Earlier this month, the CPRC circulated the minutes and associated papers of its 3 March and 7 April meetings. As usual, the minutes provide key insights into decision-making regarding the CPR and the courts that has either already been implemented or we may expect to see in the future.
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In this feature, we summarise the key areas of focus for the CPRC in its two recent meetings (links in red are where subscribers can click through to more information – take a free trial to access):
A fixed costs pilot scheme is being proposed for cases up to £250,000. According to the April minutes, a draft of the pilot scheme will be put to the CPRC for the June meeting. The March minutes also provide some further details, namely that the pilot will take place in the Mercantile courts in London and Manchester, which Lord Justice Jackson discussed in his webinar for LexisNexis. For further information, see Practice Note: Fixed costs—reforms.
Bill of Costs
Birss J confirmed the timing set out in CPR PD 51L that the CPRC would discuss the New Bill of Costs at the May 2017 meeting.
On-line court pilot
The April minutes confirm that the on-line court pilot is on track for launch at the end of July 2017. Draft rules are currently being developed, alongside the technology. The main aim of the pilot is to test the software. The types of cases allowed to enter the pilot will be limited to specified claims under £10,000. Briggs LJ added that while the pilot will be within the CPR, the on-line court rules will ultimately not be included within the CPR. The rules are being drafted in a user-friendly way that is different from the CPR, with simpler language aimed at the litigant in person.
Appeals: rolled-up hearings
At the April meeting, HHJ McKenna asked if the CPRC would consider an amendment to CPR 52.4(1), which, as currently drawn, excludes the possibility of a rolled-up hearing of the application for permission to appeal and the substantive appeal hearing, which causes a problem in particular for applications for permission to appeal following refusal of an application to suspend a warrant of possession where the eviction was imminent. The CPRC agreed that an amendment would be appropriate where it serves court users on both sides to have a rolled-up hearing. A paper setting out the amendments will be put to the CPRC in June. For more information, see Practice Note: Permission to appeal—the application.
Appeals: threshold test for permission to appeal
At the March meeting, the CPRC referenced previous discussions regarding proposed changes to the threshold test for permission to appeal to the Court of Appeal (see News Analysis: CPRC—latest developments on threshold test for permission to appeal to Court of Appeal). Following the recorded inaccuracy of data obtained for the purposes of assessing the changes, the CPRC concluded at its March meeting that in light of further data collected on appeals to the Upper Tribunal and the Court of Appeal, no further action should be taken and the decision at the February meeting be rescinded. For now at least, this issue and the proposed consultation are ‘off the table’.
Appeals: routes of appeal
With effect from 3 October 2016, the destination of or routes to appeal are governed by the Access to Justice Act 1999 (Destination of Appeals) Order 2016, SI 2016/917 (the Destination of Appeals Order 2016). CPR PD 52A and CPR PD 52B were amended to incorporate changes brought about by the implementation of this SI. CPR PD 52A and CPR PD 52B will be further revised following approval of amended versions in the March meeting. These amendments will remove the designation ‘HC’ from the table within CPR PD 52A (this was introduced in 2016 and caused confusion thereafter), provide further clarity in relation to definitions of terms used in the Practice Directions, separate out appeals from Masters, Registrars and district judges, provide greater clarity on the routes of appeal from the county court, provide a simple method of transferring appeals within appeal centres and amend the details of appeal centres for each circuit. These amendments were initially raised at the CPRC meeting of February 2017 (see Practice Note: Minutes of the CPR Committee meeting of 3 February 2017).
Following discussions at, for example, the February 2017 meeting (see Practice Note: Concurrent expert evidence), the April minutes record that the CPRC agreed in principle that hot-tubbing or concurrent expert evidence should be promoted where possible and appropriate. The subcommittee dealing with this issue has been tasked with considering rule amendments.
The April minutes record that, further to a redraft, CPR 12 and 13 have been reduced in length and the Practice Directions removed. Further work will be conducted by the subcommittee with the Ministry of Justice before any changes are implemented.
Advance warning was given in the April minutes regarding the implementation of recommendations 38, 44 and 45 of Briggs LJ’s Civil Courts Structure Review: Final Report (ie short term non-issuing District Registry status for County Court at Central London, removal of remaining financial limits on County Court jurisdiction, and value thresholds for the High Court). The value threshold changes will require public consultation and the matter is expected to return to the CPRC later in 2017.
CPR 39 (Miscellaneous provisions)
The April minutes record that CPR 39 has been earmarked for reform. CPR PD 39A was noted as being particularly out of date and inconsistent with the principles of open justice. A paper on this is due to be presented at the May 2017 meeting.
Electronic Working Pilot
The April minutes record the CPRC’s concern that the proposal to make the Electronic Working Pilot a permanent part of the CPR does not allow for a postal alternative. The provision of terminals at the Rolls Building or assistance from court staff was not considered to be sufficient, although the CPRC acknowledged that only a very small number of litigants in person use the Rolls Building. The minutes note the CPRC’s view that e-filing should continue to be compulsory for professional users but discretionary for litigants in person. The CPRC agreed that other proposed amendments, such as the size of documents filed, could be included in the revised pilot document. It was proposed that the pilot should be remain a pilot but be extended and a re-draft provided to the Ministry of Justice lawyers for consideration.
Writs and warrants and enforcement of suspended orders
There is still no launch date for the consultation on the procedure for issue of a writ or warrant to enforce an order which has been suspended, although the CPRC confirmed that the consultation was signed off, subject to amendment regarding some further questions. The consultation paper annexed with the April CPRC minutes includes reference to the decision in Cardiff v Lee (Flowers) (which highlighted the procedural difficulty which the consultation seeks to address, as noted in the Practice Note: Enforcing a judgment or order for possession of land and News Analysis: When do you need to seek permission to issue a warrant of possession? (Cardiff v Lee (Flowers))). The consultation will likely focus on whether additional safeguards before writs and warrants can be issued in cases of suspended orders should apply to all types of case, including, eg, orders for delivery up or repayment of monies, or be limited to possession orders where the issue was first seen to arise in Lee (Flowers).
The minutes and papers can be found in the following Practice Notes: Minutes of the CPR Committee meeting of 3 March 2017 and Minutes of the CPR Committee meeting of 7 April 2017.