They're Here! Jackson Implementation Rules Finally Published.
Civil Procedure (Amendment) Rules 2013
Wednesday, 13 February 2013 saw the government lay the draft Civil Procedure (Amendment) Rules 2013 before Parliament. Finally, with less than 7 weeks to go before the implementation date, those affected by the proposals get to see much of the detail of how they will work. However, we are still awaiting the draft new practice directions which will support the rules.
This article is too short to be able to comprehensively review the proposals, and we will be exploring the changes in more depth on a topic by topic basis in the coming weeks. We recommend that all practitioners take the time to look at the rules themselves, which is due to be added as a Statutory Instrument at 3pm today.
Highlights from a costs perspective include:
- Costs budgeting. This has long been an anticipated change affecting all multitrack litigation, and draft rules had already been made available. In one key change from previous drafts, the budget is to be prepared by the date specified in the new “notice of proposed allocation” (formerly the notice that a defence has been filed) or, if no date is specified, 7 days prior to the first case management conference. This replaces the draft provision that the budget be prepared within 28 days of the defence.
- Proportionality. The government is serious about proportionality. The overriding objective of CPR is being altered to that of “enabling the court to deal with cases justly and at proportionate cost.” Furthermore, “where the amount of costs is to be assessed on the standard basis, the court will only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred”. With the stakes so high, expect plenty of satellite litigation over the new proportionality test, which has been blogged about here.
- Qualified One-Way Costs Shifting. Applies to all personal injury claims. The new rules make it clear that any award against a Claimant will only be enforceable up to the value of damages awarded. Exceptionally, the full costs order may be enforceable without the Court’s permission where the proceedings have been struck out, or with the Court’s permission “where the claim is found on the balance of probabilities to be fundamentally dishonest”. Expect satellite litigation as to the meaning of this provision.
- Changes to Part 36 As expected, where a judgment is entered against a Defendant which is at least as advantageous as a Claimant’s Part 36 offer, the Claimant is to receive an additional amount equivalent to 10% of the first £500,000 damages awarded and 5% of the remaining damages up to a cap of £75000.
- Changes to detailed assessment. Two big changes. First, Part 36 offers are going to be effective in detailed assessment proceedings. Second, the provisional assessment pilot which has been running in the Leeds, York and Scarborough County Courts is to be extended to all detailed assessments commenced after 1 April 2013 with a value under £75000 (the value is not specified in the rules, but we understand this is to be the content of the practice direction). This means that bills will in the first instance be assessed on the papers. A dissatisfied party may request an oral hearing, but must better the provisionally assessed figure by at least 20% or bear the costs of the oral hearing.
The battleground has now been mapped; the new costs wars are soon to begin.
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