Kerry Underwood

CIVIL PROCEDURE RULES: 93rd UPDATE

with 3 comments


In force: 22 November 2017 – can be accessed here

Costs Management

Paragraph 7.2 of Practice Direction 3E is amended to provide that for the purposes of calculating the recoverable costs for initially completing Precedent H, and for all other recoverable costs involved in the budgeting and costs management process, incurred costs, as agreed or allowed on assessment, should be taken into account, as well as the agreed or approved budgeted costs.

The costs of initially completing Precedent H are capped at the higher of £1,000.00 or 1% of the total incurred and budgeted costs.

In relation to all other costs of budgeting and costs management, the costs are capped at 2% of the incurred and budgeted costs.

Expert evidence

New paragraphs 11.1 to 11.3 in Practice Direction 35 expressly allow the court to order expert evidence to be given in “any appropriate manner”, including so called “hot-tubbing” where expert evidence is given concurrently.

The procedure for evidence to be given concurrently is set out in paragraph 11.4 of the Practice Direction.

Paragraph 11.2 specifically allows expert evidence to be given on an issue by issue basis, that is with each party calling its experts to give evidence on a particular issue, followed by the other parties calling their experts to give evidence on that issue and so on.

The Financial Markets Test Case Pilot Scheme

The Pilot Scheme has been extended for three years until 30 September 2020.

The scheme applies to a claim started in the Financial List and which raises issues of general importance in relation to which immediately relevant authoritative English law guidance is needed.

It is dealt with in Practice Direction 51M.

The Electronic Working Pilot Scheme

This is governed by Practice Direction 51O and is extended until 6 April 2018, but with many amendments.

Paragraph 2.2 provides that, with effect from 1 October 2017, electronic working must be used by legally represented parties to start and/or continue “any relevant claims or applications”, and may be used by litigants in person, in the Rolls Building jurisdiction.

Guidance is added in relation to filing confidential documents, the procedure when there are errors of procedure in using E-filing, payment provisions, calculation of time periods and clarification of the procedure in insolvency proceedings and amendments to reflect that the Insolvency Rules 1986 have been replaced by the Insolvency (England and Wales) Rules 2016 (SI 2016/0124).

The size of documents that may be filed has been increased from 10 megabytes to 50 megabytes.

Appeals 

Practice Direction 52A is amended to provide details of the relevant appeal centres for appeals in the County Court and High Court and to set out the procedure for transfers between appeal centres.

Paragraph 4.A1 defines the categories of Judge allowed to hear appeals from specified jurisdictions and sets out which appeals will be allocated to which categories of Judge.

It is complicated and technical, but, for example, in relation to appeals from Masters, applications for permission to appeal must be heard by a Group A Judge, but the substantive appeal may be heard by a Group A Judge or a Group B Judge.

A Group A Judge is a High Court Judge or a person authorised under paragraphs (1), (2) or (4) of the Table in Section 9 (1) of the Senior Courts Act 1981 to act as a Judge of the High Court.

A Group B Judge is any person who is not a Group A Judge but who is authorised under Section 9 of the Senior Courts Act 1981 to act as a Judge of the High Court.

Comment

The Practice Direction dealing with the categories of Judge and their definitions and the allocation of appeals is considerably longer than the full Civil Procedure Rules and Practice Direction dealing with the whole concept and procedure in relation to Qualified One-Way Costs Shifting.

Nero, fiddling and Rome burning come to mind.

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Written by kerryunderwood

December 11, 2017 at 7:19 am

Posted in Uncategorized

3 Responses

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  1. Thanks for this.

    We have been having a lot of issues in relation to recovering the costs of Cost Budgeting (which is outsourced) when the court subsequently allocates to Fast Track. Defendants are saying that they will not pay for the budgets, even though we had no choice as the court ordered the filing of budgets.

    Any assistance would be appreciated

    Regards

    Mohammed Y Patel
    Director

    MRH Solicitors
    Atria House
    Spa Road
    Bolton
    BL1 4AG

    Tel: 01204 535 333
    Fax: 01204 535 444

    Mohammed Y Patel

    December 11, 2017 at 9:39 am

    • Mohammed

      This is a well-known lacuna.

      Fixed costs are just that, and there is no separate fee for costs budgeting and if you incur costs in preparing a budget, but the matter ends up as a fixed costs case, then you cannot claim any separate fee and the Defendants are entitled to make no payment.

      This does not just arise when the matter is subsequently allocated to the Fast Track; it arises when budgets have been ordered in circumstances where the matter will very obviously be allocated to the Multi-Track, but then settles before it is so allocated.

      If the matter is an ex-portal claim then unless and until it is allocated to the Multi-Track it remains subject to Fixed Costs – see Qader & Others v Esure Services Ltd & Others [2016] EWCA Civ 1109.

      The only potential way round this is to seek to invoke the escape clause, but you then have to achieve at least 20% more than the fixed costs figure.

      This is all dealt with in my 1,300 page, three volume book Personal Injury Small Claims, Portals and Fixed Costs which costs £80.00 and can be ordered from Amazon here or me here.

      Kerry

      kerryunderwood

      December 11, 2017 at 3:39 pm

  2. Hi Kerry, I having been looking through your books which I got at your Manchester conference earlier in the year. However, I have an unusual question in regard to a MOJ portal claim. The MIB compelled an insurer to deal with our client’s claim. Their policyholder (only named driver on the policy) is not the defendant. Their policyholder is female whereas the Defendant (who drove off at the scene without leaving his name) is male. Nonetheless, I was advised to submit a CNF to the insurers, who then admitted liability on the portal. The stage 2 settlement pack was then submitted. Quantum remains in dispute and there are issues making the matter sufficiently complex to be beyond the scope of the portal process . I am minded to exit the claim on that basis and commence Part 7 proceedings. I was intending to rely on the European regulations but the “Defendant insured” has to be named on the statements of case. As the name of the male defendant is not known and cannot be stated, is there another way in which Court proceedings can be commenced bearing in mind that the third party insurers have accepted liability and responsibility as per Art 75. I look forward to hearing from you soon and on behalf of the firm, merry Christmas and all the best for 2018.

    Paul Brennan

    December 21, 2017 at 3:01 pm


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