Page 17 - PIC Magazine Autumn Issue 16

We are now up to the 124th update to the Civil Procedure Rules, the pace of changes to the rules seemingly accelerated by the necessary attempts to manage the current Covid pandemic and deal with the changes necessitated by the Brexit process.
Extensions
The changes also make provision for extension of some schemes which were already in place but due to expire.
The first of those is the Disclosure Pilot in the Business and Property courts. Whilst most practitioners accept that in many cases disclosure is often far too expensive (and anecdotally I would say it is the phase that I most frequently see exceeded when preparing bills on budgeted cases), it is fair
to say that those involved in cases involving the disclosure pilot have not universally praised its operation, still the pilot has been extended for a further year-see PD51U.
That means the pilot will now run until 1 January 2022. Critics of the process may be interested in the proposals of the DPS working group to simplify the process which can be found on the judiciary website
There has also been a 6-month extension to the Video Hearings Pilot under CPR 51V, which relates to Applications to set aside judgment in default. Events have perhaps overtaken this pilot, which was set
up before the pandemic which has of course seen a considerable extension to the use of video hearings. General consensus seems to be that we have seen that these hearings can work well and so one hopes the use of this technology continues even when the happy day on which Coronavirus restrictions are lifted finally arrives. The extension of this particular pilot, to March 2021, appears for now to be practical but we can hope the findings of this pilot in due course may lead to a further amendment to the CPR to encourage technology to be used appropriately to reduce costs and hopefully improve access to justice.
Wales
On the (kind of) related subject of venue there has been an amendment to PD54D which specifies that any claim for judicial review of a decision of a Welsh public body must be issued in and heard in Wales. This seems sensible in making sure that important decisions as to the lawfulness of acts of public bodies are heard close (or at least closer) to the place where those affected by those decisions reside.
Statements of Truth
As most practitioners will be aware CPR updates in April of this year brought in changes to the wordings of the Statement of Truth. There is a further update in respect of the wording to the Statements of Truth for Experts which should now include the recitation in relation to the expert understanding about Contempt of Court.
In many cases you will have obtained Expert Reports before these changes but not yet served. Whilst the rules do not suggest that omitting these words negates the validity of
a Statement of Truth which omit this additional citation it
is probably good practice to ensure that when reports are perfected for service from now on that steps are taken to ask the expert to revise their report to include this additional statement. As we have seen above there is a focus at the moment on the process for Contempt of Court and so it
is prudent to ensure all parties involved in litigation are reminded of the importance of these issues.
Possession Proceedings
The 123rd update to the CPR, which came into force on 23 August, deals solely with the process to be adopted
in relation to Possession proceedings now that the Stay
on such claims which was implemented at the start of the pandemic and then extended has ended. The changes can be found in a new PD-55C which at the moment will apply until 28 March 2021.
Clearly the courts want to mitigate against a flood of cases and negotiate the way through the backlog that must exist given the pause that has been in place. Of interest in addition to the new Practice Direction is the statement of the Master of the Rolls on the resumption of these cases (available on the Judiciary website).
A key part of the process is the requirement to serve a reactivation notice in any claim brought before 3 August 2020 unless a final possession notice had already been made. This is vital as without this no steps will be taken in such proceedings by the court.
Either party can file such a notice and that notice must
set out what knowledge the party has as to the effect the Coronavirus pandemic has had on the Defendant and their dependants. If the Notice is served by a Claimant and is based on arrears of rent then an updated rent account for the previous 2 years must be served.
Another key area relates to the cases where a Directions Order had been made. There is a procedure in paragraph 5.1 requiring a copy of the last order, an updated directions order or a statement that no new directions are required. There is also provision for a statement as to whether the case is suitable for hearing via video or audio link.
Provisions also exist in relation to new claims, which require a Claimant to bring to the first hearing copies of a notice showing how the protocol provision have been complied with and setting out the knowledge of the effect of the pandemic on the Defendant/their dependants, having served that Notice on the other side at least 14 days before the hearing.
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