Practice Direction update 109: various updates to Practice Directions and Pre-action Protocols
Practice Direction update to the Civil Procedure Rules relating to various Practice Directions, Pre-action Protocols and the Civil Procedure (Amendment No.3) 2019.
Applies to England and Wales
Documents
Details
109th Update to the Civil Procedure Rules
These amendments to Practice Directions include the following changes.
| Summary | Details |
|---|---|
| Allocation of cases to levels of Judiciary (PD 2B) – District Judges’ Committal Powers effective from 1 October 2019 | This removes a current inconsistency. Currently, the prohibition in paragraph 8.1, on allocating to a District Judge in the County Court, applications for orders and interim applications which may not be granted by a District Judge in the High Court, is inconsistent with changes previously made to CPR Parts 65 and 85 and Practice Direction 2B allowing for committal applications in the County Court to be dealt with by District Judges without the need for specific authorisation by a Designated Civil Judge. This amendment will, therefore, make it clear that the prohibition is subject to the remaining provisions of Practice Direction 2B. |
| Costs Management (PD 3E) effective from 1 October 2019 | This provides clearer guidance on the cut-off between budgeted costs and incurred costs, drawing the line between costs incurred up to and including the date of the first costs management hearing (incurred costs) and costs to be incurred after that date (budgeted costs). Guidance to Precedent H (Budget setting tool) has been updated. |
| Media and Communications list effective from 1 October 2019 | As a consequence of the related rule change explained above there are a suite of changes necessary to establish the Media and Communications list, which was created in May 2017 but not reflected in the CPR. In addition to this amendment to Practice Direction 7A (How to start proceedings – the Claim Form), significant amendments are made to Practice Direction 40F (for which a new Practice Direction 40F is substituted), Part 53 (for which a new Part 53 is substituted), Practice Direction 53 (for which a new Practice Direction, renumbered as Practice Direction 53B, is substituted) and the Pre-Action Protocol for Defamation Cases (for which a new Pre-Action Protocol for Media and Communication Claims is substituted) and a new Practice Direction, numbered as Practice Direction 53A (Transferring proceedings to and from the Media and Communications list), is inserted. |
| Claims for the Recovery of Taxes and Duties (PD 7D) effective from 1 July 2019 | This provides parity for Wales by enabling the Welsh Revenue Authority to use the simplified procedure provided for in Practice Direction 7D for the recovery of devolved taxes in the same way as HMRC is able to use it for reserved taxes. |
| Small Claims Track (PD27) effective from 1 July 2019 | This update is consequential on the changes made in the 104th update and the Civil Procedure (Amendment) Rules 2019 (S.I. 2019/342) which amended Part 39 and Practice Direction 39A, which now contain consolidated provision about when hearings are to be in public or in private. Currently, PD 27 para 4.1(2)(a) states that the judge may decide to hold the hearing in private in a small claims track case if the parties agree. Although the judge is not bound to accept that the parties’ agreement is a sufficient basis for deciding to hold the hearing in private, para 4.1(2)(a) suggests that the judge could decide that was a sufficient basis. Even before the recent amendments to CPR 39.2, that was not the law. The parties cannot combine to defeat the public’s right to open justice except in cases where the court is satisfied that one of a number of criteria apply and, in addition, that a private hearing is necessary to secure the proper administration of justice. This amendment therefore removes that inaccurate paragraph to address the issue of when hearings are in public or in private. |
| Applications under the Companies Acts and related legislation (PD 49D) effective from 1 October 2019 | This relaxes the restriction on certain claims brought by the Takeover Panel (a statutory independent regulator) so that, instead of having to be started by a Part 7 claim form, they may be started by either a Part 7 claim form or a Part 8 claim, whichever is appropriate. |
| Electronic Working Pilot Scheme (PD 51O) effective from 1 July 2019 | This extends an existing pilot scheme so that, where electronic working applies, it is mandatory, as from 1 July 2019, for a party who is legally represented to use electronic working (CE Filing) to start and/or continue any relevant claims or applications within the Central Office of the Queen’s Bench Division. |
| Business and Property Courts (PD 57AA) | This will only come into force if and when the “no deal” amending instrument, the Civil Procedure Rules 1998 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/521) comes into force. It amends a cross-reference to a PD referring to EU Competition Law so that it refers to Competition Law more generally, mirroring an amendment made to that PD by a Practice Direction Update accompanying S.I. 2019/521. |
Forms
The form, ‘HIGH COURT & COURT OF APPEAL PRIVACY INJUNCTIONS STATISTICS FORM’ has been updated as part of this update. The form is to be completed at hearings where an Order is sought in civil proceedings which seeks to restrain the publication of information and to which Practice Direction PD 40F on Non-Disclosure Orders Information Collection Scheme applies. The form is provided online as an Annex within PD 40F.
Pre Action Protocols
The following PAPs have been either created or modified as part of this update.
The amendment of the Pre-Action Protocol for Judicial Review, and the substitution, for the Pre-Action Protocol for Defamation Claims, of the Pre-Action Protocol for Media and Communications Claims, are approved by the Master of the Rolls as Head of Civil Justice.
The amendments to the Pre-Action Protocol for Judicial Review come into force on 17 September 2019.
The substituted Pre-Action Protocol for Media and Communications Claims comes into force on 1st October 2019.
Take notice: Civil Procedure (Amendment No.3) 2019
The related Statutory Instrument (Civil Procedure (Amendment No.3) 2019) contains the following rule changes.
| Summary | Details |
|---|---|
| Cost Protection in Environmental Claims to Extend Costs Protection to include more Statutory Reviews | The intention of this amendment is to bring statutory reviews which relate to national environmental law within the environmental cost protection regime, to facilitate full compliance with Article 9(3) of the Aarhus Convention. This is a technical change to amend rule 45.42(2)(a) which defines an “Aarhus Convention Claim”, so that the definition includes a Statutory Review which is within the scope of Article 9(3) of the Aarhus Convention, in addition to a Judicial Review within the scope of Article 9(3). |
| The Media and Communications (MAC) list | The MAC list (established in 2017) is a specialist list covering not only defamation but a wider range of new claims, and the rule changes are intended to give new focus to this specialism and to modernize the listing arrangements in the High Court. The scope of the MAC List can be described as cases involving one or more of the main media torts (defamation, misuse of private information and breach of duty under the Data Protection Act) and related or similar claims including malicious falsehood and harassment arising from publication or threatened publication by the print or broadcast media, online, on social media, or in speech. |
This rule change simply replaces the current CPR Part 53 (Defamation Claims) with a new Part 53 to provide for the Media and Communications List. There are also various consequential changes to the related Practice Directions, and within the associated PAP Amendment.
The SI is anticipated to be effective from 1 October 2019. However, I respectfully highlight that this is subject to Parliamentary approval. When approved the SI will be published on legislation.gov.uk and the online rules will be updated accordingly.