Kerry Underwood

Archive for May 2015


with 18 comments

The Civil Procedure Rules Committee, unelected, unrepresentative, unaccountable and undemocratic, has decided to remove judges from a whole series of judicial functions including deciding applications in relation to the following matters:-

  • amending Particulars of Claim;
  • stays;
  • rectifying procedural errors;
  • extending time for service of Claim Form;
  • adding or substituting a party;
  • making a counterclaim;
  • setting aside or varying a default judgment;
  • interim payments.

A pilot scheme comes into force on 1 October 2015 and covers claims issued at Northampton Bulk Centre, Money Claims Online and the County Court Money Claims Centre in Salford. This is achieved by Practice Direction 51K – The County Court Legal Advisers Pilot Scheme.

Extraordinarily CPR 51.2 gives the Civil Procedure Rules Committee entirely unlimited powers to modify or disapply any provision of any rule for the purposes of a pilot.

The rule reads:- “51.2 Practice directions may modify or disapply any provision of these rules –

(a) for specified periods; and

(b) in relation to proceedings in specified courts,

during the operation of pilot schemes for assessing the use of new practices and procedures in connection with proceedings.

I suspect no-one ever anticipated that this Rule would be used to abolish judges hearing a whole raft of applications.

Taken to its logical conclusions the Civil Procedure Rules Committee could abolish trials, appeals and indeed the whole civil justice system in England and Wales.

The Nazis in Germany or the apartheid regime in South Africa would have been delighted with such powers.

I trust that the Administrative Court will strike this provision down at the earliest opportunity and that every court will refuse to enforce it on the ground that it is a very obvious breach of Article 6 of the European Convention on Human Rights, that is the right to a fair trial. As this is secondary legislation courts can simply refuse to take any notice of it if it breaches the Human Rights Act; there is no need to refer it back to Parliament.

The Law Society Civil Justice Committee at its meeting on 25 February 2015, under Any Other Business, recorded this in the minutes:-

“Keith Etherington said that there was to be a pilot scheme run at the County Court Money Claims Centre in Salford, from around October 2015, under which cases would be dealt with by legal advisors rather than judges until they were allocated to a court. There was concern at the level of training the advisors would have and that judicial decisions would be taken by unqualified people; and that the service standard was being reduced when fees were rising. The Civil Procedure Rules Committee had been under pressure to introduce the system and had not consulted on it. The new rule and practice direction had not been written and the Society might wish to consider whether to contest the arrangement. Any decision made by a non-judge was likely to be challengeable. Martin Heskins would be asked to obtain, if possible, the report that the Rules Committee had considered.”

Legal advisers, who must be solicitors or barristers, will now make these decisions which have always been the responsibility of the judges. There will be no hearing.

There has been no consultation about this radical change, which overturns nearly 900 years of judicial matters being determined by judges. No details have been provided as to the training, or more likely lack of training, that these parajudges will receive. There is no minimum period of qualification or call.

The parties can within 14 days request a District Judge reconsider the decision. That reconsideration will take place without a hearing.

Now you know what the 622% court fee increase was for.

Remember it is this unbelievably incompetent Civil Procedure Rules Committee which brought you the Relief from Sanctions fiasco, along with unintelligible rules in relation to a whole host of matters including Part 36 and Qualified One-Way Costs Shifting and a complete lack of guidance on matters such as proportionality.

It is time for this bunch of incompetents to be banished and their committee and all its works abolished. Making Civil Procedure Rules should now become a matter for a Parliamentary Committee drawing on the use of experts, that is people who know what they are doing, when needed.

As to the removal of judges from any process whatsoever that should require an Act of Parliament.


Written by kerryunderwood

May 6, 2015 at 11:37 am

Posted in Uncategorized

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