The October CPR update: three important changes for litigators

The traditional autumn update to the CPR this year comes with three developments of particular note for litigators: the permanent incorporation of the disclosure pilot into the CPR, amendments to the rules relating to service out of jurisdiction, and the simplification of certain Practice Directions including PD16 regarding Statements of Case (PD16).

The permanent incorporation of the disclosure pilot into the rules will come as no surprise to practitioners. The substantive changes that will come into force in October include (among other things) clarifications on issues for disclosure, Part 8 proceedings, and adverse known documents. Certain practical changes are also being introduced, for example legal representatives will be able to sign the Disclosure Certificate on behalf of their clients.
 
In relation to service out of the jurisdiction, the amendments to the rules will broaden the circumstances in which claimants may serve documents in English proceedings on parties outside the jurisdiction. Finally, the amendments to Practice Directions including PD16 are part of the Civil Procedure Rule Committee's (CPRC) ongoing project to simplify the CPR, albeit they do not overhaul the substance of the existing rules.

Each of these three sets of amendments comes into force on 1 October 2022. 

Permanent incorporation of the disclosure pilot 

From 1 October, the disclosure pilot scheme which began on 1 January 2019 will no longer be a pilot as it will be incorporated permanently into the CPR under Practice Direction 57AD (PD57AD). 

PD57AD applies to existing and new proceedings in the Business and Property Courts of England and Wales. It does not apply to cases in the ordinary Queen's Bench Division or the County Courts.

PD57AD is substantially in the form of (and replaces) Practice Direction 51U, although there are a few significant changes that will be introduced in October. These changes include the following:

• CPR Part 8 claims are now explicitly excluded from PD57AD under new rule 1.4(7), unless otherwise ordered by the court. However, the court has discretion under new rule 1.12 to adapt the provisions of PD57AD in such manner as it considers appropriate when making an order for disclosure in a Part 8 claim. Part 8 claims involve cases where the claimant seeks the court's decision on a question which is unlikely to involve a substantial dispute of fact, or where a rule or practice direction requires or permits the use of the Part 8 procedure. Under new rule 1.12, a party seeking an order for disclosure in a Part 8 claim must file and serve a List of Issues for Disclosure in relation to which disclosure is sought and the Models that are to be adopted for each issue. 
  
  
• There is to be a significant new provision addressing Issues for Disclosure, which have necessitated adjudication from the court in certain cases. For instance, the issue of whether it is necessary for an Issue for Disclosure to be a pleaded issue has recently been considered by the courts.  A new rule under paragraph 7.7 provides additional guidance, including on this point under subparagraph (v):
  
  "When drafting Issues for Disclosure the parties should have regard to the primary functions of those Issues namely (i) to help the parties to consider, and the court to determine, whether Extended Disclosure is required and, if so, which Model or Models should be used; (ii) to assist the parties in identifying documents and categories of documents that are likely to exist and require to be disclosed; (iii) to assist those carrying out the disclosure process to do so in a practical and proportionate way including, in the case of search-based disclosure, to help define and guide the searches; (iv) to assist with the process of reviewing documents produced by searches; and (v) to avoid the production of documents that are not relevant to the issues in the proceedings."

• An amendment to paragraph 2.7 provides that a document may be "adverse" if it contradicts or supports an issue in dispute, "whether or not that issue is one of the agreed Issues for Disclosure". 
  
  
• Paragraph 3.1(2) clarifies that the duty to disclose known adverse documents exists regardless of any disclosure order. 
• Under paragraph 8, a party may address Model C requests not only to the other party or parties, but also propose that Model C be used in respect of documents which it may propose searching for and disclosing itself. 
  
  
• An amendment to paragraph 10.8 provides that a Certificate of Compliance is not required where the Disclosure Review Document has been dispensed with in accordance with the relevant rule.
  
  
• Under paragraph 12.6, a legal representative may sign the Disclosure Certificate on behalf of a client provided the legal representative has been given authority to do so, having explained the significance of the certificate to the client first. A representative’s signature in such circumstances will bind the client as much as if the client had signed the Disclosure Certificate itself.
  
  
• Paragraph 4 of Appendix 5 to PD57AD has increased the value under which a claim will be treated as a Less Complex Claim from £500,000 to £1,000,000, unless by virtue of the nature, complexity or likely volume of Extended Disclosure the claim would benefit from the full procedure of PD57AD. 

The Chancellor of the High Court, Sir Julian Flaux, recently noted that the courts have witnessed a significant change in culture and in parties' behaviour regarding disclosure over the past two and a half years as a result of the Disclosure Pilot. Although the Disclosure Pilot has tended to result in a front-loading of work in the disclosure process, Sir Flaux has observed that generally parties have engaged with one another at a much earlier stage on the issue of how to deal with the disclosure of large volumes of data. This early consideration and engagement has, in his experience, led to a dramatic decline in the number of post-CMC applications for specific disclosure. 

Service out of jurisdiction

Part 6 of the CPR deals with the service of documents in English proceedings outside of England and Wales. 

Amendments to rules 6.37 and 6.38 will mean that a claimant is no longer required to apply to the court for permission to serve a document other than a claim form outside the jurisdiction in certain circumstances. 

At present, a claimant requires the court's permission to serve a document outside the jurisdiction unless a party to the proceedings has given an address for service in Scotland or Northern Ireland. A claimant may also currently serve particulars of claim without permission where the court has given permission for a claim form to be served on a defendant out of jurisdiction, and the claim form states that particulars of claim are to follow.

From 1 October however, if a document other than a claim form is required to be served in the proceedings, the claimant may serve that document on the defendant without the court's permission where either:

• the claim form has previously been served on the defendant out of the jurisdiction with the permission of the court; or
  
  
• the court's permission is or was not required to serve the claim form (whether within or out of the jurisdiction). 

This change is being introduced to address the practical problems that arise when proceedings are served out of jurisdiction with the court's permission, but either the order giving permission is limited to the claim form or there was no requirement for court permission to serve the claim form. In both cases, subsequent documents needing to be served outside the jurisdiction would usually require an additional application for permission to the court. The rule change will mean that a claimant will have an automatic right to serve court documents, applications, and orders outside of England and Wales without the requirement to seek the permission of the court, provided the claim form was served with the court's permission (or did not require the court's permission to be served out of jurisdiction).

This will be a welcome development for claimants and lawyers alike, as the time and cost of an application for permission to serve documents outside of England and Wales can be avoided in circumstances where a claim form has previously been validly served on the defendant out of the jurisdiction. 

Additionally, an amendment to 6.33(2B) will address a previous gap in the CPR. New rule 6.33(2B)(c) provides that a claimant may serve a claim form on a defendant outside the United Kingdom without the court's permission where, for each claim made against the defendant to be served and included in the claim form, the claim is "in respect of a contract" containing a term to the effect that the court shall have jurisdiction to hear that claim.  

The purpose of the new rule 6.33(2B)(c) is to fix a lacuna which had been created by the deletion of previous paragraph 3.1(6)(d) of Practice Direction 6B (PD6B) following Brexit. The phrase "in respect of a contract" is not limited to claims which arise under a contract, it will also catch claims which relate to or are connected with a contract.

Furthermore, amendments to paragraph 3.1 of PD6B will add a range of additional jurisdictional "gateways", which define the circumstances in which a claimant may apply to the court for permission to serve a claim form out of the jurisdiction. 

For instance, in relation to information orders against non-parties, a new provision under paragraph 3.1(25) of PD6B provides that a claimant may serve a claim form out of the jurisdiction with the permission of the court where: 

"A claim or application is made for disclosure in order to obtain information— 

(a) regarding: 
(i) the true identity of a defendant or a potential defendant; and/or 
(ii) what has become of the property of a claimant or applicant; and  
(b) the claim or application is made for the purpose of proceedings already commenced or which, subject to the content of the information received, are intended to be commenced either by service in England and Wales or pursuant to CPR rule 6.32, 6.33 or 6.36."

This new provision will enhance the ability of the courts to assist parties seeking to obtain information from non-parties where assets are outside the jurisdiction. The issue has been particularly acute in cases where a party has needed to identify the destination of money or cryptoassets. For more information on jurisdictional issues involving cryptoassets, see here to read about a recent case where the claimant was able to serve out of jurisdiction a Bankers Trust Order on a defendant in the United States. 

Three further examples of new jurisdictional gateways that will be added under paragraph 3.1(22)-(25) of PD6B provide that a claimant may serve a claim form out of the jurisdiction with the permission of the court in the following circumstances:

• A claim is made for a declaration that no duty of confidentiality or right to privacy has arisen where, if the duty or right was found to have arisen, it would have arisen in the jurisdiction or would be governed by the law of England and Wales.
  
  
• A claim is made for unlawfully causing or assisting in a breach of confidence or misuse of private information where (i) the obligation or right in question arose in the jurisdiction or is governed by the law of England and Wales, (ii) the detriment was suffered, or will be suffered in the jurisdiction, or (iii) the act which caused such detriment was committed or likely to be committed within the jurisdiction.
  
  
• A contempt application is made.

Simplification of PD16: Statements of Case

On 1 October 2022, PD16 relating to Statements of Case will be replaced as part of the CPRC's project to simplify the CPR, which began in 2021. The CPRC has a statutory duty under section 2(7) of the Civil Procedure Act 1997 to "try to make rules which are both simple and simply expressed". 

The substance of PD16 will remain largely the same but the language will be made clearer and more concise. In particular, duplicate provisions that are already contained in Part 16, or elsewhere in the CPR, will be removed from PD16. The new PD16 also shifts from the use of masculine to gender neutral language (such as references to "the defendant" throughout the text, rather than "he"). 

In essence, lawyers will not be required to familiarise themselves with a new regime but may benefit from the simplified language and format of PD16. Lay litigants may also be assisted by the move to plain English. 

Other practice directions considered by the CPRC to be unnecessary will be dispensed with on 1 October 2022, namely PD2D (References in the Rules to action done by the court), PD4 (Forms), and PD15 (Defence and Reply). Other practice directions (like PD16) will be retained in revised format, or subject to consequential amendments, in particular: PD3D (Mesothelioma Claims), PD8A (Alternative Procedure for Claims), PD52B (County Court and High Court Appeals, and PD52C (Appeals to the Court of Appeal). See here for more details.   

Conclusion

Each of these three upcoming sets of amendments are evidence of the CPRC's commitment to taking a modern and flexible approach to dispute resolution under the CPR. The upcoming changes are an attempt to comply with the CPRC's statutory duty to make rules which are both simple and simply expressed, and to address certain jurisdictional and disclosure-related challenges that may arise in complex disputes. In general, the adaptability of the English courts and the CPR is undoubtedly a contributing factor to the courts' reputation as a pre-eminent forum for resolving disputes for international parties.

[1] McParland & Partners Ltd [2020] EWHC 298 (Ch); Lonestar Communications Corp LLC v Kaye [2020] EWHC 1890 (Comm); Revenue and Customs v IGE USA Investments Ltd [2020] EWHC 1716.; Curtiss v Zurich Insurance Plc (T/A Zurich Building Guarantee and Zurich Municipal) and Another [2021] EWHC 1999 (TCC).