On 28 February 2017, various amendments to Part 61 of the Civil Procedure Rules, and to its associated practice direction (PD61), will come into force. Details may be found in The Civil Procedure (Amendment) Rules 2017 (SI 2017 No. 95 (L.1)), which amends rules 61.1 and 61.4, and the ‘88th UPDATE – PRACTICE DIRECTION AMENDMENTS’ recently made by the Master of the Rolls and approved by the Ministry of Justice, which adds new paragraphs 4.6 and 4.7 to PD61.
The changes concern the procedure to be adopted in Collision Claims in which electronic track data (as defined in the new rule 61.1(m) is available.
The amendments made to Part 61 concern the changes in procedure involving the most significant departures from a primary rule, such as Part 31, while the amendments made to PD61 concern changes involving new rules of practice of somewhat less significance.
In addition, changes will be made to Section N of the Admiralty & Commercial Court Guide to provide more general guidance to practitioners about the new rules and the expectations of the court in Collisions Claims in which electronic track data is available. Those changes are set out below, and will also take effect on 28 February 2017.
1) After the heading, ‘N.5 The early stages of a Collision Claim’ insert –
“N5.0 Any party, or potential party, to a collision claim, who has in its control any electronic track data (as defined in rule 61.1(1)(m)) recording the tracks of the vessels involved leading up to the collision, should have regard to Appendix 20 (‘Electronic Track Data in Collision Claims’), which contains provisions relating to (i) the preservation, pre-action disclosure and inspection, and early disclosure and inspection, of electronic track data, and (ii) the case management of collision claims where electronic track data is available. (See also rule 61.4(4A) and PD61 §4.7.)”
2) Replace paragraphs N5.1 and N5.2 with –
“N5.1 Where a collision claim is commenced in rem, the general procedure applicable to claims in rem applies subject to rule 61.4 and PD61 §§ 4.1–4.7
N5.2 Where a collision claim is not commenced in rem the general procedure applicable to claims proceeding in the Commercial List applies subject to rule 61.4 and PD61 §§ 4.1– 4.7.”
3) Replace paragraph N8.1(ii) with –
“(ii) In a collision case the claimant should apply for a case management conference within 7 days after the last Collision Statement of Case is filed: PD61 §4.6;”
4) Replace paragraph N8.1(iv) with –
“(iv) In a collision claim (PD61 §4.6) or a limitation claim a mandatory case management conference will normally take place on the first available date 5 weeks after the date when the claimant is required to take steps to fix a date for the case management conference;”
5) After paragraph N8.1(vi) insert –
“(vii) In a collision claim where electronic track data is available the court will seek to adopt fast track procedures for the determination of issues of liability as part of its duty actively to manage cases in accordance with the overriding objective, which may include making one or more of the directions listed in PD61 §4.7: see also section N5.0 and Appendix 20 (‘Electronic Track Data in Collision Claims’);
(viii) In a collision claim, the Case Management Information Sheet should also include the following question:
- Do you or any other party have in their control electronic track data (as defined in rule 61.1(1)(m)) recording the tracks of the vessels involved leading up to the collision? If so, would it be appropriate for the court to make one or more of the directions listed in PD61 §4.7 (or other similar directions)? Please state reasons.”
6) Replace paragraph N9.1 with –
“N9.1 In collision claims, section H1.5 and Appendix 8 are subject to the proviso that experience has shown that it is usually desirable for the main elements of a witness’ evidence in chief to be adduced orally. In collision claims where electronic track data is available it may be appropriate to (i) limit witnesses to those most closely involved with the collision, (ii) dispensing with oral evidence, and/or (iii) dispensing with an oral hearing: PD61 §4.7(b), (e) and (g).”
7) Replace paragraph N14.1 with –
“N14.1 In collision claims and other cases involving issues of navigation and seamanship, the Admiralty Court usually sits with assessors. The parties are not permitted to call expert evidence on such matters without the leave of the court: rule 61.13. In collision claims where electronic track data is available it may be appropriate to limit the assistance to that of a single assessor, or to dispense with the assistance of assessors entirely: PD61 §4.7(f).”
8) After Appendix 19 insert a new Appendix 20 –
Electronic Track Data in Collision Claims
- In many collision cases, the tracks of the vessels involved leading up to the collision(s) are captured electronically or digitally by, for example, ship or shore-based AIS, ECDIS, or voyage data recorders (such track data, and any associated visual or audio recordings, being referred to herein as “Electronic Track Data”; see Rule 61.1(1)(m)). The availability of such Electronic Track Data can greatly aid the quick and efficient disposal of disputes over liability for the collision.
- Where such Electronic Track Data is available, it may therefore be possible, and desirable, to modify or dispense with various aspects of the normal procedure in a Collision Claim. (The normal procedure in a Collision Claim is set out in Rule 61.4, PD61 §§4.1-4.6, and Sections N.5, N.8, N.9 and N.14 of the Guide.)
Preservation of Electronic Track Data
- Electronic Track Data will almost certainly be of great importance in any Collision Claim in which liability might be in dispute. A party to an anticipated Collision Claim should therefore take all reasonable steps promptly to preserve and/or procure the original and/or copies of any Electronic Track Data in its control. (Rule 31.6(2) provides that a party has a document “in his control” if (a) it is in his physical possession, (b) he has a right to possession of it, or (c) he has a right to inspect or take copies of it.)
Pre-Action Disclosure & Inspection of Electronic Track Data
- It is to be expected that the early disclosure, and provision or inspection, of Electronic Track Data will enable the rapid and cost-effective resolution of many disputes, or potential disputes, concerning liability for collisions without recourse to formal proceedings.
- Therefore, each party to an anticipated Collision Claim will generally be expected to
- disclose to one another any Electronic Track Data, which is or has been in its control, and
- if each party has Electronic Track Data in its control, thereafter exchange copies of and/or permit reciprocal inspection of such Electronic Track Data,
during the course of pre-action correspondence. A failure by one party so to disclose, exchange copies of, or permit reciprocal inspection of, Electronic Track Data at the request of another party to an anticipated Collision Claim prior to the commencement of proceedings without good reason is likely to attract a costs sanction from the Court.
- Furthermore, an application under Rule 31.16 by a person likely to be a party to a subsequent Collision Claim for mutual or reciprocal disclosure and/or inspection of Electronic Track Data by another person likely to be a party to that action before proceedings have started is likely to be considered favorably by the Court if each such person has Electronic Track Data in its control.
Early Disclosure & Inspection of Electronic Track Data
- Rule 61.4(4A) requires every party in a collision claim to give early disclosure of any electronic track data, which is or has been in their control, within either (a) 21 days after the defendant files their acknowledgment of service, or (b) where the defendant makes an unsuccessful application under Part 11, within 21 days after the defendant files their further acknowledgment of service. Where every party has electronic track data in its control, each party must provide copies, or permit inspection of, that electronic track data within 7 days of a request by another party to do so: Rule 61.4(4A).
- The parties should then file at Court completed Collision Statements of Case in the usual way in accordance with Rule 61.4. The time limits set out in Rule 61.4 should not normally require extension because of the provision of Electronic Track Data pursuant to the paragraph above. (Rule 61.4 requires the parties to file at Court completed Collision Statements of Case (a) within 2 months after the defendant files his acknowledgment of service, or (b) where the defendant unsuccessfully applies under Part 11 to dispute the Court’s jurisdiction, within 2 months after the defendant files his further acknowledgment of service.)
Case Management when Electronic Track Data is available
- In accordance with PD61 §4.6, and paragraphs N8.1(ii) and (iv) of the Guide, the claimant should apply for a mandatory case management conference within 7 days after the last Collision Statement of Case is filed, which mandatory case management conference will normally take place on the first available date 5 weeks thereafter.
- The availability of Electronic Track Data is likely to enable the Court to adopt fast track procedures for the determination of issues of liability in a Collision Claim. The Court will seek to adopt such fast track procedures as part of its duty actively to manage cases in accordance with the overriding objective, and will give due consideration to making one or more of the directions listed in PD61 §4.7. (See also paragraphs N8.1(vii), N9.1 and N14.1 of the Guide.)
- The parties should give careful consideration to the possibility of adopting such (or other) fast track procedures when completing their case management information sheets prior to the case management conference: see paragraph N8.1(viii). Parties are reminded of their obligation to help the Court to further the overriding objective. While the Court will always be astute to manage each particular Collision Claim to meet the demands of justice and the overriding objective, in making directions for the proper management of the case, the Court will give due consideration to any agreement made by the parties designed to dispose of the claim in a swift and cost-efficient manner. (For example, reference is made to the Fast Track Procedure form of agreement prepared by the Admiralty Solicitors Group for use in Collision Claims where Electronic Track Data is available.)”