This article 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.

Amendments to the CPR The following amendments to the CPR have been in place since 1 October 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 Plc1, was that the court should take a broad view of all circumstances. So, 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 36.14 now means that the old position applies and that even if that judgment is for a penny more than the Part 36 offer then, despite the advantage being tiny, the judgment will be considered to be more advantageous. This is the most significant change made to the rules. 
  • CPR 6.7 has been expanded so that the 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 (and the court to consider making of its own initiative) a costs capping order in proceedings that relate to trust funds.
  • The Costs Practice Direction has also been amended so that the amount of costs a litigant in person can recover under CPR 48.6 is increased from £9.25 to £18 per 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, are being extended.
  • A number of court forms have also been revised.

Re-litigating discontinued claims (CPR 38.7)

The recent case of Westbrook Dolphin Square Ltd v Friends Provident Life and Pensions Ltd [2011] EWHC 2302 (“Westbrook”) is of note because it is thought to be the first authority on the application of CPR r.38.7.

CPR r.38.7 provides that a claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if:

(a) he discontinued the claim after the defendant filed a defence; and

(b) 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 r.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 claimant was misled or tricked by the defendant; 
  • important new evidence came to light; or 
  • there had been a retrospective change in the law.

However, in Westbrook it was confirmed that the following principles should inform the court’s approach to CPR r.38.7:

  • no-one should be sued twice over the same events; and 
  • it is in the public interest that there be an end to litigation.

The facts of this case were quite complex and related to a claim for collective enfranchisement under Chapter I of Part I of the Leasehold Reform, Housing Development Act 1993 (“the Act”). In his judgment, Arnold J 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 it before discontinuing the action shortly before trial. On the facts, the judge did not think that Westbrook was therefore justified in forcing both Friends Provident and the courts to expend further time and resources re-litigating the same question a second time because “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.”2

It is therefore clear from this case that the onus for an application under CPR rule 38.7 will be upon 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 quite a high threshold for giving permission, particularly when it comes to the use of the court’s time and resources and those of the other parties to the litigation.

Oral hearings - CPR 3.3

The recent case of Golden Eye (International) Ltd v Maricar [2011] EWPCC 27 is of note as a recent example of the court using its power under CPR 3.3 to make an order of its own initiative. In this case, 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.

The facts in this case were that Golden Eye had sued Maricar (an individual) for copyright infringement. It has 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, including an order that Golden Eye should add the original copyright owner as a party to the proceedings and should then apply to discontinue the claim or, failing that, the action should be struck out with costs. Golden Eye responded to Vithlani’s application in a witness statement, asking for it to be dismissed.

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

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