The Civil Procedure (Amendment) Rules 2007 were made available in August 2007 and come into force on 1 October 2007.
Set out below are the main changes that appear in these amendments that are of relevance to commercial disputes.
Amendments to existing rules and practice directions
1 Practice Direction 7 – How to Start Proceedings
Paragraph 3.5A is amended to reflect that Denmark has become a party to the Brussels Regulation, also know as the Judgments Regulation (EC Regulation 44/2001).
2 Part 19 and Practice Direction – Parties and Group Litigation
As a consequence of the Companies Act 2006, rule 19.9 is amended and new rules 19.9A to 19.9F are inserted to incorporate a new two stage procedure to apply for permission to proceed in derivative claims. The range of circumstances in which a derivative action may be brought by a shareholder is wider than before. The old rule will continue to apply to derivative claims begun before 1 October 2007 and, where the director’s act or omission in question occurred before this date, the law in force at the time of the act or omission will apply. There is a new Practice Direction on derivative claims to supplement the new rules.
3 Practice Direction 37 – Miscellaneous Provisions about Payments into Court
This is amended to simplify the procedure for notifying litigants that funds are available should an offeree wish to accept a Part 36 offer. Paragraph 1.1 relating to payments into court under an order etc now requires the paying party to serve a copy of form 100 (request for lodgment, updated July 2007) on the other parties and to file it at court, instead of a notice of payment.
4 Part 47 – Procedure for Detailed Assessment of Costs and Default Provisions
In relation to appeals from authorised court officers in detailed assessment proceedings, the time for filing the appeal notice has been extended from 14 to 21 days after date of the decision to be appealed (rule 47.22).
5 Part 49 and Practice Direction – Specialist Proceedings
Most notably, new provisions are introduced to PD49 for applications under the Companies Act 2006 (“the 2006 Act”). The provisions for applications under the Companies Act 1985 (“the 1985 Act”) and related legislation have also been revised and simplified. PD49 therefore applies to the following proceedings (“relevant proceedings”):
(a) under the 1985 Act
(b) under the 2006 Act (except derivative claims, which are governed by Part 19, and transfer proceedings, governed by Part 30);
(c) relating to claims of ownership of seized property under section 59 of the Criminal Justice and Police Act 2001 (“CJPA 2001”);
(d) relating to the merger of public limited liability companies under articles 25 and 26 of EC Regulation 2157/2001 on the Statute for a European Company; and
(e) under Part VII of FSMA (Control of business transfers).
Relevant proceedings continue to be commenced under the Part 8 procedure, except where otherwise provided. In most cases, the requirement for claims to be started by petition has been removed, although claims for unfair prejudice must still be made by way of petition.
Section III of the Practice Direction sets out the modifications to the procedure for applications under the new 2006 Act. These include:
- where the company is to be made a defendant to the claim;
- applications under s169 (director’s right to protest against removal) and s295 or s317 (application not to circulate members’ statement) – provisions relating to service of the claim form;
- s370 proceedings (unauthorised donations – enforcement of directories’ liabilities by shareholder action), s955 proceedings (takeovers – enforcement by the court) and s968 (takeovers – effect on contractual restrictions) must all be started by way of the Part 7 procedure; and
- for applications under s1132 (Production and inspection of documents where offence suspected) there is no need to give notice to or serve the claim form on any person against whom the order is sought.
Section II sets out the existing modification to the procedure for applications under the 1985 Act under s721 (Production and inspection of books where offence [in connection with the management of the company’s affairs] suspected), and the new provisions for applications under Part XIII for an order to sanction a compromise or arrangement.
Section IV sets out modifications to the procedure for other applications, being the EC Regulation and the CJPA 2001 as noted above. The provisions relating to the procedure for applications under the EC Regulation are largely just redrafted for clarity. It is noted that there need not be a defendant to the claim.
The special provisions for the procedure for applications under Part VII of FSMA (Control of business transfers) no longer appear in this Practice Direction.
The provisions governing applications for the reduction in capital have been simplified and no longer take into account schemes of arrangement. The special provisions for hearings to confirm a reduction of capital during the Long Vacation have been omitted.
The provisions allocating every relevant application to the multi-track automatically and disapplying rules relating to allocation questionnaires and track allocation have been removed, as have provisions relating to the drawing up of orders.
Transitional provisions - The old provisions will continue to apply to claims or applications started before 1 October 2007, in particular in relation to proceedings for the court to sanction a compromise or arrangement.
6 Part 52 and Practice Direction – Appeals
New rule 52.12A and paragraphs 17.7-17.11 of the Practice Direction introduce a standard procedure for third parties to apply for permission to file evidence or make representations in order to intervene in statutory appeals.
New rule 52.19 provides that an appeal from a decision of a tribunal, including the Financial Services & Markets Tribunal, lies to the High Court and that the tribunal of its own initiative or at the request of a party to the proceedings may state a case for the decision of the High Court.