Wood for the trees

The Civil Procedure (Amendment No. 2) Rules 2009 contain what is, staggeringly, the 51st update to the CPR in just over ten years. Save for those few provisions which have already come into effect, the changes '“ in a large number of areas '“ came into force on 6 April 2010.

But the apparent size of the changes is mitigated by the fact that many pages are taken up by changes to the description of practice directions so that they are no longer referred to as, for example, 'the practice direction supplementing part 22' but, rather, 'practice direction 22'. Why it is only now thought necessary to make such a change is unclear.

Legal representative

The definition of legal representative and authorised person are amended in part 2 as a consequence of the Legal Services Act 2007 to include not only barristers, solicitors and solicitors' employees, but also a manager of a body recognised under section 9 of the Administration of Justice Act 1985 and a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the conduct of litigation.

Electronic working scheme

A new practice direction 5C supplementing CPR 5.5 and 7.12 is introduced to allow for electronic submission of claims and subsequent steps. Users will not be allowed to file paper copies of documents already filed electronically, and will be encouraged to communicate with the court by email. The service will be available 24 hours a day all year round, including weekends and bank holidays (in other words, outside normal court opening hours). At present, the scheme only applies to the following jurisdictions:

Admiralty, Commercial and London Mercantile Courts, the Technology and Construction Court, Chancery Division of the High Court, including Bankruptcy, Companies and Patents Courts. Might this, however, be the shape of things to come?

Service of documents

Amendments are made in order to comply with the EU Services Directive (2006/123/ EC) to allow for service of documents on a party's legal representative who is qualified to practise in England and Wales but is based in another EEA state.

PD23A applications

Amendments are made to extend by two days the time by which documents can be filed at court, by removing the word 'clear'. An additional paragraph 4.1A in relation to telephone hearings requires service of the application notice as soon as is practicable and, in any event, at least five days before the hearing.

The Costs Practice Direction

Some substantial amendments are made here. Email and other electronic communications are now included in the definition of 'communications', thereby enabling solicitors to charge for them. At the court's discretion, an allowance can also be made for the time spent in preparation of electronic communications other than emails. Of importance to busy solicitors is the removal of the necessity to provide a detailed costs estimate in fast-track cases at allocation to track. Amendments are also made to reflect revocation of the Conditional Fee Agreements Regulations 2000, including disclosure of the relevant details of a conditional fee agreement to enable the court to determine the level of risk undertaken by a solicitor; and removing the need to file documents with a request for detailed assessment of costs.

Part 52 appeals

Changes are made to reflect the new unified tribunal structure and to allow for regulatory appeals against decisions of the Law Society or the Solicitors Disciplinary Tribunal involving solicitors and other legal professionals to be determined by the High Court.

Crown Proceedings Practice Direction

The annex to PD66 setting out the list of solicitors acting for different government departments on whom service is to be effected is substituted.

Enforcement of Judgments and Orders Practice Direction

Amendments are made to allow a High Court enforcement officer to file an award, register an award and issue enforcement process on behalf of an applicant who wishes to enforce Employment Tribunal and Employment Appeal Tribunal awards.

Pre-Action Protocol for Possession Claims based on Mortgage or Home Purchase Plan Arrears in respect of Residential Property

Under the protocol, lenders are obliged to consider postponing possession proceedings should the borrower be entitled to financial support under the various schemes listed in the protocol. The protocol has now been extended to include the Mortgage Rescue Scheme.

Lugano amendments

Amendments are made to parts 6, 12, 25 and 74 and PD 12 and 74 as a result of the commencement of the new version of the Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters.

Look out for the Civil Procedure (Amendment) Rules 2010 and update 52 coming into force on 30 April 2010 and dealing with, among other things, the new Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents '“ but that is another article altogether!

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