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Civil Procedure (Amendment No. 3) Rules 2020 & the 122nd Practice Direction Update

|Practice Direction|News

The Statutory Instrument is being published via the Legislation website at: http://www.legislation.gov.uk. The on-line rules/web site will also be updated accordingly.

 Civil Procedure (Amendment No. 3) Rules 2020 (coming into force on different dates for different provisions, mostly on 1 October 2020, but with some provisions coming into force on 23 August 2020, & some immediately after the amendments made to Part 34 by the Civil Procedure Rules 1998 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/521) (which will be 31 December 2020).

 The SI contains rule changes in respect of:

  • Cost Budgeting and Variations: rationalises the current structure of the rules on variations to cost budgets. The changes have reduced the existing structure which involved three sources of rules (CPR Rules, a PD and a lengthy Guidance Note) into two documents, a set of rules and a PD which is intended only to include practice guidance.
  • Welsh Judicial Reviews: makes provision for any claim against Welsh public bodies which challenges the lawfulness of their decisions to be issued and heard in Wales. This follows the recommendation in the 2019 report of the Commission for Justice in Wales. There is also an amendment to PD 54D to supplement the amendments made to the rule (7.1A).Requests for Evidence following Brexit: provides for a revised procedure for taking of evidence for use in foreign proceedings following the end of the EU exit transition period, after which the EU Taking of Evidence Regulation will no longer operate as between the UK and the EU member States, and requests will proceed under the relevant Hague Convention.
  • Contempt of Court reforms: the new Part 81 reforms procedural rules on contempt of court for all types of contempt in the CPR. Following a public consultation, extensive revisions have been undertaken to condense the previous rules and to set out a uniform procedure.  The new Part 81 reduces the number of rules from 38 to 10 and dispenses with two PDs (one from the Lord Chief Justice) and a Practice Guidance (PG) document (from the Lord Chief Justice).  Please keep abreast via the Family Procedure Rules web pages of the parallel changes anticipated to be made to the FPR.
  • Tainted Acquittals: provides for time limits for an application to the High Court under section 54(3) of the Criminal Procedure and Investigations Act 1996 (Acquittals tainted by intimidation, etc.). This follows a request from the Criminal Procedure Rules Committee arising from Director of Public Prosecutions v Goldsmith [2019] EWHC 3051 (Admin). This amendment provides for an application for an order quashing an acquittal under this section to be made within 28 days.
  • False Statements: introduces a contempt provision in relation to a person who makes a false statement in a document, before (i.e. during the pre-action protocol stage) or during proceedings.
  • Legal Adviser Unless Order provisions: this provides for an additional delegated power to legal advisors to order a party, in certain Final Charging Order proceedings, to file specific material with the court.
  • Possession provisions: aligns procedures for enforcement of possession of the High Court and the county court. Specifically, to provide for a notice period to be given by the enforcement officer/bailiff to a tenant/occupier before eviction in private and social housing as well as commercial property/land. It also provides for the removal of the issue of a writ requiring judicial permission. This follows a public consultation in May 2019, but also supports the provisions contained in the Civil Procedure (Amendment No. 4) (Coronavirus) Rules 2020 & the 123rd Practice Direction Update, concerning possession proceedings. Because of this, these changes are due to come into effect on 23 August 2020.
  • Other amendments: makes amendments to tables on Fixed Costs and sign posts the amendments in relation to PD52C on Appeals from the Admiralty Court to the Court of Appeal.

 122nd Practice Direction Update (coming into force variously from 27 July 2020, 23 August 2020 & 01 October 2020)

 The Master of the Rolls and the Lord Chancellor have signed the PD Update.

A copy of the PD Update is viewable online.

The PD Update concerns:

  • Cost Budgeting and Variations: the new PD 3E which is substituted, makes changes in relation to: documents to be lodged for costs budgeting purposes; what reports should set out and what the court will consider when reviewing budgeted costs. A new form, Precedent T, is being introduced.
  • Statements of Truth: changes are made to a number of PDs to provide consistency with changes made in the 113th Update to PD22 on this matter. Various consequential changes to prescribed court forms are also being made. They should be released in October. Existing forms can continue to be used in the interim.
  • Evidence: gives effect to a recommendation of the Civil Procedure Rule Committee’s Lacuna Sub-Committee, agreed with the Family Procedure Rule Committee, to make it clear that the provisions of PD27A supplementing the Family Procedure Rules will govern what happens in relation to the trial bundle, when the trial is in the Family Division.
  • Requests for Evidence following Brexit: the amendments to PD34 provide for a new procedure for the making of requests for the taking of evidence, primarily under the relevant Hague Convention, when the EU Taking of Evidence Regulation ceases to have effect at the end of the Transition Period following the UK’s withdrawal from the EU.
  • Financial Markets Test Case Pilot Scheme ends the pilot following the move into the rules as a mainstream PD.
  • Disclosure Pilot for the Business and Property Courts – is extended for a further year.
  • Video Hearings Pilot Scheme is extended for a further four months to 31 March 2021.
  • PD51R (Online Civil Money Claims Pilot) is amended to reflect an operational relocation, to allow bulk scanning and to reduce the time for applying for a judicial reconsideration of a decision made by a legal adviser.
  • PD51S (County Court Online Pilot) is amended to update formally the website link, which is https://www.moneyclaim-legal.platform.hmcts.net/., to clarify that claimants using the pilot cannot apply for fee remission before filing their claim and to make changes to statement of truth provisions to bring them into line with other statement of truth provisions in the CPR.
  • Appeals to the Court of Appeal: this provision amends PD52C, replacing PD (CA: Admiralty Appeals: Assessors), [1965] 1 W.L.R. 853 (1965).  The amendment clarifies that, in an appeal from a decision of the Admiralty Court, where the court was assisted by nautical assessors, the Court of Appeal will be assisted by two assessors (one each from Trinity House and the Company of Master Mariners), unless the Court of Appeal otherwise directs.
  • Welsh Judicial Reviews: consequential changes to PD54D to supplement the amendments made to the new rule 7.1A, explained above.
  • Birmingham Commonwealth Games: in consequence of the Birmingham Commonwealth Games Act 2020, PD63 is amended to make provision concerning intellectual property rights in relation to the Birmingham Commonwealth Games.
  • Contempt of Court: as a consequence of the reforms set out above to CPR Part 81, PD81 is revoked and PD4 is updated to remove disused court forms and insert references to the new court forms to be used in relation to contempt. Further consequential amendments are also made to: PDs 22, 31A, 32, 40B, 51R, 51S and Practice Direction: Committal for contempt of court – open court, made by the Lord Chief Justice on 26 March 2015. Additionally, an amendment to the Pre-Action Conduct and Protocols PD makes it clear that contempt sanctions may apply in relation to a false statement made before the commencement of proceedings where the statement is made in a pre-action protocol letter or other document prepared in anticipation of proceedings.  This mirrors an amendment to Rule 32.14 made because of the Jet 2 Holidays Ltd v Hughes [2019] EWCA Civ 1858
  • Terminology: PD7E is amended to update terminology.

Forms – The following forms have been either created or modified as part of this update:

  •  Updated Statement of Truth: various changes to prescribed court forms are being made in consequence of the amended Statement of Truth. The revised forms are due to be released in October 2020. Existing forms can continue to be used in the interim.
  • Costs – a new Precedent T: is to be used in the event of variation of a budget pursuant to rule 3.15A and is therefore being introduced as part of the changes to PD3E from 01 October 2020.
  • Contempt of Court: as per the changes to PD4 above, the current suite of forms for contempt are being replaced by a new set of five, bespoke, forms: N600 Contempt Application; N601 Summons under rule 81.6(3); N602 Warrant to Secure Attendance at Court under rule 81.7(2); N603 Order under rule 81.9; N604 Warrant of Committal under rule 81.9.  The new forms are due to be released in time for 01 October 2020.  Existing forms can continue to be used in the interim.
  • Possession Enforcementa revised Form N54 Notice of Eviction is being introduced for both High Court and county court proceedings, to be effective from 23 August 2020.

 Other news

A webinar or similar event on the Contempt of Court reforms is being planned for the Autumn. More information on this will be communicated in due course.

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