Be my witness

Can it really be that the Civil Procedure Rules 1998 have already been updated 50 times? Several of the latest amendments relate to specialist jurisdictions such as defamation cases; for example, amendments to part 44 regarding recoverability of ATE premiums and intellectual property claims where part 63 has been rewritten. However, the amendments, nearly all of which came into force on 1 October 2009, do contain items of general interest worthy of comment. It is of course of considerable historical interest that many of the minor amendments reflect the coming into being of the Supreme Court of the United Kingdom to replace the judicial committee of the House of Lords.

Expert evidence

Part 35 has some significant amendments and its practice direction has been revamped. 'Expert' is redefined as a person who has been instructed to give or prepare expert evidence; expert evidence is not expressly defined although the practice direction indicates what it should be ('unbiased opinions on matters within their expertise'). 'Single joint expert' is also defined as an expert reporting 'for the court on behalf of two or more of the parties'. The wording of the expert's statement of truth is now mandatory and been revised to read: 'I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.'

The practice direction states firmly that 'where possible, matters requiring expert evidence should be dealt with by only one expert', and sets out the matters which the court should take into account when considering whether to give permission for expert evidence and whether that evidence should be from a single joint expert. Those matters include whether it is proportionate to have more than one expert having regard to the amount in dispute, the importance of the case to the parties and its complexity, whether a single joint expert would be quicker and more cost effective and whether the area of expertise is one where there is an established area of knowledge or not.

The rules now provide expressly that in the small claims track permission will normally only be given for one expert on a particular issue. Most importantly, rule 35.6 now provides (albeit in parentheses!) that questions to an expert must be proportionate. In a recent case, one party had put no fewer than 87 questions to an expert psychiatrist before adding a supplementary 13 to make a round 100. To his credit, the expert dealt with them all.

The changes to part 35 and the practice direction are welcome. I still see too many unwarranted applications for accident reconstruction experts, and for 'experts' to give what is actually factual evidence about spot hire rates in the never-ending stream of credit hire cases. They already tend to get fairly short shrift, but the revisions will help.

Automatic Orders Pilot Scheme

Amendments to PD51B should not be taken to presage the demise of the procedural judge (at least so I hope), but they do provide for the Automatic Orders Pilot Scheme to be rolled out nationwide for a year. The pilot scheme, initially applicable in five county courts, is being rolled out to all and to the High Court from 1 October. Automatic orders are issued: i) where all parties request in their allocation questionnaires a stay of proceedings for a month; ii) where a party fails to file an allocation questionnaire: first the court will send out a notice requiring the filing of the allocation questionnaire within seven days and then, if a party still fails to file it, his claim, defence or counterclaim will be automatically struck out without any further order; or iii) where a party in a fast track case with only one claimant and one defendant fails to file a pre-trial checklist: a series of automatic orders is issued similar to those for allocation questionnaires. These provisions will certainly lighten the boxwork load for district judges, but what next I wonder?

Mortgage possession proceedings

The amendments to rule 55.10 provide for in the notice to the occupier in mortgage possession proceedings to be addressed 'to the tenant or occupier' and for the claimant to notify the local authority of the issue of proceedings. Will that change the standard practice of many local authorities who decline to do anything until they see a possession order? We shall see. The practice direction now includes a requirement for the claimant to bring a checklist (Form N123) in duplicate to the hearing to confirm, one hopes, compliance with the protocol. The checklist is comprehensive and contains a statement of truth. The protocol itself has been expanded to provide that lenders should consider postponing the issue of proceedings where borrowers can show that they have applied (with all required documentation) to the DWP for SMI (support for mortgage interest). Local experience is that the issue of mortgage possession proceedings continues apace, but that the protocol is having an effect and that the majority of lenders appear to be adopting a more understanding approach to their borrowers' difficulties.

Already in force (from 31 August 2009) are the amendments re-inserting drinking banning orders in part 65, a jurisdiction which the District Bench has the privilege of exercising according to the amendment to PD2B.

Finally, PD2A now regulates more precisely when court offices will be open (no more local variations) and provides a table for Christmas opening '“ so that we can work out exactly when to do our Christmas shopping.