CPR amendments
Re-litigating discontinued claims
Oral hearings

This update sets out a short summary of recent changes to the Civil Procedure Rules (CPR) and provides details of two recent cases that will be of interest to UK litigators.

CPR amendments

The following amendments to the CPR have been in place since October 1 2011 (and in some instances slightly longer):

  • CPR 36.14 has been amended to clarify what amounts to a 'more advantageous' (or 'at least as advantageous') judgment in relation to a Part 36 offer made by the other party. The previous rule, following the decision in Carver v BAA plc,(1) was that the court should take a broad view of all the circumstances. For example, where a judgment beat a Part 36 offer by a small amount, the court could deem that the judgment was not, on all the facts, more advantageous. However, the change to CPR 36.14 means that the original position now applies. If the judgment is for even a penny more than the Part 36 offer, the judgment will be considered to be more advantageous, despite the advantage being tiny. This is the most significant change made to the rules.
  • CPR 6.7 has been expanded so that a solicitor acting for a defendant can now notify the claimant that the solicitor's business address in Scotland or Northern Ireland is the defendant's address for service.
  • A new Section 23B has been added to the Costs Practice Direction. Its provisions enable the parties to consider applying for a costs capping order in proceedings that relate to trust funds, and enable the court to consider making such an order on its own initiative.
  • The Costs Practice Direction has also been amended so that the amount of costs that a litigant in person can recover under CPR 48.6 is increased from £9.25 to £18 an hour.
  • Several of the pilot schemes that were put in place by the Ministry of Justice, which were aimed primarily at improving costs and case management, have been extended.
  • A number of court forms have also been revised.

Re-litigating discontinued claims

The recent case of Westbrook Dolphin Square Ltd v Friends Provident Life and Pensions Ltd(2) is notable because it is thought to be the first authority on the application of CPR 38.7.

CPR 38.7 provides that a claimant which discontinues a claim needs the court's permission to make another claim against the same defendant if:

  • the claimant discontinued the claim after the defendant filed a defence; and
  • the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.

Before Westbrook, the only guidance to be found on CPR 38.7 was the commentary at 38.7.1 in the White Book, which explained that the court would be likely to give permission for a claimant to make another claim against the same defendant where, for example:

  • the defendant had misled or tricked the claimant;
  • important new evidence had come to light; or
  • there had been a retrospective change in the law.

However, in Westbrook it was confirmed that the court's approach to CPR 38.7 should be informed by the principles that no one should be sued twice over the same events, and that it is in the public interest to bring litigation to an end.

The facts of the case were complex and related to a claim for collective enfranchisement under Chapter I of Part I of the Leasehold Reform, Housing Development Act 1993. The judgment referred to the fact that in the previous claim, Westbrook had caused both Friends Provident and the courts to expend time and resources to deal with the claim before discontinuing the action shortly before trial. On the facts, the judge therefore did not think that Westbrook was justified in forcing both Friends Provident and the courts to expend further time and resources on litigation of the same question for a second time, as "that would expose Friends Provident to a further period of uncertainty and further irrecoverable costs and divert scarce court resources from other users of the system".(3)

It is clear from this case that for an application under CPR 38.7, the onus will be on the applicant to show that it should be given permission to bring a new claim. The judgment in this case also suggests that the courts will set a relatively high threshold for granting permission, particularly in considering the use of the court's time and resources and those of the other parties to the litigation.

Oral hearings

The recent case of Golden Eye (International) Ltd v Maricar(4) is a recent example of the court using its power under CPR 3.3 to make an order on its own initiative. The court made an order convening a hearing in two parallel cases, rather than dealing with an application in one of those cases on paper.

Golden Eye had sued Maricar, an individual, for copyright infringement. It had also brought similar proceedings against another individual, Vithlani. In the case against Vithlani, Golden Eye had served a notice of discontinuance. Vithlani had then applied on paper, without a hearing, for various orders. These included an order that Golden Eye add the original copyright owner as a party to the proceedings and then apply to discontinue the claim or, failing that, that the action should be struck out with costs. Golden Eye responded to Vithlani's application in a witness statement, asking for the application to be dismissed.

The judge held that a hearing should take place in both cases and that the application could not be resolved on paper because:

  • the application raised matters on which oral submissions would assist the court in resolving the issues; and
  • it was at least arguable that the case involving Vithlani (if it was to proceed) and the case involving Maricar raised common questions which might be conveniently considered together.

For further information on this topic please contact Helen Fairhead at RPC by telephone (+44 20 3060 6000), fax (+44 20 3060 7000) or email ([email protected]).


(1) [2008] EWCA Civ 412.

(2) [2011] EWHC 2302.

(3) At Paragraph 59.

(4) [2011] EWPCC 27.