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The Civil Procedure Rule Committee Note

The powers that are the Civil Procedure Rule Committee (CPRC) met (like all upstanding citizens in a COVID-19 pandemic, via video conference) on 6 November 2020 to discuss various issues & approve several amendments to the rules/PDs.

The approved minutes of the meeting can be found here.

Aside from a natter re some aspects of small claims, insolvency, enforcement, & a new rule (51.3) to deal with public emergencies (it does not sound like the CPRC are particularly optimistic going in to 2021…), the CPRC looked at:

  1. Part 36 & interest.
  2. Budgeting
  3. Vulnerable persons.

 

1.    Part 36 Offers & Interest

The Costs Sub-Committee (CSC) had identified & reviewed two inconsistencies that had developed in recent case law:

  1. King v City of London [2019] EWCA Civ 2266where Arnold LJ felt that the CPRC should look at whether Part 36 offers should be capable of being made exclusive of interest.
  2. Calonne v Dawnus [2019] EWCA Civ 754 in which it was considered whether Part 36 Offers should be made with provisions for interest following expiry of the “relevant period” for acceptance.

In respect of King, the CSC concluded that a Part 36 offer should not be permitted to exclude interest. As such, a proposed drafting solution with an amendment to paragraph 19 of PD47 was approved & is due to come into force in April 2021.

Potential solutions for Calonne were discussed & it was agreed, with a view to making the rules as clear as possible, to add CPR 36.5(5), which reads as follows:

“… Part 36 offer to accept a sum of money may make provision for accrual of interest on such sum after the date specified in rule 36.5(4). If such an offer does not make any such provision it is treated as inclusive of all interest up to the date of acceptance.”

It was concluded that CPR 36.13(8) did not need to be changed (yet…).

This amendment/addition will allow Part 36 offers to be more specific.

 

2.    Rule 3.17(3) & PD3E (Budgeting)

It was identified that following the last suite of changes, in which previous rules/PD/guidance had been rationalised/consolidated, some minor inconsistences had resulted & thus required amendment to avoid unintended consequences – these include:

(a)   3.17(3)(a) being amended to:

 “may not approve costs incurred up to and including before the date of any costs management hearing;”

(b)   “total costs (incurred and estimated)” replacing “budgeted” in paragraph 4(b) of PD3E.

(c)    “interim” replacing “interlocutory” in paragraph 10(a) of PD3E.

(d)    “non-party disclosure” replacing “third party disclosure” in the “Disclosure” section of the table in section D of PD3E.

The omission of other provisions, such as encouraging the parties to consider costs budgeting at an early stage, were also discussed but it was concluded that no action was required.

 

3.    Vulnerable Witnesses & Parties

The CPRC also continued previous discussions re vulnerable persons & identified changes in relation to such, including amendments to the Overriding Objective – these are:

(a)    “… and can participate fully in proceedings, and that parties and witnesses can give their best evidence;” being added to the end of CPR 1.1(2)(a).

(b)    a new CPR 1.6 entitled, “Participation of vulnerable parties or witnesses”.

(c)    a new, “bespoke”, PD which will include:

“2. Vulnerability of a party or witness may impede participation and also diminish the quality of evidence. and t The court should take all practicable proportionate measures to address these issues in every case.

“7. If the court decides that a party’s or witness’s ability to participate fully and/or give best evidence is likely to be diminished by reason of vulnerability, the court will may identify the nature of the vulnerability in an order and may order appropriate provisions to be made to further the overriding objective.”

The CPRC also looked at vulnerable persons in the context of costs & proportionality. It was concluded that an additional factor (f), to address the issue of vulnerability, is to be added to those listed at CPR 44.3(5).

Proposed changes to the Fixed Recoverable Costs (FRC) regime were also touched upon but nothing more was determined; although it was recorded that that the work on FRC was reasonably urgent & the (chair of the) CPRC did not want it to take a year to come to fruition.

 

The Key Points

  1. A Part 36 offer is not permitted to exclude interest.
  2. A Part 36 offer must make provision for the accrual of interest after the date specified for acceptance (or will deemed to include it).
  3. The Overriding Objective will be amended to account for vulnerable persons.
  4. An additional factor at 44.3(5) will be added to reference vulnerable persons.

The proposed changes in respect of Part 36 offers are helpful & (should) resolve an issue that had been rumbling on. However, it is not clear whether the planned amendments/additions to account for vulnerable persons will have a material impact in practice, but the proof will be in the pudding.

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