The Civil Procedure (Amendment) Rules 2023 (SI 2023/105) amended certain provisions of the Civil Procedure Rules 1998 (CPR). The accompanying 153rd Practice Direction Amendment made various amends to the CPR practice directions (PDs).

In this brief Deloitte update, we focus on the key amendments of note for clients and litigators. All of the changes detailed below came into effect on 6 April 2023, unless indicated otherwise.

PD 6A.4.1 – Service within the United Kingdom

Following the ruling in R (Tax Returned Ltd and others) v Commissioners for His Majesty's Revenue and Customs [2022] EWHC 2515 (Admin), which clarified the correct approach where multiple email addresses are provided for service, a new sub-paragraph 3 has been added to PD6A.4.1. This states that “where a party has indicated that service by email must be effected by sending a document to multiple email addresses, the document may be served by sending it to any 2 of the e-mail addresses identified”.

PD 51O – The Electronic Working Pilot Scheme

The Electronic Working Pilot Scheme has been extended to 6 April 2024. Parties will continue to be able to issue proceedings and file documents online 24 hours a day, every day, all year round, save for the prescribed exceptions.

This amendment came into force on 31 January 2023.

PD 51Y – Video or Audio Hearings during coronavirus pandemic

This practice direction, which supplemented Part 51 in respect of making provision for audio or video hearings during the pandemic, has been revoked in its entirety.

This amendment came into force on 31 January 2023.

CPR 12.3(3) – Default Judgment – Conditions to be satisfied

An amendment to CPR 12.3 clarifies that default judgment may not be obtained where certain prescribed events (outlined in the rules) have occurred at the time the court is considering the issue.

Part 17 – Amendments to Statements of Case

CPR 17.1 - Substantive amendments to CPR 17.1 include the following:

• under the revised rule 17.1(1), amendments to statements of case before service can include removing, adding or substituting a party. This incorporates the ruling in Rawet and others v Daimler AG and others [2022], in which the Divisional court ruled that CPR 17.1 was to be interpreted as allowing additional claimants to be added to a form prior to service;
• the insertion of a new sub paragraph 17.1(4) states that a party who files a notice under Part 38, discontinuing all or part of a claim, may amend their statement of case without the court’s permission to give effect to discontinuance.

PD 17 - PD17.1.4 will be substituted with the following:

“The amended statement of case should be verified by a statement of truth unless the court orders otherwise.”.

Part 19 – Parties and Group Litigation:

CPR 19 - The revised CPR 19 provides updates in relation to the addition and substitution of parties.   PD 19A is revoked and now incorporated within CPR 19. The revised CPR states:

• Applications must be supported by evidence and made under Part 23 (revised rule 19.4(2)).
• Where an order is made adding or substituting a person as a claimant prior to the filing of their consent, the order and the addition or substitution of the new party as claimant shall not take effect until the signed, written consent of the new claimant is filed (revised 19.4(5)).
• When the court makes an order for the removal, addition or substitution of a party, it may give consequential directions (revised 19.4(8)). Unlike current rule 19.4(6), the amended provision is not prescriptive in relation to the consequential directions the court may provide, seemingly providing more scope for the court to direct as they see fit.
• A new defendant does not become a party to the proceedings until the amended claim form has been served on them (revised 19.4(9)).
• A party applying to add a new party by amendment will usually be responsible for the costs of and arising from the amendment (revised 19.4(10).
• The court may remove, add or substitute parties in existing proceedings on its own initiative (revised 19.4(11)).

PD 19A – Addition and substitution of Parties - provisions in PD19A have been incorporated within CPR 19, and PD19A has been deleted.

PD 19B – Group Litigation – has been updated to clarify the King’s Bench Division and Chancery division for the purpose of publicising the Group Litigation Order.

PD 19C - Derivative Claims - has been re-labelled as “PD 19A – Derivative Claims” and paragraphs 2 (Claim form), 3 (Application for order delaying notice), 4 (Form to be sent to defendant company or other body) and 8 (Transitional provisions) have been deleted. Two new CPR prescribed forms have been created to replace the forms previously annexed to legacy PD 19C and will be published on the HM Courts and Tribunals website in-line with the April 2023 in-force date. It is anticipated that the new forms will be entitled N535 "Notice in relation to derivative claim – for claims involving a company" and N536 "Notice in relation to derivative claim – for claims involving a body corporate that is not a company or trade union".

Part 38 – Discontinuance:

The key substantive amendments to CPR 38 relate to CPR 38.7 (discontinuance and subsequent proceedings).

A revised CPR 38.7(1)(a) clarifies that where there is a discontinuance of a claim after the defendant has filed a defence, or in the case of a Part 8 claim where the defendant has filed an acknowledgement of service or written evidence, the claimant requires the court’s permission to make another claim against the defendant.

The insertion of new sub-paragraphs 2-6 outline and clarify the process for subsequent proceedings, specifically:

“(2) If the claimant considers that permission is needed, the application for permission shall be included in the claim form and claim will proceed only if permission is granted.”

“(3) The defendant shall inform the court in writing as soon as practicable whether the defendant asserts that permission is needed and, if so, whether the defendant consents to permission being granted.”

“(4) If the parties agree that permission should be granted, the court shall issue an order granting permission on the papers or make such other order as it thinks fit.”

“(5) If the parties disagree about whether permission should be granted, the court shall determine the issue either at a hearing or, in its discretion, on the papers after receiving written representations.”

“(6) The defendant is not required to file an acknowledgment of service unless and until permission is granted.”

CPR 52.24(1) and 54.1A(1) – Exercise of powers by CILEX Lawyers

CPR 52.24(1) and CPR 54.1A(1) have been amended to add Chartered Institute of Legal Executives (CILEX) lawyers to the list of authorised court officers who may perform certain court functions, before both the High Court and the Court of Appeal.

CPR 54.7A – Judicial review of decisions of the Upper Tribunal

CPR 54.7A has been revamped as a result of provisions in section 2 of the Judicial Review and Courts Act 2022 which reverse the Supreme Court’s decision in R (Cart) v Upper Tribunal [2011] UKSC 28.

A revised (and significantly shorter) CPR 54.7A now provides for the very limited circumstances in which judicial review is permitted where the Upper Tribunal has refused permission to appeal, namely:

“Where the Upper Tribunal has refused permission to appeal the decision of the First-tier Tribunal, no application for judicial review of the Upper Tribunal's decision, or which relates to the First-tier Tribunal's decision, may be made except where the question in the judicial review application is:

• whether the application for permission to appeal was validly made to the Upper Tribunal;
• whether the Upper Tribunal when refusing permission to appeal was properly constituted; or
• whether the Upper Tribunal is acting or has acted in bad faith or in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice.”

Tidying up

CPR 20 – Counterclaims and other Additional Claims

References to “Part 20 claims” (a term no longer used) have now been amended to refer to counterclaims or other additional claims.

Various CPRs PDs

The following amendments feature throughout as the vernacular of the CPR transitions in-line with King Charles’ accession:

• References to “Queen‘s” and “Her Majesty’s” have now been amended to “King‘s” and “His Majesty’s”.
• References to masculine pronouns and determiners are replaced with the plural forms.

For further information in relation to any of the above updates, please get in touch with Rob Griffiths and Ross Keeble.

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