be hoped that if he read that far he would have seen the light and sought proper legal advice.At least, on the bright side, it is not intended to produce additional forms in respect of part 56.continued on page 44Probate claimsIf the intricacies of part 56 have not killed off the enthusiast, then try part 57 which completes the trio of new parts coming into effect on 15 October.

Space does not permit an analysis of it here, but it deals with probate claims generally, rectification of wills and the substitution and removal of personal representatives.So all the rest came into force on 31 May 2001?Not quite.

The law is a curious animal.

It would not be such fun if it were all simple and plain sailing.

Schedule 2 CCR Order 48B deals with the enforcement of parking penalties under the Road Traffic Act 1991.

As from 1 June 2001 it will also deal with the recovery of increased penalty charges for travelling in a bus lane and so has had a complete makeover to refer to 'the enforcement of traffic penalties'.

The Parking Enforcement Centre (PEC) becomes the Traffic Enforcement Centre (TEC), and so on.

Changing PEC to TEC is also the most significant reason for a rewrite of CCR Order 48B.

It is compulsory reading only when the client wishes the solicitor to apply to the TEC for an extension order for service of a statutory declaration outside the 21 day period allowed for doing so.Not to be outdone, CCR Order 48D, which deals with the enforcement of fixed penalties for vehicle emissions, receives a similar treatment, again with effect from 1 June.

But why 1 June and not 31 May? No doubt someone in the Lord Chancellor's Department knows the answer to that question.

Everything else comes into force on 31 May 2001Council Regulation (EC) No 1348/2000This regulation (otherwise known as 'the service regulation') covers service in all European Union states with the singular exception of Denmark.

It runs to 16 pages and with effect from 31 May 2001 is attached to PD6B dealing with service out of the jurisdiction.

It covers the service in the European Union of judicial and extrajudicial documents in civil or commercial matters, but only where the address of the person to be served is known.

The way it works is that the claimant files his claim form with the court together with a request for service of documents, which itself is to be found annexed to the service regulation.

Where necessary, the claim form and request must be translated into the language of the member state addressed.

The court will then seal and send all the documents to the Senior Master at the Royal Courts of Justice (see the new rule 6.26A) for him to arrange for service under the service regulation.What is not immediately clear under the new rule 6.26A and the service regulation is who has the responsibility for translating the court service response pack that is served on all defendants.

If the onus falls on the claimant then the cost will drive many smaller creditors away from the courts at a time when efforts are being made to make the enforcement of debts between member states easier than it has been to date.Big business strikes againA problem to date for the major players in the debt collection field is that while they appreciate the efficiencies of issuing out of the production centre at Northampton, they feel aggrieved when a defendant files a defence.

Under PD7C the centre will transfer any defended case to the defendant's home court.That will happen whether or not the defendant is an individual.

On the other hand, if a claimant sues anyone other than an individual at the claimant's local county court the automatic transfer provisions in rule 26.2 would not apply.

Is that putting some claimants off a fuller use of the production centre? If it is, the answer is that from 31 May the production centre, when a defence has been filed and the claimant says he wishes to continue with the case, will transfer the claim to the defendant's home court is he or she is an individual but in all other cases the centre will transfer the claim out to the claimant's, or his solicitor's, local court.Wake up at the backStatements of case, further information under part 18 and a witness statement are all required to be verified with a statement of truth.

Omit the statement of truth and the judge may not allow reliance on the document: make a false statement of truth and proceedings for contempt may follow.

For some, while the prescribed acknowledgement of service in part 8 claims has also required its contents to be verified by a statement of truth: belatedly, the rules have now caught up and rule 22.1(d) has been introduced accordingly.

Why is this necessary? The answer lies in the particular nature of part 8 where part 15 (the requirement to file a defence) does not apply.In public, but not in publicA questionable amendment to part 39 (Miscellaneous Provisions relating to Hearings) introduces a new rule 39.8.

It relates only to claims brought under section 57 (1) of the Race Relations Act 1986 and permits the court, where it considers it in the interests of national security, to exclude the claimant and his representatives from all or part of the proceedings.

Before the claimant goes dashing off to Europe, there are some safeguards built into the rule.

There's also a new practice direction, PD39C.

But is such a rule appropriate in these days of the Human Rights Act?All those practice directionsThere's a new PD33 making the relatively inconsequential statement that office copy entries from the Land Registry are admissible in evidence to the same extent as the originals.

There is also a trio of minor amendments to PD49G, dealing with arbitrations.

The practice direction dealing with insolvency proceedings will now contain a new paragraph 15.10.

Where the hearing of a bankruptcy petition was adjourned, and in order to comply with insolvency rule 6.29, the petitioner will be required at the adjourned hearing to file written evidence of the manner in which notice of the making of the order of adjournment and of the venue of the adjourned hearing was sent to the debtor and any creditor who gave notice under insolvency rule 6.23 but who was not present when the order for adjournment was made.However, much more importantly still is an amendment to PD39B which sets out the court sittings in June 2002 to mark Her Majesty's Golden Jubilee - there will be no Bank Holiday on 27 May 2002 but rather Bank Holidays on both 3 and 4 June instead.Hang on, who makes all these practice directions?A good question finally answered by a new preface to the practice directions.

The answers are:So don't blame anyone else, particularly the writer!And - unless you are particularly interested in a restraint order under the Terrorism Act 2000 (in which case have a look at the new schedule 1 to the Rules of the Supreme Court, Order 115, part III), the list of 29 county court forms made obsolete on 15 October or you cannot sleep without knowing the seven High Court forms suffering the same obsolescence in the autumn - that's about it, until the next update.District Judge Walker sits at Wandsworth County Court and is a contributor to Jordan's Civil Court Service