Civil Procedure Update

Published 30 mayo 2018

We set out in this article some of the more recent and important changes to the CPR which are affecting litigators on a daily basis:-

1. Have you got the time? Extensions of time for compliance with court orders
   
   We are seeing a growing trend whereby courts are approving orders that allow parties to extend time for compliance both prospectively and retrospectively (provided hearing dates are not impacted).
   
   Such orders will cut down the need for applications to court for extensions and for relief from sanctions for minor breaches.
   
   Professor Dominic Regan, one of the UK's foremost speakers on costs and dispute resolution, has produced the following precedent that can be adopted when submitting draft orders to the courts:
   
   “By written agreement referred to in this paragraph of this Order and submitted to this Court, the parties may (prospectively or retrospectively) extend time for compliance with this order by up to 28 days without the need to apply to the Court, provided that such extension does not jeopardise any hearing date. Beyond that 28 day period, any agreed extension of time must be submitted to the Court to include a brief explanation of the reasons, confirmation that it will not prejudice any hearing date and with a draft Consent Order. The Court will then consider whether a formal Application and Hearing is necessary.”
   
   The above precedent comes with a health warning in that it is not guaranteed to be agreed. It is, of course, not a substitute for ensuring that you routinely comply with time limits. Retrospective requests for an extension of time should only be sought in exceptional circumstances.
   
   
2. Service of court documents - Litigants in Person BEWARE!
   
   On 21 February 2018, the Supreme Court handed down its judgment in Barton v Wright Hassall LLP, The Claimant litigant in person served his issued Claim Form by e-mail, at the end of the 4-month life of the Claim Form, without first checking whether the Defendant's solicitors were willing to accept service of proceedings or documents by e-mail.
   
   The Court deemed that service of the Claim Form was defective, a decision that was fatal to his claim in that his claim was therefore time-barred.
   
   CPR PD 6A paragraph 4.1 advises that service of a document by e-mail requires the party serving to have received prior indication of an agreement to accept service by this means. This can include an indication on the letterhead of a firm of solicitors that they accept service by e-mail, or the inclusion of the e-mail address on statements of case or documents filed at Court responding to a statement of case.
   
   See Barton V Wright Hassall LLP (2018) http://www.bailii.org/uk/cases/UKSC/2018/12.html
   
   
3. Electronic Bills Of Costs Are here
   
   For work done from 6 April 2018, on the majority of Part 7 multi-track claims, a party will need to present their bill of costs in an electronic format. See paragraph 5.1 of PD 47.
   
   It will apply to Part 7 multi-track claims, except those subject to fixed or scale costs, cases in which the receiving party is unrepresented, or where the court has ordered otherwise.
   
   Where costs have been incurred both before and after 6 April 2018, a bill of costs can be in either electronic or paper format.
   
   A non-compulsory model electronic bill in the form of Precedent S is provided on the justice.gov.uk website, part-way down this page: http://www.justice.gov.uk/courts/procedure-rules/civil.
   
   Whenever electronic bills are served or filed at court a hard copy will also need to be provided.
   
   
4. Disclosure reform - Business and Property Court Disclosure Pilot Scheme
   
   Since May 2016 The Disclosure Working Group (DWG) has been examining the current disclosure process following concerns over its excessive cost, scale and complexity.
   
   The key proposal for reform is to create two tiers of disclosure; Basic and Extended. Basic disclosure would require a party to provide key documents necessary to understand its case with their particulars of claim or defence. This can be dispensed with by agreement and would not apply if there were more than 500 pages. This would therefore likely rule out major commercial cases.
   
   The court would then make an order for ‘extended disclosure’ at the case management conference by reference to five extended disclosure models; No order for disclosure, limited disclosure, request-led search-based disclosure, narrow search-based disclosure and wide search-based disclosure.
   
   The Law Society has said the scheme should only apply to cases valued at more than £500,000. It further commented: "We have expressed some concern that perceived issues relating to disclosure may exist only in high value commercial litigation. With that in mind we have suggested that the DWG may wish to consider whether there are existing powers the court could exercise in relation to disclosure."
   
   A mandatory two-year pilot scheme is likely to be rolled out across the Business and Property Courts in the Rolls Building in London and in Bristol, Cardiff, Birmingham, Manchester, Leeds, Newcastle and Liverpool, in or around October 2018.
   
   
5. Amendment to the Pre-Action Protocol for Professional Negligence
   
   The MOJ has announced an amendment to the Pre-Action Protocol for Professional Negligence which came into force on 30 April 2018.
   
   This follows a pilot to establish a scheme of adjudication for professional negligence claims. The change indicates the additional information in respect of adjudication which should now be included in a Letter of Claim sent under the protocol.
   
   The amendment to paragraph 6.2, after sub-paragraph (h), says:
   
   “(i) An indication of whether the claimant wishes to refer the dispute to adjudication. If they do, they should propose three adjudicators or seek a nomination from the nominating body. If they do not wish to refer the dispute to adjudication, they should give reasons.”