HMCTS bulk litigation improvements

We have reported regularly on the review being undertaken by HMCTS and the Ministry of Justice of possession claims and of its IT interfaces for bulk users.  There are encouraging signs that this is building momentum with a number of bulk users having received a detailed IT scoping questionnaire which was introduced as follows:

"HMCTS are working towards a more strategic IT platform that will support effective and efficient services to its customers.

There are a number of initiatives that have been agreed to support development of this including Secure Bulk Data Transfer and Civil Case numbering.

Secure Bulk Data Transfer

The principles for secure bulk data transfer for HMCTS will be:

Principle 1: HMCTS must provide a secure facility for HMCTS users to upload/transfer bulk data online to Civil Family and Tribunals systems. The level of security must match the Impact Levels1 (IL) of the data being transmitted and of the MOJ environment.

Principle 2: HMCTS must offer a modern and stable method of bulk data transfer

Principle 3: There must be the capability to handle anticipated minimum volumes of 17 million bulk data transactions per year

Principle 4: HMCTS must be capable of receiving bulk data from HMCTS users 24/7

Principle 5: HMCTS users should be capable of directly uploading bulk data to HMCTS ready for validation.

Principle 6: The bulk data transfer process must be secure for the entire process from user to HMCTS. Effective security controls are required at the boundary (such as authentication, protective monitoring & content checking) between HMCTS and all users. This must comply with all relevant HMG Security Policy & justify exceptions.

Future high level service requirements include:

  • Enabling users to submit data files online
  • Immediate data validation
  • Enable users to check status of a claim
  • Enable receipt of usage reports by users
  • Enable management of user accounts online"

Charging order powers enhanced

The Tribunals, Courts and Enforcement Act 2007 aims to give creditors a greater chance of obtaining payment under a judgment.

Two provisions, which amend the Charging Orders Act 1979, come into force in 2012;  s.94 has been in force since 17 May and s.93 will follow in October.

Under section 93, where a debtor is required to make repayments by instalments, the court can make a charging order even where the debtor has not yet defaulted (although the court must take that non-default into account when deciding whether to grant the order).

Section 94 gives the Lord Chancellor the power to set a minimum debt threshold for the making of charging orders and orders for sale: Tribunals, Courts and Enforcement Act 2007 (Commencement No 8) Order 2012 (SI 2012/1312). 

Possession claims and cause of action estoppel

In Anthony Cliff Spicer (2) Henry Anthony Shinners v Thonii Tuli [2012] EWCA Civ 845 the Court of Appeal clarified the law of case of action estoppel.  The basis of the particular claim was a possession claim although this appears to have had little bearing on the actual decision.

Cause of action estoppel will generally arise to prevent re-litigation of the same claim in successive actions - which is said to be an abuse of process.  Possession proceedings had been issued but were withdrawn by consent to give the claimant an opportunity to review tenancy agreements which had been disclosed by the defendant. There was no inflexible rule that cause of action estoppel always arose after judgment by consent if it was clear that a party had intended to pursue a claim. The claimants were not prevented from issuing a second possession action because the claimants had made it clear to the defendant that they were not abandoning the claim.

Setting aside judgment obtained in applicant's absence

In WXY v (1) Henry Gewanter (2) Positive Profile Ltd (3) Mark Burby [2012] EWHC 1490 (QB) the High Court has reiterated the conditions required under CPR 39.3 for setting aside judgment where a party has failed to attend trial: namely that A had not attended the trial for good reason, he had an arguable case on the merits and had applied to set aside the judgment promptly. The facts of the case are unusual in that Mr Burby claimed not to have attended trial due to threats to himself and his family, however it could be a useful precedent when dealing with litigants in person who appear to be looking for an excuse to avoid trial.  It was found that a period of just over 3 weeks to bring the application was not a failure to act promptly in a complex case. 

Homeowners' Mortgage Interest Rates Bill 2012-13

A private members bill to "require that mortgage interest rates paid by homeowners change by at least the same percentage as mortgage interest base rates; and for connected purposes" received its first reading in the House of Commons on 25 June 2012. The bill presented by Thomas Docherty has not yet been published and is due to receive its second reading on 1 February 2013.  Further analysis will follow publication.