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Update: The Civil Procedure (Amendment) Rules 2017

1. Introduction

New rules have been introduced as a result of the Civil Procedure (Amendment) Rules 2017 which were made on the 3rd February 2017. Most of these will come into force on 6th April 2017.

2. Costs Budgeting

One aim of the changes is to clarify the comments made by the Court of Appeal in SARPD Oil International Ltd v Addax Energy SA and another [2016] EWCA Civ 120 regarding incurred costs. The Court of Appeal held that a case management conference was the forum in which to debate the quantum of costs, incurred or future, in any budget. The comments requiring clarity, essentially, were that disputes over incurred costs, and whether they are reasonable and proportionate, could be dealt with at the budgeting hearing and there would therefore be no further need for these costs to be assessed.
CPR 3.15 has been amended to make it clear that, in performing its costs management functions, the court has oversight of both the incurred and future costs and that the extent to which the parties disagree with one another’s budgets will be recorded. The rule is thought to be designed to prevent lengthy discussions over such costs with the judge being able to record his views on incurred costs without the need for an assessment of the same. The new CPR 3.15(4) provides for the court to be able to record on the face of any costs management order any comments it has about the incurred costs, which are to be considered at the detailed assessment stage. The rule therefore makes it clear that it is not appropriate to assess the costs at this stage and that this should be left to when the entirety of the costs are assessed. CPR 3.18 is amended in similar terms such that these comments are considered at that later stage. The rules set out to clarify the position and allow the court to make such comments. The court will record any agreement about “the budgeted costs” (with incurred costs not being budgeted costs), but it can also record the extent to which any incurred costs have been agreed. This clarifies the costs that are subject to any costs management orders the court may make in respect of budgets.
This puts things back to the pre-SARPD position with the judge being asked to record that the incurred costs were considered disproportionate.

3. Fixed Costs and the Multi Track

There are also changes within the new rules such that they now specifically provide that fixed costs no longer apply when an action is within the multi-track. This gives force to the Court of Appeal decision in Quader and others v Esure Services Limited [2016] EWCA Civ 1109. In Quader and others v Esure Services Limited [2016] EWCA Civ 1109, the Court of Appeal concluded that fixed costs were not applicable in relation to road traffic accidents initiated pursuant to the pre-action protocol for low value personal injury claims in road traffic accidents, which are then subsequently allocated to the multi-track. The following parts of the CPR have been amended:

  • CPR 45.29B;
  • CPR 45.29C;
  • CPR 45.29D; and
  • CPR 45.29E.

4. Sanctions for non-payment of trial fees for claim and counterclaim

CPR 3 has been amended to reflect a policy change in the collection and refund of trial fees. The new rules now contain detailed provisions for the procedure when a claimant or defendant fails to pay the trial fee. This is a key change that could result in the automatic striking out of a claim or counterclaim if the trial fee is not paid in time.
In relation to sanctions for non-payment of trial fees, two new rules are to be inserted in the CPR:

  • new rule CPR 3.7A1: non-payment of trial fees by a claimant; and
  • new rule CPR 3.7AA: non-payment of trial fees by a defendant where the proceedings continue on the counterclaim alone.

5. Aarhus Convention Claims

Aarhus Convention Claims are claims which relate to the environment including environmental impact assessment and habitat regulations claims. There are now detailed provisions for the parties to adopt when claiming, or denying, that the action is an Aarhus Convention claim. The provisions apply to such a claim commenced on or after 28 February 2017.
Section VII of CPR 45 is substituted with a new section for the purposes of giving effect to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) and ensuring such claims are not “prohibitively expensive”.
The new CPR 45.43 creates limits on costs recoverable in Aarhus Convention claims. Consequently, paragraphs 5.1 and 5.2 of CPR PD 45 will be deleted. New CPR 45.44 provides the power for a court to vary or remove these limits. The new CPR 45.45 provides for the defendant to challenge that the claimant’s claim is an Aarhus Convention claim and how to deal with the costs of those proceedings.

6. Judicial Review

CPR PD 54A supplements CPR 54 and contains provisions in relation to Judicial Review. Some minor amendments have been made to CPR PD 54A, reducing the burden of producing bundles on parties in judicial review proceedings. Unless the case is to be heard in the Divisional Court, the number of bundles to be filed by claimants will be reduced from two to one. For Divisional Court cases, the number of bundles required will be one per judge.

7. Admiralty Claims

‘Admiralty claims’ under the CPR mean a claim within the Admiralty jurisdiction of the High Court as set out in section 20 of the Supreme Court Act 1981. The procedure in relation to these claims is found in CPR 61. Amendments are made to CPR 61 and CPR PD 61 to reflect the increasing use of technology in ships, where a recording device akin to the “black box” recording equipment used in aeroplanes is used. The changes focus on providing a simpler and quicker trial process by promoting early exchange of electronic data made available by new technology.

8. Reference to the European Court

This refers to instances where the court intends to refer a question to the European Court. The procedure in relation to these claims is set out in CPR 68. Amendments are made to CPR 68, and CPR PD 68 has been substituted. These amendments have been made considering suggestions made by litigators involved in these types of case and by the court itself. The purpose of these changes is to make clear the precise nature of the wording of references to the European Court and the format in which they must be submitted.
The amendments apply in relation to requests to the European Court for a preliminary ruling that are made on or after 6 April 2017.

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