NOTES TO ACCOMPANY OCTOBER 2005 40thUPDATE

Introduction

The 40^th Update to the Civil
Procedure Rules introduces changes in a large number of areas.

Rule 3.1 is amended to give the court an
explicit power to order a party to file and serve an estimate of costs. In
addition, a new Section 6 is added to the Costs Practice
Direction 43-48.

Rules 3.3(7), 23.12 and Practice
Direction 3C have been amended to make clear that when the court
dismisses as totally without merit an application for permission to appeal or
to seek judicial review, it should at the same time consider whether it is
appropriate to make a civil restraint order.

Rules 3.7 and 3.7B have been
amended to extend and clarify the sanction for non-payment of fees.

Rules 3.7A, 27.2, 27.9, 27.14, 28.5 and
29.6 have been created/amended. A large number of amendments to
the small claims process, the effects include;

• creation of a rule to deal with non-payment
  of fees in counterclaims;
• relaxing of the disapplication of Part 18
  in Part 27 (to allow the court to order a party to provide further information
  to enable the other party to understand the nature of the case);
• addition of a requirement for a party to
  give notice to the other party, as well as to the court, 7 days in advance of
  the fact that he would not be attending a hearing, and to serve on the other
  party any documents filed at the court;
• provision that the rejection of an offer to
  settle does not of itself necessarily constitute unreasonable behaviour, but it
  could be taken into consideration when applying the unreasonableness
  test;
• removal of the signpost to rule 36.2(5),
  which allows the court to order Part 36 costs consequences in a claim
  proceeding on the small claims track;
• amendment of Rule 27.14(3) to allow a party
  or witness who attends a hearing to be compensated for a day’s loss of leave in
  the same way as a day’s loss of earnings;
• provision that parties should be allowed to
  opt in to the small claims track costs provisions when a claim has been
  allocated to that track by consent. In addition, small claims costs should
  apply unless the parties agreed that fast track costs would apply instead. In
  cases which would have been allocated to the fast track, the costs will be
  capped at the fast track limit.
• sanctions for the non-return of allocation
  questionnaires under Part 26 are also to apply to the non-return of a pre-trial
  checklist, so, where no pre-trial checklist is filed, the court would make an
  order that unless the questionnaires are filed within 7 days, the claim/defence
  would be struck out, but if one party files a pre-trial checklist, the file is
  submitted to the judge to give directions.

Practice Direction 27, Practice Direction
28 and Practice Direction 29 have been subsequently
amended.

Rule 5.4 is amended to allow a party to
proceedings to obtain a copy of a number of additional documents without
requiring the permission of the court under rule 5.4(4). As the list has been
extended considerably, it has been moved to Practice Direction 5,
paragraph 4.2A.

Rules 6.5, 6.13, 9.2, 12.4, Practice Direction
7, Practice Direction 12, Practice Direction 16 and Practice
Direction 23 have been amended to improve the quality of personal
information provided to the courts by parties about themselves and about each
other.

Rules 6.7 and 6.11 has been
amended to further clarify service provisions in the light of recent
judgments.

Rule 6.20, RSC Order 77, Practice Direction 7.9
(Claims for the recovery of taxes), Costs Practice Direction 43–48, Practice
Direction 52 and Practice Direction 56 have been amended to
take into account the creation of Her Majesty’s Revenue and Customs.

Rule 10.3 has been amended to require the
court to specify the period within which the defendant may file an
acknowledgment of service when it makes an order giving permission to serve a
claim form out of the jurisdiction, and refers the Court to the Second Practice
Direction to Part 6, for the purpose of calculating such period.

Rule 11(7) has been amended to require
the court to give directions as to the time available for filing a defence when
an attempt to dispute the jurisdiction of the court has been
unsuccessful.

Rules 12.10, 12.11, Practice Direction 5,
Practice Direction 12 and Practice Direction 52 have been
amended to take account of the Civil Partnerships Act 2004 and subsequent
amendments to the Enrolment of Deeds regulations.

Rules 21.11, 48.5, Practice Direction 21
and Costs Practice Direction 43–48 have been amended to allow a
litigation friend to recover expenses out of a child’s or patient’s fund.

Rule 26.4 has been amended to extend the
period of time for which the court may stay proceedings to enable the parties
to engage in alternative dispute resolution (ADR).

Rule 30.8 has been amended to allow
commercial claims which contain a competition element to be tried in the
Commercial Court, as well as in the Chancery Division. The amendment is
supported by consequential amendment to Practice Direction 30 and
the Practice Direction on Competition Law.

Rule 32.20 has been amended to give
probative force to notarial acts.

Rules 40.3 and 60.7 have
been amended to alter the default position concerning drawing orders in the
Queen’s Bench Division at the Royal Courts of Justice, to confirm that the
practice there is that parties draw up the orders unless the court orders
otherwise.

Rule 44.13 has been amended to regularise
the position regarding costs in instances where it is common practice for an
order to be silent on the subject of costs, i.e. when an order grants
permission to appeal or apply for judicial review.

A new Section V is inserted in rule 45
and rule 45.20 is amended to make provision for fixed percentage
increases to apply to a legal representatives’ fees in respect of success fees,
where the claimant has entered into a conditional fee agreement or collective
conditional fee agreement which provides for a success fee in personal injury
claims against an employer relating to a disease. This is accompanied by a new
section 25B in the Costs Practice Direction 43–48.

Rule 55.10 has been amended to make
provision for a new Practice Direction 55B, which establishes a
scheme for possession claims (based on arrears of rent or mortgage payments) to
be made online.

Rules 63.1 and 63.4A have
been amended to make provision to secure that so far as it is practicable and
appropriate the patents judge should hear proceedings that fall within the
specialist jurisdiction of the patents county court; and to ensure that in his
absence, the matter is dealt with by a judge with appropriate specialist
experience.

Part 65 has been amended to accommodate
the new section 121A of the Housing Act 1985, which allows a landlord under a
secure tenancy to apply for an order suspending the right to buy. This is
supported by amendments to Practice Direction 65.

A new Part 66 and Practice
Direction 66 have been created to deal with Crown Proceedings, and
rules 6.1, 6.4, 6.5, 12.4, 12.10, 16.2, 19.4, 19.7B, 24.4, 30.3
and Practice Direction 24 have been amended as a consequence. The
result of these amendments is that the Crown will lose a number of its
traditional privileges in civil litigation, including the right to dictate
venue. It will also now be subject to summary and default judgments.

Rule 74.1 has been amended and a
new Section V to Part 74 has been created to make provision for
the certification of English judgments as European Enforcement Orders and for
the enforcement of European Enforcement Orders certified in other member states
in England and Wales, pursuant to Council Regulation (EC) No 805/2004 creating
a European Enforcement Order for uncontested claims. This is supported by a new
Practice Direction 74B.

CCR Order 49 has been amended to take
into account changes to the Disability Discrimination Act 1995.

Practice Direction 3, paragraph 1.9 is
amended to clarify the status of orders which state that a claim ‘shall be
struck out or dismissed’ or ‘will be struck out or dismissed’.

Practice Direction 5 is amended to make
provision for a register of claims to be kept at the Admiralty and Commercial
Court Registry.

Practice Direction 5B has been amended to
enable the PREMA scheme and a similar arrangement at the Civil Appeals Office.
A further amendment has been made to clarify the position surrounding documents
which are required to be filed at court are sent to the judge via email.

Practice Direction 6B has been amended to
take into account service requirements of Commonwealth countries, and also to
add further acts to the list at Practice Direction 6B.5.2(11).

Practice Direction 7C has been amended to
make provision for claims issued at the bulk centre to be transferred to the
defendant’s home court for oral examination or enforcement.

The Annex to Practice Direction 19 (list
of addresses for service on government departments) is transferred to the new
Practice Direction to Part 66.

Practice Direction 23B has been amended
to extend the period of the telephone hearings pilot.

Practice Direction 25 has been
extensively revised.

Practice Direction 26 has been amended to
set out sanctions for use in situations where allocation questionnaires are not
filed.

Practice Direction 29 is amended to
encourage the court to give directions requiring parties to consider
ADR.

Practice Direction 31 is amended to
include information on disclosure of electronic documents.

The title of Practice Direction 32 is
changed to ‘Evidence’. The Practice Direction has also been subject to
minor amendment to give directions about sites for video conferencing.

Practice Direction 35 is amended to give
effect to the new Experts Protocol now annexed to the Practice
Direction.

A fifth Practice Direction, Practice Direction
40E is added, dealing with embargoed judgments in the Court of Appeal
(Civil Division).

The Costs Practice Direction 43–48 is
amended consequential upon the amendment to the Community Legal Service (costs)
Regulations 2000.

Practice Direction 47 (Detailed Assessment
Pilot) has been revoked, and new material 23.2A has been added to the
Costs Practice Direction 43-48 to permanently establish the piloted provisions.

Practice Direction 52 is amended to allow
a Presiding Judge to release to a Designated Civil Judge an appeal from a
Recorder’s decision in the county court.

Practice Direction 60 has been amended to
clarify certain aspects of proceedings in the Technology and Construction
Court.

Practice Direction 62 has been amended to
clarify the appeal procedure in the case of an appeal from a
judge-arbitrator.

Disqualification of Directors Practice
Direction has been amended extensively to reflect amendments to the
Company Directors Disqualification Act made by the Enterprise Act 2002.

The Protocols Practice Direction has been
amended to encourage ADR where possible.

Coming into Force

All of the amendments included in this update come
into force on 1^st October 2005, with the following
exceptions.

Amendments concerning implementation of European
Enforcement Orders (Part 74) come into force on 21^st
October 2005.

Amendments to rules 6.5(2), 6.13, 9.2 and 12.4(2) come
into force on 6^th April 2006.

Amendments to Practice Direction 35 concerning the
Expert’s Protocol come into force on 5^th September.

Amendments to Practice Direction 7C come into force on
19^th September 2005.

Amendments to Practice Direction 74B concerning
European Enforcement Orders come into force on 21^st
October 2005.

Amendments to Practice Direction 7 (cross-reference to
Practice Direction 16), Practice Direction 12 (paragraph 3), Practice Direction
16 (paragraphs 2 and 10) and Practice Direction 23 (all amendments referring to
data quality) come into force on 6^th April 2006.

A full list of the changes is set out
below:

Rules

Part 3

Rule 3.1, new text (ll) inserted after sub-paragraph (l).

Rule 3.3(7), new text inserted.

Rule 3.7, new text substituted for (4)(i) and (6)(a).

Rules 3.7A and 3.7B added.

Part 5

Rule 5.4(3) new text substituted, new text added to (5)(a)(i).

Part 6

THIS LINK HAS BEEN ARCHIVED. PLEASE CHECK THIS LINK Rule 6.1, cross-reference replaced.

THIS LINK HAS BEEN ARCHIVED. PLEASE CHECK THIS LINK Rule 6.4(1), reference to paragraph (2) altered, new text THIS LINK HAS BEEN ARCHIVED. PLEASE CHECK THIS LINK(2A) inserted.

Rule 6.5, new text inserted in THIS LINK HAS BEEN ARCHIVED. PLEASE CHECK THIS LINK(2), new text THIS LINK HAS BEEN ARCHIVED. PLEASE CHECK THIS LINK(8) inserted after (7).

THIS LINK HAS BEEN ARCHIVED. PLEASE CHECK THIS LINK Rule 6.7(1), text omitted.

THIS LINK HAS BEEN ARCHIVED. PLEASE CHECK THIS LINK Rule 6.11, new text substituted.

THIS LINK HAS BEEN ARCHIVED. PLEASE CHECK THIS LINK Rule 6.11A, new text added.

THIS LINK HAS BEEN ARCHIVED. PLEASE CHECK THIS LINK Rule 6.13, new text inserted.

THIS LINK HAS BEEN ARCHIVED. PLEASE CHECK THIS LINK Rule 6.20, new text substituted.

Part 10

Rule 10.3(2), new text (c) added.

Part 11

Rule 11(7), new text (c) added.

Part 12

Rule 12.4, new text inserted after (2), new text (4) inserted.

Rule 12.10(a), replaced.

Rule 12.11(3), new text inserted.

Part 16

Rule 16.2, new text (1A) added.

Part 19

Rule 19.4, new text(4A) added.

Rule 19.7, new text 19.7B added.

Part 21

Rule 21.11, new text 21.11A added.

Part 23

Rule 23.12, new text inserted.

Part 24

Rule 24.4, new text (1A) inserted.

Part 26

Rule 26.4(2), new text inserted.

Part 27

Rule 27.2, new text inserted.

Rule 27.9, new text substituted for (1).

Rule 27.14, new text (2A) inserted.

Part 28

Rule 28.5, new text substituted for (3), (4) added.

Part 29

Rule 29.6, new text substituted for (3), (4) added.

Part 30

Rule 30.3, new text (h) added.

Rule 30.8, new text inserted in (1), new text (4) added.

Part 32

Rule 32.20, new text added.

Part 40

Rule 40.3, new text substituted in (1), new text (4) added.

Part 44

Rule 44.13(1)(a) amended, new text (1A) inserted.

Part 45

Rule 45.20(2), new text (iv) added.

New Section V added.

Part 48

Rule 48.5(2)(a) amended, (4)(b) amended.

Part 55

Rule 55.1, new text (h) added.

Rule 55.2, cross reference substituted.

Rule 55.10A, new section inserted.

Part 60

Rule 60.7, new section added.

Part 63

Rule 63.1, new text THIS LINK HAS BEEN ARCHIVED. PLEASE CHECK THIS LINK(gg) added.

THIS LINK HAS BEEN ARCHIVED. PLEASE CHECK THIS LINK Rule 63.4A, new text added.

Part 65

Heading to Section III altered.

Rules 65.11, 65.12, 65.13, 65.14 amended.

Rules 65.17, 65.18, 65.19 amended.

Part 66

New part 66 created.

Part 74

Rule 74.1, new text (4A)inserted, (5)(e) new text inserted, new signpost added.

New Section V added.

Part 76

New part 76 created.

Schedules

Schedule 1

RSC 0.77

Revoked

Schedule 2

CCR O.42

Revoked.

CCR O.49

Rule 15, revoked.

Rule 17(6), amended.

Practice Directions

Practice Direction 3

New text 1.9 inserted.

Practice Direction 3C

New text substituted for 4.1.

Practice Direction 4

New text 4.1(3) added, 4.2A added, 6.3 amended at (1) and (3).

Practice Direction 5B

New text substituted for 3.2.

New text substituted for 3.3.

Paragraph 8.9 added.

THIS LINK HAS BEEN ARCHIVED. PLEASE CHECK THIS LINK Practice Direction 6

Paragraph 8.2 omitted.

THIS LINK HAS BEEN ARCHIVED. PLEASE CHECK THIS LINK Practice Direction 6B

New text substituted for 3.1.

New text added after 5.2(11).

Practice Direction 7

Cross-reference added after 4.1.

THIS LINK HAS BEEN ARCHIVED. PLEASE CHECK THIS LINK Practice Direction 7C

New text substituted for (f).

Practice Direction 7D

Paragraph 1.1 amended.

Paragraph 3.1 amended

Practice Direction 12

Paragraph 2.3 amended.

New text 3.2 added.

Practice Direction 16

New text added after 2.3.

New text added after 10.5.

Paragraph 14 amended.

Practice Direction 19

Cross reference following 6.4(1) amended.

Annex transferred to Practice Direction 66.

Practice Direction 21

New text 8A inserted.

Practice Direction 23

Paragraph 2.1(4) amended.

THIS LINK HAS BEEN ARCHIVED. PLEASE CHECK THIS LINK Practice Direction 23B

Dates amended.

Practice Direction 24

New text 2(6) inserted.

Practice Direction 25

Paragraph 7 amended.

New text 8.1 and 8.2 added.

New text 9.1 and 9.2 added.

Example form orders amended.

Practice Direction 26

New text substituted for 2.5(1).

Paragraph 2.5(2) amended.

Practice Direction 27

New text substituted for 2.2.

Appendix replaced with new appendices.

Paragraph 7.3(1) amended.

Paragraph 8A inserted.

Practice Direction 28

Paragraph 6 amended.

Practice Direction 29

New text 4.10(9) added.

Paragraph 8 amended.

Practice Direction 30

Paragraph 8 amended.

Practice Direction 31

New text 2A and annex inserted.

Practice Direction 32

Renamed.

Reference inserted after 29.1.

THIS LINK HAS BEEN ARCHIVED. PLEASE CHECK THIS LINK Practice Direction 35

Introduction amended.

THIS LINK HAS BEEN ARCHIVED. PLEASE CHECK THIS LINK Practice Direction 40E

New Practice Direction inserted.

Practice Direction 43–48

Sections 5, 5.2, 5.3, 5.5 and 5.6 amended.

New section 6 inserted.

Paragraph 11.8(2) omitted.

Paragraph 21.15(2) replaced.

Paragraph 21.18 amended.

Section 22, 22.2, 22.3, 22.4, 22.9 amended.

New text inserted after 23.1(3).

New section 23.2A inserted.

Paragraph 23.4 replaced.

Paragraph 23.8 amended.

New text 23.18 added.

New section 25B added.

Practice Direction 47 Supplement

Omitted.

Practice Direction 52

New text 5.8(1A) added.

Paragraph 8.13(1) replaced.

Table following 20.3 amended.

Paragraphs 21.1, 21.5, 22.4, 23 amended.

Practice Direction 55

Paragraph 2.3(2) replaced.

New text 2.3A added.

Paragraph 2.5(3)(a) replaced.

Practice Direction 55B

New Practice Direction inserted.

Practice Direction 56

Paragraph 4.2 amended.

Practice Direction 60

Paragraphs 9.1, 9.2, 9.3, 9.4 amended.

Appendix B replaced.

Appendix D omitted.

Practice Direction 62

New text 2.3A added.

Practice Direction 65

Paragraph 5 amended.

New text 5A inserted.

Paragraph 6 amended.

Paragraph 7 amended.

New text 7.2 added.

Paragraph 9.2 amended.

Practice Direction 66

New Practice Direction created.

Practice Direction 74B

New Practice Direction inserted.

Other Practice Directions

Competition Law

Paragraphs 2.1, 2.2, 2.3 inserted.

Directors Disqualification

Paragraphs 1.1, 1.3, 4.1, 4.2, 5.1, 6.1, 7.2, 7.3, 8.2, 8.3, 9.2, 10.5, 11.5, 17.1, 18.1, 19.2, 20.1, 20.2, 23, 26.2, 28.1, 30.1, 30.5, 30.6, 30.7, 31.1, 31.2, 32.1, 33.9, 33.10, 34.6 amended.

THIS LINK HAS BEEN ARCHIVED. PLEASE CHECK THIS LINK Protocols Practice Direction

New text inserted in 4.7.

Forms

A new form N164 (Small Claims Appellant’s Notice) has
been created for use in small claims appeals. Its use is supported by
amendments to PD27.

All of the forms annexed to the Disqualification of
Directors Practice Direction have been amended, and now have the numbers N500,
N500A, N500B, N501, N501A, N501B, N502, N503 and N504.

N265 (List of Documents) has been amended in line with
the electronic disclosure amendments.