The Civil Procedure (Amendment) Rules 2008 come into force on 1 October 2008, unless otherwise stated below.

Set out below are the main changes that appear in these amendments that are of relevance to commercial disputes, aside from changes to simply clarify or tidy up unnecessarily complicated text. The revised Part 6 regime for service of documents is discussed in a separate note.

Amendments to rules and practice directions

  1. References throughout the CPR to EC Regulation 1348/2000 on the service in Member States of judicial and extrajudicial documents in civil or commercial matters (which has been repealed by EC Regulation 1393/2007) are substituted with reference to the Service Regulation as defined by rule 6.31(e).
  1.  Part 12 and Practice Direction – Default judgment

General housekeeping amendments change all references to “Regulation State” to “Member State”.

  1.  Practice Direction 40E – Reserved Judgments

Practice Direction 40E is revised to reflect the current practice of electronic distribution of judgments before handing down, and the concerns expressed in Director of Public Prosecutions v P [2007] EWHC 1144 (Admin). It applies to all reserved judgments that any court intends to hand down in writing.

The purpose of this practice direction, still, is that disclosure of a draft judgment to solicitors should be limited to the solicitors directly involved in the case, because the only purpose of disclosure is to permit the legal team to take instructions on the immediate conduct of the case. However now, if a party to whom a copy of the draft judgment is supplied is a partnership, company, government department, local authority or other organisation of a similar nature, additional copies may be distributed in confidence within the organisation. This is provided that all reasonable steps are taken to preserve its confidential nature, that neither the draft judgment nor its substance is disclosed or used in the public domain and no action is taken (other than internally) in response to the draft judgment before the judgment is handed down (paragraph 2.6).

If the parties or their solicitors are in any doubt as to whom copies of the draft judgment may be distributed, they should enquire of the judge or Presiding Judge.

Any failure to take all reasonable steps to preserve the draft judgment’s confidential nature may be treated as contempt of court, as well as for disclosing or using it publicly or taking external action on it.

Following the circulation of the draft judgment, the parties or their legal representatives must seek to agree orders consequential upon the judgment (paragraph 4.1). Where a party wishes to apply for a consequential order not agreed with the other parties, the application must be made by filing written submissions with the clerk to the judge or Presiding Judge by 12 noon on the working day before handing down (paragraph 4.4).

Unless the court orders otherwise, where judgment is to be given by an appeal court, the application will be determined without a hearing. Where judgment is to be given by any other court, the application will be determined at a hearing.

  1. Practice Direction 52 – Appeals

Paragraphs 15.13 to 15.21 of Practice Direction 52 relating to reserved judgments are deleted and paragraph 15.12 directs to Practice Direction 40E (Reserved Judgments) instead.

  1. Parts 43-47 and Practice Directions – Costs rules

The costs rules and accompanying practice directions are amended to enable costs orders to be made in civil cases where the successful party was represented (whether wholly or partly) on a pro bono basis. In particular, there is a new Rule 44.3C “Orders in respect of pro bono representation”. Such costs orders will be directed to a charity prescribed by order made by the Lord Chancellor to those who provide, organise or facilitate the provision of free legal advice and assistance. Parts 3 (Case Management Powers), 36 (Offers to Settle) and 38 (Discontinuance) are also amended as a consequence of these changes.

  1.  Part 51 – Transitional Arrangements and Pilot Schemes – New Practice Direction (Automatic Orders Pilot Scheme)

This will apply in county courts in Chelmsford, Newcastle, Teesside, Watford and York, so refer to the changes this new Practice Direction will make to Parts 26 and 28 if you have any matters in these courts.

  1.  New Part 78 and Practice Direction – European Order for Payment and European small claims procedures

This provides procedures to deal with European Orders for Payment (“EOP”) for the recovery of uncontested money claims (i.e. claims where there is no dispute over whether the money is owed or not, but where the debtor is unwilling or unable to pay) in civil and commercial matters between Member States, as required by EC Regulation 1896/2006. Parts 7, 8, and 74 are amended as a consequence. This Part and the consequential changes come in to force on 12 December 2008.

Under existing procedures a judgment obtained in a Member State is not automatically enforceable in another Member State. Creditors have to deal with the judgment and enforcement processes governed by foreign legislation, and the costs of pursuing such actions can be prohibitive. The new procedure will make it possible for a creditor to follow a standard procedure to recover an amount owed by a debtor in any other Member State outside of their own Member State.

A creditor will fill in the relevant application form, giving a number of details on the claim (e.g. details of the parties involved, amount of the claim, cause of action, brief description of evidence supporting the claim). The court will then issue a “payment notification” which informs the defendant about the claim and gives the defendant debtor an opportunity to lodge a statement of defence. If the defendant debtor lodges a statement of defence, the Order for Payment Procedure is automatically brought to an end and the matter is transferred to ordinary civil court proceedings. If he does not act, the court delivers the Order of Payment to the defendant debtor, requesting payment.

As the regulations and administration of the EOP are standardised, any order will be easily transferred and recognised in any Member State without being subject to intermediate proceedings and without the need for declarations of enforcement. The EOP procedure applies both to commercial and civil cases, but cannot be applied or used in bankruptcy or insolvency cases.

New Part 78 and the Practice Direction also provide procedures to deal with European Small Claims Procedure, as required by EC Regulation 861/2007, which simplifies cross-border small claims litigation, i.e. under 2000 Euros. Rules in relation to the European Small Claims Procedure come into force on 1 January 2009.

  1.  Practice Direction 74B is amended to ensure provisions contained within are consistent with those in the Part 78.