Upcoming CPR changes:
The Civil Procedure Rules Committee has revealed some of the changes to Part 36 offers being considered. These include:
- Removing the need to formally withdraw a Part 36 offer and allowing time-limited offers instead;
- Making time to accept the offer run from the date of receipt, rather than service, of the offer (so avoiding the application of the Part 6 service rules);
- Introducing a new rule expressly dealing with the position for Part 36 offers by counterclaiming defendants and other parties;
- Tackling “cynical” claimant offers (where a claimant offers to accept 100%, or close to 100%, of its claim); and
- Changing the current position, so that judges can be told about an issue-based Part 36 offer, where that issue has been tried as a preliminary issue.
For further details, see this link below:
The Civil Rules Committee has also explained how it is making plans to implement the recast Regulation 44/2001 here (the recast Regulation comes into effect on 10 January 2015). Primarily, the CPR will be amended to remove the need to register a foreign judgment obtained from a Member State in order to enforce it. The foreign judgment will become enforceable directly, provided certain requirements as to service of certain documents on the judgment debtor are fulfilled. Other changes necessitated by the recast Regulation will be brought in by regulations.
The Pre-Action Conduct PD: The Civil Rules Committee has rejected the call by Jackson LJ to entirely remove the sections on exchanging information before starting proceedings and attempting ADR (section III) as well as the sections covering disclosure, experts, limitation and notifying the court (section IV) (because Jackson LJ believed it was unsuitable to adopt a “one size fits” all approach). However, these will be condensed into shorter paragraphs. New paragraphs on proportionality and settlement/ADR will also be introduced.
Proportionality: Where parties incur disproportionate costs in complying with any pre-action protocol or the Pre-Action Conduct PD, those costs will not be recoverable as part of the costs of the proceedings.
ADR/Settlement: There will be a new provision that a party’s silence in response to an invitation to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs. This change will reflect the decision in PGF II v OMFS (see Weekly Update 38/13) where the Court of Appeal held that a failure to respond at all to an offer to mediate will usually be unreasonable (unless, for example, ADR was “so obviously inappropriate” or the failure could be attributed to a mistake by the recipient).
Where a dispute has not been resolved, the parties should continue to co-operate by seeking to agree a list of issues and the necessary procedural directions for efficient case management during the proceedings.