>> bankruptcy deposits up
>> Fast track limit rises
>> On Line with no particulars of claim
>> New pre-action PD
In lieu of harassment
The new PD on pre-action conduct imposes specific requirements in consumer debt claims. The business is to inform the defendant indivdual of how the money claimed can be paid; that he can contact the claimant to discuss possible repayment options and provide the relevant contact details; and that free independent advice and assistance can be obtained from organisations listed in the PD including National Debtline, CAB and Community Legal.
What a relief
Second-class bankruptcy in the form of a debt relief order (DRO) arrives on 6 April 2009 by dint of Pt 7A of the Insolvency Act 1986 (which is inserted by the Tribunals, Courts and Enforcement Act 2007, s 108) and a plethora of subordinate legislation. Debtors owing no more than £15,000, with assets worth no more than £300 and no more than £50 per month in surplus disposable income will qualify (The Insolvency Proceedings (Monetary Limits) (Amendment) Order 2009 (SI 2009/465). The £15,000 limit is aligned with the rise in the county court administration order limit from £5,000 to £15,000 which may not be with us until October 2010. The debtor will apply to the official receiver through an approved intermediary who will be an experienced debt adviser appointed by one of the designated competent authorities, which include the CAB and Baines & Ernst Ltd. A fee of £90 has been prescribed. Automatic discharge after 12 months, DRO offences, DRO restriction undertakings or orders (though any conduct by the debtor prior to 6 April 2009 will be disregarded) and registers of them—the lot—but, of course, no income payments undertakings or orders. The Insolvency (Amendment) Rules 2009 (SI 2009/642) go wild with the new creature. The majority of low earners will have collected substantially more than £15,000 in credit. But, for those who do qualify, it’s useful ammunition when the debt collector calls.
Beaky appeals: new home
Appeals in family proceedings (including child support and certain other family related cases) against decisions of magistrates’ courts which are initiated on or after 6 April 2009 will go to the county court instead of the High Court. The “case stated” procedure disappears in favour of a regular county court appeal for family appeals on the grounds that the decision was wrong in law or in excess of jurisdiction. The PRFD will be expressly treated as a county court for these appeal purposes.
The president is issuing a practice direction (PD) to place an obligation on magistrates’ courts to give reasons and retain notes of evidence in all cases susceptible to the new appeal route. High Court judges may praise the Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2009, the Family Proceedings (Amendment) Rules 2009 (SI 2009/636) and the Family Proceedings Courts (Children Act 1989) (Amendment) Rules 2009 (SI 209/637).
Rome II
It’s not a film festival. It’s the EC Regulation 864/2007 applicable to non-contractual obligations which came into force on 11 January 2009 in respect of events occurring after 19 August 2007 and applies to the UK and all other member states except Denmark. The regulation sets the appropriate national law to be applied in cross-border cases (for example, parties in tort claim to live in different countries and tort has allegedly taken place in third country). Proceedings in defamation and violations of privacy are excluded.
CPR no good
Powers in the CPR to extend time, remedy an error of procedure and dispense with service cannot be invoked to extend a statutory time limit or to avoid service required by statute unless the statute expressly provides. Mucelli v Government of Albania and another appeal [2009] UKHL 2, [2009], [2009] All ER (D) 135 (Jan) The Times, 27 January.
Appealing?
The new Supreme Court will be opening for high-class business on
1 October 2009. Consultation is taking place on the fees to be charged to punters to help towards the estimated running costs for civil business of £6.6m per annum. For non-devolution cases, the plan is to extract £800 on an application for permission to appeal, £800 on filing notice of intention to proceed where permission is granted and £4,820 on filing documents for the appeal hearing.
Up
There are increases in deposits payable on insolvency petitions presented on or after 6 April 2009 under the Insolvency Proceedings (Fees) (Amendment) Order 2009 (SI 2009/645). On a winding-up petition there is a £25 increase to £715 and on a bankruptcy petition a rise of £15 to £360 for the debtor and £430 for the creditor.
And down
The fee on registration of a lasting power of attorney was reduced by £30 to £120 on 1 April 2009. But don’t ask for an office copy of a registered enduring or lasting power because they will now sting you £25 for it. A solicitor’s certified copy will usually suffice. Go to the Public Guardian (Fees, etc) (Amendment) Regulations 2009 (SI 2009/514) if you must.
The dreaded Register
Decisions of employment tribunals along with the Employment Appeal Tribunal, the First-tier Tribunal and the Upper Tribunal will be registrable in the Register of Judgments, Orders and Fines once filed for enforcement with the High Court or a county court. That’s the Register of Judgments, Orders and Fines (Amendment) Regulations 2009 (SI 2009/474) which came into force on 1 April 2009. Enforcement of negotiated settlements in employment tribunal cases through ACAS will be enforceable as if payable under a court order under the 49th CPR update (see below) as from 6 April 2009. In relation to an award by an employment tribunal or sum due under an ACAS settlement, the High Court and County Courts Jurisdiction (Amendment) Order 2009 (SI 2009/577) will allow beneficiaries to enforce by way of execution against goods in either the High Court or county court where the sum involved is less than £5,000.
PICK OF THE 49th
Happy birthday, CPR. No candles or poppers—just the 49th update incorporating the Civil Procedure (Amendment No 3) Rules 2008 (SI 2008/3367) coming into force on 6 April 2009. Here are some of the best bits.
Going faster
The fast track maximum limit is raised to £25,000 for claims started on or after 6 April 2009. It sticks at £15,000 for claims started previously. A new band for fast track trial costs is created for plus £15,000 cases—£1,650. For trial costs purposes, the value of the claim will be treated as more than £15,000 (instead of more than £10,000) if the claim form states that the claimant cannot reasonably say “how mush is likely to be recovered” (instead of “how much he expects to recover”). The High Court and County Court Jurisdiction Order 2009 (SI 2009/577) welds claimants in money claims with a value of no more than £25,000 to the county court (except for enforcement) where proceedings are started on or after 6 April 2009. Currently money claims for more than £15,000 may be commenced downstairs or upstairs.
Implications for the former multi-trackers? A saving of £500 in the hearing fee on claims in the plus £15,000 to £25,000 band; prospectively lower trial costs; a trial window within 30 weeks of allocation; concurrent trial jurisdiction of district judges with circuit judges; and probably a bias against a case management conference.
Look, no particulars of claim
The Money Claim On Line scheme has had rave reviews here—or should have done. Inevitably, the claim has got to be about money to qualify and for less than £100,000 and then, generally, you can get the trainee to click away at two in the morning with a lager and lime in one hand and a mouse in the other. You can even pay by credit card if your office account is overdrawn. The scheme’s weakness has been in restriction of the size of the particulars of claim to 1,080 characters (including spaces). This has led to complete rubbish, strike-outs and amended or substitute particulars of claim.
By dint of a revised PD7E the particulars of claim may in future be served by the claimant within 14 days after service of the claim form with a certificate of service being filed within 14 days of service of the particulars of claim. The claim form, however, will have to state that detailed particulars of claim will follow and include a brief summary of the claim in the outline section headed “particulars of claim”. A revised PD7C makes similar changes allowing post-issue service of the particulars of claim in production centre cases.
Less taxing
The speedy procedure for unpaid tax claims—no allocation questionnaires and a hearing of the claim fixed soon after the filing of the defence without directions and with proof of the claim usually resting on the claimant’s production of a certificate—is extended to a host of other tax-like claims such as VAT and cider and perry duty as well as student loan repayments.
Pleasantry in contention
A PD on pre-action conduct arrives and should not be dismissed as unrealistic waffle. Generally, it governs all claims whether or not the subject of an existing pre-action protocol (PAP) with specific requirements on claims where the claimant is a business and the defendant is an individual.
Best to start at the end. How severely thrashed will be the party who fails to comply? Sanctions which are specified are stay until retrospective compliance, an order for costs (including small claims track unreasonable behaviour costs), deprival or lowering of interest on money awarded to the claimant and enhanced interest on money payable by the defendant (but not more than 10% over base). When considering compliance the court is to concentrate on compliance in substance, is not likely to be concerned with minor or technical shortcomings and will take into account proportionality and urgency.
In a non-PAP case, before proceedings the claimant should send a letter before claim and the defendant give a full written response within a reasonable period (for example, 14 days for a straightforward matter, 30 days if complex or third party involvement of say an insurer with longer than 90 days only being reasonable in exceptional circumstances).
New claim form para
In PAP and non-PAP cases:
notice of the existence of a funding arrangement should be communicated to all other parties as soon as possible;
if proceedings are started for limitation reasons with bad pre-action manners, the parties should seek to agree to apply to the court for a stay while they take steps to comply; and
where proceedings are started, the claimant should state in the claim form or particulars of claim whether they have complied with the PD and any relevant PAP.
Experts’ guidance on the pre-action instruction of an expert subject to any PAP nudges towards a single joint expert paid for jointly or, at least, and agreed expert. If there is no agreement on a single joint expert, the party seeking to instruct should provide a list of one or more suitable candidates and any objections should be taken within 14 days. Where there is objection to the lot, the instructing party can go for his choice.
Admissions
There is an amendment to CPR 14.1A which deals with pre-action admissions by limiting its application to admissions made after receipt of a letter before claim in accordance with the new PD or made earlier but stated to be made under Pt 14.
