CPR Update - October 2015
New rules have been introduced which (for the most part) come into force on the 1st October 2015. Here we look at the key changes, some of which have important implications for litigators dealing with Litigants in Person.
EARLY NEUTRAL EVALUATION
By virtue of the coming into force of The Civil Procedure (Amendment No.4) Rules 2014 on 1st October 2015 (which were laid before Parliament on the 24th July 2015) there is an important amendment to rule 3.1 (by way of an addition to rule 3.1 (2) (m)) dealing with courts’ general powers of case management.
The amendment makes it clear that the courts’ powers now include the ability to order and hear an Early Neutral Evaluation. The rationale for the change is set out in the minutes of the CPR Committee meeting held on 12 June 2015 and the Explanatory Memorandum.
No doubt sparked by the ever increasing numbers of Litigants in Person using the courts these days, the current version of r. 3.1 (2) (m) reads:
“(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.”
The new Rules add the following to the end of the current version of r. 3.1 (2) (m):
“including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case”.
Mr Justice Norris recently said that it was part of the judicial function for the judge to accede to a request for a provisional opinion and that Judges can provide an early neutral evaluation of a case to assist in its resolution.
He was ruling in Seals & Anor v Williams  EWHC 1829 (Ch), an acrimonious Inheritance Act case against the estate of claimants’ late father. Often Judges are reluctant to provide provisional opinions. Norris J’s comments in Seals, together with the new amendment to r. 3.1 (2) (m), make it clear that that should be a thing of the past.
The new version of r. 3.1 (2) (m) locks ENE into the CPR and I for one welcome it as an important development that will enable one to better deal with LiPs who posses unrealistic aspirations and expectations, and who thereby prolong disputes that are capable of settlement. Often Judges feel compelled to allow a determined LiP their day in court, no matter how flawed their claim or defence is. This amendment will enable judges to order formal ENE (or even perhaps offer up an informal evaluation) at an early stage (e.g. at a CMC) at the request of one of the parties or on their own initiative, without them feeling that they are pressurising LiPs into compromising their case. One hopes that Judges will make good use of it.
The flip side of course is that an unsuccessful ENE may simply delay the claim and cause further costs to be incurred. Nonetheless, it is a positive development that litigators who find themselves up against a stubborn LiP may find very useful.
The ‘test’ for the court to apply in deciding whether or not to order ENE is the overriding objective. As no specific procedure has (yet) been laid down for ENE, it appears that the judge ordering it will have a wide discretion as to its format and what the parties must do in order to prepare for it (e.g. case and witness summaries, submissions etc.).
CASE MANAGEMENT: UNREPRESENTED PARTIES: NEW CPR 3.1.A
In a further development geared to deal with the increasing number of LiPs using the civil courts, a new rule 3.1A makes provision for the way in which the court is to approach case management in a case where at least one of the parties is unrepresented.
The new rule 3.1A reads:
“Case management – unrepresented parties
3.1A.—(1) This rule applies in any proceedings where at least one party is unrepresented.
(2) When the court is exercising any powers of case management, it must have regard to the fact that at least one party is unrepresented.
(3) Both the parties and the court must, when drafting case management directions in the multi-track and fast track, take as their starting point any relevant standard directions which can be found online at http://www.justice.gov.uk/courts/procedure-rules/civil and adapt them as appropriate to the circumstances of the case.
(4) The court must adopt such procedure at any hearing as it considers appropriate to further the overriding objective.
(5) At any hearing where the court is taking evidence this may include—
(a) ascertaining from an unrepresented party the matters about which the witness may be able to give evidence or on which the witness ought to be cross-examined; and
(b) putting, or causing to be put, to the witness such questions as may appear to the court to be proper.”
In essence, the new rule requires positive case management appropriate to LiPs when one of the parties is not represented.
Other recent amendments to the CPR include:
An amendment to CPR 7.4 to ensure that a claimant serving particulars of claim files them at court as well.
Additional obligations under CPR 47.6 that require a breakdown of the costs claimed for each phase of the proceedings when a costs management order has been made (r. 47.6 (1) (c)):
“(c) if a costs management order has been made, a breakdown of the costs claimed for each phase of the proceedings”.
The creation, by way of a new CPR 63A, of a new specialist Financial List which will deal with claims principally arising out of banking disputes where more than £50M (or equivalent) is in dispute.
We wait with baited breath upon proposed further amendments to CPR 2.11 which would enable inter alia parties to agree a delay of up to 28 days to file Directions Questionnaires and to exchange and file Costs Budgets. An ability to agree extensions of stays for ADR for up to 3 months is also proposed.