Overview of the 127th Practice Direction Update and the Civil Procedure (Amendment) Rules 2021

The Civil Procedure (Amendment) Rules 2021 enter into force on 6 April 2021. On this date, a number of changes to the Civil Procedure Rules (CPR) and their accompanying Practice Directions (PDs) come into effect, an overview of some of which is given below.

Three amendments come into force sooner than this date – on 30 March 2021, Practice Direction (PD) 51X – regarding the pilot scheme for new N260A and N260B Forms for Summary Assessments of Costs – gets an extension of one year, until 31 March 2022.

Already in force at the time of writing are amendments to PD 55C and to the 107th PD Update, the latter regarding the transitional provision following the UK’s withdrawal from the European Union.

  • Practice Direction 55C Extended

PD 55C has been amended, as of 29 January 2021, at paragraphs 1.1, 2.6 and 5.3. The PD’s ‘interim period’ now remains in effect until 30 July 2021, having been extended beyond the original end date of 28 March 2021.

A stay on almost all possession proceedings was previously imposed by PD 51Z and CPR 55.29; that stay was lifted on 20 September 2020. A reactivation notice is required for stayed claims issued prior to 3 August 2020, except those in which a final possession order has already been made. The deadline for the filing and service of a reactivation notice, to reactivate a stayed claim, is now 4:00pm on 30 April 2021, whereas previously it had been 4:00pm on 29 January 2021. In other words, this deadline was extended on the very day on which the automatic stay was due to take hold.

If no reactivation notice has been filed and served by the new deadline of 4:00pm on 30 April, the claim will be automatically stayed. Paragraph 2.7 of PD 55C makes clear that any stay is not a sanction for breach, thus any application to lift the stay is not an application for relief from sanctions.

  • Overriding Objective Amended and new PD 1A

The overriding objective at CPR 1.1 is amended, following the report from the Civil Justice Council on Vulnerable Witnesses published in February 2020. There is a new PD 1A on Participation of Vulnerable Parties or Witnesses, which supplements CPR Part 1.

The overriding objective requires that the court ensure, so far as practicable, that the parties are on an equal footing and can participate fully in proceedings, and that parties/witnesses can give their best evidence. The parties are required to help the court further the overriding objective at all stages of civil proceedings. A non-exhaustive list of factors which may cause vulnerability is given in PD 1A, including age, language difficulties, disability, mental health condition, and ‘social, domestic or cultural circumstances’.

The court should consider the ability of the party or witness to understand the proceedings, express themselves, comply with court requests – or do so in a timely manner, and attend any hearing.

The court should try to consider whether vulnerability will diminish quality of evidence or a party’s/witness’s participation, and consider ordering ‘appropriate provisions’, such as ‘ground rules’ before they give evidence. These may include directions regarding the conduct of the advocates and/or the parties in respect of that person’s evidence.

  • Temporary CPR Changes for Coronavirus and other emergencies

A new CPR provision will allow for PDs to modify the CPR on a temporary basis, to respond to court work arising from emergencies, whether related to Covid-19 or otherwise.

  • Proposed New PD for the Debt Respite Scheme

A new rule will be introduced which will allow for a PD to set out the procedure regarding the operation of the Debt Respite Scheme (Breathing Space) which comes into force on 4 May 2021. This scheme has been set up by HM Treasury, pursuant to the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020. It permits debt advisers to apply on a debtor’s behalf for up to 60 days of breathing space (in standard cases), in which no action or contact from creditors is permitted against debtors, regarding qualifying debts.

  • Settlement Offers

PD 47 paragraph 19 is amended so that offerors of a Part 36 or other settlement offers should specify whether the offer is inclusive of the cost of preparing the bill and VAT. A non-Part 36 offer should clarify whether or not it is inclusive of interest (Part 36 offers are treated as inclusive of interest – CPR 36.5(4)). Unless the offer states otherwise, it is treated as being inclusive of all of these. This provides clarity by creating a presumption that an offer is inclusive of all interest if the offer is silent on the point.

  • Electronic Working

PD 51O – the Electronic Working Pilot Scheme being trialled inter alia in the Business and Property Courts, as well as in the Rolls Building of the Royal Courts of Justice in London, is extended by one year to 6 April 2022.

  • Foreign Judgments

CPR Part 70 is amended to clarify that foreign judgments (including those from EU Member States) require registration in order to be enforceable. Such a judgment is to be treated for enforcement purposes as if it were a High Court or County Court judgment.

  • No Collateral Use of Evidence

CPR 32.12 is amended to make it such that neither witness statements nor affidavits may be used ‘collaterally’ outside the proceedings in which they are served; affidavits were not previously included in this provision.

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